Paper 14
`Trials@uspto.gov
`571-272-7822 Entered: October 6, 2017
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`WARGAMING GROUP LIMITED,
`Petitioner,
`
`v.
`
`GAME AND TECHNOLOGY CO., LTD.,
`Patent Owner.
`____________
`
`Case IPR2017-01082
`Patent 7,682,243 B2
`____________
`
`
`
`Before STACEY G. WHITE, DANIEL J. GALLIGAN, and
`SCOTT B. HOWARD, Administrative Patent Judges.
`
`GALLIGAN, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822 Entered: October 6, 2017
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`WARGAMING GROUP LIMITED,
`Petitioner,
`
`v.
`
`GAME AND TECHNOLOGY CO., LTD.,
`Patent Owner.
`____________
`
`Case IPR2017-01082
`Patent 7,682,243 B2
`____________
`
`
`
`Before STACEY G. WHITE, DANIEL J. GALLIGAN, and
`SCOTT B. HOWARD, Administrative Patent Judges.
`
`GALLIGAN, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2017-01082
`Patent 7,682,243 B2
`
`
`I. INTRODUCTION
`Wargaming Group Limited (“Petitioner”) filed a Petition requesting
`inter partes review of claims 1–7 of U.S. Patent No. 7,682,243 B2 (“the
`’243 patent,” Ex. 1001). Paper 1 (“Pet.”). Game and Technology Co., Ltd.
`(“Patent Owner”) timely filed a Preliminary Response. Paper 8 (“Prelim.
`Resp.”). Pursuant to 37 C.F.R. § 42.4(a), we have authority to determine
`whether to institute review.
`The standard for instituting an inter partes review is set forth in
`35 U.S.C. § 314(a), which provides that an inter partes review may not be
`instituted unless the information presented in the Petition shows “there is a
`reasonable likelihood that the petitioner would prevail with respect to at least
`1 of the claims challenged in the petition.”
`After considering the Petition, the Preliminary Response, and
`associated evidence, we institute an inter partes review as to claims 1–7 of
`the ’243 patent.
`
`A. Real Parties in Interest
`Petitioner identifies Wargaming Group Limited (formerly Wargaming
`Public Company Limited) and Wargaming.net LLP as real parties-in-
`interest. Pet. 72.
`
`B. Related Matters
`Petitioner and Patent Owner cite the following judicial matters
`involving the ’243 patent: Game and Technology Co. Ltd v. Wargaming.net
`LLP, 2:16-cv-06554 (C.D. Cal.) and Game and Technology Co. Ltd v.
`Blizzard Entertainment, Inc., 2:16-cv-06499 (C.D. Cal.). Pet. 72; Paper 3.
`In addition, the Board previously denied another petitioner’s petition for
`inter partes review of the ’243 patent. Activision Blizzard, Inc. v. Game and
`
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`Tech. Co., Case IPR2016-01918, slip op. at 18 (PTAB Mar. 21, 2017)
`(Paper 14).
`
`C. The ’243 Patent and Illustrative Claim
`The ’243 patent generally relates to “providing an online game, in
`which ability information of a unit associated with a pilot is enabled to
`change as ability information of the pilot changes.” Ex. 1001, 1:23–25. Of
`the challenged claims, claims 1, 6, and 7 are independent. Claim 1 is
`illustrative and is reproduced below:
`
`An online game providing method for providing a pilot
`1.
`and a unit associated with the pilot at an online game, the method
`comprising the steps of:
`controlling an online game such that a player can
`manipulate a pilot and a unit associated with said pilot, said pilot
`being a game character operated by a player, said pilot
`representing the player, said unit being a virtual object controlled
`by the player;
`the unit
`information database,
`maintaining a unit
`information database recording unit information on said unit, in
`which the unit information includes ability of said unit and sync
`point information;
`maintaining a pilot information database, the pilot
`information database recording pilot information on said pilot, in
`which the pilot information includes a unit identifier indicating
`said unit associated with said pilot, ability of said pilot and the
`ability of said unit associated with said pilot;
`receiving a request for update on first pilot ability
`information of a first pilot;
`searching for unit identifier information associated with
`the first pilot by referring to the pilot information database;
`searching for sync point information associated with the
`searched unit identifier information by referring to the unit
`information database; and
`updating and recording the first pilot ability information
`and unit ability information associated therewith in accordance
`with the searched sync point information such that said ability of
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`
`unit is changed proportionally to changes in ability of the pilot
`by referring to said sync point,
`wherein said sync point information is a ratio of which
`changes in said ability of pilot are applied to said ability of unit,
`and said steps of searching for unit identifier information and of
`searching for sync point information are performed by a
`processor.
`
`
`D. References
`Petitioner relies upon the following references:
`Levine
`US 2003/0177187 A1 Sept. 18, 2003
`
`“Dungeons and Dragons: Player’s Handbook: Core Rulebook I
`v.3.5” (“D&D Handbook”), © 2003 WIZARD OF THE COAST.
`
`“Master of Orion II: Battle at Antares: The Official Strategy
`Guide” (“MOO Strategy Guide”), © 1996 Prima Publishing.
`
`
`
`
`
`Ex. 1004
`
`Ex. 10051
`
`Ex. 10092
`
`
`1 Based on the current record, Petitioner has made a threshold showing that
`D&D Handbook is a prior art printed publication under 35 U.S.C. §§ 102(a)
`and 102(b). See Pet. 6 (citing Ex. 1005, 5; Ex. 1008; Ex. 1012; Ex. 1003
`¶ 102). Patent Owner does not argue substantively that D&D Handbook is
`not a printed publication at this stage. See Prelim. Resp. 3 n.1 (“Patent
`Owner reserves the right to contest whether the game manuals are prior art
`printed publications.”).
`2 Based on the current record, Petitioner has made a threshold showing that
`the MOO Strategy Guide is a prior art printed publication under 35 U.S.C.
`§ 102(b). See Pet. 7 (citing Ex. 1010; Ex. 1016; Ex. 1003 ¶ 103). Patent
`Owner does not argue substantively that the MOO Strategy Guide is not a
`printed publication at this stage. See Prelim. Resp. 3 n.1 (“Patent Owner
`reserves the right to contest whether the game manuals are prior art printed
`publications.”).
`
`
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`
`E. Asserted Grounds of Unpatentability
`Petitioner challenges claims 1–7 of the ’243 patent based on the
`asserted grounds of unpatentability set forth in the table below.
`References
`Basis
`Claims Challenged
`Levine and D&D Handbook
`§ 103(a)
`1–7
`Levine and MOO Strategy Guide
`§ 103(a)
`1–7
`
`
`II. ANALYSIS
`A. 35 U.S.C. § 315(b)
`Under 35 U.S.C. § 315(b), “[a]n inter partes review may not be
`instituted if the petition requesting the proceedings is filed more than 1 year
`after the date on which the petitioner, real party in interest, or privy of the
`petitioner is served with a complaint alleging infringement of the patent.”
`The Petition states that “Petitioner and real-parties-in-interest are not barred
`or estopped from requesting inter partes review of any claim of the ’243
`Patent on the grounds set forth herein because they have not been served.”
`Pet. 72–73. In support, Petitioner cites a declaration of its general counsel,
`Roman Zanin, who provides testimony regarding attempted service on
`Wargaming entities abroad (Ex. 1011 ¶ 3) and further testifies that
`“Wargaming.net LLP and Wargaming Group Limited . . . were never
`served” (Ex. 1011 ¶ 6).
`Patent Owner argues that the Petition, which was filed March 13,
`2017, is time barred under 35 U.S.C. § 315(b) because Wargaming.net LLP,
`a real party-in-interest to Petitioner, “was served with a complaint alleging
`infringement of the ‘243 patent on December 14, 2015, in accordance with
`the laws of England and Wales” pursuant to the Hague Convention. Prelim.
`
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`Resp. 4 (citing Exs. 2001 and 20023). In support, Patent Owner cites a
`“Witness Statement of Service” signed by John Frederick Talbot stating that
`a complaint for infringement of the ’243 patent was served on
`Wargaming.net LLP and that the “deemed date of service” under English
`court rules is December 14, 2015. Ex. 2002; see also Ex. 2002
`(Supplemental), 1.
`On August 11, 2017, a conference call was held with the Board and
`counsel for the parties to discuss Petitioner’s request to file a reply limited to
`addressing Patent Owner’s assertion that Wargaming.net LLP was served
`with a complaint for infringement of the ’243 patent more than one year
`before the filing of the Petition in this proceeding. During the call,
`Petitioner’s counsel conveyed that Petitioner did not dispute that, if service
`of the complaint occurred pursuant to the Hague Convention more than one
`year before the filing of the Petition, as asserted by Patent Owner, the
`Petition would be time barred under 35 U.S.C. § 315(b). See Paper 11, 2.
`Thus, the parties’ dispute centers on whether Wargaming.net LLP was
`served. Id. We authorized Petitioner to file a reply to provide more
`information on this issue. See Paper 11.
`Petitioner, in its reply, “denies that Wargaming.net LLP was served in
`the manner described by Mr. Talbot,” and it submits a declaration of Mr.
`Costas A. Joannou (Ex. 1017), the individual upon whom Patent Owner
`alleges service of the complaint was made. Pet. Reply 1. Mr. Joannou states
`
`
`3 Patent Owner filed Exhibits 2001 and 2002 with its Preliminary Response.
`On July 19, 2017, Patent Owner filed supplemental exhibits 2001 and 2002,
`which include the attachments referred to in the originally-filed exhibits.
`See Paper 9, Ex. 2001 (Supplemental), Ex. 2002 (Supplemental).
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`that he is the vice chairman of Wargaming.net LLP’s former accounting and
`auditing firm. Ex. 1017 ¶ 2. Mr. Joannou testifies that he “reviewed
`Supplemental Exhibits 2001 and 2002 from Game and Technology” and that
`he “cannot recollect ever meeting Mr[.] John Talbot, confirming anything to
`Mr[.] Talbot, or receiving any documents from Mr[.] Talbot.” Ex. 1017 ¶¶
`3–4. Mr. Joannou further testifies that his diary entry from December 10,
`2015 “shows that most likely I wasn’t in the office during the time Mr[.]
`Talbot says that he ‘left’ the documents with me.” Ex. 1017 ¶ 5 (citing Ex.
`C). Mr. Joannou also testifies as to his firm’s “long-established practice” for
`handling any documents received on behalf of Wargaming.net LLP or any
`other client, stating that he “would have immediately arranged to forward
`those letters via courier service to the client as this is the standard practice in
`our firm.” Ex. 1017 ¶ 6. Mr. Joannou provides an activity log for
`Wargaming.net LLP as Exhibit B to his declaration and notes that there are
`no courier fees after October 5, 2015 for Wargaming.net LLP. Ex. 1017 ¶ 7.
`Based on Mr. Joannou’s testimony, “Petitioner requests that the Board
`find that Wargaming.net LLP was not properly served, that inter partes
`review is not time barred, and that the Board institute inter partes review of
`the ’243 Patent.” Pet. Reply 2.
`The current record presents competing evidence as to whether
`Wargaming.net LLP was served more than one year before the filing of the
`Petition. We determine that this record needs to be developed further before
`a determination can be made as to this issue. Thus, on this record, we do not
`deny institution of the Petition as time barred under 35 U.S.C. § 315(b). We
`reserve our determination on this issue pending further development of the
`record during trial.
`
`
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`
`B. Claim Construction
`In an inter partes review, claim terms in an unexpired patent are
`interpreted according to their broadest reasonable construction in light of the
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b); see
`Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016)
`(upholding the use of the broadest reasonable interpretation standard in an
`inter partes review). In applying a broadest reasonable construction, claim
`terms generally are given their ordinary and customary meaning, as would
`be understood by one of ordinary skill in the art in the context of the entire
`disclosure. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257
`(Fed. Cir. 2007). This presumption may be rebutted when a patentee, acting
`as a lexicographer, sets forth an alternate definition of a term in the
`specification with reasonable clarity, deliberateness, and precision. In re
`Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
`The parties propose constructions for several claim terms. Pet. 8–12;
`Prelim. Resp. 8–18. We address the parties’ proposed constructions as to the
`terms discussed below to the extent necessary for purposes of this Decision.
`1. “Pilot”
`Petitioner contends the term “pilot” as used in the ’243 patent means
`“a player character representing a gamer.” Pet. 8–9 (citing Ex. 1001, 3:4–
`10). Patent Owner argues “Petitioner’s proposed definition of ‘pilot’ is
`inconsistent with that which would have ordinarily been understood by the
`skilled artisan.” Prelim. Resp. 8. According to Patent Owner, “[t]he plain
`meaning of ‘pilot’ involves the control of motion, for example of a ship,
`aircraft, etc.,” and “Petitioner’s proposed construction for ‘pilot’ is broad
`enough to read on any player-operated game character, regardless of whether
`
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`that character is ‘piloting’ a unit.” Prelim. Resp. 8–9. Patent Owner asserts
`that “the broadest reasonable interpretation of the term ‘pilot’ as used in the
`‘243 patent is a player-operated game character that controls the motion of
`a mount.” Prelim. Resp. 10.
`On this record, we determine Patent Owner’s proposed construction is
`not the broadest reasonable interpretation in light of the specification of the
`’243 patent for at least the following two reasons. First, the specification
`states that a “gamer may control motions of a unit through the pilot.”
`Ex. 1001, 3:9–10 (emphasis added). The specification, therefore, uses
`permissive language rather than restrictive language to describe this
`relationship between the gamer and the unit. Second, Patent Owner’s
`proposed construction of “pilot” requires a “unit” to be a “mount,” and, for
`reasons explained below, we do not agree that this is the broadest reasonable
`interpretation of “unit.”
`Each independent claim recites “said pilot being a game character
`operated by a player, said pilot representing the player.” This is consistent
`with Petitioner’s proposed construction of the term “pilot” as encompassing
`“a player character representing a gamer.” Pet. 8–9; see also Ex. 1001, 3:4–
`10 (“A pilot used in the present specification is a player character
`representing a gamer who imports his/her feelings in a game to continue the
`game. The gamer may control motions of a unit through the pilot.”).
`Because each independent claim defines the term “pilot,” no further
`construction is necessary.
`
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`2. “Unit”
`Petitioner contends the term “unit” as used in the ’243 patent means
`“an object operated by control of a gamer.” Pet. 9–10 (citing Ex. 1001,
`3:12–18). The cited portion of the ’243 patent states:
`A unit used in the present specification is an object
`operated by a control of a gamer, and the unit may be an object
`for continuing a game substantially, for example, a robot
`character. The unit may be a target for the gamer to import
`his/her feelings. Also, a concept of item belonging to the gamer
`may be applied to the unit.
`Ex. 1001, 3:12–18.
`Patent Owner contends Petitioner’s construction is too broad and
`argues that “[t]he specification makes clear that the ‘unit’ is either ‘a robot
`character or a vehicle character.’” Prelim. Resp. 10 (citing Ex. 1001, 1:41–
`434). Patent Owner also cites Figure 3 of the specification, which is an
`example of a unit information database. Prelim. Resp. 11; see also Ex.
`1001, 3:51–54 (“FIG. 3 is a diagram illustrating an example of internal
`configuration of a unit information database according to an embodiment of
`the present invention . . . .”). Patent Owner argues that the listings under
`“unit kind” in Figure 3 are names of known robot characters: Evangerion,
`Mazinger, and TaekwonV. Prelim. Resp. 12–16 (citing Exs. 2004 and
`2005). As such, Patent Owner argues that, “consistent with the meaning of
`‘pilot,’ the artisan of ordinary skill would have understood that a ‘unit’
`means a mount, such as a vehicle or a robot, which is piloted by the pilot.”
`Prelim. Resp. 16; see also Prelim. Resp. 10 (“Consistent with the meaning of
`‘pilot,’ a ‘unit’ is a mount having motion controlled by the pilot.”).
`
`4 Patent Owner cites column 1, lines 37–40, but the quoted passage appears
`in column 1, lines 41–43.
`
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`
`On this record, we determine Patent Owner’s proposed construction is
`not the broadest reasonable interpretation in light of the specification of the
`’243 patent. We disagree with Patent Owner’s assertion that a unit must be
`either a robot or vehicle according to the specification. See Prelim. Resp. 10
`(quoting Ex. 1001, 1:41–43). The quoted portion, which appears in the
`“Background Art” section of the specification, gives examples of units, but it
`does not define the term “unit.” Rather, the specification of the ’243 patent
`defines the term “unit” and other terms” in a section labeled “Explanation of
`Terms used in the Present Specification.” See Ex. 1001, 3:4–30.
`Furthermore, the ’243 patent separately describes a “pet unit” as distinct
`from a “robot unit”:
`Also, the present invention may further include a Support
`Manbow of a pilot such as a pet unit that accompanies a robot
`unit as another unit of the pilot, and helps a game progress.
`Ability
`information of
`the Support Manbow may also
`interoperate with change of ability information of the pilot and
`change. That is, at least one unit interoperating with ability
`information of the pilot may be included.
`Ex. 1001, 7:14–20. That the ’243 patent specification uses the term “unit” to
`describe a pet, which would not be considered a “mount,” suggests that a
`“unit” need not be a “mount.”
`On this record, we agree with Petitioner that the term “unit,” as used
`in the ’243 patent, encompasses “an object operated by control of a gamer”
`because the ’243 patent expressly defines the term as such. See Ex. 1001,
`3:12–18 (quoted above). We also note that each independent claim further
`defines the claimed “unit,” reciting “said unit being a virtual object
`controlled by the player.” (Emphasis added).
`
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`3. “Ability” and “Level”
`Petitioner contends the term “ability” as used in the ’243 patent means
`“a numeric representation of an attribute.” Pet. 10–11 (citing Ex. 1001,
`5:22–27, 6:19–22, Figs. 3–5, claim 5; Ex. 1003 ¶ 98). Patent Owner argues
`that “[t]he broadest reasonable interpretation of ‘ability’ consistent with
`specification is a characteristic of the pilot or unit’s performance.” Prelim.
`Resp. 17 (citing Ex. 1001, 5:2–3, 5:50–51). According to Patent Owner,
`[t]he examples of abilities of the unit that are in sync with the
`abilities of the unit [sic, pilot] are all performance characteristics
`of unit that are related to performance characteristics of the pilot:
`The unit’s attack power is related to the pilot’s braveness; the
`unit’s defense power is related to the pilot’s faith; the unit’s
`evasion power is related to the pilot’s ability to react; and the
`unit’s hit power is related to the pilot’s mentality.
`Prelim. Resp. 17–18 (citing Ex. 1001, 6:67–7:13, Fig. 5).
`We do not agree with Patent Owner that an “ability” according to the
`specification is limited to a characteristic of the pilot’s or unit’s
`performance. One pilot ability identified by Patent Owner is a pilot’s
`“faith,” which the ’243 patent calls the “faith point (Fp).” See Prelim. Resp.
`18; Ex. 1001, 7:5–6. The ’243 patent states that “[i]nformation on the faith
`point (Fp) records faith about the pilot itself in a numerical value, and is
`associated with the defense power (DEF) 307 of a unit.” Ex. 1001, 6:10–12.
`At least as to this “ability,” it is unclear how “faith about the pilot” describes
`a performance characteristic of the pilot, as opposed to simply an attribute of
`the pilot.
`On this record, we determine that the broadest reasonable
`interpretation of the term “ability” encompasses “a numeric representation of
`an attribute,” as Petitioner proposes. See Pet. 10–11. The ’243 patent
`
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`describes various pilot abilities as representing attributes of the pilot. See,
`e.g., Ex. 1001, 6:1–4 (“The ability kind 406 indicates a kind of ability
`information belonging to a corresponding pilot, and may include information
`on brave point (Bp), react point (Rp), faith point (Fp), capacity point (Cp),
`and mentality point (Mp).”). Although some of these attributes may be
`performance characteristics, on this record, the “faith point” does not appear
`to be so limited. Furthermore, the claims recite “that said ability of unit is
`changed proportionally to changes in ability of the pilot” and that “said sync
`point information is a ratio of which changes in said ability of pilot are
`applied to said ability of unit.” (Emphasis added). The use of the words
`“proportionally” and “ratio” suggests, if not dictates, that the abilities must
`be in some numeric form so that such proportional changes can be made.
`Petitioner further contends a person of ordinary skill in the art “would
`have understood ‘ability’ to include the pilot’s ‘level.’” Pet. 11; see also
`Pet. 11–12 (citing Ex. 1001, 6:58–60, 6:62–67, Fig. 5; Ex. 1003 ¶ 99). By
`contrast, Patent Owner argues that claim 2’s recitation that “the pilot
`information database further includes level information of said pilot and said
`unit” means that “the pilot’s ‘ability’ and the pilot’s ‘level’ are different
`values that are each included in the pilot information database” and,
`therefore, that “[t]he ‘level’ of the pilot is not an ‘ability’ of the pilot.”
`Prelim. Resp. 18.
`Because claim 2 recites that “the pilot information database further
`includes level information of said pilot and said unit,” this “level
`information” is required in addition to “ability of said pilot” in claim 1. The
`’243 patent also describes “level” and “ability” as distinct concepts. See Ex.
`1001, 4:57–5:37 (describing unit information database), 5:38–6:30
`
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`(describing pilot information database). Although certain ability information
`may correspond to a particular level, we are not persuaded, on this record,
`that a level itself is an ability as those terms are used in the ’243 patent.
`4. “Sync point”
`Each of independent claims 1, 6, and 7 recites “said ability of unit is
`changed proportionally to changes in ability of the pilot by referring to said
`sync point, wherein said sync point information is a ratio of which changes
`in said ability of pilot are applied to said ability of unit.” Patent Owner
`argues:
`
`The plain language of these recitations means that when a
`numeric value of the pilot’s ability changes, a numeric value of
`the unit’s ability changes by an amount that is proportional to the
`change in the numeric value of the pilot’s ability based on the
`sync point ratio, another numeric value.
`Prelim. Resp. 17.
`We agree with Patent Owner that these limitations require changes to
`unit ability that are proportional to changes in pilot ability. To explain the
`operation of the sync point in updating pilot and unit ability information, the
`’243 patent provides an example of updating the brave point of the pilot and
`doing a corresponding update of the attack power of the unit using a sync
`point of 0.8. Ex. 1001, 7:51–8:19. According to the ’243 patent,
`where the numerical value of “brave point (Bp)” information for
`pilot identifier “pIDxxxx01” is “80” and this value is to be
`increased by “10”, the updated numerical value of this pilot’s
`“brave point (Bp)” information is “90”. Also, a numerical value
`of “attack power (ATP)” information of the associated unit
`“uIDxxxx01” is increased by a proportion of the amount added
`to the “brave point (Bp)” information of pilot identifier
`“pIDxxxx01[.]” In this case, the increase to the “brave point
`(Bp)” of pilot identifier “pIDxxxx01” was “10” and the sync
`point information associated with unit identifier “uIDxxxx01” is
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`“0.8”, the proportional increase of the “attack power (ATP)” of
`unit identifier “uIDxxxx01” is determined by multiplying “0.8”
`by “10” to get “8”. Therefore, the new “attack power (ATP)” for
`unit identifier “uIDxxxx01” is found by adding the previous
`value of “70” (as seen in FIG. 3) and the proportional increase of
`“8” to get “78”. The updated “78” is recorded.
`Ex. 1001, 8:1–19. This passage provides a useful explanation of what it
`means for the “ability of unit [to be] changed proportionally to changes in
`ability of the pilot by referring to said sync point,” as recited in the
`independent claims.
`We highlight this disclosure of the ’243 patent because both parties
`appear to argue at certain places in their briefs that the claimed “sync point”
`may be simply a ratio of unit ability to pilot ability. For example, Petitioner
`provides the following table (reproduced with slightly different formatting)
`spanning pages 18 to 19 of the Petition.
`Level
`Druid:
`Animal:
`Number of
`Str/Dex Adj.
`Feats
`1
`1
`2
`2
`2
`3
`3
`3
`4
`4
`4
`5
`5
`5
`6
`
`1st
`2nd
`3rd
`4th
`5th
`6th
`7th
`8th
`9th
`10th
`11th
`12th
`13th
`14th
`15th
`
`Sync Point
`Ratio
`
`0.00
`0.00
`0.50
`0.50
`0.50
`0.67
`0.67
`0.67
`0.75
`0.75
`0.75
`0.80
`0.80
`0.80
`0.83
`
`IPR2017-01082
`Patent 7,682,243 B2
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`
`+0
`+0
`+1
`+1
`+1
`+2
`+2
`+2
`+3
`+3
`+3
`+4
`+4
`+4
`+5
`
`
`
`15
`
`
`
`IPR2017-01082
`Patent 7,682,243 B2
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`
`16th
`17th
`18th
`19th
`20th
`
`
`
`6
`6
`7
`7
`7
`
`+5
`+5
`+6
`+6
`+6
`
`0.83
`0.83
`0.86
`0.86
`0.86
`
`
`According to Petitioner, this table shows that “the animal’s
`strength/dexterity adjustment (‘Str/Dex Adj.’) follows a sync point based on
`the druid’s number of feats, rounded to the nearest whole number, where the
`ratio increases as the character’s level increases.” Pet. 18. The alleged sync
`point ratios in the fourth column of this table appear to be derived by
`dividing the values in column three (“Animal: Str/Dex Adj.”) by the
`corresponding values in column 2 (“Druid: Number of Feats”). Although
`this shows a ratio of two values, the claimed “sync point” is “a ratio of
`which changes in said ability of pilot are applied to said ability of unit.”
`(Emphasis added). As discussed above, the claims require changes to unit
`ability that are proportional to changes in pilot ability. In the table above,
`for each additional 1 feat (alleged pilot ability), animal strength/dexterity
`adjustment (alleged unit ability) is increased by 1 as well. Therefore, the
`ratio by which the change in the alleged pilot ability (1) would be multiplied
`to arrive at the change in alleged unit ability (1) would itself be 1. Thus, the
`claimed “sync point” is not merely a ratio of unit and pilot abilities.
`In its Preliminary Response, Patent Owner argues that “[t]here is no
`reason to modify D&D so that an ability of a character’s mount is a value
`that is a ratio of an ability of the character.” Prelim. Resp. 26. Once again,
`the claims do not require merely a ratio of unit and pilot abilities.
`On the current record, we determine that the limitations of
`independent claims 1, 6, and 7 reciting “said ability of unit is changed
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`proportionally to changes in ability of the pilot by referring to said sync
`point, wherein said sync point information is a ratio of which changes in said
`ability of pilot are applied to said ability of unit” require changes to unit
`ability that are proportional to changes in pilot ability.
`5. Remaining Terms
`Based on the record before us, we determine that the remaining terms
`of the challenged claims do not require express constructions at this time.
`C. Principles of Law
`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
`factual determinations including: (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`(3) the level of ordinary skill in the art; and (4) any secondary
`considerations, if in evidence.5 Graham v. John Deere Co., 383 U.S. 1, 17–
`18 (1966).
`
`D. Obviousness over Levine and D&D Handbook
`
`Petitioner contends claims 1–7 of the ’243 patent are unpatentable
`under 35 U.S.C. § 103(a) as having been obvious over the combined
`teachings of Levine and D&D Handbook. Pet. 7, 12–59. Petitioner explains
`how the cited prior art references allegedly teach the claimed subject matter,
`
`5 Patent Owner does not present arguments or evidence of such secondary
`considerations in the Preliminary Response.
`17
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`provides articulated reasoning as to why a person of ordinary skill in the art
`would have combined the teachings of the references in the manner asserted,
`and relies upon the Declaration of Garry Kitchen (Ex. 1003) to support its
`positions. Pet. 12–59.
`
`1. Levine
`Levine relates to “to computer network systems that facilitate multi-
`person interaction within multiple immersive environments,” and it discloses
`that “Massively Multiplayer Online Games (MMOGs) provide an
`immersive, interactive model of imaginary realms.” Ex. 1004 ¶¶ 1, 14.
`Levine describes various characteristics of MMOGs and discloses that “[t]he
`rules of many MMOGs are based on paper and dice role-playing games
`popularized in the dice game Dungeons and Dragons.” Ex. 1004 ¶ 14.
`Levine also discloses “at the center of every persistent-state, massively
`multi-player game lies its database 104,” which “manages the persistence of
`object state across the game world: from login to login, session to session,
`Avatar to Avatar, property to property, it keeps a record of all significant
`state changes.” Ex. 1004 ¶ 211.
`2. D&D Handbook
`D&D Handbook describes the Dungeons & Dragons Roleplaying
`Game, which is referred to in Levine as discussed above. Ex. 1005; see Ex.
`1004 ¶ 14.
`
`3. Independent Claim 1
`Independent claim 1 is directed to “[a]n online game providing
`method for providing a pilot and a unit associated with the pilot at an online
`game.” Petitioner contends the combination of Levine and D&D Handbook
`teaches the subject matter recited in claim 1. Petitioner contends, and we
`
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`agree, Levine teaches an online game. Pet. 22 (citing Ex. 1004 ¶ 21). For
`example, Levine discloses that “a system, method and computer program
`product for a computing grid for massively Multiplayer on-line games.”
`Ex. 1004 ¶ 21. Although D&D Handbook does not describe a computer
`game, Petitioner contends a person of ordinary skill in the art “would have
`found it obvious to create an online RPG by combining the game rules
`taught by D&D with the online gaming platform taught by Levine.” Pet. 13
`(citing Ex. 1003 ¶ 104; Ex. 1004 ¶¶ 21, 35, 163). Petitioner contends a
`person of ordinary skill in the art “would have been motivated to do so
`because Levine expressly teaches the application of D&D rules to Massively
`Multiplayer Online Games.” Pet. 13 (citing Ex. 1004 ¶ 14; Ex. 1003 ¶ 105).
`On this record, we are persuaded that a person of ordinary skill in the art
`would have been motivated to combine the MMOG game platform of
`Levine and the rules taught in D&D Handbook based on Levine’s disclosure
`that “[t]he rules of many MMOGs are based on paper and dice role-playing
`games popularized in the dice game Dungeons and Dragons.” Ex. 1004
`¶ 14.
`
`a. Controlling an online game
`Claim 1 recites “controlling an online game such that a player can
`manipulate a pilot and a unit associate
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