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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`WARGAMING GROUP LIMITED and
`ACTIVISION BLIZZARD, INC.,
`Petitioner,
`
`v.
`
`GAME AND TECHNOLOGY CO., LTD.,
`Patent Owner.
`______________
`
`Case IPR2017-01082
`Patent 7,682,243 B2
`_____________
`
`Record of Oral Hearing
`Held: July 10, 2018
`____________
`
`
`
`
`Before STACEY G. WHITE, DANIEL J. GALLIGAN, and
`SCOTT B. HOWARD, Administrative Patent Judges.
`
`
`
`
`
`
`
`
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`Case IPR2017-01082
`Patent 7,682,243 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER WARGAMING GROUP LIMITED:
`
`
`CHRIS PONDER, ESQ.
`HARPER BATTS, ESQ.
`JEFFREY LIANG, ESQ.
`Baker Botts L.L.P.
`1001 Page Mill Road Building One, Suite 200
`Palo Alto, CA 94304
`650-739-7500
`
`
`ON BEHALF OF THE PETITIONER ACTIVISION BLIZZARD, INC.:
`
`
`SHARON ISRAEL, ESQ.
`Shook, Hardy & Bacon L.L.P.
`600 Travis Street, Suite 3400
`Houston, TX 77002
`713-546-5689
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`RICHARD CASTELLANO, ESQ.
`DNL Zito Castellano
`1250 Connecticut Avenue, NW, Suite 700
`Washington, DC 20036
`301-448-8071
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday, July 10,
`
`2018, commencing at 1 p.m., at the U.S. Patent and Trademark Office, Texas
`Regional Office, 207 S. Houston Street, Suite 159, Dallas, Texas 75202.
`
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`Case IPR2017-01082
`Patent 7,682,243 B2
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`P R O C E E D I N G S
`- - - - -
` (WHEREUPON, the following was transcribed from an
`audio recording, as follows:)
` JUDGE GALLIGAN: Please be seated.
` This is the hearing in IPR 201701 -- sorry. My
`microphone was off.
` This is a hearing in IPR2017-01082. Petitioner is
`Wargaming Group Limited, and Activision Blizzard was
`joined as a petitioner, and patent owner is Game and Technology
`Company.
` Can I have appearances for the petitioner, please.
` MR. BATTS: Yes, Your Honor. Harper Batts on
`behalf of petitioner, and with me is Jeffrey Liang and Chris
`Ponder, all from the firm of Baker Botts.
` JUDGE GALLIGAN: Okay. You can make an
`appearance.
` MS. ISRAEL: Sharon Israel on behalf of Activision
`Blizzard.
` JUDGE GALLIGAN: And, Mr. Batts, you'll be
`presenting for the petitioner?
` MR. BATTS: Your Honor, I will be presenting on
`the Dungeons & Dragons ground, and Mr. Ponder
`will be addressing the service issues, to the extent those
`are argued.
` JUDGE GALLIGAN: Okay, great.
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` And patent owner?
` MR. CASTELLANO: Yes, Your Honor. Richard
`Castellano for Game and Technology.
` JUDGE GALLIGAN: Okay. So according to the oral hearing order,
`each party will have one hour of
`argument time. Petitioner bears the burden of proving
`unpatentability of the challenged claims and will proceed
`first. Petitioner may reserve rebuttal time. Petitioner
`also bears the burden of persuasion on the motion to
`exclude, Exhibit 2027, if you wanted to argue that.
` Patent owner will go after petitioner, and the
`petitioner may use the remainder of its time.
` How much time do you want to reserve for rebuttal?
` MR. BATTS: If I may, Your Honor, there's a few
`issues on this. The first issue is that we would propose,
`and we reached out to patent owner about splitting the
`arguments from the service issue, and separate from that the
`issues on the ground, that Instituted ground. So we propose
`that we do service first, and then deal with the ground. So
`that, for us, we would split the time there. And then,
`also, we have the objections to the slides and what we
`believe are new arguments regarding the grounds that we
`wanted to also address.
` JUDGE GALLIGAN: Yes. I was going to get to the
`slides in a second.
` So were you going to do 30 minutes on the service
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`issue?
` MR. BATTS: I think we are planning on 20 minutes
`of our time on the service issue, depending on -- they
`didn't get back to us on whether they were going to argue it
`even. So we're kind of --
` JUDGE GALLIGAN: I prefer you do just petitioner
`all at once.
` Judge White?
` JUDGE WHITE: Did you have any sort of agreement
`on this or --
` MR. CASTELLANO: No, Your Honor. We actually
`prefer to do it all at once, rather than apportion our time
`to one aspect or another.
` JUDGE WHITE: Then let's just do it all at once.
` JUDGE GALLIGAN: We will just proceed, petitioners
`present your entire case, and then you can respond. You
`will respond to the entire case on both issues, for all
`issues, and then, petitioner, you can rebut.
` MR. BATTS: So we'll plan on 45 minutes of time
`for our opening time period, with 15 minutes of rebuttal,
`Your Honor.
` JUDGE GALLIGAN: Great, thanks.
` And we have -- I apologize. I'm Judge Galligan,
`this is Judge White, to my left, and joining us by video is
`Judge Howard. And so for clarity of the record, because
`he's remote, he has access to everything, he has access to
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`the record and all the slides. You just identify what page
`of the record you're on, page of the petition, the patent owner
`response, and the pages of slides, please, it also helps the
`court reporter.
` We've looked at the patent of -- petitioner's
`objections to the patent owner's demonstratives. It looks
`like some of them may have been addressed. I didn't see
`some of the objectionable material on a couple of slides.
`Slide 3, I think there was some stuff quoted in the
`objections that I didn't see, so maybe the patent owner
`submitted -- did the patent owner address some of these
`objections?
` MR. CASTELLANO: Yes, Your Honor. We submitted a
`revised demonstrative addressing some of the objections by
`including citations and removing some of the material.
` JUDGE GALLIGAN: Okay. Then I was just going to
`say, petitioner, I think everyone understands the slides
`aren't -- the demonstratives aren't evidence themselves. We
`have reviewed them, we are just going to let the patent
`owner present on the slides.
` We -- we're cognizant of the record and we're
`cognizant whether new arguments have been raised. But just
`for the purposes of moving forward, we'll just have patent
`owner proceed on the slides that its -- that it has
`presented. And if there are new, in fact, they raise
`arguments in there that we have not seen before, we may ask
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`them about that.
` MR. BATTS: Yes, Your Honor. The two notable
`arguments that we would plan to object to are the
`programming arguments that we saw on slides 3 and 5,
`regarding some sort of programming being necessary for the
`movement of the unit, which has not been in the patent
`owner's response. And then, also, there seems to be what
`looks like new construction for ability, referring to an
`action or a skill, which is a switch from the innate ability
`construction that they've argued in their POR. So we plan
`to object on that.
` JUDGE GALLIGAN: Yeah, I think the -- I didn't see
`the one in the slides that were -- that were filed as
`Exhibit 2036. I didn't see the issue of the programming.
` Did -- patent owner, did you take that out?
` MR. CASTELLANO: Yes, Your Honor.
` JUDGE GALLIGAN: Okay. So that's been resolved, I
`guess.
` With respect to the ability, we'll certainly talk
`about that in this hearing.
` So, with that, I don't -- I don't think I have
`anything further.
` Petitioner, you are free to begin when you are
`ready.
` MR. BATTS: Yes. I have two further housekeeping
`issues, if I may, Your Honor.
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` JUDGE GALLIGAN: Sure.
` MR. BATTS: First, I would want to note for the
`record, I think it's our position that service is not our
`burden, so we don't agree on a format for we're obligated to
`show service as being -- not having occurred.
` JUDGE GALLIGAN: Okay.
` MR. BATTS: And, second, we'd like to, for the
`slides, if we can, put a chair on the side here and have
`Mr. Liang operate the slides for us.
` JUDGE GALLIGAN: Sure, that's fine.
` MR. BATTS: Thank you. Lastly, Your Honors, do
`you want hard copies of the slides?
` JUDGE WHITE: I'd like one.
` MR. BATTS: May I approach?
` JUDGE WHITE: Yes.
` JUDGE GALLIGAN: Yes.
` MR. BATTS: Thank you, Your Honor.
` JUDGE GALLIGAN: Thank you.
` MR. PONDER: May I proceed, Your Honor?
` JUDGE GALLIGAN: Yes.
` MR. PONDER: Thank you.
` Your Honor, first of all, petitioner would like to
`thank you all for giving us the opportunity to take
`discovery on the service issue.
` You may recall that in the patent owner's
`preliminary response, the basis for claiming that Wargaming
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`is barred is that patent owner claimed that Wargaming was
`served by a process server, John Talbot, in
`London, and that he served Wargaming.net LLP, a UK entity.
` In support of that contention, they filed an
`exhibit, Exhibit 2002, that claimed to be a witness
`statement by Mr. Talbot attesting the service. And what we
`learned from the deposition is that Mr. Talbot said that
`that was not a true and accurate copy of what he actually
`served. So the evidence that was submitted in this
`proceeding seeking to prevent Institution was not a true and
`accurate document, and we still do not have sworn testimony
`explaining where this false document came from and how it
`became a part of the record.
` Now, the briefing on this service issue is a bit
`piecemeal because the briefing was spread out. And,
`frankly, one difficulty we face is that the patent owner has
`changed over time their theory of service. They started
`with the claim that service was accomplished by process
`server. We put in evidence, through his deposition
`testimony, showing that that isn't the case, that no signed
`and sealed summons was actually delivered or served. We
`also put forward testimony in the form of a declaration that
`went unexamined, they chose to cancel the deposition of our
`declarant, establishing that there is no record that
`Wargaming.net LLP ever received any of the documents.
` During the course of briefing, patent owner
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`attempted to claim that there was service by mail. That
`wasn't in their preliminary response. This is an entirely
`new theory. And what we've learned by looking at the
`documents is they have failed to follow any of the law on
`what is required to accomplish service by mail.
` I would submit that in examining the evidence,
`Your Honors should consider what do they claim is the method
`of service. Is it personal service, or is it service by
`mail. And then look to the Federal Rules of Civil Procedure
`to figure out if they've complied with all the requirements
`of the law.
` And then the second part would be to look at who
`they're claiming they actually gave the documents to.
`Because that has changed over time. They originally claimed
`they served one entity, a UK entity in London. And then
`their service by mail theory is that they served, by mail,
`by serving by mailing documents to Cyprus to entities that
`are not the exact same legal entity, and are claiming that
`there was some sort of alter ego that excuses their failure
`to properly serve the right entity.
` So, Your Honor, I would -- unless there are any
`particular questions you would like to direct me on which
`arguments you would like to hear first, I thought I would
`proceed by reviewing the evidence on the personal service.
` JUDGE GALLIGAN: I do have a question on that. So
`is it -- I understood petitioner's position to be that even
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`just service by mail was defective because it didn't
`follow -- it wasn't addressed by the Clerk of the Court, and
`it didn't involve FRCP(4)(F)(2)(c)(ii) I think it was.
` If it -- is petitioner saying that if it had gone
`to the right entity, if it had actually gone to the -- not
`the alter ego, but the same entity, it would have been
`effective, even though the manner of that rule wasn't
`followed?
` MR. PONDER: No, Your Honor, it would not have
`been effective. And if we can actually get slide 74. The
`patent owner cited a case on service by mail, the Supreme
`Court case. That opinion actually cites the Brockmeyer
`case, approvingly, which is a Ninth Circuit case,
`which are facts strikingly similar. In that case, the
`plaintiff claimed that they accomplished service by mail by
`having plaintiff's counsel mail a copy of the summons to an
`entity in the United Kingdom. And the Ninth Circuit said
`that that is not proper. The Federal Rules of Civil
`Procedure is very clear, that service by mail is only
`authorized by the Federal Rules of Civil Procedure when the
`Clerk of the Court performs mailing, and you have to use a
`form of mail that provides return receipt.
` There's no evidence of what form of mail was used
`here. I believe it is undisputed the Court did not mail it.
`And the one thing that patent owner fails to mention, and if
`you look at Mr. Zanin's declaration, he said
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`what was received in Cyprus was a waiver of service. So
`this wasn't an attempt to serve, this was they received
`maybe -- they received a document that said will you waive
`service, addressed to entities in Cyprus.
` We would also say that under the Hague Convention,
`you can't serve a UK entity in Cyprus. So regardless of
`what happens in Cyprus, you can't effect, under British law,
`service under a Hague Convention of a UK entity. And
`there's no dispute that Wargaming.net LLP is a UK entity.
`That fact is also in Mr. Zanin's declaration.
` JUDGE GALLIGAN: Thank you.
` MR. PONDER: Turning back to -- and I believe that
`argument applies for both versions of the service by mail.
`I'd also note that they claim it was proper to mail it to
`Cyprus because Mr. Zanin is the general counsel of some
`entities. But he was not a registered agent. They put some
`documents in to establish what they claim is an alter ego
`theory. But none of those entities are Wargaming.net LLP.
`They are other companies in Cyprus that have the name
`"Wargaming" in them.
` Turning back to the personal service by
`Mr. Talbot, we can turn to slide 63. Mr. Talbot was
`questioned in London. We took his deposition in London, and
`we presented him with the document, the Exhibit 2002.
`What's interesting about Exhibit 2002 it has kind of a long
`and tortured history.
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` What the patent owner originally filed was only
`the first page of the document, which was the signed
`declaration that said service was accomplished and the
`documents that were served were in Exhibit A. Because our
`client didn't believe service happened, we said, we would
`like a copy of Exhibit A. At that point, the patent owner
`gave us Exhibit 2002-S, which attached the other pages.
` What's notable about that is that it has multiple
`copies of the summons. Several that are unsigned that
`appear to be what would have been what you filed with
`federal district court to get a signed -- to get the clerk's
`signature and the seal applied. There's that, and then
`there was also the signed and sealed versions.
` At the deposition, he agreed that that bundle was
`not the bundle that he served. And after the deposition, 13
`days later, the patent owner filed a new version of the
`proof of service, which is at Exhibit 2019. See slide 55.
` And the declaration, the supporting declaration
`was by patent owner's counsel on this case, who said that
`2019 is a copy of the service materials they received from
`their process server. What is very notable about this
`version is that the signed and sealed version of the summons
`are not attached to the back. So I think that's troubling.
`Why was there this disconnect, why was there a version with
`a signed and sealed version, which would be effective if it
`had been served. Why wasn't that in the bundle that was
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`apparently, we now know, wasn't served. How did that come
`to be attached in the initial version of the exhibit that
`was filed in this proceeding? If we hadn't received
`discovery on this, we would have never learned of that fact.
` JUDGE GALLIGAN: And, Counsel -- I will ask patent
`owner's counsel the same question. I notice in Exhibit 2020
`there's a notice of service that was filed by Mr. Zito
`in November of 2017. Has the district court ever
`deemed service to have occurred on any one of these entities
`in the UK or Cyprus, or just has the district court deemed
`that to have happened?
` MR. PONDER: No. There's been no dispute in
`district court because the parties reached an agreement.
`Wargaming, the proper entities, different entities,
`Wargaming.net LLP has never appeared in the proceedings.
`The parties stipulated that the proper entities would
`appear, and the proper entities actually had an appearance.
`But there was never a waiver of service actually filed, and
`there was no dispute raised in district court.
` One thing about the notice of service, that was
`filed well over a year after the lawsuit was filed. It was
`only filed after this dispute occurred. What's actually
`interesting about that notice of service, and why I don't
`think any credibility should be assigned to patent owner's
`statements on service, if you turn to slide 68, he claims
`that there was a phone call with Wargaming's counsel, and he
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`said Wargaming's counsel introduced themselves and confirmed
`service of their client, in Cyprus, and he said although
`Cyprus service was informal.
` So he put, signing under Federal Rule of Civil
`Procedure 11, a pleading making that statement. And what we
`have put into the record at Exhibit 1017 is a
`contemporaneous e-mail from when this telephone call
`occurred. And if we can turn to slide -- the next slide.
` Well, I missed it. But if we look at that
`exhibit, it's an e-mail from Wargaming's counsel where
`Wargaming clearly said that they didn't believe service was
`effective, and that we would agree to reach an agreement on
`a waiver of service.
` And so I do have a -- oh, here's the e-mail. And
`this is Exhibit 1027, slide 67, in our demonstratives. The
`e-mail at the bottom is addressed to Mr. Zito, who is the
`counsel who actually wrote that statement in federal
`district court. And Wargaming's counsel said: As I
`indicated, we still do not believe that service was properly
`effected on either Wargaming entity.
` So it is baffling that that statement was made
`many years after the fact of service allegedly happening,
`after a petition had been filed here, where we said service
`was never effected, that a representation was made to a
`federal court saying Wargaming agreed that service occurred.
` So, Your Honor, we would submit that service has
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`not occurred, no signed and sealed summons has ever been --
`was ever served on the right entity, no waiver of service
`has ever been filed. And under the Federal Rules of Civil
`Procedure, you have to file the waiver of service that's
`been executed for it to be deemed as if service has been
`accomplished. And that is, for reference -- well, it is in
`Federal Rule of Civil Procedure 4(d)(4), labeled results of
`filing a waiver. When the plaintiff files a waiver, proof
`of service is not required, and these rules apply as if a
`summons and complaint have been served at the time.
` So that's never occurred; service has not
`occurred. Thank you, Your Honor.
` MR. BATTS: Look at the slides briefly.
` So now we are going to turn to the Instituted
`ground. The Instituted ground here is the Levine patent, in
`combination with Dungeons & Dragons tabletop game.
` I think, as an overview, what we've seen is that
`patent owner has not disputed the analysis from the
`Institution decision as to the unpatentability of the
`challenged claims 1 through 7. Rather, patent owner is
`contesting the claim constructions that have been adopted or
`that have been argued so far and that were included in the
`Institution decision. And those claims constructions are
`for "pilot," "unit," and "ability."
` And I think what we see here is I want to note
`that patent owner has never filed a motion to amend in this
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`case. But they seem to be attempting to create new claim
`limitations into their patent -- the challenged claims
`without having to go through the motion to amend process.
` So they really haven't defended the claims as
`written, rather, they are trying to change the actual claims
`with new limitations.
` Now, if we go to slide 5, please, and I will try
`to do the slide numbers for Judge Howard, if I can remember.
` So slide 5 gives an overview of the two references
`in question. And I think what's notable here is that we
`have the Levine reference that teaches -- we will get into
`more of the teachings, but the basic fundamental structures
`for video games and gaming systems and databases, in
`combination with the Dungeons & Dragons handbook. I think
`it's notable here that patent owner has not contested the
`motivation to combine the two references. And I also think
`it's notable that the references themselves teach the
`motivation to combine, as well as to incorporate teachings
`among each other.
` So if we turn to slide 6, we can see that Levine
`teaches specifically an online gaming platform. And it is
`basically a very flexible framework for online gaming, with
`extensive teachings of databases, and the overall ability to
`have objects within the computer gaming system. And if we
`go to slide 7, it actually specifically teaches the use of
`Dungeons & Dragons games and to use Dungeons & Dragons rules
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`Case IPR2017-01082
`Patent 7,682,243 B2
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`in video games.
` Now, I'd like to remind the Court, I think we
`noted in page 4 of our petition, that at the time of the
`filing of the '243 patent, there were already numerous video
`games, including Neverwinter Nights -- Neverwinter Nights
`and Baldur's Gate, and many other Dungeons & Dragons type
`video games that were already in existence at the time. So
`a person of skill in the art, looking at the time at
`Dungeons & Dragons and Levine, would have known about these
`types of video games incorporating Dungeons & Dragons
`inspired rules.
` And, in fact, the patent owner admitted on page 19
`of the patent owner response that there was this inspiration
`for video games to use Dungeons & Dragons as a basis in the
`rules of Dungeons & Dragons. And we've also pointed out in
`our petition that Dungeons & Dragons, in fact, teaches
`modifying the rules and trying different variations on the
`rules when creating games.
` So I think we have to keep in mind here that I
`think patent owner has created many arguments that are
`related to an anticipation type of analysis rather than an
`obviousness type analysis. And for obviousness, we're
`looking at what a person of skill in the art at the time
`would have thought when combining the teachings of Levine
`for computer games and role playing games, with the rules
`and the structures of the Dungeons & Dragons tabletop
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`Case IPR2017-01082
`Patent 7,682,243 B2
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`game, rather than just saying what the tabletop game had
`in it or did not have in it.
` And so I think that -- I think that is a good
`starting point for looking at the Dungeons & Dragons
`teachings that are on slide 8.
` Slide 8 includes the teaching of basically the
`sorcerer and or the sorcerer familiar, which is the
`animal --
` JUDGE HOWARD: Excuse me. I don't know if you can
`hear me, but I have lost sound.
` UNIDENTIFIED SPEAKER: Do you have the button
`pressed?
` MR. BATTS: Can you hear me now, Your Honor?
` JUDGE HOWARD: I can. Thank you.
` MR. BATTS: I might have pressed the button
`inadvertently with my slides.
` JUDGE HOWARD: I can hear you a lot better than
`before.
` MR. BATTS: Great.
` So slide 8, as I said, has the basic teachings of
`Dungeons & Dragons that we've discussed in our filings, that
`include the sorcerer and the sorcerer familiar, the animal
`or creature that is accompanying the sorcerer. And the
`second -- on the right-hand side it includes the discussion
`of the hit points for the sync point aspect of Dungeons &
`Dragons regarding the hit points of the sorcerer being in
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`Case IPR2017-01082
`Patent 7,682,243 B2
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`relation to the hit points of the familiar.
` And if we go to slide 9, we explained in our
`petition, and I don't think we have had any contest from
`patent owner, that there is a sync point ratio with respect
`to the familiar and the sorcerer.
` What patent owner is disputing is whether hit
`points is an ability under the -- as a term under the '243
`patent. And we're going to, of course, discuss ability and
`what construction should be there. But our expert did
`explain the relationship of the sorcerers -- the increase in
`the sorcerer's hit points in relation to the familiar's hit
`points based upon the die roll when the sorcerer increases
`in level.
` So I think also notable is that slide 10 includes
`the teachings in Dungeons & Dragons of the druid or rangers
`relationship with an animal companion, and the aspect there,
`again, of having a sync point ratio between the druid's
`number of feats, and the animal bonus' tricks. So we have
`there a one-to-one ratio rather than a point 5 ratio that we
`discussed with the sorcerers familiar.
` So I think turning to the claim language, I think
`what we see here in this proceeding is a very sharp
`contrast, on slide 12, and we will go into the proposals by
`the parties, but there's really a sharp contrast between the
`approaches that have been adopted by patent owner and
`petitioner for analyzing claims and claim construction here.
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`Case IPR2017-01082
`Patent 7,682,243 B2
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`Petitioner has followed the Federal Circuit blessed approach of
`looking at the claims and how the terms are used in the
`claims, and then turning to the specification and looking
`for the specification. And as you likely recall, this
`particular specification includes definitional explanations
`of the terms for "pilot" and "unit." And we will get to
`"ability" and how that may vary slightly later.
` But I think you will see that patent owner's
`evidence is really a cherry picking of extrinsic evidence,
`whether it's Dungeons & Dragons or other references, prior
`art references, rather than looking at how the claims and
`claim terms should be interpreted through the lens of the
`claims themselves and the specification.
` So if we turn to slide 14, I think that's a good
`example of that, where we see that the patent owner, when it
`comes to the terms "pilot" and "unit," was referring to
`looking at Mazinger Z video game or arcade style game to --
`as a support for why a particular construction should be
`adopted, whereas for "ability," patent owner is asking you
`to look at the Dungeons & Dragons reference for how
`"ability" is stated in Dungeons & Dragons. And I think both
`of those are notable for being extrinsic evidence rather
`than looking at the patent. The patent doesn't even refer
`to Dungeons & Dragons, and yet they are saying we should
`look at Dungeons & Dragons for that definition.
` So we go back to -- actually, slide 15.
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`Case IPR2017-01082
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` So slide 15 has the language from column 3, which
`you likely have seen a few times now, that includes the
`definitional language for both "pilot" and "unit."
` And so if you look at the claim, the claim
`language, which I think is slide 12, don't mean to put too
`much between them, but I think it is useful for reference to
`flip between slides 12 and 15. You can see that slide 12
`includes claim language regarding what a "pilot" is. A
`pilot being a game character operated by a player, said
`pilot representing the player.
` And consistent with that, if you go to back to
`slide 15, is the specification language talking about a
`pilot used in the present specification is a player
`character representing the -- a gamer. So both the claim
`and the specification are consistent with the use of pilot
`being a player character representing a gamer.
` Now, the specification also includes the language
`at the end there, the permissive language that the gamer may
`control the motion of a unit, but, clearly, that is
`permissive language for options.
` So I'd like to focus, because I think a lot of
`patent owner's arguments are really, for pilot, are tied
`to its construction of unit, and that unit has to be a
`"mount." So I'd like to really focus on that for a minute.
` If we go to slide 16.
` JUDGE GALLIGAN: Quick question on that, the term
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`Case IPR2017-01082
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`"mount." It is not used in '243 patent. Is a mount
`an animal, or can it be a car?
` MR. BATTS: I think that's one of sources of
`confusion is that they've kind of plucked a word out to
`supposedly give meaning, construction that gives meaning to
`"unit." But we're really left guessing as to what mount
`can be. Patent owner has taken the position that it can be
`a vehicle or a car or a robot. But I think that's one of
`the difficulties, is mount really doesn't come up in the
`specification, and it is really not a normal usage. When we
`ask the patent owner expert in the deposition, he really
`agreed that it's a strange usage to talk about mounting a
`plane or mounting a vehic
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