Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
Applicant has amended Claims 53 and 56, thus the objections to the claims are withdrawn.
Applicant argues and Examiner agrees that Thomas adjusts a difficulty rating and not an award amount. For clarity, Applicant’s argument refers to Basallo (Remarks 15 filed 11/14/2025) but in fact, the reference is Thomas. Thus, the rejection of the claims based on Thomas are withdrawn. Applicant is directed to the teachings of adjusting award amounts as to U.S. Pat. Pub. No. 2011/0263312 to DeWaal.
Claim Rejections - 35 USC § 103
4. In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
5. 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.
6. 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.
7. Claims 53-55, 57, 62, 64-65 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Pat. Pub. No. 2011/0218035 to Thomas in view of U.S. Pat. Pub. No. 2014/0087808 to Basallo.
In Reference to Claim 53
DeWaal discloses an electronic gaming machine (Fig. 2 10) wherein a player is able to play a game of chance based upon input received and receive an award ([0007] on flipper buttons 42, 44 [0025]), the game of chance includes a skill-based activity (chance-based games 50, 52, 54 (Fig. 3B) includes a skill-based pinball game [0026]) wherein the player is enabled to interact with the pinball game using the flipper buttons ([0025, 0026]), and
adjust award amounts based on a skill level of the player, as determined by monitoring play during a given period, and a desired maximum return or maximum return range to player (DeWaal discloses that the chance game will pay out a designated award consistent with a return to player (RTP) [0035] where “a player is rewarded more handsomely if his or her skill level is high enough to activate the hard to reach bonus bumper without first activating any of the individually activatable bumpers on the way” [0071], such that RTPs of greater than one are achieved [0081] where the player is awarded with a higher guaranteed payout amount [0084]).
DeWaal discloses the invention substantially as claimed. However, the reference does not explicitly disclose conventional aspects of gaming machines recited in the claims. One of skill in the art would be aware of the teachings of Basallo.
Basallo teaches of:
a monetary input device configured to determine a monetary value associated with a physical item (“payment device” of EGM includes “coin slot” [0107]);
a user interface (Fig. 11B input device 2030 for example touch screen [0045, 0112]) configured to:
enable a player to select a wager for a game of chance (select from “bet display” 0115);
enable the player to interact with the game of chance using a gaming input device (Fig. 11B using touchscreen to “interact with images” 0112; and
enable the player to initiate a cash out operation (button 2134 {0111]); and
a processor (Fig. 11B processor 2012) programmed to:
add the monetary value to a credit balance for the player ([0035, 0049));
deduct the selected wager from the credit balance ([0110]); and
decrease the credit balance in response to the cash out operation (Fig. 12A 2134 cash out button).
The Supreme Court in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007) identified a number of rationales to support a conclusion of obviousness
(A) Combining prior art elements according to known methods to yield predictable results;
(B) Simple substitution of one known element for another to obtain predictable results;
(C) Use of known technique to improve similar devices (methods, or products) in the same way; and
(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results.
Here, it would require only routine skill in the art to amplify one’s understanding of the operation of the gaming machine of De Waal with the features of Basallo to fully describe aspects of known gaming machines. The Courts have held that combining prior art elements according to known methods to achieve predictable results is indicia of obviousness.
In Reference to Claim 54
Basallo teaches wherein the award amounts associated with at least partially skill-based activity are varied for a player with a high skill level relative to a player with a low skill level (Basallo teaches of high and low skill level and associated award amounts ([0042]) where “versions of the collection game associated with relatively high skill levels (i.e., that require more skill to be successful) have higher average expected payback percentages than the versions of the collection game associated with relatively low skill levels (i.e., that require less skill to be successful [0043]). Basallo provides this so that highly skilled players may benefit from the higher average expected payback percentages associated with higher skill levels ([0043]).
In Reference to Claim 55
Basallo teaches wherein the skill level of the player is determined based on an award history associated with the player ([0079]).
In Reference to Claim 57
Basallo teaches wherein the processor is further programmed to adjust the award amounts based on player dexterity ([0041, 0054, 0056]).
In Reference to Claim 62
Basallo further identifies frequent players based on a player tracking {reward} card ([0143]).
In Reference to Claims 64 and 65
DeWaal discloses adjusting the award amounts and the difficulty of the at least partially skill-based activity to maintain a predetermined percentage and adjust the award and randomness to maintain a predetermined percentage to the player over time where the placement of the bumpers or the size of the bumpers serves to increase the difficulty of the game and maintain the RTP value to greater than one ([0064] or the randomness of the outcome determination [0080]).
8. Claim 63 is rejected under 35 U.S.C. 103 as being unpatentable over DeWaal, Basallo further in view of U.S. Pat. Pub. No. 2011/0218035 to Thomas.
DeWaal discloses the invention substantially as claimed to include the use of mobile devices to enable game play ([0118]). However, the reference does not explicitly disclose determining the identity of the player based on recognizing a mobile device of the player. One of skill in the art would be aware of the teachings of Thomas.
According to the game systems and methods of Thomas, a player’s identity can be ascertained by issuing a mobile wagering game machine ([0090]) including biometric device 706 to authenticate the player ([0092]) for gameplay.
It would require only routine skill in the art to leverage the capabilities of the mobile device of Thomas to modify the mobile gameplay of DeWaal and by nature of employing the biometric features as taught by Thomas, know the identity of the player. The Courts have held that the use of a known technique to improve similar devices (methods, or products) in the same way to be indicia of obviousness.
9. Claims 58-59 and 61 is/are rejected under 35 U.S.C. 103 as being unpatentable over DeWaal, Basallo further in view of U.S. Pat. Pub. No. 2017/0287287 to Froy.
In Reference to Claim 58
DeWaal discloses the invention substantially as claimed to include allowing a player to benefit from a strong playing history where the system awards bus opportunities or additional points to a player [0091]. However, if Applicant disagrees that the play history of DeWaal and award of bonus opportunities is not an adjustment of an award amount then Applicant is directed to the teachings of Froy.
Froy teaches of updating game play in real-time (Titl.) wherein for skill-based games award the player based on additional game play and a comparison of the game play skill level and the player skill level (Abstr.). The game controller 44 computes the skill level of the player and historical game play and computes a player skill level over a time period ([0194]). According to Froy:
At 516, game controller 44 may award the player based on the additional game play data and the comparison of the game skill level and the player skill level. For example, game controller 44 may modify the visual representation of the game play of the skill-based game with a game enhancement element such that the game play of the skill-based game is more difficult for the player. The player may play the more difficult enhanced skill-based game comprising the game enhancement element. Based on the player's success when playing the more difficult enhanced skill-based game, game controller 44 may award the player, such as with more credits than would normally be awarded for successfully playing the skill-based game at an easier skill level. ([0198]).
It would require only routine skill in the art to modify the play history of DeWaal with the historical skill level of the player computed over time and enhanced skill-based elements of Froy to award the player with more credits and achieve the predictable outcome of awarding more credits than would be awards for successfully playing the skill-based game at an easier level. The Courts have held that combining prior art elements according to known methods to yield predictable results to be indicia of obviousness.
In Reference to Claim 59
Froy teaches determining the skill level of the player based on a player performance during at least one previous gaming session where historical game play data is used to determine skill level, the historical data comprising the computer skill leel during a previous game session ([0315]).
In Reference to Claim 61
Froy teaches updating a historical skill level based on a skill level of the player where current and previous skill levels are stored in storage device 20 for previous and current game sessions ([0315]) where the host system 41 stores account and game data and updates such data [(0083]).
9. Claim 60 is rejected under 35 U.S.C. 103 as being unpatentable over DeWaal, Basallo further in view of U.S. Pat. Pub. No. 2017/0333795 to Hardee.
Examiner construes “if the historical skill level of the player has not yet been determined” as a negative limitation having a basis in Applicant’s Specification where “the player skill level may be set to an initial value until the player’s prize history is developed sufficiently to adjust the skill level to a more suitable value” [0174, 0250]) (See MPEP § 2173.05(i)). Examiner applied the negative limitation rule to DeWaal where the reference discloses the negative limitation when the reference is completely silent or explicitly discloses the negative limitation. Here, DeWaal adjusts awards to a predetermined return to player percentage or RTP to less than or greater than one ([0071, 0084]) and is silent as to requiring player history. If Applicant disagrees then Applicant is directed to the teachings of Hardee.
Hardee teaches of skill-based games where “[t]he video game skill level adjustment module 101 may receive the history profile average 110 and may output 111 a skill level adjustment to the second video game (e.g., Game 2 (skill level adjusted)). For example, a user having become relatively efficient in the first game may start at a relatively higher level in the second game.” ([0048]). Interpreted by Examiner to be equivalent to the use of a second skill level used in subsequent game play because there is a sufficient historical skill level can be determined.
It would required only routine skill in the art to modify the use of an RTP of DeWaal until a historical skill level can be determined as taught by Hardee to achieve the predictable result of using historical skill levels once they are available to improve the game play experience for the player who may get discouraged if a game difficulty is too high or bored if the game difficulty is too low. The Courts have held that combining prior art elements according to known methods to yield predictable results to be indicia of obviousness.
Conclusion
10. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure is in the Notice of References Cited.
11. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Paul A. D’Agostino whose telephone number is (571) 270-1992.
12. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
13. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Lewis can be reached on (571) 272-7673. The fax phone number for the organization where this application or proceeding is assigned is 571-270-2992.
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/PAUL A D'AGOSTINO/Primary Examiner, Art Unit 3715