Ex Parte Rackham

Patent Trial and Appeal BoardNov 9, 2012

10096310 (P.T.A.B. Nov. 9, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GUY JONATHAN JAMES RACKHAM ____________ Appeal 2010-000965 Application 10/096,310 Technology Center 2600 ____________ Before CARL W. WHITEHEAD, JR., ERIC S. FRAHM and ANDREW J. DILLON, Administrative Patent Judges. WHITEHEAD, JR., Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-000965 Application 10/096,310 2 STATEMENT OF THE CASE Appellant is appealing claims 1-18. Appeal Brief 5. We have jurisdiction under 35 U.S.C. § 6(b) (2012). We affirm. Introduction The invention is used for performances or presentations, “[m]ore particularly, the invention relates to apparatus and methods for enhancing a performance or presentation with electronic and/or mechanical media.” Specification 1. Illustrative Claim Claim 1: A tangible computer readable medium having stored thereon: a script of a performance comprising one or more threads of performance activity, at least one thread comprising computer implementable instructions to control one or more electronic and/or mechanical media devices involved in the performance, wherein the script is a narrative of the performance including a schedule of and interdependencies between events and activities in the performance; whereby the script can be stepped through by a control program that allows adaptation of the performance in response to an action not normal to the schedule of events in the performance, wherein the adaptation may include manipulating the speed, sequence or other timing aspects of the performance. Appeal 2010-000965 Application 10/096,310 3 Rejection on Appeal1 Claims 1-18 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Fischer (U.S. Patent Number 5,790,124; issued August 4, 1998) and Bailey, “Nsync – A Toolkit for Building Interactive Multimedia Presentations” ACM Multimedia ’98, 257-266, September 1998. Answer 3- 8. Issue on Appeal Do Fischer or Bailey, either alone or in combination, disclose “a script of a … performance activity, at least one thread comprising computer implementable instructions . . . between events and activities in the performance” as recited in claim 1 and similarly recited in claim 12? ANALYSIS Appellant argues that “Bailey and Fischer teach away from the proposed combination” thus rendering claims 1-18 nonobvious. Appeal Brief 9. Appellant contends that Fischer references “a script” twice in the Background section and clearly indicates that the object of Fischer’s invention is to provide a system whereas the performer “is not limited to a choreographed script.” Id. at 10. Therefore, modifying Fischer with Bailey’s choreographed scripts would be detrimental to Fischer because Fischer explicitly teaches away from such a combination. Id. 1 Both the 35 U.S.C. §112, first paragraph rejection as well as the 35 U.S.C. § 101 rejection have been withdrawn by the Examiner. Answer 2. Appeal 2010-000965 Application 10/096,310 4 Fischer discloses that it is “desired to have a system which allows the performer to interact with the screen in manner that appears seamless to an audience” and “to allow the performer to control the interaction so that he is not limited to a choreographed script.” Fischer, column 1, lines 41-46. It is evident that Fischer’s “script” is limited to the performer’s performance in front of the audience. However, the claimed “script” of the instant invention does not have such a limitation as Fischer’s. The Appellant defines “script” as “a technical narrative of the events and activities that make[s] up the performance, including interdependencies between different events and activities.” Specification 4. Therefore, it is clear that the Appellant’s narrow interpretation of Fischer’s script is not commensurate with the scope of the claims in light of Appellant’s Specification. Appellant discloses that “[t]he script may be organized as several simultaneous threads wherein each thread is one particular sequence of events. Exemplary threads are performer dialogues, musical scores, sound effects, lighting changes, platform motions, video excerpts and combinations of the foregoing.” Id. While it is apparent that the claimed “script” can include “performer dialogues,” it is clear that the Appellant’s “script” is not limited to dialogues only and, as such, incorporates other elements of a performance. Further, Appellant does not indicate that the performer’s dialogues are choreographed; they could as well be improvised. Appeal 2010-000965 Application 10/096,310 5 Fischer discloses, for example, wherein “trigger positions or virtual buttons may be defined in three-dimensions on the stage so that when a performer enters a particular position on the stage, an event is triggered” and “real-time generated graphical images of puppets that are controlled by one or more puppeteers and interact with the performer” are provided as well as a MIDI (musical instrument digital interface) to interface with the musical instruments; a media system for producing visual images; a graphics system for providing graphics images; and a video system for producing video images that includes prerecorded video storage media. Fischer column 1, line 62 to column 2, line 34. Fischer’s invention incorporates the use of “scripts” as defined by Appellant because the organization of the music, video, etc. as noted above are “simultaneous threads” (Specification 4) or “one or more threads of performance activity” (Claim 1, emphasis added) that require organization for each performance and are therefore scripted in order for the performance to be conducted. Therefore, we do not find Appellant’s arguments to be persuasive because, while the incorporation of Bailey within the rejection appears to be redundant, Appellant has not convinced us that the Examiner has erred for the reasons set forth above. Consequently, we sustain the Examiner’s rejection of claims 1 and 12, as well as dependent claims 2-11 and 13-18, not separately argued. We note that the Examiner issued a new grounds of rejection in the Final Office Action mailed September 25, 2008; however, the Examiner did Appeal 2010-000965 Application 10/096,310 6 not present arguments pertaining to the dependent claims in the Answer; therefore, Appellant’s arguments in the Reply Brief directed to the dependent claims are not considered to be timely and are not considered. See Optivus Tech., Inc. v. Ion Beam Appl’ns. S.A., 469 F.3d 978, 989 (Fed. Cir 2006) (“[A]n issue not raised by an appellant in its opening brief . . . is waived.”) (citations and quotation marks omitted). DECISION The rejection of claims 1-18 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37 C.F.R. § 41.50(f). AFFIRMED peb