Frances ALTIERI

Patent Trials and Appeals BoardAug 12, 2021

2020003590 (P.T.A.B. Aug. 12, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/348,438 11/10/2016 Frances BARBARO ALTIERI 71457.0025 6893 13155 7590 08/12/2021 Edwards Neils LLC 380 Maple Street #8126 Gallatin, TN 37066 EXAMINER MESSMORE, JONATHAN R ART UNIT PAPER NUMBER 2482 NOTIFICATION DATE DELIVERY MODE 08/12/2021 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): ipgeneral@edwardsneils.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte FRANCES BARBARO ALTIERI Appeal 2020-003590 Application 15/348,438 Technology Center 2400 Before ERIC B. CHEN, MICHAEL J. STRAUSS, and NABEEL U. KHAN, Administrative Patent Judges. KHAN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 29–34. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Ms. Frances Barbaro. Appeal Br. 2. Appeal 2020-003590 Application 15/348,438 2 CLAIMED SUBJECT MATTER Appellant’s Specification explains although virtual environments are becoming more common, they have not provided users with a real world experience. Spec. 1:16–22. Thus, Appellant’s claimed subject matter “relates to an interactive software application platform which can be used in entertainment, business, publishing, and other applications to provide a virtual and real world experience to the user by integrating audio, video, two dimensional (2D), and three dimensional (3D) technology, and other applications or services.” Spec. 1:11–14. The Specification describes “a method of integrating real-time information into a virtual thematic environment . . . [that] includes downloading real-time information from a source external to the virtual thematic environment; inserting real-time information into the virtual thematic environment; and providing access to the real-time information to a user within the virtual thematic environment.” Spec. 2:8–12. Claim 29, reproduced below, illustrates the claimed subject matter: 29. A method of providing a virtual thematic environment, comprising: retrieving information for utilization with a three- dimensional virtual thematic environment, from external sources over the internet, said information including a real-world geographic location of a user within said three-dimensional virtual thematic environment; and integrating said information into said three-dimensional virtual thematic environment, such that said three-dimensional virtual thematic environment includes said real-world geographic location displayed to the user as said three- dimensional virtual thematic environment on a display; automatically updating, at predetermined intervals, said three-dimensional virtual thematic environment, and said Appeal 2020-003590 Application 15/348,438 3 information on said real-world geographic location of said user in said three-dimensional virtual thematic environment; wherein the user interacts with said three-dimensional virtual thematic environment as a simulated real-world interaction, depending on a movement of said user at said real- world geographical location, such that said three-dimensional virtual thematic environment updates to a representation of said real-world geographic location as said user moves through said three-dimensional virtual thematic environment. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Guyot US 2006/0046699 Al Mar. 2, 2006 Genc US 7,190,331 B2 Mar. 13, 2007 Redlich US 2002/0154174 Al Oct. 24, 2002 Johnson US 2002/0082077 Al June 27, 2002 REJECTIONS 1. Claims 29–31 stand rejected under 35 U.S.C. § 103as unpatentable over Guyot and Genc. Final Act. 2–7. 2. Claims 32 and 33 stands rejected under 35 U.S.C. § 103 as unpatentable over Guyot, Genc, and Redlich. Final Act. 7–9. 3. Claim 34 stands rejected under 35 U.S.C. § 103 as unpatentable over Guyot, Genc, and Johnson. Final Act. 9–10. OPINION The Examiner finds Guyot teaches most of the limitations of claim 29 including (1) “providing a virtual thematic environment,” (2) “retrieving information . . . including a real-world geographic location” (3) “integrating Appeal 2020-003590 Application 15/348,438 4 said information into said three-dimensional virtual thematic environment,” (4) “automatically updating . . . said three-dimensional virtual thematic environment,” and (5) wherein the user interacts with said three-dimensional virtual thematic environment as a simulated real-world interaction, depending on a movement of said user at said real-world geographical location, such that said three-dimensional virtual thematic environment updates to a representation of said real- world geographic location as said user moves through said three- dimensional virtual thematic environment. Final Act. 2–3 (citing Guyot ¶¶ 4, 13). The Examiner, however, acknowledges that “Guyot may not explicitly disclose integrating said information into said three-dimensional virtual thematic environment, such that said three-dimensional virtual thematic environment includes said real-world geographic location displayed to the user as said three-dimensional virtual thematic environment on a display.” For this limitation the Examiner relies on Genc. Final Act. 3–6 (citing Genc 1:25–48, 2:38–62, cl. 9). Appellant argues2 that Genc does not teach a 3-D virtual thematic environment. Appeal Br. 9. According to Appellant, the user in Genc is presented with an image of a real world augmented with virtual objects. Appeal Br. 9. Since the geographic location is real-world in Genc, there is no integration of real-world geographic location and no need to update it into the 3-D virtual thematic environment or to simulate real-world interactions depending on the movement of the user because the user is 2 Appellants present additional arguments in their Appeal Brief. However, because the identified argument is dispositive of the appeal, we do not reach the merits of these additional arguments. Appeal 2020-003590 Application 15/348,438 5 “actually seeing a real-world environment with which they interact.” Appeal Br. 9. In contrast to Genc, Appellant argues, their invention is an entirely virtual thematic environment, not a blended real and virtual environment. Appeal Br. 10 (citing Genc 1:25–48). We are persuaded by Appellant’s argument. Claim 29 recites “said three-dimensional virtual thematic environment includes said real-world geographic location displayed to the user as said three-dimensional virtual thematic environment on a display.” We interpret this claim language to require, at least, that the real-world geographic location be displayed as a virtual thematic environment. Genc displays a real scene augmented by superimposing computer-generated graphics on the view. Genc 1:25–28. This creates a composite augmented reality image with both real-world objects and virtual objects displayed to the user. Genc 2:38–42. Based on this description, we agree with Appellant that Genc’s real-world geographic location, i.e. the view of the real scene, is not virtual but real. The Examiner does not provide sufficient explanation for how Genc’s disclosure in this regard would teach the real-world geographic location to be displayed as a virtual environment or how its disclosure could be combined with Guyot so that the combination would teach the aforementioned disputed limitation. Without further evidence or explanation we are constrained on this record to not sustain the Examiner’s rejection of claim 29. Claims 30–34 depend from claim 29 and thus we do not sustain the Examiner’s rejection of these claims as well. We note, in an ex parte appeal, the Board “is basically a board of review—we review . . . rejections made by patent examiners.” Ex parte Gambogi, 62 USPQ2d 1209, 1211 (BPAI 2001). “The review authorized by Appeal 2020-003590 Application 15/348,438 6 35 U.S.C. Section 134 is not a process whereby the examiner . . . invite[s] the [B]oard to examine the application and resolve patentability in the first instance.” Ex parte Braeken, 54 USPQ2d 1110, 1112 (BPAI 1999). Because we are a board of review and not a place of initial examination, we do not engage in a de novo examination supplementing the Examiner’s findings in this particular case. Although the Board is authorized to reject claims under new grounds pursuant to 37 C.F.R. § 41.50(b), no inference should be drawn when the Board elects not to do so. See Manual of Patent Examining Procedure (MPEP) § 1213.02 (9th Ed., Mar. 2014). Furthermore, our decision is limited to the findings before us for review. The Board does not “allow” claims of an application. Rather, the Board’s primary role is to review adverse decisions of examiners including the findings and conclusions made by the Examiner. See 37 C.F.R. § 41.50(a)(1) (“The Board, in its decision, may affirm or reverse the decision of the examiner in whole or in part on the grounds and on the claims specified by the examiner.”). Therefore, despite this Decision reversing the Examiner’s rejection, no inference should be made as to whether other prior art may exist rendering the claims unpatentable. CONCLUSION The Examiner’s rejections are reversed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 29–31 103(a) Guyot, Genc 29–31 Appeal 2020-003590 Application 15/348,438 7 32, 33 103(a) Guyot, Genc, Redlich 32, 33 34 103(a) Guyot, Genc, Johnson 34 Overall Outcome 29–34 REVERSED