Detailed Action
Response to Amendment
This action is responsive to Applicant’s communication filed on 11/04/2024.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION. The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 5-8 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 5 recites the limitation "numeric data.” There is insufficient antecedent basis for this limitation in the claim.
The remaining claims are rejected for incorporating this error from claim 5 through dependency.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. If this application names joint inventors, Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Khan et al (US 8,678,925 B1) in view of Tsai (US 2014/0256448 A1).
Regarding claim 1, Khan discloses a method for selecting a lot using a shuffling process that relies on measurements of movement, biometrics, or environmental data (Abstract: using accelerometer data from a user shaking a controller and determining a final location for the at least one die based on the accelerometer data) taken from a smartphone, tablet, or similar device (col. 7 line 61: invention is embodied in a cellular telephone … personal digital assistant or other portable computing device) with sensors capable of making such measurements measuring attitude and pitch, acceleration, rotation, heading (col. 7 line 27: gyroscope and accelerometer), and electromagnetic field (col. 7 line 42: wireless network). Tsai suggests—where Khan does not disclose—selecting a tarot/oracle card or I Ching lot (¶ [0003] and Fig. 3A). It would have been obvious to a person of ordinary skill in the art prior to the effective filing date of the invention to combine the disclosures of Khan and Tsai in order to implement a fortune telling game for fun and entertainment.
Regarding claim 3, Khan discloses wherein it operates within interactive electronic media, otherwise known as an app on a smartphone, tablet, or similar device (col. 7 line 61: invention is embodied in a cellular telephone … personal digital assistant or other portable computing device) that provides the user with reading based on energy rather than a random number generator (col. 4 line 15: user’s own inadvertent movements may be used to calculate the rolls). Tsai suggests—where Khan does not disclose—selecting a tarot/oracle card or I Ching lot (¶ [0003] and Fig. 3A). It would have been obvious to a person of ordinary skill in the art prior to the effective filing date of the invention to combine the disclosures of Khan and Tsai in order to implement a fortune telling game for fun and entertainment.
Regarding claim 4, Khan discloses wherein it utilizes a selection interface allowing for user input to denote a desire to make a selection at a specific time (col. 5 line 37: die roll trigger may be a particular shaking motion, selection of a button or other user interface mechanism).
Allowable Subject Matter
Claims 5-8 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant's arguments filed on 11/04/2024 have been fully considered but they are not persuasive.
Applicant argues:
Khan utilizes accelerometer data in direct correlation to the motion of a die or dice. Applicant’s method for card or lot selection does not require the user to shake or move their smartphone or device in order to produce a reading based on motion or environmental data because Applicant’s method is predicated on sensor data being read as a large numeric value evaluating micro-changes in environmental data more akin to esoteric energy reading.
Examiner respectfully disagrees. Khan discloses that the rolls may be calculated by inadvertent user motions (See claim 3, supra). Therefore, Examiner respectfully submits that Khan discloses this feature.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVE ROWLAND whose telephone number is (469) 295-9129. The examiner can normally be reached on M-Th 10-8. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor Dmitry Suhol can be reached at (571)-272-4430. The fax number for the organization where this application or proceeding is assigned is (571) 273-8300.
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/STEVE ROWLAND/Primary Examiner, Art Unit 3715