Paper 50
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` Entered: August 14, 2014
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`Trials@uspto.gov
`Tel: 571-272-7822
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`RECORD OF ORAL HEARING
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`GAME SHOW NETWORK, LLC and WORLDWINNER.COM, INC.
`Petitioner
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`v.
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`JOHN H. STEPHENSON
`Patent Owner
`____________
`
`Case IPR2013-00289
`Patent 6,174,237
`____________
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`Oral Hearing Held: July 10, 2014
`____________
`
`Before SALLY C. MEDLEY, KEVIN F. TURNER, and BENJAMIN D. M.
`WOOD, Administrative Patent Judges.
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`BRENTON R. BABOCK, ESQUIRE
`TED M. CANNON, ESQUIRE
`Knobbe Martens
`2040 Main Street, 14th Floor
`Irvine, California 92614
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` Entered: August 14, 2014
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`
`
`
`Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`RECORD OF ORAL HEARING
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GAME SHOW NETWORK, LLC and WORLDWINNER.COM, INC.
`Petitioner
`
`v.
`
`JOHN H. STEPHENSON
`Patent Owner
`____________
`
`Case IPR2013-00289
`Patent 6,174,237
`____________
`
`Oral Hearing Held: July 10, 2014
`____________
`
`Before SALLY C. MEDLEY, KEVIN F. TURNER, and BENJAMIN D. M.
`WOOD, Administrative Patent Judges.
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`
`
`
`
`
`BRENTON R. BABOCK, ESQUIRE
`TED M. CANNON, ESQUIRE
`Knobbe Martens
`2040 Main Street, 14th Floor
`Irvine, California 92614
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`
`
`
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`APPEARANCES (Cont.):
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`ON BEHALF OF THE PATENT OWNER:
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`THOMAS J. LEACH, ESQ.
`Merchant & Gould
`3200 IDS Center
`80 South Eighth Street
`Minneapolis, Minnesota 55402-2215
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`
`
`
`
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`The above-entitled matter came on for hearing on Thursday, July 10,
`2014, commencing at 1:00 p.m., at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
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`Case IPR2013-00289
`Patent 6,174,237
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`P R O C E E D I N G S
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`- - - - -
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`JUDGE WOOD: Good afternoon. This is the hearing for
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`
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`IPR2013-00289 between Petitioners Game Show Network, LLC
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`and the WorldWinner.com, Incorporated , and Patent Owner John
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`H. Stephenson.
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`The Panel is Judges Medley and Wood in Alexandria,
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`Virginia, and Judge Turner is appear ing remotely from the U.S.
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`PTO office in San Jose, California.
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`Will counsel for Petitioner please introduce themselves?
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`MR. BABCOCK: Good afternoon , Your Honors. I am
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`Brent Babcock, Knobbe Martens , for Petitioners. Along with me
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`is Ted Cannon.
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`JUDGE WOOD: Thank you.
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`Will counsel for the patent owner please identify
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`themselves?
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`MR. LEACH: Good afternoon, Your Honors. I a m Tom
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`Leach with Merchant & Gould, an d with me is Dan McDonald ,
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`and we're on behalf of the patent owner, John Stephenson.
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`JUDGE WOOD: Thank you. Per the Board's May 30 order,
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`each party has 30 minu tes of total time to present arguments.
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`The Petitioner will proceed first to present its case with respect
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`to the challenged claims and grounds for which the Board
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`instituted trial. Thereafter, patent owner will respond to
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`Petitioner's presentation. Pet itioner may reserve rebuttal time to
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`respond to patent owner's presentation.
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`Mr. Babcock, you're presenting , I gather?
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`MR. BABCOCK: Yes, Your Honor .
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`JUDGE WOOD: Will you be reserving rebuttal time?
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`MR. BABCOCK: I'd like to reserve five minutes , Your
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`Honor.
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`JUDGE WOOD: Five minutes. Okay.
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`All right then, Mr. Babcock, you may begin.
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`MR. BABCOCK: Thank you , Your Honors. May I
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`approach and hand out a handout of a copy of the slides?
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`JUDGE WOOD: Yes, that's fine.
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`MR. BABCOCK: Thank you.
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`JUDGE MEDLEY: Thank you.
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`JUDGE WOOD: All right, thank you.
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`MR. BABCOCK: And for Judge Turner's benefit, they are
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`identical to the slides that we filed with the Board.
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`JUDGE TURNER: Thank you. It might be helpful for me
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`when you're actually referring to -- for both parties, if you're
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`referring to a slide, i f you can mention the slide number, and
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`then I can follow along and be -- demonstrative.
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`MR. BABCOCK: Of course. I'll do my best to do so. We
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`have numbers in the lower left -hand corner, beginning with slide
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`1, which we've labeled GSN1. I may just say slide 1.
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`Good afternoon, Your Honors. Again, Brent Babcock on
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`behalf of the Petitioners. I'd like to begin by walking through a
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`few of the key issues in this case.
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`On slide 2, we enumerate the three issues that are before
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`Panel. And, interestingly, this case does boil down to three
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`fairly simple issues. And, in fact, it's simpler than most cases
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`because claim construction really is the focus of this case. There
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`aren't really many factual disputes that can be resolved by the
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`Panel. If the Panel resolves the claim construction issues that
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`the parties have disputed, the case is essentially resolved.
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`There are three limitations that are at issue that are in
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`dispute with regards to th e proper construction of the claims.
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`The playing a game of skill between a single player and a host
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`computer is the first issue. It seems to be the most highly
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`contested issue and , given the amount of time both parties
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`devoted in the demonstratives to that issue, that seems to be the
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`one we're going to be focusing on the most. The second issue is
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`the claim limitation evaluating results of the qualifying round,
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`and the last limitation is the performance level award increases
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`as a player qualifies for a hi gher performance level. So, those
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`are the three main arguments, main issues , for us to talk about
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`today.
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`I'm going to turn to slide 2 -- I mean, excuse me, slide 3
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`now and our summary for the -- on behalf of the Petitioner.
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`We're going to be focusing heavily on the proper standard here
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`for claim construction, and as you all recognize, or will
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`recognize, is it's the broadest reasonable interpretation. Not the
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`narrowest possible. Not is -- not what maybe the federal circuit
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`might do in a litigation cas e, but it's the broadest reasonable
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`interpretation. Of course, the Board has said that's the proper
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`standard, Congress has said that's the proper standard. It's what
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`it is today, and it's because the patent owner is permitted to
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`amend their claims in this proceeding. So broadest reasonable is
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`the touchstone for the analysis.
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`The limitation playing a game between a host computer and
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`a player does not require head -to-head competition. It does not
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`require that the computer be an actual player, but simpl y the
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`computer may be an administer or a facilitator of the game.
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`That's the first issue that we're going to be discussing.
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`Stephenson argues that the computer must be an adversary,
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`must be a head-to-head competitor. The claim doesn't requires
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`that, and we'll tell you why.
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`The second issue is evaluating results of said qualifying
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`round. The claim construction there is fairly simple. You have
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`to -- after the qualifying round or during the qualifying round, at
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`some point you have to evaluate the resul ts.
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`Stephenson argues that the evaluation mu st be an absolute
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`evaluation, you must look at a specific number. And, of course,
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`there's nothing in the claim that requires that it be an absolute
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`comparison or evaluation; it can be relative, compa ring different
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`players' results and taking t he top players. And we'll explain
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`why that's the correct claim construction.
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`The last issue is with respect to awarding performance
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`levels as the players qualify for higher performance levels.
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`Stephenson argues that that must be done during a game and
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`can't be done after the game. A nd, again, we'll show you why
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`that is not the proper claim construction, that certainly you can
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`award levels after the game is completed.
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`Moving on to slide 4 --
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`JUDGE MEDLEY: Can I interrupt you and kind of go away
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`from the slide deck here for a minute?
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`MR. BABCOCK: Of course, Your Honor.
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`JUDGE MEDLEY: It seems like the parties have a
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`disagreement as to the skill level of one of ordinary skill in the
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`art. It seems like Petitioner says it’s a little bit higher than what
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`-- Petitioner's expert as opposed what patent owner's expert.
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`Would it be appropriate for us in writing the decision to just say ,
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`hey, does it really matter; w e're looking to the prior art record to
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`determine what is the level of skill of one of ordinary skill in the
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`art?
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`MR. BABCOCK: Yeah, I think that's fine, Your Honor. I
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`didn't perceive a huge difference between the issues -- the
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`definitions that the parties presented. I think they're slightly
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`different because the experts have slightly different views, but I
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`don't think it's a super high level here . We're talking about
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`people with backgrounds in computer science and some
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`experience in gaming. But I don't think the issues that you're
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`going to be resolving are going to turn on that , because if we
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`were talking about what a person of skill in the art might have
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`found obvious, a factual deter mination, what would a person of
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`skill to have understood, maybe then what the experts have to
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`say and what their backgro unds is more appropriate. But here,
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`we're really going to be focusing on the intrinsic record and I
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`don't think the Board necessarily needs an expert to be able to
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`say what the intrinsic record says. I mean, the issues that we're
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`going to be presenting a re very clear, plain, on the face of the
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`patent itself, you know, and the prior art.
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`So, I think your proposal -- back to your question , Your
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`Honor, it's fine just to say either definition is fine given that
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`none of the issues that the Board is going to be resolving, it
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`matters. So either definition, you're going to reach the same
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`result.
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`JUDGE MEDLEY: Okay. Thank you.
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`MR. BABCOCK: Sure.
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`So let's focus on the first issue, what we call issue 1. I'm
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`on slide 4, which is the playing the game req uirement.
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`The preliminary determination by the Board in its decision
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`to trial was that head -to-head competition was not required.
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`Importantly here, there is no dispute with regards to whether or
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`not Walker discloses the playing the game limitations under the
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`Board's current construction. Under the preliminary
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`construction, Walker teaches that the computer is a facilitator.
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`So, if the Board maintains its current construction as it final
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`construction, that first issue was resolved in Petitioner's favor,
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`that Walker anticipates that limitation. A nd the parties don't
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`dispute that, but the question is the Board's initial cons truction
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`correct or should the construction be narrowed t o be a head-to-
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`head requirement?
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`We're going to, of course, focus first on the intrinsic
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`record, the specification of pat. That's the most important
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`intrinsic tool for the Board to use to evaluate the meaning of the
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`claim term.
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`JUDGE MEDLEY: Can we just start with the claim
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`language itself --
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`MR. BABCOCK: Sure. And --
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`JUDGE MEDLEY: -- before we look at the spec? So the
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`step A says, playing a game of skill in a qualifying round
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`between a single player and the host computer. So playing a
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`game, does that mean both have to be playing? What does that
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`mean?
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`MR. BABCOCK: Well, they both have to be engaged. A nd
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`I think we have a definition of between -- on slide 9, where we --
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`the word between is by the common action of o r jointly
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`engaging. So there has to be some joint interactivity between a
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`player and a host computer.
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`JUDGE MEDLEY: But what does playing mean? Does that
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`mean both of them have to be playing?
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`MR. BABCOCK: Both of them have to be involved ,
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`interacting in a game of some type. They have to be playing,
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`working, you know, working together in the play of -- in game
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`play.
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`JUDGE MEDLEY: So if the host computer is just sitting
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`there administering the game, in your view or your expert's view,
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`they're playing? The host computer is playing just by --
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`MR. BABCOCK: Oh , yes, most definitely.
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`JUDGE MEDLEY: -- just by interacting?
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`MR. BABCOCK: By interacti ng. By providing -- let's say
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`in trivia, by providing questions to the contestant and the
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`contestant responding and the computer s aying correct or not
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`correct, the computer is playing with the player. The c omputer
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`isn't passive. The computer is actively involved --
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`JUDGE MEDLEY: Right.
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`MR. BABCOCK: -- providing questions, providing
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`prompts, giving instructions, those kinds of things.
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`JUDGE MEDLEY: So playing doesn't mean necessarily
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`that it's competing?
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`MR. BABCOCK: Correct. And the word you said, Your
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`Honor, is correct, not necessarily. It could be competing. And
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`we'll look at the spec , and I wanted to point to slide -- I think
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`slide 6 is -- or slide 5, excuse me, i s probably the key point in
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`the spec where we should look to see what is the broadest
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`reasonable interpretation.
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`And here we have the language Judge Medl ey pointed to,
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`which is playing a game, playing between a single player through
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`a terminal and a host computer. And we have two different
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`alternatives that are explained. In the green, you see the host
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`computer has the ability to act as a game sponsor, keeping sc ore,
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`operating, monitoring, distribut ing awards, whatnot. That's the
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`kind of playing a game wh ere the computer is not a n active head-
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`to-head competitor. And then you see the alternative says, also,
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`the computer can act as another player if the game requires more
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`than a single player. So that's the alternative that the
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`specification provides.
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`Stephenson wants to focus only on the red to say, oh, that's
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`the definition the Board should adopt. B ut we're saying the
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`Board should adopt the broadest reasonable, which encompasses
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`both.
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`JUDGE MEDLEY: It seems like to me they're reading that
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`passage as -- the qualifying round is played between a single
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`player through a co mputer and a host terminal. So they seem to
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`be reading that as, okay, starting off, you have -- automatically,
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`the host computer is competing with the single player. And then,
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`in addition, the host compu ter can act as a game sponsor .
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`MR. BABCOCK: Well, then --
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`JUDGE MEDLEY: And, in addition, the host compu ter can
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`act as a second player. That seems to be, like, the team concept
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`that you bring out in your reply. That seems to be how they're
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`reading it.
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`MR. BABCOCK: Well, that's -- maybe that's how they're
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`reading it, but that's certainly not the plain reading -- meaning of
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`what they're saying here. Because what you're arguing would
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`leave that last sentence redundant. If the first sentence says,
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`they're already competing, the computer is already competing as
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`a player, why do you need that last sentence? You don't need it.
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`JUDGE MEDLEY: Well, it seems like it's referring back to
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`a single player. Single player has alrea dy been mentioned once,
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`and a single player is the human.
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`MR. BABCOCK: Right.
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`JUDGE MEDLEY: So if you need another player, more
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`than a single player, the computer will then jump in.
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`MR. BABCOCK: Well, right, because like, for instance, a
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`game of solitaire, typical solitaire , even Stephenson
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`acknowledges that solitaire traditionally is a single -player game.
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`There is no head-to-head competition in solitaire .
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`JUDGE MEDLEY: Right. In trivia, you can see that a
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`crossword --
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`MR. BABCOCK: Trivia. W e had word puzzles, crossword
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`puzzles, are mentioned as part of the games of skill. So all of
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`those games of skill are listed. In fact, we'll look at the
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`dependant claims. The dependant claims of Claim 1 recite those
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`as the game of skill. They narrow the claim to be solitaire,
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`crossword puzzles. Thos e are all single-player games. The
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`computer can't be a head -to-head competitor in those games, at
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`least that's traditionally understood.
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`Stephenson argues, oh, well, there are ways to play
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`solitaire in a two -- head-to-head competitor way. There's
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`multiple solitaire; t here's other kinds of games that you could
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`construct. And that's what their expert says is, you could
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`construct some of these what they call traditional single-player
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`games as two-player games. We don’t dispute you cou ld, but
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`there's no dispute that the spec never discloses those games as
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`multiple solitaire or some special contract; it's just solitaire.
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`JUDGE MEDLEY: It's broad, so it could cover a sin gle
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`player or a double player.
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`MR. BABCOCK: Exactly. And again , the Board's job is
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`broadest is reasonable. And when you list a series of single-
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`player games and multi -player games, and you have a sentence
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`here that says that the computer can be a sponsor or it could be a
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`head-to-head competitor, the natural conclusi on, the broadest
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`conclusion is that when you play between a host computer and a
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`person, the broadest reas onable interpretation is the computer
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`can be either, a sponsor, a facilitator, or a player. And there's
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`certainly no requirement here in the claims. They don’t say, you
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`know, head-to-head. They could have said head-to-head, but
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`they don't say head -to-head; they just simply say play between.
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`So if we move on to slide 6, you'll see we -- we mentioned
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`this earlier -- we have examples of solitaire -- of crossword
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`puzzles. There's crossword puzzles, that's traditionally a single-
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`player game; word search.
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`And, of course, Stephenson again argues that, oh, you could
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`create some -- you could fabricate those games in a two-player
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`way. Well, of course, you could, but the spec doesn’t teach that.
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`And your job isn't to figure what's the narrowest reading of these
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`claims. Your job is to say , what's -- reading the specs broadly as
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`a person of ordinary skill would understand , would you think
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`that the game -- that the computer could be a facilitator ? And
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`again, I focus back on Claim 5, and the answer is clearly, in the
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`green language it said yes. There's no -- it's a very clear express
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`teaching.
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`I mentioned that on slide 7, we have dependent claims that
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`specifically recite solitaire, cr osswords, and word search. So
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`you have to read Claim 1 in a way t hat's so narrow that Claim 10
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`and 14 wouldn't make sense if you had to argue that somehow the
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`computer had to be a player, because you have to then read
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`Claim 10 as requiring some kind of fabricated solitaire where it's
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`multi-player, and that doesn't make a lot sense.
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`Could you do it? Could you stretch and reach if you really
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`said, well, could we -- yeah, they have. They stretched and
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`reached, said, well -- again, you could fabricate a way to do this.
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`But they acknowledge the traditional meaning , and that's pretty
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`close to ordinary meaning. They say traditional meaning of
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`solitaire is single player. Traditional meaning of crosswords and
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`word search, traditional meaning is single player. And
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`Mr. Freedman (ph.), Stephenson's expert, acknowledges that
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`there's no disclosure in the spec for these fabricated multi-player
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`versions of solitaire or word search. T hose are all just made up
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`by the patent owner.
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`One of the key issues here is that Stephenson argues that,
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`oh, well, between must be interpreted to mean against, and then
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`somehow against means direct head -to-head competition. First
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`of all, the claim doesn't say against; it says between. Second of
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`all, even the word against, in a broad -- even if the claim did
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`against, a broad reading of against , when you play against the
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`house, you play against the clock. Even against means the
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`computer could be a participant or -- well, I think as
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`Mr. Freedman says, a natural yardstick , times, you know, that.
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`So even if you somehow said, well, between must be against, you
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`still don't get there. You still don't get to a point where against
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`requires head-to-head competition.
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`Now, we've got a couple of extrinsic piec es of evidence
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`that there's a dispute whether these are admissible, a nd the
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`parties have agreed that because there is a record right now we're
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`going to present this evidence. Now, if the Board strikes the
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`evidence based upon the motion to exclude , then these arguments
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`obviously won't be considered by the Board. But w e feel that
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`these arguments are very relevant. They're not dispositive. I
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`don't expect the Board is going to rely on these in their decision,
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`but I want the Board to feel comfortable that th e decision to kill
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`this patent is the right one, i t's the equitable one, and there's two
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`good reasons why.
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`First of all, we all had a conference call where Stephenson
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`asked for authorization to amend the claims . And I believe,
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`Judge Medley, you even proposed the amendment. You said, do
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`you mean to add in the claim head -to-head, and they said, yeah,
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`that's what they're going to do.
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`They didn't do that. The deadline passed. They didn't
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`amend their claims. What they did is they filed the ex parte
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`reexam request to put in the amendment. That ultimately -- well,
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`we tried to get it terminated. I think Judge Wood said no, but
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`CRU bounced it, so it's not pending. But regardless of the
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`procedure, when Stephenson made the amendment that we're --
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`this is the amendment that we're focusing on, the meaning of the
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`claim, they knew exactly how to claim head-to-head competition.
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`They said playing includes a single -player and host playing
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`against each other. And even that argument doesn't get us where
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`they want to go, but at least it gets pretty close, a lot closer.
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`And they told the Pat ent Office -- this is recent -- they said to
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`the Patent Office that these new limitations they've added
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`represent a significant change from the original claims.
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`They had the opportunity to present these claims to the
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`Panel to try to keep this patent alive, to narrow the claims to
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`exactly what they're saying the claims to be now. They kn ew
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`how to write those claims and they decided not to. They decided
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`to try to play a little different game and do an ex-parte process,
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`hopefully making it easier for them, because they knew even that
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`claim we'd be able to attack as -- maybe not anticipated by
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`Walker, but certainly obvious, certainly.
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`JUDGE MEDLEY: So, you're -- the point you're trying to
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`make is that this is an admission. Had it been filed as a motion
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`to amend in this case, i t wouldn't be an admission?
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`MR. BABCOCK: No, no.
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`JUDGE MEDLEY: I mean, we see that all the time. H ey,
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`it's a contingent motion; i f you find that my original claims
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`aren't patentable, then you look to my contingent motion to
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`amend. But because, you're saying, that the act of them filing it
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`in the reexamination, that that is somehow an admission?
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`MR. BABCOCK: Well, yeah, that's exactly what I'm
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`saying, Your Honor, because I think the statement that I put up
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`there is exactly what I'm arguing, which is it is an admission.
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`They're saying to the Patent Office, to a different tribunal, to the
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`CRU, not to the PTAB, but they're saying this limitation they' re
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`adding is a significant change from the original claims, the
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`claims that are before th e Panel. So I think that's a relevant
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`admission that the fact the claims -- by adding head-to-head,
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`which they're arguing the claims already have, but they're saying
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`well, you put it -- make it express, that it's a narrow claim.
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`JUDGE MEDLEY: Is their motion to exclude really just
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`about the weight? It seems like to me -- they're saying it's not
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`relevant, but it seems to me it kind of goes to the weight we
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`would give such evidence.
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`MR. BABCOCK: Well, that's our response. I mean, that's
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`how we responded. We said, you know, that certainly it's
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`relevant --
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`JUDGE MEDLEY: It's not really admissibility.
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`MR. BABCOCK: It's certainly admissible. It's not, you
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`know, it's not hearsay; it's a party admission . Under the Federal
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`Rules of Evidence it comes in, we think . Obviously, the Board
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`will decide that. Or my expectation, having been in a number of
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`these proceedings, is that you'll punt the motion and say it's
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`dismissed as moot because you're not going to rely on it, you're
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`going to rely on intrinsic evidence, which is fine. I think you
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`rely on intrinsic evidence alone to get where we ask you to go.
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`You don't need to go here. And the Board typically has been
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`dismissing all these motions to exclude as moot because you
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`don't need to rely on a lot of this extraneous evidence. And not
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`extraneous because -- it's not irrelevant; it's extrinsic. We
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`acknowledge it's extrinsic. It's not because it's irrelevant .
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`The other piece of extrinsic evidence we think is highly
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`relevant, is the fact that Stephenson on this very patent sued a
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`competitor, filed a lawsuit against a product called the Golden
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`Fairway, and all the evidence of record and all the evidence that
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`we've been able to obtain -- and there's no dispute here -- is that
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`Golden Fairway did not head -to-head competition, that the
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`computer was the facilitator in the game. We have a declaration
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`to that effect.
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`Now, the game doesn't currently exist, and why is that?
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`Well, not only did they sue Golden Fairway, but they told the
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`district court they infringed literally and they got a permanent
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`injunction entered through a default judgment. So they benefited
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`from this broad construction. They took a broad construction o f
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`their claims. They said as long as the computer somehow
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`facilities game play in a tournament-type setting, then it's
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`covered.
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`Now, did the court do a Markman hearing? No. It was a
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`default judgment. But you don't get a default judgment without
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`at least representing to the court that there is literal
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`infringement or infringement of th e claims. And they made that
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`representation to the Court, Stephenson did, a few years ago, to
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`the U.S. District Court in Oklahoma. So they benefited from this
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`broad construction.
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`They told another federal agency that the claims -- or,
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`rather, did they explicitly say the claim s don't require -- no, they
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`didn't explicitly say that , but it's implicit or inherent in the
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`arguments they made to the district court that the claims cover a
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`non-head-to-head type competition. So for them to have
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`benefited from that broad construction in one setting and now to
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`tell this separate federal agency, oh, but, wait, wait, wait, we
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`didn't really mean that; we meant it had to be narrow to try to
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`preserve the claims , that's not really equitable .
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`And these are the statements on slide 12 that they made to
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`the district court in the lawsuit, in the complaint, a nd then on
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`slide 13 is the declaration from Johnson, who was a reviewer of
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`games. And we located him and he had played a hundred rounds
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`or so of the game and his understanding of the game was that
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`there were no modes in which there was he ad-to-head
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`competition with the computer. They had the opportunity to
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`depose Mr. Johnson ; they declined. So on the record before the
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`Panel, there's no dispute that Golden Fairway was a game in
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`which the only method of playing was the computer acting as
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`facilitator or as a non -active head-to-to competitor.
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`Now, surprisingly, we've spent the whole t ime on the first
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`issue and I think I'm -- I might have my 25 minutes?
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`JUDGE WOOD: You still have a little less than 8 minutes ,
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`believe it or not.
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`MR. BABCOCK: Oh. Yeah, well, let me jump to the
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`second and the third issues.
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`The second issue deals with the evaluating the results.
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`Now, this actually becomes a little bit easier for the Board
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`because I think, here, the Board could go either way, either say
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`absolute evaluation is required or relative ev aluation is required
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`or both. And either way you go, you're going to find that
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`Walker, the prior art reference, teaches it.
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`Now, the claim simply says evaluating the results of the
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`qualifying rounds. You have multiple players playing these
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`qualifying rounds, multiple games occurring at maybe the same
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`time, maybe different times. Those are all the qualifying rounds.
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`And then after the games are played in the qualifying rounds,
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`then the computer, the system evaluates the results of the
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`qualifying round. Again, not evaluate the results of the game.
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`You're not evaluatin g the results of a given game. A given game
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`is a person with a computer , either head-to-head or not. But this
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`evaluating the results of the entire qualifying round, which is
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`multiple games with multiple players.
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`JUDGE MEDLEY: So the qualifying round -- when it says
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`evaluating the results of the qualifying round, your position is
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`that the qualifying round could be lots of single people playing,
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`and then you tally up all of -- you look at all of the people that
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`played in a qualifying ro und?
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`MR. BABCOCK: Correct. And that's what the patent is
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`talking because you're talking about a tournament. So you have
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`all these qualifying games being played, and then once you get
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`Appeal No. IPR2013-00289
`Application No. 09/316840
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`all the qualifying -- it could be one, but it could probably more
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`than one -- then you look at the players and you figure out who
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`qualifies to proceed to the next level. And
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