UNIVERSAL CITY STUDIOS LLCDownload PDFPatent Trials and Appeals BoardMay 27, 20212020006342 (P.T.A.B. May. 27, 2021) Copy Citation 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. 14/829,227 08/18/2015 Justin Michael Schwartz 311079-2 (UNIV:0096) 3007 12421 7590 05/27/2021 Universal City Studios LLC c/o Fletcher Yoder, PC P.O. Box 692289 Houston, TX 77269-2289 EXAMINER WALSH, EMMETT K ART UNIT PAPER NUMBER 3628 NOTIFICATION DATE DELIVERY MODE 05/27/2021 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): DOCKET@FYIPLAW.COM Samantha.Deblaw@fyiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JUSTIN MICHAEL SCHWARTZ Appeal 2020-006342 Application 14/829,227 Technology Center 3600 Before ERIC S. FRAHM, LARRY J. HUME, and JULIET MITCHELL DIRBA, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision rejecting claims 1, 2, 4–11, 13, 16–19, 21, 24, 26, 27, 33, and 34, which are all claims pending in the application. Appellant has canceled claims 3, 12, 14, 15, 20, 22, 23, 25, and 28–32. See generally Appeal Br. 17 et seq. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Universal City Studios LLC. Appeal Br. 2. Appeal 2020-006342 Application 14/829,227 2 STATEMENT OF THE CASE2 The claims are directed to a virtual queuing system and method. See Spec. (Title). Appellant’s disclosed embodiments and claimed invention “relate[] generally to the field of amusement parks. More specifically, embodiments of the present disclosure relate to methods and equipment utilized to manage amusement park experiences, including queuing for attractions.” Spec. ¶ 2. Exemplary Claims Claims 1 and 18, reproduced below, are representative of the subject matter on Appeal (formatting added, and emphases added to contested prior- art limitations): 1. A virtual queue system, comprising: at least one queue entry post associated with an attraction, wherein the at least one queue entry post comprises a transceiver configured to receive a wireless signal from a guest device, wherein the guest device is configured to transmit the wireless signal to the queue entry post when the guest device is in contact with or positioned near the queue entry post, and wherein the wireless signal comprises identification information for a guest associated with the guest device; a virtual queue control system in communication with the at least one queue entry post and the guest device, wherein the virtual queue control system is configured to: 2 Our decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed June 22, 2020); Reply Brief (“Reply Br.,” filed Sept. 9, 2020); Examiner’s Answer (“Ans.,” mailed July 9, 2020); Final Office Action (“Final Act.,” mailed Jan. 21, 2020); and the original Specification (“Spec.,” filed Aug. 18, 2015) (claiming benefit of US 62/039,609, filed Aug. 20, 2014). Appeal 2020-006342 Application 14/829,227 3 receive a communication comprising the identification information from the at least one queue entry post; send a confirmation signal to at least the guest device in response to adding the guest to a virtual queue, wherein the signal causes an indicator of the guest device to activate in response to receiving the confirmation signal from the virtual queue control system; determine a location of the guest device in a first zone or a second zone within the theme park; and provide a first message having a first return time or a second message having a second return time to the guest device instructing the guest to return to the attraction based at least in part on the determined location of the guest device, wherein the first return time is provided to guest devices in the first zone and the second return time is provided to guest devices in the second zone, wherein the second zone is farther away from the attraction relative to the first zone and wherein the second return time comprises a shorter time window than the first return time. 18. A virtual queue system, comprising: a plurality of queue entry posts associated with respective attractions designated as a first type of attraction and not a second type of attraction within a theme park, wherein each queue entry post of the plurality of queue entry posts comprises a transceiver configured to receive a wireless signal from a guest device, wherein the guest device is configured to transmit the wireless signal to a queue entry post of the plurality of queue entry posts when the guest device is in contact with or positioned near the queue entry post of the plurality of queue entry posts, and wherein the wireless signal comprises identification information for a guest associated with the guest device; Appeal 2020-006342 Application 14/829,227 4 a virtual queue control system configured to maintain respective virtual queues for the respective attractions designated as the first type of attraction and in communication with the plurality of queue entry posts, wherein the virtual queue control system is configured to receive communications from the plurality of queue entry posts, add guests to the respective virtual queues, send a confirmation signal to the guest device based on the received communications, and determine a location of the guest device in a first zone or a second zone within the theme park, and provide a first message having a first return time or a second message having a second return time to the guest device instructing the guest to return to the attraction designated as the first type of attraction based at least in part on the determined location of the guest device, wherein the first return time is provided to guest devices in the first zone and the second return time is provided to guest devices in the second zone, wherein the second zone is farther away from the attraction relative to the first zone and wherein the second return time comprises a shorter time window than the first return time; and wherein the guest device comprises an indicator configured to activate in response to receiving the confirmation signal from the virtual queue control system. Appeal Br. 17, 19 and 20 (Claims App.). Appeal 2020-006342 Application 14/829,227 5 REFERENCES The prior art relied upon by the Examiner as evidence is: Name Reference Date Mahoney et al. (“Mahoney”) US 5,502,806 Mar. 26, 1996 Paxton et al. (“Paxton”) US 2002/0007292 A1 Jan. 17, 2002 Grimm et al. (“Grimm”) US 2002/0116235 A1 Aug. 22, 2002 Giraldin et al. (“Giraldin”) US 2004/0100390 A1 May 27, 2004 Ackley et al. (“Ackley”) US 2007/0203763 A1 Aug. 30, 2007 Schwartz et al. (“Schwartz”) US 2013/0332509 A1 Dec. 12, 2013 REJECTIONS R1. Claims 1, 2, 4, 6–11, 13, 16, 17, 24, 26, 27, 33, and 34 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Paxton, Schwartz, and Giraldin. Final Act. 4. R2. Claim 5 stands rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Paxton, Schwartz, Giraldin, and Mahoney. Final Act. 21. R3. Claims 18 and 19 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Paxton, Grimm, Schwartz, and Giraldin. Final Act. 22. R4. Claim 21 stands rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Paxton, Grimm, Schwartz, Giraldin, and Ackley. Final Act. 28. Appeal 2020-006342 Application 14/829,227 6 CLAIM GROUPING Based on Appellant’s arguments (Appeal Br. 9–15) and our discretion under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of obviousness Rejection R1 of claims 1, 2, 4, 6–11, 13, 16, 17, 24, 26, 27, 33, and 34 on the basis of representative claim 1; and we decide the appeal of obviousness Rejection R3 of claims 18 and 19 on the basis of representative claim 18.3 Remaining claims 5 and 21 in Rejections R2 and R4, not argued separately, stand or fall with the respective independent claim from which they depend.4 ISSUES AND ANALYSIS In reaching this decision, we consider all evidence presented and all arguments actually made by Appellant. To the extent Appellant has not 3 Although it might appear that Appellant separately argues each of independent claims 1, 24, and 33 (Appeal Br. 11–12), Appellant merely recites limitations in claims 24 and 33, and asserts the cited prior art does not teach or suggest such limitations. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”) 4 “Notwithstanding any other provision of this paragraph, the failure of appellant to separately argue claims which appellant has grouped together shall constitute a waiver of any argument that the Board must consider the patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(1)(iv). In addition, when Appellant does not separately argue the patentability of dependent claims, the claims stand or fall with the claims from which they depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986). Appeal 2020-006342 Application 14/829,227 7 advanced separate, substantive arguments for particular claims, or other issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv). We disagree with Appellant’s arguments with respect to claims 1, 2, 4–11, 13, 16–19, 21, 24, 26, 27, 33, and 34 and, unless otherwise noted, we incorporate by reference herein and adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons and rebuttals set forth in the Examiner’s Answer in response to Appellant’s arguments. We highlight and address specific findings and arguments regarding claims 1 and 18 for emphases as follows. 1. § 103 Rejection R1: Claims 1, 2, 4, 6–11, 13, 16, 17, 24, 26, 27, 33, 34 Issue 1 Appellant argues (Appeal Br. 10–13; Reply Br. 1–2) the Examiner’s rejection of claim 1 under 35 U.S.C. § 103 as being obvious over the combination of Paxton, Schwartz, and Giraldin is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art combination teaches or suggests “[a] virtual queue system” that includes “a virtual queue control system . . . configured to,” inter alia, “provide a first message having a first return time or a second message having a second return time to the guest device instructing the guest to return to the attraction . . . wherein the second return time comprises a shorter time window than the first return time,” as recited in claim 1? Principles of Law “[O]ne cannot show non-obviousness by attacking references individually where . . . the rejections are based on combinations of Appeal 2020-006342 Application 14/829,227 8 references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981). “The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference . . . . Rather, the test is what the combined teachings of those references would have suggested to those of ordinary skill in the art.” Id. at 425. The test for obviousness is what the combined teachings of the prior art would have suggested to the hypothetical person of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). In KSR, the Court stated “[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill . . . . [A] court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions. Id. at 417. Further, the relevant inquiry is whether the Examiner has set forth “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR, 550 U.S. at 418). Appeal 2020-006342 Application 14/829,227 9 Analysis The Examiner finds “Paxton teaches that the system may send to a user, based on the fact that her position in the queue has sufficiently decremented, a message indicating that she must return to the attraction,” (Final Act. 8 citing Paxton ¶ 99), and further teaches “the location of the user within the park may be tracked by a positioning system.” Id. citing Paxton ¶¶ 29, 59. Further, “[t]o the extent that Paxton in view of Schwartz does not explicitly teach that a longer notification time is given for a first zone which is closer, and a shorter notification window is given for a second zone which is farther away from the attraction, Giraldin teaches this element. Giraldin teaches a number of determined distances and walking times between various points of a theme park.” Id. citing Giraldin ¶¶ 34–35, Fig. 7. Appellant contends “Paxton appears to disclose adjusting navigation recommendations based on guest location instead of adjusting or setting time windows to return to an attraction based on guest location,” and sets a “predetermined time” to provide a warning to the guest to trigger suggestions of alternate routes. Appeal Br. 12. Appellant argues “there is no disclosure in Paxton that the guest’s location is used to alter or move the “predetermined time” for sending the warning.” Id. With respect to the Examiner’s reliance upon Giraldin, Appellant asserts: Further combination with Giraldin does not correct the deficiencies of Paxton and Schwartz. Insofar as Giraldin discloses location considerations in returning to an attraction, Giraldin discloses line management using a menu viewable by Appeal 2020-006342 Application 14/829,227 10 guests at a particular location that provides a display with estimated walking times between attractions based on their physical distance. Giraldin, FIG. 7. Giraldin does not disclose automatically adjusting return time windows in a personalized manner based on location of the guest who is in a virtual queue. Further, Giraldin’s user interface is oriented to a guest-directed decision-making process. This is in contrast to the claims at issue, which do not require a guest to determine when to start a return journey. Giraldin also fails to disclose the recites features of providing a longer time window return reminder for closer guests and a shorter time window return reminder for farther guests to encourage guests to generally return at a same time regardless of their location. Appeal Br. 13. The Examiner responds, “all that is required [by the claim] is that the first zone is farther yet has a shorter return time window and the second zone is closer but has a longer return time window. Nowhere in the claims is it required that these two windows result in an arrival at approximately the same time,” as argued by Appellant. Ans. 3. The Examiner further explains: Thus, first we have Paxton which acknowledges that travel times may be shorter for longer paths, and second we have Schwartz which teaches sending notifications to users in various locations throughout a park (indicated in paragraph [0016] of Schwartz to be within a range of space, a zone) based on their location and the associated travel time. Given these two, one of ordinary skill in the art would understand that a first notification may be sent to a user in a first zone which is closer to the attraction with a longer time window and a notification may be sent to a user in a second zone which is farther, with a shorter time window, since routine optimization would result in such. Given the fact that a notification is sent based on the location and its associated travel time, and given that notifications are sent to multiple users in multiple ranges of Appeal 2020-006342 Application 14/829,227 11 space in the park, there are only two options when looking at any two ranges of space. Either a) the range which is farther requires a longer time window, or b) the range that is farther requires a shorter time window. Given these options, Schwartz’ teaching that a notification is sent based on the time it takes to travel a given distance, and the fact that Paxton indicates a farther distance may indicate a shorter travel time, one of ordinary skill in the art, through routine optimization, would arrive at the present invention since they need only try both options in order to inure themselves of the benefit of proper notification windows. As such, Paxton in view of Schwartz alone can be said to teach the present invention. However, for the sake of being thorough, Examiner went so far as to even include Giraldin in order to remove any doubt as to the obviousness of the invention. Ans. 4–5. The Examiner reiterates “Appellant argues various alleged shortcomings of Giraldin, but they miss the point of the addition of the Giraldin references. Appellant argues that Giraldin does not disclose automatically adjusting return time windows in a personalized manner based on the location of the guest who is in a virtual queue, but the combination of Paxton, Schwartz, and Giraldin does so. Giraldin here is cited by the Examiner to hammer home the teachings of Paxton in view of Schwartz.” Ans. 5. We agree with the Examiner’s finding that the combination of Paxton, Schwartz, and Giraldin teaches or suggests the disputed limitation of claim 1. We agree with the Examiner because Appellant is arguing the references separately while the rejection relies upon the reference combination for what the combination would suggest to a person of ordinary skill in the art. See Keller, 642 F.2d at 425. Appeal 2020-006342 Application 14/829,227 12 Based upon the findings above, on this record, we are not persuaded of error in the Examiner’s reliance on the cited prior art combination to teach or suggest the disputed limitation of claim 1, nor do we find error in the Examiner’s resulting legal conclusion of obviousness. Therefore, we sustain the Examiner’s obviousness rejection of independent claim 1, and grouped claims 2, 4, 6–11, 13, 16, 17, 24, 26, 27, 33, and 34 which fall therewith. See Claim Grouping, supra. 2. § 103 Rejection R3 of Claims 18 and 19 Issue 2 Appellant argues (Appeal Br. 14) the Examiner’s rejection of claim 18 under 35 U.S.C. § 103(a) as being obvious over the combination of Paxton, Grimm, Schwartz, and Giraldin is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior teaches or suggests the limitation “wherein the second return time comprises a shorter time window than the first return time,” as recited in claim 18? Analysis Although claim 18 recites different scope than claim 1, and the Examiner rejects claim 18 under § 103(a) over a different reference combination than for claim 1 that also includes Grimm, Appellant contends: For the reasons discussed above with respect to claims 1 24, and 33 Paxton, Schwartz, and Giraldin, taken alone or in hypothetical combination, fail to teach or fairly suggest “determine a location of the guest device in a first zone or a second zone within the theme park, and provide a first message having a first return time or a second message having a second return time to the guest device instructing the guest to return to Appeal 2020-006342 Application 14/829,227 13 the attraction designated as the first type of attraction based at least in part on the determined location of the guest device, wherein the first return time is provided to guest devices in the first zone and the second return time is provided to guest devices in the second zone, wherein the second zone is farther away from the attraction relative to the first zone and wherein the second return time comprises a shorter time window than the first return time,” as generally recited by independent claim 18. Grimm does not remedy the deficiencies of these references. Appeal Br. 14. The Examiner responds: Applicant argues that the Examiner’s rejection of these claims is deficient for the reasons alleged by Applicant regarding claims 1, 24, and 33. No other argument is given for any other elements. Since Examiner notes that the limitations of claims 1, 24, and 33 are taught by Paxton in view of Schwartz further in view of Grimm, Examiner respectfully points to the arguments above in support of an assertion that these claims are also properly rejected under 35 U.S.C. 103. Ans. 6. Therefore, for the same reasons as discussed above with respect to Claim 1, Issue 1, we agree with the Examiner’s finding that the combination of Paxton, Schwartz, and Giraldin teaches or suggests the disputed limitations of claim 18. Based upon the findings above, on this record, we are not persuaded of error in the Examiner’s reliance on the cited prior art combination to teach or suggest the disputed limitation of claim 18, nor do we find error in the Examiner’s resulting legal conclusion of obviousness. Therefore, we sustain the Examiner’s obviousness rejection of independent claim 18, and grouped claim 19, which falls therewith. See Claim Grouping, supra. Appeal 2020-006342 Application 14/829,227 14 4. Rejections R2 and R4 of Claims 5 and 21 In view of the lack of any substantive or separate arguments directed to obviousness Rejections R2 and R4 of claims 5 and 21 under § 103 (see Appeal Br. 13, 14), we sustain the Examiner’s rejection of these claims. Arguments not made are waived. REPLY BRIEF To the extent Appellant may advance new arguments in the Reply Brief (Reply Br. 2–3) not in response to a shift in the Examiner’s position in the Answer, arguments raised in a Reply Brief that were not raised in the Appeal Brief or are not responsive to arguments raised in the Examiner’s Answer will not be considered except for good cause (see 37 C.F.R. § 41.41(b)(2)), which Appellant has not shown. For example, for the first time in the Reply Brief (3), and without good cause shown, Appellant offers dependent claim 34 as representing allowable subject matter. However, we determine this argument is untimely. CONCLUSIONS We AFFIRM the Examiner’s rejections. More specifically Appellant has not persuasively argued that the Examiner erred with respect to obviousness Rejections R1 through R4 of claims 1, 2, 4–11, 13, 16–19, 21, 24, 26, 27, 33, and 34 under 35 U.S.C. § 103 over the cited prior art combinations of record, and we sustain the rejections. Appeal 2020-006342 Application 14/829,227 15 DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4, 6– 11, 13, 16, 17, 24, 26, 27, 33, 34 103 Paxton, Schwartz, Giraldin 1, 2, 4, 6– 11, 13, 16, 17, 24, 26, 27, 33, 34 5 103 Paxton, Schwartz, Giraldin, Mahoney 5 18, 19 103 Paxton, Grim, Schwartz, Giraldin 18, 19 21 103 Paxton, Grim, Schwartz, Giraldin, Ackley 21 Overall Outcome 1, 2, 4–11, 13, 16–19, 21, 24, 26, 27, 33, 34 FINALITY AND RESPONSE 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 Copy with citationCopy as parenthetical citation