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 .
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 1-8 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). Claim 1 recites, in line 4, that one of the components of the system is “at least one player” which is equivalent to claiming a human being.
Claim Rejections - 35 USC § 112
Claims 1-8 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claims contain subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
The limitation of “algorithms stored in said at least one memory … for calculating the trajectory of the at least one active game element” in lines 12-13 of claim 1 fails to meet the 35 U.S.C. 112(a) requirement for written description support because the specification fails to describe how this functionally-claimed result is achieved. In claims that recite intended uses of computer software (“algorithms… for calculating…”), mere mention in a specification of contemplated fields of use of such algorithms is insufficient to prove the inventor had possession of the invention including them. An algorithm, by definition, must be a clearly specified mathematical process for computation, or a set of rules that it followed will give a prescribed result. The specification must detail such a mathematical process for a claim invoking an algorithm to satisfy a written description requirement. And in the case of claims reciting application of such algorithms by computers, a detailed description of how computers are programmed to use the algorithms must be present.
MPEP 2163.03(v) cites Ariad Pharms., Inc. v. Eli Lilly & Co. as evidence that, “An original claim may lack written description support when (1) the claim defines the invention in functional language specifying a desired result but the disclosure fails to sufficiently identify how the function is performed or the result is achieved” (emphasis added). This section also cites Enzo Biochem, Inc. v. Gen-Probe, Inc., 323 F.3d 956, 968, 63 USPQ2d 1609, 1616 (Fed. Cir. 2002) as evidence that, “The written description requirement is not necessarily met when the claim language appears in ipsis verbis in the specification. Even if a claim is supported by the specification, the language of the specification, to the extent possible, must describe the claimed invention so that one skilled in the art can recognize what is claimed. The appearance of mere indistinct words in a specification or a claim, even an original claim, does not necessarily satisfy that requirement."
The instant specification was reviewed and found lacking of any detailed description of mathematical processes for calculating trajectory or how computers are programmed to use such algorithms that could prove the inventor had possession of the claimed invention including “the application of algorithms … for calculating trajectory” as in claim 1. [0002] of the specification recites “certain pre-programed algorithms to assess the data…” without any detail as to what these algorithms are or how computers are programmed to use them. [0007], [0031], [0033], indicates an intended use of some generic, unspecified types of “heuristic statistical algorithms.” [0031], for example, contemplates “computational processing for an application of heuristic algorithms for object determination and trajectory prediction”.
In consideration of the fact that claim 1 recites a use for an algorithm (for calculating trajectory) but [0002], [0007], [0031], [0033] in the specification merely admit that some unspecified computational processing is intended to be used for some unspecified heuristic algorithm, one having ordinary skill in the art would be unable to conclude that Applicant had possession of the invention including “the application of algorithms … for calculating trajectory”.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 5-9 and 13-14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 10,786,742 B1 to Mullikan.
Re claim 1, Mullikan teaches a game tracking and gamification system
The Summary in 1:48-55 states that the invention comprises “a gamification of a live broadcast” that “enables competition between users who may be viewing at the same stadium or ballpark, viewing the same broadcast screen in a pub, or in remote locations viewing separate broadcast screens.”
2:47-67 contemplates gamification of a “soccer match” wherein the gamification “incorporates 3D time stamped position tracking measurements of the soccer ball on the live field”. Viewers watching the match at the stadium or remotely “can use the invention to play and compete by attempting to block shots on goal” using “a tap on a touch screen … that simulates the area of the goal net.” “Various scoring, gamification scenarios, and tolerance parameters can be employed … to determine whether the blocking attempt was successful.”
for a court-based game,
A broadest reasonable interpretation of the term “court-based game”, absent any technical details in the claim as to what defines a court, is any game played on a quadrangle. Soccer, for example, meets this limitation.
2:47-67 contemplates gamification of a “soccer match” wherein the gamification “incorporates 3D time stamped position tracking measurements of the soccer ball on the live field”. Viewers watching the match at the stadium or remotely “can use the invention to play and compete by attempting to block shots on goal” using “a tap on a touch screen … that simulates the area of the goal net.” “Various scoring, gamification scenarios, and tolerance parameters can be employed … to determine whether the blocking attempt was successful.”
3:7-10 indicates that the gamification of Mullikan can additionally be applied to “a live broadcast tennis match, basketball game … cricket match” or the like.
the system comprising: a plurality of networked video recording cameras statically positioned about the court at different locations for video streaming the play of the court-based game;
5:22-35 describes that “measurements of the live action are made utilizing instruments such as cameras 205 or radars 206, and a tracking system 220 that can be configured to report time-stamped measurements such as a ball track position sequence, and communicate this data to system 200 over the internet”
The summary in 1:53-55, 2:5-15 describes that players who may be attending the live sporting event or who may be remote view a stream of the game, upon which gamified inputs may be made, such as attempting to swing at a baseball pitch (2:10-11) or block a soccer shot on goal (2:52-58).
at least one player, one active game element and one static game element associated with the court-based game;
Figs. 2, 3B illustrate a baseball embodiment wherein a ball is moving and static background imagery such as the field, home plate 303, fans in the stands etc. are visible.
at least one memory storage device for storing positional location of the at least one static game element, the positional location established during setup of the tracking, scoring and gamification system through digital framing by the plurality of video recording cameras;
2:47-50, “the invention applies to a soccer match and incorporates 3D time stamped position tracking measurements of the soccer ball on the live field”
5:25-35 contemplates that system 200 is configured such that “measurements of the live action are made utilizing … cameras 205 or radars 206, and a tracking system 220 that can be configured to report time-stamped measurements such as a ball track position sequence”.
3:39-42 describes that timestamped game action information may be stored in a datastore before it is played or used.
a processing unit having at least one processor for receiving and analyzing said video streams to extract real time location data associated with the at least one active game element of the court-based game using similarly time-stamped digital frames produced by the plurality of video recording cameras
4:20-24, “field data input module 120 can be configured to receive measured data from a live action event such as series of position measurements … typically including a time stamp with each measurement.”
and the application of algorithms stored in said at least one memory storage device for calculating the trajectory of the at least one active game element;
5:25-35, “system 200 can comprise a live action component… where measurements of the live action are made utilizing instruments such as cameras 205 or radars 206, and a tracking system 220 that can be configured to report time-stamped measurements such as a ball track position sequence, and communicate this data to system 200 over the internet”
5:50-67 teaches that, “in another embodiment, tracking system 220 can replaced with a graphics extraction system that measures ball position within the strike zone by recognizing and analyzing the graphics overlay generated by a broadcast network. In this case, the network may use a tracking system such as 220 to position the overlay graphics within the video frame dimensions. The position of the pitch relative to the strike zone can then be extracted from the video and communicated to system 100 by using standard image processing techniques to determine the pixel position of a graphic representing the ball and strike zone. The techniques may exploit consistent characteristics of the graphics overlay such as color, shape, size, etc. and may be configured to exploit consistent timing of the appearance of the graphic relative to the timing of the video frame of the pitch over the plate in order to evaluate the user input timing relative to the optimal timing for a virtual hit. This video extraction technique for obtaining field metrics of the live action may be applied to other broadcast scenarios.”
a base game module stored in said at least one memory storage device including a game outcome determination module for determining through the at least one processor a plurality of outcomes associated with said court-based game using the location data of the at least one active game element and the positional location of the at least one static game element
4:28-42, the invention functions such that time-stamped input data is received from input module 130 and used by application module 110 to determine user input characteristics, such as gesture speed, position, time, what graphical elements were selected, and the like. These inputs are then “used to compare the user input action to a live or simulated live event measurement.”
5:12-35 describes that a communications module 165 wirelessly receives data from devices connected to a field measurement input module. This module can judge, for example, a time at which a ball crossed a feature of the field.
5:23-35 describes that cameras 205 and/or radars 206 can acquire measurements of live sports action including on-field ball position as well as a position of a reference object on the field – “plate position”.
For a soccer scenario, 7:25-30 describes a measurement system determining position and time data for a soccer ball moving along a “soccer ball track” and also determining a position and time at which the soccer ball crossed a goal plane.
wherein said plurality of outcomes are assessed against a set of game rules contained in said base game module to provide game results associated with said set of game rules;
2:47-67 describes a gamified soccer outcome determination scenario wherein “When the user perceives that a shot is approaching the goal on the broadcast match, the user taps the screen in the correct position and the correct time to virtually block the shot. Various scoring, gamification scenarios, and tolerance parameters can be employed analogous to the baseball example. Various measurement comparison threshold parameters are used to determine whether the blocking attempt was successful, these parameters depending on the players handicap based on past performance or the level of difficulty selected by the user.”
5:35-50 describes that “system 100” is “configured with tracking system 220 and display 203” wherein “While viewing the event directly or on display 203, user 201 interacts with the live event through input to processing system 100 … The input metrics are computed and compared to the time correlated field metrics and the result of the comparison is used for scoring”
a gamified game module activated through an interface on a computer device communicatively connected to said system to interface with said base game module to modify said set of game rules, wherein said game results associated with the base game module are modified to game results associated with said gamified game module and said modified set of game rules.
2:40-46 teaches modifying tolerance parameters by which user inputs are judged for scoring, such that less skilled players are allowed more leeway than more skilled users. Here it is described to “use tolerance parameters that enable less skilled users to score a virtual hit when position and timing are to some degree of close to that which would otherwise be required of the most skilled users. These tolerance parameters can be determined through user selection of through a handicapping system based on past performance.” Changing gamified user input tolerances based on different user profiles teaches modifying game rules.
4:44-67 also describes that application module enables “mode selection … including for example selecting the type of game or training exercise to be played”and that “The application module can also be configured to prompt users for inputs and allow selection modes … via displayed user menus.”
Re claim 9, A gamification system
The Summary in 1:48-55 states that the invention comprises “a gamification of a live broadcast” that “enables competition between users who may be viewing at the same stadium or ballpark, viewing the same broadcast screen in a pub, or in remote locations viewing separate broadcast screens.”
for a court-based game,
2:47-67 contemplates gamification of a “soccer match” wherein the gamification “incorporates 3D time stamped position tracking measurements of the soccer ball on the live field”. Viewers watching the match at the stadium or remotely “can use the invention to play and compete by attempting to block shots on goal” using “a tap on a touch screen … that simulates the area of the goal net.” “Various scoring, gamification scenarios, and tolerance parameters can be employed … to determine whether the blocking attempt was successful.”
3:7-10 indicates that the gamification of Mullikan can additionally be applied to “a live broadcast tennis match, basketball game … cricket match” or the like.
the system comprising: a game tracking system for determining time-dependent positioning data of game objects;
2:47-50, “the invention applies to a soccer match and incorporates 3D time stamped position tracking measurements of the soccer ball on the live field”
5:25-35 contemplates that system 200 is configured such that “measurements of the live action are made utilizing … cameras 205 or radars 206, and a tracking system 220 that can be configured to report time-stamped measurements such as a ball track position sequence”.
a computer processor;
4:10-20 describes that the invention of the disclosure is enabled by software modules executed by a processor 150 comprising memory 160 and data store 104 to accomplish the execution of process steps.
an outcome determination module communicatively connected to said game tracking system to receive and process through said computer processor said positioning data to determine in association with computer-based instructions of said outcome determination module outcome data associated with fundamental contours of the court-based game;
4:28-42, the invention functions such that time-stamped input data is received from input module 130 and used by application module 110 to determine user input characteristics, such as gesture speed, position, time, what graphical elements were selected, and the like. These inputs are then “used to compare the user input action to a live or simulated live event measurement.”
5:12-35 describes that a communications module 165 wirelessly receives data from devices connected to a field measurement input module. This module can judge, for example, a time at which a ball crossed a feature of the field.
5:23-35 describes that cameras 205 and/or radars 206 can acquire measurements of live sports action including on-field ball position as well as a position of a reference object on the field – “plate position”.
For a soccer scenario, 7:25-30 describes a measurement system determining position and time data for a soccer ball moving along a “soccer ball track” and also determining a position and time at which the soccer ball crossed a goal plane.
A ball track (path) over time is a fundamental contour of a game, and extents of a goal or other field marker (plate) are also fundamental game contours.
a gamified game module communicatively linked to said outcome determination module for applying said outcome data to distinct rules of play of a gamified game associated with said gamified game module to obtain a plurality of game results,
1:10-22, “a live sporting event or other live real-time event whereby the players physically interact with the live action while scoring and competing against one another.”
2:47-67 describes a gamified soccer outcome determination scenario as follows: “When the user perceives that a shot is approaching the goal on the broadcast match, the user taps the screen in the correct position and the correct time to virtually block the shot. Various scoring, gamification scenarios, and tolerance parameters can be employed analogous to the baseball example. Various measurement comparison threshold parameters are used to determine whether the blocking attempt was successful, these parameters depending on the players handicap based on past performance or the level of difficulty selected by the user.”
5:35-50 describes the operation of the system wherein “The input metrics are computed and compared to the time correlated field metrics and the result of the comparison is used for scoring, “
wherein said gamified game module is one of a plurality of gamified game modules
Mullikan describes different input processing and scoring instructions for different types of sports including baseball, tennis, cricket, basketball, soccer (see 3:1-11). Compare the software functionality described in 2:5-47 to 2: 47-67, for example. And as noted by Mullikin in 4:12-19, all of the functions of the disclosure can be provided by software application modules executed by a processor. Each set of software instructions that correspond to different sports/sport scenarios teach a plurality of gamified game modules.
and said gamified game module is communicatively connected to said outcome determination module through selection of said gamified game module from a plurality of gamified game modules listed within a user interface of a computer device communicatively coupled to said system.
4:44-67 describes that application module enables “mode selection … including for example selecting the type of game or training exercise to be played … utilizing input from the location module 190 to identify users who may be nearby” and that “The application module can also be configured to prompt users for inputs and allow selection modes … via displayed user menus.”
Re claim 5, this claim is directed to the content of data – some condition that is unrelated to game outcomes. MPEP 2111.05 Part III. provides instructions for the examination of claims directed to computer-readable media. Here it is explained that:
[when] the computer-readable medium merely serves as a support for information or data, no functional relationship exists. For example, a claim to a memory stick containing tables of batting averages, or tracks of recorded music, utilizes the intended computer system merely as a support for the information. Such claims are directed toward conveying meaning to the human reader rather than towards establishing a functional relationship between recorded data and the computer.
The Examiner likens claim 5 to the second case, wherein the claim is directed to some computer readable medium serving as a support for a certain condition that, in parent claim 2, concludes with displaying information to a human user without causing any function that improves the function of the computer itself or otherwise causes a transformation that would define the particular content of stored data combined with the computer as a new invention.
Re claim 6, regarding conditions being “continuously met” and content modules being “continuously received”, the abstract indicates that the gamification of live streamed sports action occurs “in real-time”.
Re claim 7, 4:44-67 describes that application module enables “mode selection … including for example selecting the type of game or training exercise to be played … utilizing input from the location module 190 to identify users who may be nearby” and that “The application module can also be configured to prompt users for inputs and allow selection modes … via displayed user menus.”
Re claims 8, 13, see the baseball embodiment pictured in Figs 2-3.
Re claim 14, this claim recites an intended use of the system of claim 9 – that it is used “for the entirety of the court-based game.” "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). There is nothing in claim 14 or parent claim 9 that recites any structural distinction (such as particular programming of a computer) that reveals how the instant invention differs from Mullikin in which users interact with a selected live sporting event in real-time.
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.
Claims 2-4 and 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over Mullikan.
Re claims 2-4 and 10-12, these claims recite a duplication of parts of the system of claim 1 – a plurality of display devices, a plurality of content modules, and a plurality of game rule conditions. MPEP 2144.04, which describes legal precedent sources for obviousness rationale, cites In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960), in which the court held that mere duplication of parts has no patentable significance unless a new and unexpected result is produced. As there is no claimed unexpected results of using a system such as that taught by Mullikan for multiple users, such is indicia of obviousness. And as noted in Mullikan in 4:44-67, his system supports the selection of a plurality of different game modules, and 2:40-46 describes establishing a plurality of different conditions and modified game rules that are user-profile specific to account for varying skill level users.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN J HYLINSKI whose telephone number is (571)270-1995. The examiner can normally be reached Mon-Fri 10-530.
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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 phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/STEVEN J HYLINSKI/Primary Examiner, Art Unit 3715