Trials@uspto.gov
`571-272-7822
`
`
`Paper No. 16
`Entered: February 28, 2017
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ACTIVISION BLIZZARD, INC. and RIOT GAMES, INC.,
`Petitioner,
`
`v.
`
`GAME AND TECHNOLOGY CO., LTD,
`Patent Owner.
`____________
`
`Case IPR2016-01880
`Patent 8,035,649 B2
`____________
`
`
`
`Before MICHAEL R. ZECHER, JENNIFER S. BISK, and
`JESSICA C. KAISER, Administrative Patent Judges.
`
`KAISER, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314(a) and 37 C.F.R. § 42.108
`
`

`

`IPR2016-01880
`Patent 8,035,649 B2
`
`
`Activision Blizzard, Inc. and Riot Games, Inc. (collectively
`
`“Petitioner”) filed a Petition pursuant to 35 U.S.C. §§ 311–19 requesting an
`
`inter partes review of claims 1–16 of U.S. Patent No. 8,035,649 B2, issued
`
`on October 11, 2011 (Ex. 1001, “the ’649 patent”). Paper 2 (“Pet.”). Game
`
`and Technology Co., Ltd. (“Patent Owner”) filed a Preliminary Response.
`
`Paper 15 (“Prelim. Resp.”). Applying the standard set forth in 35 U.S.C.
`
`§ 314(a), which requires demonstration of a reasonable likelihood that
`
`Petitioner would prevail with respect to at least one challenged claim, we
`
`deny Petitioner’s request and do not institute an inter partes review of any
`
`challenged claim.
`
`
`
`A. The ʼ649 Patent (Ex. 1001)
`
`I. BACKGROUND
`
`The ʼ649 patent relates to systems and methods for updating images
`
`on a screen. Ex. 1001, Abstract. In particular, the ’649 patent explains that
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`two different images, which can be generated in different amounts of time,
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`may need to be displayed. See id. at 3:12–25. Figure 2 of the ’649 patent is
`
`reproduced below.
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`IPR2016-01880
`Patent 8,035,649 B2
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`
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`Figure 2 is a flow chart illustrating one embodiment of the screen update
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`method of the ’649 patent. Id. at 5:1–3. In one example, the first image is a
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`three dimensional image in a game, such as a player character or a dynamic
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`scene. Id. at 5:12–14. An image update event for the first image can be
`
`generated when, for example, a player character changes position. Id. at
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`5:20–36. The ’649 patent discloses that image resource data is identified for
`
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`3
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`IPR2016-01880
`Patent 8,035,649 B2
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`that image update event and loaded into buffer space with a plurality of
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`buffers. Id. at 5:29–62. The first image is then generated by rendering the
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`data loaded in the buffer space. Id. at 6:1–4.
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`The screen update method also updates a second image, which can be
`
`as one example, chat text in a chat window. Id. at 6:37–52. The second
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`image is generated without its update data being loaded into the buffer space
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`and, thus, the second image can be generated at a higher speed than the first
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`image. Id. at 7:4–7. The ’649 patent discloses: “[s]ince the second image
`
`does not need to be rendered, or if, rendering is required, the amount of
`
`computation is not large, the second image may be real-time updated at
`
`relatively higher frame rate than the first image.” Id. at 7:7–11. The screen
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`update method then generates a full image by combining the first image and
`
`the second image and displays the combined image on the screen. Id. at
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`7:17–25, 7:54–56.
`
`B.
`
`Illustrative Claim
`
`
`
`Of the challenged claims, claims 1, 13, and 15 are independent.
`
`Claim 1 is illustrative of the challenged claims, and is reproduced below:
`
`1. A method of updating images displayed on a display
`device, the method comprising:
`
`identifying image resource data associated with an update
`event for a first image from a basic recording space when the
`update event for the first image occurs;
`
`loading the identified image resource data in a buffer
`space including a plurality of buffers, in which the image
`resource data are loaded in rotation on the buffer by frame,
`respectively;
`
`generating the first image at a first frame rate by
`sequentially rendering the loaded image resource data;
`
`
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`4
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`IPR2016-01880
`Patent 8,035,649 B2
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`
`generating a second image associated with an update
`event for the second image at a second frame rate when the
`update event for the second image occurs, the generation of the
`second
`image being substantially
`independent from
`the
`generation of the first image such that image resource data of
`the second image is not loaded in the buffer space;
`
`compositing the first image with the second image; and
`
`updating at least a portion of the display device to display
`the composite image,
`
`wherein the second image is generated without being
`rendered.
`
`Id. at 11:57–12:12.
`
`
`
`C. Related Proceedings
`
`Petitioner identifies related district court cases involving the ʼ649
`
`patent and other patents, which were originally filed in the Eastern District
`
`of Texas and subsequently transferred to the Central District of California.
`
`Pet. 1–2. Petitioner also identifies at least one other related district court
`
`case involving the ʼ649 patent and other patents against other defendants.
`
`Id. Petitioner notes that it has filed petitions for inter partes review
`
`challenging claims of the other patents involved in the related district court
`
`cases and that Patent Owner has an application pending that is a continuation
`
`of the application that issued as the ’649 patent. Id. at 2. Patent Owner also
`
`identifies these related matters. Paper 4, 2–3.
`
`D. Claim Construction
`
`In an inter partes review, claim terms in an unexpired patent are
`
`construed according to their broadest reasonable interpretation in light of the
`
`specification of the patent in which they appear. See 37 C.F.R. § 42.100(b);
`
`Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016). Under
`
`that standard, claim terms are generally given their ordinary and customary
`
`
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`IPR2016-01880
`Patent 8,035,649 B2
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`meaning, as would be understood by one of ordinary skill in the art, in the
`
`context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249,
`
`1257 (Fed. Cir. 2007).
`
`Petitioner offers constructions of a number of claim terms in its
`
`Petition. Pet. 16–19. Patent Owner responds by disputing several of
`
`Petitioner’s proposed constructions. Prelim. Resp. 5–20. For purposes of
`
`this decision, we need only address the construction of “render.” See Vivid
`
`Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)
`
`(holding that “only those terms need be construed that are in controversy,
`
`and only to the extent necessary to resolve the controversy”).
`
`Petitioner contends that the term “rendering/rendered” as recited in
`
`independent claims 1, 13, and 15 “has a meaning that at least encompasses
`
`‘[generating an image/generated] by using three-dimensional texturing.’”
`
`Pet. 16 (citing Ex. 1001, 9:58–62; Ex. 1002 ¶ 77). Although Petitioner
`
`cabins its proposed construction with the phrase “at least encompasses,” in
`
`its substantive analysis, Petitioner equates “rendering” with three-
`
`dimensional texturing. See Pet. 29 (arguing that Bowen’s overlay image
`
`(which Petitioner contends teaches the recited second image) is not rendered
`
`because it “is not realized having three-dimensional texturing”); see also Ex.
`
`1002 ¶ 77 (“I adopt the ‘649 Patent’s definition of the term ‘rendering’ or
`
`‘rendered,’ specifically, ‘[generating an image/generated] by using three-
`
`dimensional texturing’ in my declaration and my analysis below.”). Patent
`
`Owner also understands Petitioner to contend “rendering” is limited to
`
`“three-dimensional texturing,” and Patent Owner disputes that construction.
`
`Prelim. Resp. 6–7. Thus, we consider whether Petitioner’s construction of
`
`“rendering/rendered” as “[generating an image/generated] by using three-
`
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`IPR2016-01880
`Patent 8,035,649 B2
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`dimensional texturing” is the broadest reasonable interpretation. Based on
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`the current record, we conclude that it is not.
`
`As Patent Owner points out (id. at 7), the ’649 patent describes “three-
`
`dimensional texturing” as only one example of “rendering”: “[t]he
`
`rendering is one of methods of generating an image. For example, the
`
`rendering may be used for generating an actual graphic image by realizing a
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`three-dimensional texture such as the variance in colors and density.”
`
`Ex. 1001, 9:58–62 (emphasis added). The ’649 patent further discloses
`
`other forms of rendering (see id. at 10:6–20), and states “methods capable of
`
`being used in rendering are not limited as described above. Namely, the
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`screen update system according to the present invention may render by using
`
`all methods of rendering” (id. at 10:22–26). Thus, consistent with the ’649
`
`patent specification, we determine that the broadest reasonable interpretation
`
`of “rendering” and “rendered” as recited in the challenged claims is not
`
`limited to “[generating an image/generated] by using three-dimensional
`
`texturing.” As discussed in further detail below, we determine we need not
`
`further construe these claim terms to resolve the controversy before us.
`
`
`
`E. References
`
`Petitioner relies on the following references:
`
`1. “Pose” (U.S. Patent No. 5,841,439; issued Nov. 24, 1998)
`(Ex. 1023);
`
`2. “Bowen” (U.S. Patent No. 6,147,695; issued Nov. 14, 2000)
`(Ex. 1024); and
`
`3. “Rogers” (U.S. Patent App. Pub. No. 2005/0137015 A1;
`published June 23, 2005) (Ex. 1025).
`
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`IPR2016-01880
`Patent 8,035,649 B2
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`F. Grounds Asserted
`
`
`
`Petitioner challenges the patentability of claims 1–16 of the ʼ649
`
`patent on the following grounds:
`
`
`Reference(s)
`Pose and Bowen
`
`
`
`Pose, Bowen, and Rogers
`
`
`Basis
`35 U.S.C. § 103(a)
`
`35 U.S.C. § 103(a)
`
`
`Claims
`
`1–3, 7–9, and 11–16
`
`4–6 and 10
`
`Petitioner relies also on expert testimony from Mr. David Crane
`
`(Ex. 1002, “Crane Decl.”).
`
`
`
`II. ANALYSIS
`
`A. Level of Skill in the Art
`
`Petitioner contends that a person of ordinary skill in the art at the time
`
`of the alleged invention of the ’649 patent would have possessed the
`
`following: “(1) at least a four-year Bachelor of Science degree OR at least 5
`
`years of professional experience as a video game designer/developer; and (2)
`
`a working understanding of computer programming, either through
`
`education or experience of the equivalent thereof.” Pet. 19; see Ex. 1002
`
`¶ 18 (stating the same). Patent Owner contends a person of ordinary skill
`
`“would have had at least a Bachelor of Science degree in computer science
`
`or a commensurate degree and a working understanding of video graphics
`
`rendering attained through either education or experience.” Prelim. Resp. 6.
`
`For purposes of this decision, we adopt the Petition’s definition of the
`
`level of skill in the art. We note, however, that our decision would not
`
`change under either proposed definition.
`
`
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`IPR2016-01880
`Patent 8,035,649 B2
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`B. Asserted Obviousness Over Pose and Bowen
`
`Petitioner contends that claims 1–3, 7–9, and 11–16 would have been
`
`obvious over Pose and Bowen. Pet. 20–50. For the reasons that follow, we
`
`are persuaded, based on this record, that Petitioner has not demonstrated a
`
`reasonable likelihood of prevailing on this challenge.
`
`1.
`
`Overview of Pose and Bowen
`
`Pose is titled “Updating Graphical Objects Based on Object Validity
`
`Periods” and issued on November 24, 1998. Ex. 1023, at [45], [54]. Pose
`
`relates to “[a] graphic display system [that] includes a set of rendering
`
`engines and a plurality of data storage units.” Id. at Abstract. Pose
`
`describes images displayed in a virtual reality system where “[o]bjects
`
`which are to be represented close to the user can be displayed as part of an
`
`‘inner’ sphere and more distantly represented objects displayed on an ‘outer’
`
`sphere.” Id. at 4:32–48.
`
`Bowen is titled “System and Method for Combining Multiple Video
`
`Streams” and issued on November 14, 2000. Ex. 1024, at [45], [54]. Bowen
`
`relates to “[a]n operation for combining multiple video streams [that]
`
`permits combining any number of overlay images and base images
`
`regardless of processes performed upon one or more of the images.” Id. at
`
`Abstract.
`
`2.
`
`Analysis of Petitioner’s Challenge
`
`Independent claims 1, 13, and 15 all recite “the second image is
`
`generated without being rendered.” Ex. 1001, 12:11–12 (claim 1), 13:20–21
`
`(claim 13), 14:21–22 (claim 15). Petitioner relies on Bowen as teaching this
`
`
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`IPR2016-01880
`Patent 8,035,649 B2
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`limitation. Pet. 34–35, 46, 49.1 Specifically, Petitioner contends Bowen’s
`
`overlay image teaches the recited “second image” and that “the overlay
`
`image of Bowen is not realized having three dimensional texturing.” Id. at
`
`34–35. Petitioner also relies on Mr. Crane’s testimony, as well as the
`
`portion of the Petition discussing claim 1’s limitation for “generating a
`
`second image.” Id. at 34 (citing Section VII.A.(5.) of the Petition; Ex. 1002
`
`¶ 226).
`
`Regarding rendering of Bowen’s overlay image (i.e., second image),
`
`the Petition states Bowen teaches the overlay image “is not rendered because
`
`the image is ‘lacking some high fidelity rendering features…and provide[s]
`
`less resolution’ when compared to the first image, or base image.” Pet. 29
`
`(quoting Ex. 1024, 7:10–27) (citing Ex. 1024, 1:51–59, 7:30–35; Ex. 1002
`
`¶¶ 205, 206). Petitioner further contends “Bowen elaborates that the overlay
`
`image is ‘less-detailed’ and lacks the same complexity in comparison to the
`
`base image—further illustrating that the overlay image, or second image,
`
`lacks the rendering claimed by the ‘649 Patent.” Id. (citing Ex. 1024, 7:10–
`
`27; Ex. 1002 ¶¶ 108–110, 206–207). Petitioner concludes, “[i]n other
`
`words, the overlay image of Bowen is not realized having three-dimensional
`
`texturing.” Id. at 29–30 (citing Ex. 1024, Fig. 3; Ex. 1002 ¶ 206); see also
`
`id. at 21 (arguing “Bowen also teaches that the overlay image, or second
`
`
`1 Petitioner states that, “[f]or ease of reference, attached as Exhibit 1026 is a
`list of the citations discussed above organized by claim element, Ground and
`Exhibit number, and identifying the corresponding Parts of the Petition
`where each is addressed.” Pet. 61. We have not considered Exhibit 1026,
`which Petitioner improperly seeks to incorporate by reference into the
`Petition. See 37 C.F.R. § 42.6(a)(3) (stating that “[a]rguments must not be
`incorporated by reference from one document into another document”).
`
`
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`10
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`IPR2016-01880
`Patent 8,035,649 B2
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`image, is not rendered”) (citing Ex. 1024, 1:51–59, 7:10–27, 7:30–35, Fig. 3;
`
`Ex. 1002 ¶ 149).
`
`Patent Owner contends Bowen does not teach “the second image is
`
`generated without being rendered” as recited in the independent claims 1,
`
`13, and 15. Prelim. Resp. 24. In particular, Patent Owner contends that
`
`Petitioner takes Bowen’s disclosure out of context and Bowen does not
`
`disclose a lack of rendering. Id. at 21–24. We are persuaded by Patent
`
`Owner’s argument. As Patent Owner persuasively points out, the portion of
`
`Bowen on which Petitioner relies to show the overlay image lacks “high
`
`fidelity rendering features (like depth buffer attributes) and provide less
`
`resolution, in terms of bits per pixel, than base image[s],” in actuality refers
`
`to the overlay image frame buffer, rather than the overlay image itself. Id. at
`
`22–23 (citing Ex. 1024, 7:20–27). In addition, Patent Owner persuasively
`
`contends that Bowen discloses its overlay image is rendered:
`
`Although rendering the overlay image into the overlay
`image frame buffer and the base image into the base image
`frame buffer is essentially the same process, (save for the added
`complexity of the base image f[r]ame buffer) the process of
`displaying output image 306 involves a per-pixel decision-
`making process.
`
`This process is displayed in FIG. 4. In the double
`buffering system used, image frame pixels are rendered into the
`first base image frame buffer, while display processing occurs
`at the second base image frame buffer. Similarly, overlay frame
`pixels are rendered into the first overlay image frame buffer,
`while display processing occurs at the second overlay image
`frame buffer.
`
`Id. at 23 (citing Ex. 1024, 7:30–43).
`
`We have reviewed Petitioner’s arguments and evidence, and find they
`
`do not sufficiently show that Bowen teaches “the second image is generated
`
`
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`IPR2016-01880
`Patent 8,035,649 B2
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`without being rendered” as recited in independent claims 1, 13, and 15. To
`
`the extent that Petitioner contends lack of three-dimensional texturing alone
`
`shows Bowen’s overlay image is not rendered, we disagree for the reasons
`
`set forth above in Section I.D. of this decision.
`
`In addition, the portions of Bowen cited by Petitioner fail to teach
`
`Bowen’s overlay image is not rendered. For example, Bowen discloses that
`
`“[o]verlay images are images that are overlaid on top of the base images,
`
`and are typically updated less frequently than base images” (Ex. 1024, 1:51–
`
`59), and those images can be less detailed than the base image (id. at 7:10–
`
`15). Bowen also discloses:
`
`Since overlay image 304 need not be updated as frequently as
`base image 302, the overlay image frame buffers are typically
`not as functionally complex as base image frame buffers. For
`example, overlay image frame buffers can lack some high
`fidelity rendering features (like depth buffer attributes) and
`provide less resolution, in terms of bits per pixel, than base
`image frame buffers.
`
`Id. at 7:20–27 (emphasis added). As discussed above, Petitioner does not
`
`sufficiently show this disclosure relates to generation of the overlay image
`
`rather than features of the overlay image buffer. In addition, to the extent
`
`that the above-quoted passage suggests that Bowen’s overlay image is
`
`“‘lacking some high fidelity rendering features…and provide[s] less
`
`resolution’ when compared to the first image, or base image,” as argued by
`
`Petitioner (Pet. 29), Petitioner does not explain how lacking some rendering
`
`features shows the image is generated without rendering.
`
`In addition, we are not persuaded that Bowen’s overlay image being
`
`less detailed than the base image shows the overlay image is not rendered.
`
`The ’649 specification recognizes that the second image could still be
`
`
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`IPR2016-01880
`Patent 8,035,649 B2
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`rendered even though less computation is required than for the first image:
`
`“[s]ince the second image does not need to be rendered, or if, rendering is
`
`required, the amount of computation is not large, the second image may be
`
`real-time updated at relatively higher frame rate than the first image.”
`
`Ex. 1001, 7:7–11.
`
`We have also reviewed the relevant portions of Mr. Crane’s
`
`declaration, and find that they do not provide further support for Petitioner’s
`
`contentions. In particular, Mr. Crane relies on the same construction, which
`
`we do not adopt, and the same portions of Bowen as Petitioner. See
`
`Ex. 1002 ¶¶ 77, 149, 206–07.
`
`In sum, Petitioner has not persuasively explained, or provided
`
`sufficient evidence to show, that Bowen teaches “the second image is
`
`generated without being rendered” as recited in independent claims 1, 13,
`
`and 15. By virtue of their dependency, claims 2, 3, 7–9, 11, 12, 14, and 16
`
`include the same limitations as independent claim 1, 13, or 15. For at least
`
`the reasons discussed above, Petitioner has not demonstrated a reasonable
`
`likelihood of prevailing in showing that claims 1–3, 7–9, and 11–16 would
`
`have been obvious over Pose and Bowen.
`
`C. Asserted Obviousness Over Pose, Bowen, and Rogers
`
`Petitioner contends that dependent claims 4–6 and 10 would have
`
`been obvious over Pose, Bowen, and Rogers. Pet. 50–61. Claims 4–6 and
`
`10 depend directly or indirectly from independent claim 1. Petitioner
`
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`IPR2016-01880
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`contends Rogers2 teaches additional limitations of these dependent claims,
`
`but does not rely on Rogers as curing any of the deficiencies discussed
`
`supra. See id. Thus, for at least the reasons discussed in Section II.B.
`
`above, we conclude that Petitioner has not demonstrated a reasonable
`
`likelihood of prevailing on this challenge.
`
`
`
`III. SUMMARY
`
`
`
`We determine that Petitioner has not demonstrated a reasonable
`
`likelihood of prevailing on its challenges to claims 1–16 of the ’649 patent.
`
`
`
`IV. ORDER
`
`It is, therefore,
`
`ORDERED that the Petition is DENIED and no trial is instituted.
`
`
`
`
`2 Because we do not institute this inter partes review for the reasons
`discussed above, we do not reach Patent Owner’s other arguments for both
`grounds, including its argument that Rogers is not prior art. See Prelim.
`Resp. 42.
`
`
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`14
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`15
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`IPR2016-01880
`Patent 8,035,649 B2
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`PETITIONER:
`John Garretson
`jgarretson@shb.com
`
`Tanya Chaney
`tchaney@shb.com
`
`PATENT OWNER:
`
`William Mandir
`wmandir@sughrue.com
`
`Peter Park
`pspark@sughrue.com
`
`John Bird
`jbird@sughrue.com
`
`Christopher Bezak
`cbezak@sughrue.com
`
`Fadi Kiblawi
`fkiblawi@sughrue.com
`
`
`
`
`
`
`
`