Ex parte Vegas Amusement, Inc.

UNITED S TATES PATENT AND T RADEMARK 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.
90/011,023 	06/03/2010 	5688174 	1285.04 	5930
8685 	7590 	12/09/2011 	EXAMINER
DERGOSITS & NOAH LLP
Three Embarcadero Center 	CLARK, JEANNE MARIE
Suite 410
SAN FRANCISCO, CA 94111
3993
ART UNIT 	PAPER NUMBER
MAIL DATE 	DELIVERY MODE
12/09/2011 	PAPER
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.
PTOL-90A (Rev. 04/07)

____________________
____________________
____________________
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UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
Ex parte VEGAS AMUSEMENT, INC.
Appeal 2012-001010
Reexamination Control 90/011,023
Patent 5,688,1741
Technology Center 3900
Before DANIEL S. SONG, ROBERT A. CLARKE, and
JOSIAH C. COCKS, Administrative Patent Judges.
COCKS, Administrative Patent Judge.
DECISION ON APPEAL
The patent under reexamination (“‘174 Patent”) issued to inventor
Kennedy on November 18, 1997 from Application 540,328 filed October 6,
1995.
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A. 	STATEMENT OF THE CASE
This reexamination proceeding arose from a third-party request for ex
parte reexamination filed on June 3, 2010 (“Req.”). Vegas Amusement, Inc.
(“Vegas Amusement”), the owner of the ‘174 Patent2, appeals under 35
U.S.C. §§ 134(b) and 306 from a final rejection of claims 1-6.3 We are
informed that the ‘174 Patent is subject to litigation. (App. Br. 5.) We have
jurisdiction under 35 U.S.C. §§ 134(b) and 306.
We affirm.
References Relied on by the Examiner
Takashima 	4,614,342 	Sep. 30, 1986
Wilson et al. (“Wilson”) 	5,220,522 	Jun. 15, 1993
Morris et al. (“Morris”) 	5,324,035 	Jun. 28, 1994
Levy, Douglas A. “ELECTRONIC SLOT MACHINES: New Technology
Means New Games For Novices, New Profits For Casinos.” Gambling
Times, Vol. 7 No. 6, pp. 42, 43, and 52-55 (1983) (“Levy”).
Liggett, Byron. “HIGH TECH: Opportunity and Change for the Casino
Industry.” Gambling Times, Vol. 10 No. 10, pp. 56-58 (1987) (“Liggett”).
The Rejections on Appeal
The Examiner rejected claim 6 under 35 U.S.C. § 102(b) as
anticipated by Morris.
2 See Patent Assignment Abstract of Title, Reel 013117, Frame 0752,
which was entered into the record of this proceeding as “Title Report” on
June 15, 2010.
3 See Vegas Amusement’s Appeal Brief filed June 13, 2011 (“App.
Br.”) and Reply Brief filed October 3, 2011 (“Reply Br.”).
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The Examiner rejected claims 1-5 under 35 U.S.C. § 103(a) as
unpatentable over Morris, Wilson, Liggett, and Levy.
The Examiner rejected claims 1-6 under 35 U.S.C. § 103(a) as
unpatentable over Takashima, Wilson, Liggett, and Levy.
The Invention
The invention relates to a multiplayer interactive video gaming device
for games such as video blackjack and poker. (‘174 Patent 1:1-14.)
Claim 1 is illustrative and reproduced below (App. Br. 32 Claims
App’x.):
1. (original): A multiplayer interactive video gaming device, said
device comprising:
a personal computer assembly including an input/output
system, a keyboard port, and a game processor device for executing a
video gaming program responsively to input data, said game processor
device configured to receive input data via said input/output system
from said keyboard port;
a plurality of spatially separate player stations, each said player
station including at least one data input device configured to output a
player input signal responsive to player activation; and
an interface assembly in operative communication with said
keyboard port and with more than one of said player stations, said
interface assembly including an interface processor device configured
to receive said player input signals and to output interface signals to
said keyboard port, said interface signals corresponding to particular
said data input devices,
wherein each said player station includes a currency acceptor
configured to accept currency from a player at the corresponding
player station for wagering purposes and to output a currency input
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signal corresponding to an amount of currency accepted, wherein said
interface assembly is configured to receive said currency input signals
and to output corresponding currency output signals, and wherein said
game processor device is configured to receive said currency output
signals via said keyboard port and said input/output system.
B. 	ISSUES
1. 	Do the recitations in the claims of “a game processor device”
and “an interface processor device” require that one and only one of each
such device be present?
2. 	Was the Examiner incorrect in determining that the prior art
disclose a video gaming system incorporating “a game processor device”
and “an interface processor device”?
3. 	Was the Examiner incorrect in determining that a video gaming
system incorporating “a game processor device” and an “interface processor
device” would have been obvious from the teachings of the prior art?
4. 	Did Vegas Amusement adequately establish that Wilson is non-
analogous art and unavailable as prior art in rejecting Vegas Amusement’s
claims?
5. 	Does the record reflect that the teachings of Wilson and either
those of Morris or Takashima are incompatible with one another and are
unable to be combined?
C. 	PRINCIPLES OF LAW
“The word ‘comprising’ transitioning from the preamble to the body
signals that the entire claim is presumptively open-ended.” Gillette Co. v.
Energizer Holdings, Inc. 405 F.3d 1367, 1371-1372 (Fed. Cir. 2005).
“‘Comprising’ is a term of art used in claim language which means that the
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Patent 5,688,174
named elements are essential, but other elements may be added and still
form a construct within the scope of the claim.” Genentech, Inc. v. Chiron
Corp. 112 F.3d 495, 501 (Fed. Cir. 1997).
The indefinite article “a” when used to introduce a feature in an open-
ended claim usually carries the meaning “one or more.” KCJ Corp. v.
Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed. Cir. 2000). It is only in
rare circumstances that the article “a” is limited to a singular interpretation
and such limitation must be clearly established. Id.
When the specification or the claim language itself indicates that “a”
does not carry a meaning of one or more but instead means “one and only
one” it is appropriate to construe it as such. Harari v. Lee, 656 F.3d 1331,
1341 (Fed Cir. 2011).
“[A] disclosure of a preferred or exemplary embodiment
encompassing a singular element does not disclaim a plural embodiment.”
KCJ Corp., 223 F.3d at 1356.
During reexamination, claims must be given their broadest reasonable
interpretation consistent with the specification of the reexamined patent. In
re Yamamoto, 740 F.2d 1569, 1571 (Fed. Cir. 1984).
The broadest reasonable interpretation rule recognizes that before a
patent is granted the claims are readily amended as a part of the examination
process and that an applicant has the opportunity and responsibility to
remove any ambiguity in claim meaning by making an amendment. In re
Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004).
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Patent 5,688,174
Anticipation is established when a single prior art reference discloses
all features of the claimed invention. In re Spada, 911 F.2d 705, 708 (Fed.
Cir. 1990).
A reference is analogous art if it is either in the field of the applicant’s
endeavor, or is reasonably pertinent to the particular problem with which the
inventor was concerned. In re Kahn, 441 F.3d 977, 987 (Fed. Cir. 2006).
“A reference is reasonably pertinent if, even though it may be in a
different field from that of the inventor’s endeavor, it is one which, because
of the matter with which it deals, logically would have commended itself to
an inventor’s attention in considering his problem.” In re Clay, 966 F.2d
656, 659 (Fed. Cir. 1992).
A person of ordinary skill in the art is also a person of ordinary
creativity, not an automaton. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
421 (2007).
“[I]t is not necessary that the inventions of the references be
physically combinable to render obvious the invention under review.” 	In re
Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983). “Claims may be obvious in
view of a combination of references, even if the features of one reference
cannot be substituted physically into the structure of the other reference.”
Orthopedic Equipment Co., Inc. v. U.S., 702 F.2d 1005, 1013 (Fed. Cir.
1983)
“What matters in the § 103 nonobviousness determination is whether
a person of ordinary skill in the art, having all of the teachings of the
references before him, is able to produce the structure defined by the claim.”
(Id.)
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D. 	FINDINGS AND ANALYSIS
Claim Construction
A first issue in this appeal is the meaning of “a game processor
device” and “an interface processor device” which appear in each of
independent claims 1-6.
A game processor device
According to Vegas Amusement, the recitation in its claims of “a
game processor device” is narrowly limited to a “single” game processing
device and that “all game functionality” is performed by that single game
processor. (App. Br. 13:26-30; 18:20-22.) To justify the claim construction
it advocates, Vegas Amusement points to the specification of the ‘174 Patent
as showing and describing only one central processing unit (“CPU”) 38 in its
Figure 2 which controls execution of video game programming and a
statement in the specification that multiple CPUs have a known
disadvantage in increasing costs of a video gaming system. (App. Br. 20:17-
29.) 	Vegas Amusement also points to the Background of the Invention of
the ‘174 patent as allegedly stating that including multiple processors with
distributed functionality in gaming systems is a deficiency in the prior art
that the claimed invention overcomes. (Id. at 12:21-25.)
At the outset, we note that each of claims 1-6 uses the term
“comprising” in transition between the preamble and body of the claim.
When used in claim drafting, the term “comprising” indicates that the claim
is open-ended such that while named features in the claim are essential other
un-recited features are not excluded. See Gillette Co., 405 F.3d at 1371-
1372; see also Genentech, Inc., 112 F.3d at 501. Furthermore, the indefinite
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article “a” when used to introduce a feature in an open-ended claim usually
carries the meaning “one or more.” KCJ Corp., 223 F.3d at 1356. It is only
in rare circumstances that the article “a” is limited to a singular
interpretation and such limitation must be clearly established. Id. Such a
circumstance may arise when the specification or the claim language itself
indicates that “a” does not carry a meaning of one or more but instead means
“one and only one.” Harari, 56 F.3d at 1341. We thus consider the
meaning of “a” against the backdrop of the claim language and involved
specification, keeping in mind that, during reexamination, claims must be
given their broadest reasonable interpretation consistent with the
specification of the reexamined patent. See In re Yamamoto, 740 F.2d at
1571.
Here, despite Vegas Amusement’s assertion that the recitation of “a
game processor device” requires a “single” such device performing “all
game functionality” processing, notably absent from the language of the
claims is the use of the term “single” or any description of the extent of
game processing that must be performed by the processor device. The
language of the claims themselves does not convey terms or expressions of
exclusion in connection with the presence of other processing devices
covered by the claims. As noted above, the claim construction advanced by
Vegas Amusement relies on the description of preferred embodiments
incorporating one CPU 38 for game processing and the following paragraph
which appears in the specification of the ‘174 Patent (‘174 Patent 2:25-36):
[M]ultiplayer interactive video gaming machines are known that
employ a network arrangement. Players play individual games from
individual player stations, each having a keypad, a personal computer
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circuit board, and a monitor. Input from the keypad switches is
conveyed to the player station circuit board, which executes the
individual player blackjack game responsively to this input data and
data relating to the dealer’s hand provided by a central file server
computer. However, the multiple circuit boards contribute
significantly to the costs of such a configuration, while the heat
generated by the CPUs contributes to increased maintenance costs.
We note that the mere disclosure of preferred embodiments in the
‘174 Patent encompassing one CPU 38 one does not itself disclaim other
embodiments incorporating more than one such CPU. See KCJ Corp., 223
F.3d at 1356. We also observe that although the above-quoted statement
discusses disadvantages associated with multiple CPUs in a video gaming
system, the statement does not establish that those known disadvantages
operate to strictly limit the invention of the ‘174 Patent to a system
incorporating a single CPU to the exclusion of all other systems.
The record establishes that although the specification of the ‘174
Patent may convey a general preference for minimizing the number of
overall processing CPUs in a gaming device when the focus is on reducing
costs, the specification does not reasonably operate to impose a special
meaning to “a game processor device” as mandating one and only one
processor device or reasonably disavow more than one such device from
coverage by the claims. Indeed, in describing the preferred embodiments of
the invention, the ‘174 Patent itself presents a system incorporating an
additional “interface processor” which is also a CPU, e.g., CPU 26 (‘174
Patent 3:17-28; 4:60-64). Thus, the ‘174 Patent discloses a system with
multiple CPUs. That disclosure tends to indicate that the above reproduced
paragraph simply indicates a general preference for a system that minimizes
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the number of involved processors, and not that “a game processor device”
is strictly a singular processor.
Thus, neither the claims nor the specification of the ‘174 Patent
establishes a special meaning for the term “a game processor device.” If
Vegas Amusement intended a special meaning reflecting that a “single” or
“one and only one” such device be encompassed by its claims, the
opportunity and responsibility to impose such a limitation was by
amendment to the claims. See In re Bigio, 381 F.3d at 1324. Vegas
Amusement did not avail itself of that opportunity. Accordingly, we
conclude that the Examiner’s interpretation of “a game processor device” as
not limited strictly to a single processor device is reasonable and not
inconsistent with the specification of the ‘174 Patent. We therefore reject, as
incorrect, the overly limited interpretation of the term that is advanced by
Vegas Amusement.
An interface processor device
The claims also recite an interface assembly which includes “an
interface processor device.” (App. Br. 32-36 Claims App’x.) According to
Vegas Amusement, its claims require a “central” interface processor. 	(App.
Br. 23:5-20.) Intrinsic to Vegas Amusement’s argument is that the alleged
“central” interface processor of the claims means that the claims require one
and only one such processor. The Examiner counters that the claims do not
recite the term “central” in connection with “an interface processor device”
and are not limited to a single interface processing device to the exclusion of
other such devices. (Ans. 11:21-12:11.) We agree with the Examiner.
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None of the claims recites the term “central” in conjunction with “an
interface processor device.” Neither does the language of the claims, nor the
specification of the ‘174 Patent, convey that “an interface processor device”
means one and only one such device. For reasons similar to those given
above with respect to the recitation of “a game processing device,” we reject
Vegas Amusement’s argument that claims 1-6 exclude as outside their scope
more than one interface processor device as a part of the video gaming
systems of those claims.
Anticipation
The Examiner rejected claim 6 as anticipated by Morris. In rejecting
the claim, the Examiner found that Morris discloses all the features of the
claims including a personal computer assembly having “a game processor
device” and an interface assembly having “an interface processor device.”
(Ans. 4:10-124.) Vegas Amusement challenges those findings.
Morris discloses a video gaming system 10 for use by multiple players
and which is operable for play of such games as “poker, slot machines,
progressive games, Pai Gow, black jack, keno, bingo, craps, roulette and
Red Dog.” (Morris Abstract; 5:36-40.) 	The gaming system incorporates a
central game processor 12 in communication with a plurality of master
processing units 14, each of which form a part of a personal computer
assembly. (Id. at 8:31- 56.) That disclosure forms the basis for the
Examiner’s determination that the recitation in claim 6 of a computer
The noted portion of the Examiner’s Answer incorporates by
reference pages 26-30 of the Request for Ex Parte Reexamination filed June
3, 2010.
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Patent 5,688,174
assembly with “a game processor device” is satisfied. Morris also discloses
“slave terminals” 16 which provide player interface for gaming system 10.
(Id. at 5:23-27.) Each terminal 16 includes a component 116 which is
described as a “general purpose input-output (I/O) interface adapter” and
which is coupled to microprocessor 106. (Id. at 11:22-26.) Based on that
disclosure, the Examiner determined that Morris discloses “an interface
assembly” with “an interface processor device” as claimed. (See Req. 28-
29.) Morris also describes continuously updating each player of the results
of the other players, which provides for competition by the players. (Id. at
2:67 - 3:5). Accordingly, Vegas Amusement’s argument (see, e.g., App. Br.
17) that use of a single processor is necessary for interactive gaming and that
Morris does not provide interactive video gaming is not persuasive given
Morris’s express teaching of continuous updating of players to provide for
competition.
We have considered Vegas Amusement’s argument challenging the
Examiner’s determination that the prior art discloses “a game processor
device” and “an interface processor device.” (App. Br. 18-24; Reply Br. 9-
11.) However, in light of the record before us and taking into account the
proper interpretation of those terms, we do not agree with Vegas
Amusement. Its argument is incorrectly premised on the belief that the
interpretation of “a game processor device” and “an interface processor
device” necessarily excludes the presence of more than one of each device.
As discussed above, we reject that position as it does not correctly adopt the
broadest reasonable interpretation of the above-noted terms that is consistent
with the ‘174 Patent.
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Anticipation is established when a single prior art reference discloses
all features of the claimed invention. In re Spada, 911 F.2d at 708. On this
record, we conclude that the Examiner has adequately demonstrated that
Morris discloses all of the features recited in Vegas Amusement’s claim 6.
For the foregoing reasons, we sustain the rejection of claim 6 as anticipated
by Morris.
Obviousness
The Examiner rejected claims 1-5 over Morris, Wilson, Levy, and
Liggett and claims 1-6 over Takashima, Wilson, Levy, and Liggett.
The rejection over Morris, Wilson, Levy, and Liggett
Claims 1-5 are similar in scope to claim 6 and are directed to either a
“multiplayer interactive video gaming device” or simply “an interactive
video gaming device.” (App. Br. 32-35 Claims App’x.) As urged by Vegas
Amusement, where claims 1 and 5 differ from claim 6 is in the recitation of
a “keyboard port” as a data input/output component as opposed to the “data
port” set forth in claim 6. (App. Br. 24:30-31.) In accounting for the
“keyboard port” feature, the Examiner relied on the teachings of Wilson.
(Ans. 4:19-21.) The Examiner’s Answer incorporates by reference the
explanation for rejecting claims 1-5 set forth in the Request for Ex Parte
Reexamination at pages 30-58. The Request points to Morris as disclosing a
keyboard port and to Wilson as disclosing the use of such a port for
inputting data to a processing device of a personal computer assembly.
(Req. 31-33.) The Request further explains that it would have been obvious
to one of ordinary skill in the art to combine the teachings of Morris and
Wilson. (Id.)
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Analogous Art
Vegas Amusement first challenges the rejection based on the
combination of Morris and Wilson on the theory that Wilson is “not
analogous art.” (App. Br. 14:30-31; 25:7-8.) According to Vegas
Amusement (id. at 14:31-15:3):
Wilson describes a computer controlled automated data acquisition,
monitoring, and control system (for example, a sorting system where
products are tested under computer control to see if the products are
within limits for certain parameters) that dispenses with human input
of data, not a gaming system.
Thus, Vegas Amusement is of the view that the reason Wilson is non-
analogous art, and thus unavailable as prior art in rejecting its claims under
35 U.S.C. § 103, is because the reference is not directed to “a gaming
system.” We take Vegas Amusement’s argument as an assertion that the
field of endeavor of the invention is limited to gaming systems, and that
Wilson does not fall within that field.
Even assuming that Vegas Amusement has correctly characterized the
field of the inventor’s endeavor, we note that the test for analogous art is a
two pronged test. A reference is analogous art if it is either in the field of
the applicant’s endeavor, or is reasonably pertinent to the particular problem
with which the inventor was concerned. In re Kahn, 441 F.3d at 987. Here,
the relevant problem faced by the inventor was in inputting data from a
peripheral device to the processing device of a personal computer assembly.
As the computer assembly includes a keyboard port which is viable for
inputting data, Vegas Amusement’s inventor sought to input data, and in
particular video gaming data, using the available keyboard port as a data
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input port for data from a peripheral device that is not a keyboard. (See, e.g.,
‘174 Patent 1:60-2:24.)
Each of Morris and Wilson involve inputting data from a device into a
processor of a personal computer assembly. (Morris 7:51-8:29; Wilson
Abstract.) In Wilson, the keyboard port is recognized as a viable port for
inputting data to the computer assembly whether the inputting device be a
keyboard or some other peripheral device which emulates data entry via a
keyboard, but is not itself a keyboard. (Wilson 2: 3-16.) A reference is
reasonably pertinent if, even though it may be in a different field from that
of the inventor’s endeavor, it is one which, because of the matter with which
it deals, logically would have commended itself to an inventor’s attention in
considering his problem. In re Clay, 966 F.2d at 659.
In our view, a technique of inputting data from a peripheral device
into one personal computer assembly using a keyboard input port, as in
Wilson, would have logically commended itself to an inventor seeking to
input data into a computer assembly which includes a keyboard port, even if
the type of data involved in Wilson is different than the data with which the
inventor was concerned, i.e., gaming data. Vega Amusement does not
meaningfully explain why a skilled artisan would have viewed data content
as a factor somehow prohibiting the implementation of a teaching involving
data transmission techniques from one computer system onto another
computer system. We conclude that Wilson is reasonably pertinent to the
problem faced by the inventors of the ‘174 Patent.
Furthermore, in applying Wilson in rejecting the claims, the Examiner
also determined that the relevant field of endeavor is “computer systems and
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processing” and concluded that Wilson is in that field. (Ans. 19:2-6.) Vegas
Amusement does not address that determination.
For the foregoing reasons, we are not persuaded that Wilson is non-
analogous art and inapplicable as prior art in rejecting Vegas Amusement’s
claims.
Alleged Incompatibility of Morris and Wilson
Vegas Amusement also generally contends the following with respect
to the proposed combination of Morris and Wilson (App. Br. 26:11-13):
Wilson’s computer controlled automated data acquisition, monitoring,
and control system is substantially incompatible with, and therefore
could not be properly combined with, Morris’ multiprocessor game
systems.
Vegas Amusement further contends that Wilson’s teachings “would
not function with a distributed system such as Morris without significant
design and operational changes.” (Id. at 27:6-7.)
Vegas Amusement, however, does not cogently explain why it
believes the systems of Morris and Wilson are “substantially incompatible,”
why their combination would require “significant design and operational
changes,” or in particular, why the keyboard port already present in Morris
cannot be used for inputting data. Vegas Amusement also does not offer
objective evidence to support those assertions, such as the declaration
testimony of an expert witness. Rather, the assertions amount simply to
arguments of counsel. Such argument, however, cannot take the place of
evidence lacking in the record. Estee Lauder Inc. v. L'Oreal, S.A., 129 F.3d
588, 595 (Fed. Cir. 1997).
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Moreover, we note that even if some changes are required to
implement the teachings of Wilson onto Morris’ system, it is not necessary
that the inventions of the references be physically combinable, without
change, to render obvious the invention under review. See In re Sneed, 710
F.2d at 1550; see also Orthopedic Equipment Co., Inc., 702 F.2d at 1013. In
this regard, in the present application, no physical combination of Wilson
and Morris is even required considering that Morris already includes a
keyboard port. That some adjustment or reconfiguration of a computer
system may be necessary to use such an existing port does not itself preclude
a determination of obviousness based on the teachings of those references.
The references reflect that the level of ordinary skill in the art is sufficient to
operably associate the various elements of a computing system so as to
provide interaction between components, such as a peripheral data input
device and a processor device for processing the commands that are
inputted. Vegas Amusement does not adequately explain why a person of
ordinary skill in the art, who is also a person of ordinary creativity, KSR Int’l
Co., 550 U.S. at 421, would have been incapable of implementing Wilson’s
teachings into the system of Morris so as to convey inputted commands to a
processor via a particular port intended to facilitate data input, e.g., a
keyboard port.
Accordingly, we reject Vegas Amusement’s argument that Morris and
Wilson are allegedly incompatible so as to preclude a determination of
obviousness based on the combination of their teachings.
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The Examiner’s Alternative Reasoning
In rejecting Vegas Amusement’s claims 1-5 based on Morris, the
Examiner alternatively reasoned that even if the recitation in those claims of
“a game processor device” and “an interface processor device” are, in each
case, limited to a single processor device, the claims would still have been
obvious. (Ans. 10-12.) In particular, the Examiner determined that one of
ordinary skill in the art would have appreciated that, in view of the teachings
of Morris, a single processor may be substituted for multiple processors,
pointing to column 4 of Morris. (Id. at 10:8-18.)
The referenced portion of Morris reads (Morris 4:54-58):
Each component of the gaming system 10 provides a specific function
necessary to operation of the gaming system 10 as a whole. However,
these functions can be further distributed or combined among other
computer architectures.
Thus, Morris envisions that the functionality of components of its
computer system may be “combined.” Vegas Amusement does not assert
that Morris’ system would be inoperable if processing functions performed
by multiple processors were instead combined so as to be performed by a
single processor. Rather Vegas Amusement simply contends that combining
Morris’ processors and their processing function into a single processor
would result in “game play that is prohibitively slow, causing significant
delays that players would not tolerate.” (App. Br. 22:26-28.) A
determination of obviousness, however, does not require that the prior art
must be optimized or improved over that which is expressly disclosed.
Rather, the proper inquiry in evaluating obviousness is whether a person of
ordinary skill in the art, having all of the prior art teachings before him,
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would have been able to produce the structure defined by the claims. See
Orthopedic Equipment Co., Inc., 702 F.2d at 1013.
Here, a skilled artisan would reasonably have appreciated from the
teachings of Morris that the processing capabilities of multiple processors
may be incorporated or combined into a single processor even if the
resulting processing functionality may be less desirable in terms of speed
than with multiple processors. We conclude that in light of the teachings of
the prior art, the video gaming device set forth in Vegas Amusement’s
claims would have been obvious to one of ordinary skill in the art even if the
recitation in those claims of “a game processor device” and “an interface
processor device” are, in each case, limited to a single processor device.
For the foregoing reasons, we are not persuaded of any error in the
Examiner’s decision to reject claims 1-5 over the teachings of Morris,
Wilson, Levy, and Liggett.
The rejection over Takashima, Wilson, Levy, and Liggett
The Examiner rejected claims 1-6 over the combined teachings of
Takashima, Wilson, Levy, and Liggett. Takashima discloses an electronic
game machine providing electronic play of such card games as “blackjack or
twenty-one” by multiple players. (Takashima 1:1-55.) The disclosure of
Takashima is similar in nature and function to that of Morris. Vegas
Amusement’s arguments with respect to the Examiner’s rejection based on
the teachings of Takashima are largely the same as those which were
advanced in connection with the rejections involving Morris. In particular,
Vegas Amusement generally urges that: (1) its claims require a single game
processor device and a single interface processor device; (2) that Takashima
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discloses only the presence of multiple such processor devices; and (3) the
teachings of Wilson are “incompatible” with the teachings of Takashima.
(App. Br. 27-31.)
As discussed above, we conclude that Vegas Amusement’s claims are
not limited to a single game processor device and a single interface
processor device to the exclusion of other such devices. Vegas Amusement
has not shown that the Examiner was incorrect in determining that the video
gaming system of Takashima discloses a game processor device and an
interface processor device as recited in the claims. (Ans. 5:13-155.) Vegas
Amusement also has not shown error in the Examiner’s determination that
even if a “single” game processor and interface device are required by the
claims, one with ordinary skill in the art would have reasonably appreciated
that a single processor may be implemented in lieu of multiple processors.
(Id. at 17-19.) Further, Vegas Amusement has not established that
Takashima’s system would be unable to operate with a single processor
configuration. Vegas Amusement’s argument (App. Br. 28:7-16) that
Takashima does not provide for interactive play between players is not
persuasive as Takashima teaches that cards are dealt clockwise beginning on
the dealer’s left and subsequent players are not dealt cards until earlier
players have either stood on their count or busted. (Takashima 9:20-33.)
Lastly, for essentially the same reasons given above in conjunction with the
Morris reference, we reject Vegas Amusement’s assertion that the teachings
of Wilson are incompatible with those of Takashima.
The Examiner’s Answer incorporates by reference pages 59-90 of the
Request for Ex Parte Reexamination filed June 3, 2010.
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Accordingly, we sustain the rejection of claims 1-6 over the teachings
of Takashima, Wilson, Levy, and Liggett.
E. 	CONCLUSION
1. 	The recitations in the claims of “a game processor device” and
“an interface processor device” do not require that one and only one of each
such device be present.
2. 	The Examiner was not incorrect in determining that the prior art
discloses a video gaming system incorporating “a game processor device”
and “an interface processor device.”
3. 	The Examiner was not incorrect in determining that a video
gaming system incorporating “a game processor device” and an “interface
processor device” would have been obvious from the teachings of the prior
art.
4. 	Vegas Amusement did not establish that Wilson is non-
analogous art and unavailable as prior art in rejecting Vegas Amusement’s
claims.
5. 	The record does not reflect that the teachings of Wilson and
either those of Morris or Takashima are incompatible with one another and
are unable to be combined.
F. 	ORDER
The rejection of claim 6 under 35 U.S.C. § 102(b) as anticipated by
Morris is affirmed.
The rejection of claims 1-5 under 35 U.S.C. § 103(a) as unpatentable
over Morris, Wilson, Liggett, and Levy is affirmed.
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The rejection of claims 1-6 under 35 U.S.C. § 103(a) as unpatentable
over Takashima, Wilson, Liggett, and Levy is affirmed.
TIME PERIOD FOR RESPONSE
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).
AFFIRMED
PATENT OWNER:
DERGOSITS & NOAH LLP
Three Embarcadero Center
Suite 410
San Francisco, CA 94111
THIRD PARTY REQUESTER:
WINSTON & STRAWN LLP
Patent Department
1700 K Street, N.W.
Washington, DC 20006
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