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`IPR2017-01333
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`January 17, 2018
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`1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`FANDUEL, INC. and
`DRAFTKINGS, INC.,
` Petitioners,
` vs. Case No. IPR2017-01333
` Patent No. 9,306,952
`INTERACTIVE GAMES LLC,
` Patent Owner.
` DEPOSITION OF GARRY KITCHEN
` Taken on behalf of the Patent Owner
` January 17, 2018
` Saundra Tippins, CCR
`
` (The deposition began at 11:05 a.m.)
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`CG TECH EXHIBIT 2003
`FANDUEL v. CG TECH
`IPR2017-00902
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`Page 1 of 42
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`Kitchen, Garry
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`IPR2017-01333
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`January 17, 2018
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`QUESTIONS BY: PAGE NO.
`MR. GOLDBERG 5
`
` INDEX OF EXHIBITS
`
`EXHIBIT PAGE REFERENCED
`NO.
`Exhibit 1001 '356 Patent 29
`Exhibit 1004 Barton Patent 29
`Exhibit 1011 Kitchen Declaration 7
`Exhibit 1012 Kitchen CV 15
`Exhibit 2001 Updated Kitchen CV 16
`(Whereupon Exhibit 2001 was attached to the
` original and copies.)
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`202-220-4158
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`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
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`Page 2 of 42
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`Kitchen, Garry
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`IPR2017-01333
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`January 17, 2018
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`FANDUEL, INC. and
`DRAFTKINGS, INC.,
` Petitioners,
` vs. Case No. IPR2017-01333
` Patent No. 9,306,952
`INTERACTIVE GAMES LLC,
` Patent Owner.
`
` DEPOSITION OF GARRY KITCHEN, produced,
`sworn, and examined on the 17th day of January,
`2018, between the hours of nine o'clock in the
`forenoon and five o'clock in the afternoon of that
`day, at the law offices of Erise IP, 7105 College
`Boulevard, Suite 700, Overland Park, Kansas, before
`SAUNDRA TIPPINS, a Notary Public, and Certified
`Court Reporter within and for the States of
`Missouri and Kansas, in a certain cause now pending
`before the United States Patent and Trademark
`Office, before the Patent Trial and Appeal Board,
`wherein FANDUEL, INC. and DRAFTKINGS, INC. are the
`Petitioners and INTERACTIVE GAMES is the Patent
`Owner.
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`202-220-4158
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`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
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`Page 3 of 42
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`Kitchen, Garry
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`IPR2017-01333
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`January 17, 2018
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` A P P E A R A N C E S
` For the Petitioners:
` MS. MEGAN REDMOND
` MS. CALLIE PENDERGRASS
` ERISE IP
` 7015 College Boulevard, Suite 700
` Overland Park, Kansas 66211
` (913)777-5600
` megan.redmond@eriseIP.com
`
` For the Patent Owner:
` MR. JOSHUA L. GOLDBERG
` MR. DAVID C. REESE
` FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER
` 901 New York Avenue NW
` Washington, DC 20001
` (202)408-6092
` joshua.goldberg@finnegan.com
`
` The Court Reporter:
` Ms. Saundra Tippins
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`202-220-4158
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`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
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`Page 4 of 42
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`Kitchen, Garry
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`IPR2017-01333
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`January 17, 2018
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` IT IS HEREBY STIPULATED AND AGREED,
`by and between counsel for Petitioners and counsel
`for Patent Owner that the deposition of GARRY
`KITCHEN may be taken in shorthand by Saundra
`Tippins, a notary public and shorthand reporter,
`and afterwards transcribed into typewriting; and
`the signature of the witness is expressly reserved.
` * * * * *
` THE REPORTER: Would you like an
` etran?
` MS. REDMOND: Yes.
` THE REPORTER: Do you want the
` realtime with rough?
` MR. GOLDBERG: Yes.
` THE REPORTER: When would you like
` the final transcript?
` (Discussion off the record.)
` MR. GOLDBERG: We need it today.
` * * * * *
` GARRY KITCHEN,
` of lawful age, produced, sworn and examined on
` behalf of Patent Owner, deposes and says:
` EXAMINATION
` QUESTIONS BY MR. GOLDBERG:
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`202-220-4158
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`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
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`Page 5 of 42
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`Kitchen, Garry
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`IPR2017-01333
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`January 17, 2018
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` Q Good morning, Mr. Kitchen. Could you
` please state your full name and address for the
` record.
` A Garry, G-a-r-r-y, Kitchen,
` K-i-t-c-h-e-n. My address is 1313 Still Creek
` Place in Danville, D-a-n-v-i-l-l-e, California.
` Q And do you understand that you're
` under oath this morning?
` A I do.
` Q And that this means you're sworn to
` tell the truth as if you were in a courtroom with
` a judge and jury?
` A I do.
` Q Is there anything that would prevent
` you from giving me full and truthful answers
` today?
` A No.
` Q I'm not here to trick or confuse you.
` If you don't understand any of my questions,
` please ask me to clarify. Okay?
` A Okay.
` Q Is it fair for me to assume that if I
` ask you a question and you answer it, that you
` understood what I asked you?
` A Yes.
`
`202-220-4158
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`www.hendersonlegalservices.com
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`Page 6 of 42
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`Kitchen, Garry
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`IPR2017-01333
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`January 17, 2018
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` Q We'll try to take breaks every 60
` minutes or so. Before we take a break today, I'd
` like you to complete your answer to any question
` that's pending. Is that fair?
` A Okay.
` Q Also, please let me know if you need a
` break. Again, I just ask that you complete your
` answer to any question that's pending prior to the
` break.
` A Okay.
` Q And during the break, do you
` understand that you may not discuss the substance
` of your testimony with Petitioners' counsel or
` anyone else?
` A Understood.
` Q Mr. Kitchen, I'm handing you what has
` been previously marked as Exhibit 1011.
` Do you recognize this document?
` A I do.
` Q What is the document marked
` Exhibit 1011?
` A This is a declaration that I filed in
` this matter.
` Q You said you filed it?
` A Declaration that I wrote that was
`
`202-220-4158
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`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
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`Page 7 of 42
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`IPR2017-01333
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`January 17, 2018
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` filed in this matter.
` Q Okay. And how long did you spend
` working on your declaration?
` A I don't have an exact number. This
` was over nine months ago. I would say somewhere
` in the range of 30 to 50 hours.
` Q And did you read it carefully to make
` sure everything it said was correct?
` A I did.
` Q We'll now turn to paragraph two of
` your declaration.
` Do you see where it says, in reaching my
` opinions in this matter, I have reviewed the
` following materials?
` A Yes, I see that.
` Q And then there is a list of materials
` that spans from page two through two-thirds or so
` of page three?
` A I see that.
` Q In addition to reviewing all these
` materials, you also relied on them in preparing
` your declaration, right?
` A The only materials I relied on in
` forming my opinions were the specific prior art
` references that I cite in my obviousness
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`202-220-4158
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`www.hendersonlegalservices.com
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`Page 8 of 42
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`IPR2017-01333
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`January 17, 2018
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` combinations. The other materials listed here
` were used strictly by me as factual background.
` Q And when you refer to the specific
` prior art references that you cite in your
` obviousness combinations, where is that?
` A Starting in paragraph 64, I discuss
` combining Carter and Barton, so I relied on
` Barton. And then starting at paragraph 108, I
` discuss in regards to claim six combining Carter,
` Barton and Walker. So I rely on Walker as prior
` art.
` On page -- on paragraph 114, I discuss
` combining Carter and Martin, so in the Martin
` section I rely on Martin, though I understand
` that Martin was not instituted, so I'm not sure
` it's relevant to this proceeding.
` So those are the prior art references that
` I relied on for my opinion.
` Q So can you turn to paragraph 85 of
` your declaration, Mr. Kitchen.
` A (Witness complies.)
` Q Do you see on the end of paragraph 85
` on page 43 of Exhibit 1011 a reference to
` Exhibit 1019?
` A Yes. I see paragraph 85.
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`202-220-4158
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`www.hendersonlegalservices.com
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`Page 9 of 42
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`IPR2017-01333
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`January 17, 2018
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` Q Do you see the reference to
` Exhibit 1019 in paragraph 85?
` A I do.
` Q You relied on Exhibit 1019 in
` paragraph 85, didn't you?
` A No, I did not rely on it for the
` opinions I state in this section or any opinions
` in fact in the entire declaration.
` Q So why did you cite it then?
` A Barton discloses a payoff amount,
` selectable betting parameter. One example of how
` a selectable betting parameter of a payout amount,
` one example of how that could be used is a payout
` schedule on a slot machine.
` To better explain what a payoff amount, an
` example of the useful payoff amount, I include
` this illustration. However, this illustration
` doesn't disclose anything that the affects my
` opinion on Barton. This is clearly just to show
` what a payoff table looks like.
` Q So in your view, you didn't rely on
` Exhibit 1019 in your opinion; you just used it to
` explain your opinion?
` MS. REDMOND: Objection, form.
` A No, I didn't use it to explain my
`
`202-220-4158
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`www.hendersonlegalservices.com
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`January 17, 2018
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` opinion. I used it to illustrate what exists in
` gambling, payoff tables that show payoff amounts
` exist in gambling.
` This is a historical document that shows
` an example of a payoff table. Whether or not
` this was in here, I, I understand what a payoff
` amount is. I understand what a payoff table is.
` I don't need this document to form an opinion on
` Barton's payoff amount selectable betting
` parameter.
` Q (By Mr. Goldberg) If you don't need
` Exhibit 1019, why did you state it in your
` opinion?
` MS. REDMOND: Objection, form.
` A It's there strictly to illustrate for
` a reader what I already know and what my opinion
` was on what Barton's payoff amount parameter could
` possibly be used for.
` Q (By Mr. Goldberg) So in paragraph 85
` of Exhibit 1019, sorry, in paragraph 85 of
` Exhibit 1011, you relied on Exhibit 1019 to
` illustrate for a reader what you knew?
` MS. REDMOND: Objection, form.
` A No. I, as I've explained, I don't
` rely on Exhibit 1019 for any of my opinions at
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` all. I include the illustration from Exhibit 1019
` purely for factual background.
` Q (By Mr. Goldberg) Do you think the
` board should look at Exhibit 1019?
` A I put it in my document only to the
` extent that maybe they don't understand what a
` payout table on a slot machine looks like. It's
` only there for factual background. It has nothing
` to do with the opinions I state in this section.
` Q Okay. Mr. Kitchen, let's turn back to
` paragraph 79 of your declaration.
` A (Witness complies.)
` Q On page 40, the first line of your
` declaration, do you see where it says, As I
` discussed in the background of the prior art, many
` states, including Nevada, New Jersey and Iowa, for
` example, all had different minimum payout
` frequency requirements for slot machine games?
` A Yes, I see that.
` Q And do you see directly after that
` sentence it says, See paragraph 50?
` A I see that.
` Q What is paragraph 50 referring to?
` A Paragraph 50 is referring to a
` paragraph in the background section of my
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`202-220-4158
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`www.hendersonlegalservices.com
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` declaration.
` Q Why did you refer to paragraph 50 in
` your discussion in paragraph 79?
` A Well, in writing a declaration like
` this, especially one that's complex and technical,
` often there will be terms that may be used in my
` declaration that require further explanation, so
` that the reader understands what I'm talking
` about.
` And referring back to paragraph 50, I'm
` explaining what payout rates are and the
` historical background of them so that it's better
` understood by a reader.
` Q You just said payout rates, but in
` that first sentence on paragraph 40 of your
` declaration, it only refers to payout frequency.
` A That's correct, if you refer to
` paragraph 41 of my declaration. I interchangeably
` use the terms payout rate, percentage or frequency
` to mean the same thing.
` Q So in your opinion the words rate,
` percentage and frequency all have the same
` meaning?
` A No. I didn't say that.
` In the context of what a payout rate is,
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` payout rate can sometimes be referred to as a
` payout frequency.
` Q So paragraph 41 is part of a section
` of your declaration called Glossary of Terms,
` right?
` A Correct.
` Q How did you determine which terms to
` include in this glossary?
` A I don't recall exactly. In some cases
` it may have been a term that was previously
` defined in the history of the '952 patent.
` Otherwise, it was a list of terms that I felt were
` relevant given the subject matter of the
` declaration.
` Q Did the attorneys for the Petitioners
` provide you with this list of terms?
` A I don't believe they provided me with
` the list. They certainly may have commented on
` it.
` Q Where did you obtain the definitions
` that you included in the list?
` A From various sources relating to this
` declaration. They may have been in the '952
` patent or any of the prior art patents that I cite
` in my obviousness analysis. They may be from the
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` prosecution history of the patent. They may have
` been given me by the attorneys.
` I wrote this in May of last year. I don't
` recall specifically where these came from.
` Obviously some are just ones I understood from my
` work.
` Q What work is that?
` A My development of games.
` Q Mr. Kitchen, I'm handing you what's
` been previously marked as Exhibit 1012.
` Do you recognize this document?
` A Yes, I do.
` Q What is it?
` A This is a copy of my resume.
` Q And can you please turn to page three
` of Exhibit 1012.
` A (Witness complies.) I'm there.
` Q And do you see where it lists your
` position as Vice President Game Publishing at
` Viacom MTV Networks?
` A Yes.
` Q Is that your current position?
` A No. This must be an old copy of my
` resume.
` Q Mr. Kitchen, I'm handing you what I'm
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` currently marking as Exhibit -- you know what
` actually, I need a pen.
` I'm handing you what I am currently
` marking as Exhibit 2001, a copy -- actually do
` you recognize what this document is?
` A Yes. This is another copy of my
` resume that has my expert consulting experience
` attached to it as well as my publications and
` softwareology list attached to it.
` Q And can you please turn to page three
` of Exhibit 2001.
` A (Witness complies.) Okay.
` Q Do you see where it lists
` President/CEO, SGK Service, Inc., Danville,
` California?
` A Correct.
` Q Is that your current position?
` A Yes, it is.
` Q Okay. So this is a more current
` version of your resume than the one marked
` Exhibit 1012?
` A Yes. More current by a number of
` years.
` Q Let's turn to paragraph 19 of your
` declaration, Exhibit 1011.
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` A (Witness complies.) Okay.
` Q Now, I think before we were talking
` about your work on games.
` Do you see the reference in paragraph 19
` where it says, I have worked on numerous
` entertainment software titles designed to
` simulate real money wagering, parenthesis, for
` amusement purposes only, end parentheses,
` including video poker, slot machine software and
` multiplayer online poker?
` A Yes, I see that.
` Q To what entertainment software titles
` are you referring in paragraph 19?
` A Numerous, numerous titles. I worked
` on a multiplayer online poker game for ESPN that
` was hosted on the ESPN website. I have worked on
` slot machine simulations for, well, for iPhone
` that we never published, but before that, for
` various online gaming sites.
` I also worked on video poker simulations
` that were published on various online gaming
` sites. Those are the ones that come to mind.
` Oh, I also worked on an original strategy
` puzzle game based on poker. And I'm sure there
` were other online poker games. ESPN was only one
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` of them. I'm sure there were others that I don't
` recall right now.
` Q What do you mean by original strategy
` puzzle game based on poker?
` A Well, poker, the rules of poker,
` meaning what you're trying to do with cards and
` match them to get certain hands.
` That play mechanic was adapted to an
` online puzzle game in which -- so in other words,
` if you think about, I don't know if you're
` familiar with match three puzzle games, but if
` you think about a game like Bejeweled, which was
` a simple game where you moved jewels around on
` the screen and matched them, it was similar to
` that except rather than jewels, you had random
` playing cards, and you were trying to reorganize
` them within a grid to make poker hands. That is
` what I'm talking about.
` Q Okay. Let's look at paragraph 21 of
` your declaration, Exhibit 1011.
` A (Witness complies.) Okay.
` Q And do you see in the second sentence
` it says, I have had direct involvement in
` development and publication of over 80 commercial
` software products either as a designer,
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` co-designer, software author or coauthor?
` A Correct.
` Q And then it goes on to say, A list of
` these titles is included in my curriculum vitae
` attached as Exhibit 1012?
` A Correct.
` Q Is that list of titles included in
` Exhibit 1012?
` A I have Exhibit 1011 here, which you
` gave me, and it's included in this exhibit.
` Q Where is that?
` A It is -- oh, I'm sorry. I'm being,
` it's not this. Excuse me. It's not this. It's
` not this. It's this. (Witness indicating.)
` This is Exhibit 2001. It's included in
` Exhibit 2001. It's at the end of my resume, page
` seven of Exhibit 2001.
` Q Okay. So it's not in the old version
` of your resume that was identified as
` Exhibit 1012, but it is in the current version of
` your resume that's Exhibit 2001?
` A Right. I don't believe I ever
` supplied -- I may be wrong, but I don't believe I
` ever supplied this resume to anyone.
` Q And when you say this resume, you're
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` referring to?
` A Exhibit 1012, the outdated one.
` Q Okay, thank you. Have you ever worked
` on entertainment software title designed to
` simulate real money wagering for slot machines?
` A I'm sorry, could you say that again?
` Q Have you ever worked on an
` entertainment software title designed to simulate
` real money wagering on slot machines?
` A Well, when you say simulate real money
` wagering, the way I used that term in my resume is
` it means it's not real money wagering. It's
` simulating. It's for amusement.
` So yes, I have, if that's your
` understanding of the term.
` Q Let's talk about that. Let's talk
` about your understanding for a minute.
` In paragraph 19, you refer to simulating
` real money wagering. So can you just explain
` again, what do you mean by simulate real money
` wagering in paragraph 19 of your declaration?
` A Sure. The games I did do not run real
` money wagering to the extent that you can't bet
` and win actual money. They run the same way, but
` they're for amusement only, meaning that they're
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` not, you know, they're not covered by regulation.
` So they simulate an experience that you
` would get, for example, in a casino, but they
` don't let you actually win money.
` Q Okay. So you have not worked on
` entertainment software titles where people are
` able to actually win money?
` A I did work on a couple of titles for a
` company called World Winner. And those were games
` that you could win money online, actual money.
` Q And what types of games were those?
` A Those were games of skill; for
` example, bowling.
` Q Can you describe a little bit more
` what you mean by games of skill and bowling?
` A Yeah. What it was, was a website that
` had a number of games on it, like bowling or
` archery or, you know, games that required you to
` have some skill, not random games, games that the
` more you played and the more you learned the
` interface, theoretically the better you got at it.
` And World Winner offered a site where you
` were matched against another player online, you
` played and they played, and the winner received
` money.
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` Q And would you consider that gambling?
` A No, because they're games of skill.
` Q Again, coming back to the slot machine
` again, is my understanding correct that you have
` worked on entertainment software titles designed
` to simulate real money wagering on slot machines,
` but that such titles did not allow a player to win
` real money?
` A That's correct. And they, just to,
` just to clarify one thing you said, the software
` didn't run on slot machines. It simulated on a
` video game computer screen what a slot machine
` looked like.
` Q Thank you. Do you have any experience
` with the design, development or analysis of
` hardware and software location determination
` systems?
` A Yes, I've worked on location
` determination systems.
` Q When was that?
` A Well, a number of different times.
` It's common today to use the location capabilities
` of mobile devices, like the iPhone or Android, in
` games that use location capability for various
` reasons.
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` For example, one of the most popular games
` on the iPhone is a game called Pokémon GO, and
` Pokémon GO uses real world locations which are
` detected by the hardware of the iPhone. I have
` worked on projects that use location capability
` of a phone involved in a game.
` Q When did you first work on a project
` that used the location capability of a phone?
` A Late 1990's, early 2000's.
` Q Okay, let's go back to paragraph 79 of
` your declaration.
` A (Witness complies.)
` Q And again, the page 40 portion.
` A (Witness complies.) Okay.
` Q Do you see on the fourth line you used
` the word "thus"?
` A Yes.
` Q Are you using the word "thus" because
` the first full sentence on page 40 is the support
` for the conclusion in the second full sentence
` beginning with "thus" on page 40?
` A Could you read that question back or
` repeat it?
` Q I'll ask the court reporter to please
` read it back.
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` (The reporter read back the
` question: Are you using the word "thus"
` because the first full sentence on page
` 40 is the support for the conclusion in
` the second full sentence beginning with
` "thus" on page 40?
` A No. Thus is referring to the first
` sentence on the bottom of page 39, first sentence
` of paragraph 79.
` Q (By Mr. Goldberg) Does the first full
` sentence on page 40 support your conclusion in
` the first full sentence of paragraph 79 on page
` 39?
` A No, it doesn't support the conclusion.
` Q What function does the first full
` sentence of paragraph 40 serve if it supports
` neither the conclusion in the first full sentence
` of paragraph 79 nor the conclusion in the sentence
` beginning thus on page 40?
` A To better explain why it's there, I'll
` give you an example.
` If I'm writing a report and I talk about
` an isosceles triangle, I may insert in my text a
` picture of an isosceles triangle, so that if the
` person reading the report doesn't off the top of
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` their head understand what it is, they see an
` illustration and they understand.
` What the second paragraph of 79 is doing
` is it's performing the same function. The first
` paragraph of 79 talks about jurisdictions that
` require certain games to comply with a minimum
` payoff frequency. The next line refers to
` paragraph 50, which illustrates examples of
` certain jurisdictions where certain games are
` required to comply with the minimum payoff
` frequency.
` It's clearly just an example to help the
` reader understand in case they're not familiar.
` It carries no weight in terms of my opinion. My
` opinion would be the same whether or not that
` reference appeared there.
` However, by putting it there, I'm
` attempting to make it easier for the reader to
` understand what I'm saying.
` Q On paragraph 62 of your declaration --
` A Okay.
` Q -- do you see the reference to video
` game related hardware and software at the end of
` that paragraph?
` A Correct.
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` Q What is video game related hardware
` and software?
` A Well, in the context of this
` declaration, as I explain in the glossary, the
` term "video game" I'm using to mean a game that
` appears on a video screen. Within this large
` umbrella of video games, you can consider subsets,
` video games for amusement and video games for
` gambling, like video slot machines, for example.
` So what I'm saying here is that this is
` experience in the design and development of video
` game related hardware and software, meaning the
` hardware and the software knowhow and techniques
` that are involved in putting interactive graphics
` on a screen and creating a game experience.
` Q What do you mean by creating a game
` experience?
` A Design and development.
` Q Design and development of what?
` A Video games.
` Q And when you say video games, are
` referring to both video games for amusement and
` video games for gambling?
` A This patent specifically discusses
` video games for gambling. As I describe, video
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` games for gambling is a subset of the overall area
` of expertise of video games.
` Nothing I opine on in this report is
` specific to the gambling aspects of gambling
` games such that it would be outside the realm of
` expertise of somebody who does video games.
` Everything that these patents talk about in the
` claims in this report that I opine on is
` expertise in hardware and software that someone
` who made either type of video games would have.
` So I'm referring to video games. When I
` talk about the subject matter in here, I'm
` referring to video games that are gambling games,
` because that's what this patent is about. But
` the technology that we've discussed here, such as
` putting a user interface on the screen, calling a
` server with a database, doing location
` determination, these are all things that are
` within the realm of skill of a video game
` professional, as I outline in the experience of
` one skilled in the arts.
` Q So I'm trying to understand what the
` use of video game related in paragraph 62 is
` adding that's different from what's already been
` defined earlier in paragraph 62.
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` So what is an example of a skill, an
` experience, that somebody would have that is
` video game related that they would not
` automatically already have by having a Bachelor
` of Science degree in Electrical Engineering or
` Computer Engineering or equivalent?
` A Well, it's the experience. That's
` what it is. It's the experience. I mean, if the
` experience wasn't important, then all I would say
` there is a Bachelor of Science in E