Paper 12
`Trials@uspto.gov
`571-272-7822 Entered: May 3, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`ACTIVISION BLIZZARD, INC.,
`Petitioner,
`
`v.
`
`GAME AND TECHNOLOGY CO., LTD.,
`Patent Owner.
`____________
`
`Case IPR2018-00157
`Patent 7,682,243 B2
`____________
`
`
`
`Before STACEY G. WHITE, DANIEL J. GALLIGAN, and
`SCOTT B. HOWARD, Administrative Patent Judges.
`
`GALLIGAN, Administrative Patent Judge.
`
`
`DECISION
`Granting Joinder; Dismissing Petition for Inter Partes Review
`35 U.S.C. § 315(c); 37 C.F.R. §§ 42.71, 42.122
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822 Entered: May 3, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`ACTIVISION BLIZZARD, INC.,
`Petitioner,
`
`v.
`
`GAME AND TECHNOLOGY CO., LTD.,
`Patent Owner.
`____________
`
`Case IPR2018-00157
`Patent 7,682,243 B2
`____________
`
`
`
`Before STACEY G. WHITE, DANIEL J. GALLIGAN, and
`SCOTT B. HOWARD, Administrative Patent Judges.
`
`GALLIGAN, Administrative Patent Judge.
`
`
`DECISION
`Granting Joinder; Dismissing Petition for Inter Partes Review
`35 U.S.C. § 315(c); 37 C.F.R. §§ 42.71, 42.122
`
`
`
`
`
`
`IPR2018-00157
`Patent 7,682,243 B2
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`
`I. INTRODUCTION
`Activision Blizzard, Inc. (“Activision” or “Petitioner”) filed a Petition
`(Paper 1, “Pet.”) requesting inter partes review of claims 1–7 of U.S. Patent
`No. 7,682,243 B2 (“the ’243 patent,” Ex. 1001), on which inter partes
`review was instituted in Wargaming Group Ltd. v. Game and Technology,
`Co., Ltd., Case No. IPR2017-01082 (the “Wargaming IPR”), and a Motion
`for Joinder (Paper 3, “Motion”) with the Wargaming IPR. Game and
`Technology Co., Ltd. (“Patent Owner”) filed an Opposition (Paper 9,
`“Opp.”) to the Motion, and Petitioner filed a Reply (Paper 10, “Reply”) in
`support of the Motion. Patent Owner also filed a Preliminary Response.
`Paper 11 (“Prelim. Resp.”).
`For the reasons that follow, we join Activision as a party to the
`Wargaming IPR, but we do not institute a separate inter partes review.
`A. Real Parties-in-Interest
`Petitioner identifies the following real parties-in-interest: Activision
`Blizzard, Inc.; Blizzard Entertainment, Inc., Activision Publishing, Inc., and
`Activision Entertainment Holdings, Inc. Pet. 1.
`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. 2; Paper 6.
`The ’243 patent is currently the subject of the Wargaming IPR. In addition,
`the Board previously denied another petition for inter partes review of the
`’243 patent filed by Activision. Activision Blizzard, Inc. v. Game and Tech.
`Co., Case IPR2016-01918, slip op. at 18 (PTAB Mar. 21, 2017) (Paper 14).
`
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`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
`unit is changed proportionally to changes in ability of the pilot
`by referring to said sync point,
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`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.
`
`Ex. 1004
`
`Ex. 10051
`
`E. Asserted Ground of Unpatentability
`Petitioner challenges claims 1–7 of the ’243 patent as obvious over
`the combined teachings of Levine and D&D Handbook. Pet. 11.
`
`II. ANALYSIS
`The statutory provision governing joinder in inter partes reviews is
`35 U.S.C. § 315(c), which provides:
`JOINDER. – If the Director institutes an inter partes review, the
`Director, in his or her discretion, may join as a party to that inter
`partes review any person who properly files a petition under
`section 311 that the Director, after receiving a preliminary
`response under section 313 or the expiration of the time for filing
`such a response, determines warrants the institution of an inter
`partes review under section 314.
`
`
`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. 10 (citing Ex. 1005, 5; Ex. 1008; Ex. 1012; Ex. 1003
`¶ 102). At this stage of the proceeding, Patent Owner does not argue
`substantively that D&D Handbook is not a printed publication. See
`generally Prelim. Resp.
`
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`Because a party may only be joined to an inter partes review if that
`party files a petition that “warrants the institution of an inter partes review,”
`we first address whether the Petition meets this standard. 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 and the Preliminary Response shows
`“there is a reasonable likelihood that the petitioner would prevail with
`respect to at least 1 of the claims challenged in the petition.” For the reasons
`that follow, we determine that the Petition satisfies the threshold for
`institution.
`
`A. 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).
`
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`
`Petitioner proposes constructions for several claim terms, including
`the term “ability.” Pet. 12–16. In its Preliminary Response, Patent Owner
`focuses on the interpretation of the term “ability.” Prelim. Resp. 6. Below
`we address the broadest reasonable interpretation of this term, and we
`determine that, for purposes of this Decision, the remaining terms of the
`challenged claims do not require express constructions.
`1. “Ability”
`Petitioner contends the term “ability” as used in the ’243 patent means
`“a numeric representation of an attribute.” Pet. 14–15 (citing Ex. 1001,
`5:22–27, 6:19–22, 11:60–12:5, Figs. 3–5, claim 5; Ex. 1003 ¶ 98). Patent
`Owner argues that, “at minimum, the broadest reasonable interpretation of
`‘ability’ should be limited to only ‘a numeric representation of an innate
`attribute’—namely those original, basic attributes of a character.” Prelim.
`Resp. 10. According to Patent Owner, an “ability” in the ’243 patent would
`have been understood by a person of ordinary skill in the art to be similar to
`an “ability” as that term is used in D&D Handbook to refer to “[o]ne of the
`six basic character qualities” (Ex. 1005, 3082). Prelim. Resp. 6–10. Patent
`Owner argues, therefore, that “the skilled artisan would have understood the
`‘ability’ of the ‘243 Patent [(](Ex. 1001) at 11:20-29) to refer to foundational
`abilities, similar to the basic abilities of the RPG [role playing game)] genre
`established by Dungeons & Dragons.” Prelim. Resp. 10.
`On this record, we do not agree with Patent Owner. Although the
`’243 patent gives examples of abilities (Ex. 1001, 5:22–27, 6:1–18, Figs. 3,
`4), we do not interpret these as limiting examples. The ordinary meaning of
`
`
`2 In this Decision, citations to D&D Handbook are to the exhibit pages
`assigned by Petitioner rather than to the page numbers of the reference itself.
`6
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`a pilot ability or unit ability would include what a pilot or unit is able to do,
`and, in the case of a video game, that may vary depending on the type of
`“pilots” and “units” in the game. We note that, in the Wargaming IPR,
`Patent Owner argued that “[t]he broadest reasonable interpretation of
`‘ability’ consistent with specification is a characteristic of the pilot or unit’s
`performance.” Wargaming IPR, Paper 8, 17. In our Decision on Institution
`in that case, we preliminarily determined that “ability” is not “limited to a
`characteristic of the pilot’s or unit’s performance” because, considering the
`’243 patent’s example of a “faith point” as an ability, it was “unclear how
`‘faith about the pilot’ describes a performance characteristic of the pilot, as
`opposed to simply an attribute of the pilot.” Wargaming IPR, Paper 14, 12
`(quoting Ex. 1001, 6:10–12). We nevertheless determined that D&D
`Handbook’s “hit points,” which the petitioner cited as teaching an “ability,”
`“represent at least some measure of a character’s performance because they
`‘represent how much damage a character can take before falling unconscious
`or dying.’” Id. at 24 (quoting Ex. 1005, 139).
`For purposes of this Decision, we need not delineate the precise metes
`and bounds of the term “ability” to determine whether Petitioner has
`satisfied the threshold for institution. Rather, we determine that “hit points”
`as described in D&D Handbook are within the broadest reasonable
`interpretation of “ability,” as that term is used in the ’243 patent. In
`particular, D&D Handbook discloses that “[h]it points represent how much
`damage a character can take before falling unconscious or dying.” Ex. 1005,
`139. We determine this is an ability because it reflects something the
`character is able to do, i.e., an “ability,” namely taking damage.
`
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`B. 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.3 Graham v. John Deere Co., 383 U.S. 1, 17–
`18 (1966).
`
`C. 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. 11, 16–64. Petitioner
`explains how the cited prior art references allegedly teach the claimed
`subject matter, 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. 16–64.
`1. Levine
`Levine relates “to computer network systems that facilitate multi-
`person interaction within multiple immersive environments,” and it discloses
`
`3 Patent Owner does not present arguments or evidence of such secondary
`considerations in the Preliminary Response.
`8
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`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 that, “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. Pet. 17–50. Petitioner
`contends, and we agree, Levine teaches an online game. Pet. 26 (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
`
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`Levine.” Pet. 16 (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 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.”
`Petitioner contends D&D Handbook teaches a player character
`representing a gamer and controlled by the gamer. Pet. 26, 29. For
`example, D&D Handbook discloses, “As a player, you use this handbook to
`create and run a character.” Ex. 1005, 9. Petitioner also contends Levine’s
`disclosure of avatars teaches a game character operated by a player. Pet. 26,
`29. For example, Levine discloses that “a new character is termed an avatar
`within the instance of the interactive, multi-user gaming application.” Ex.
`1004 ¶ 658; see also Ex. 1004 ¶ 393 (describing avatars as “client controlled
`objects”).
`Petitioner also contends D&D Handbook teaches an animal unit that is
`associated with the player character and controlled by the gamer. Pet. 27–
`
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`28, 29–31. In particular, Petitioner cites D&D Handbook’s disclosure of
`animals that are associated with various characters, such as a mount
`associated with a paladin, an animal companion associated with a druid, and
`an animal familiar associated with a sorcerer. Pet. 23 (citing Ex. 1005, 39,
`48, 49, and 56). With respect to control of the animals, Petitioner cites
`various disclosures in D&D Handbook (Pet. 29–30), including that “[a]
`druid can handle her animal companion as a free action” and that
`“[f]amiliars are magically linked to their masters.” Ex. 1005, 40, 56. D&D
`Handbook describes that “[a] familiar is a normal animal that gains new
`powers and becomes a magical beast when summoned to service by a
`sorcerer or wizard.” Ex. 1005, 56. As such, Petitioner asserts that a person
`of ordinary skill in the art “would have found it obvious that players control
`animal units through their characters.” Pet. 30 (citing Ex. 1003 ¶ 137; Ex.
`1005, 40, 56, 57).
`Petitioner further contends Levine discloses objects in a “virtual
`environment” and, therefore, teaches “virtual objects.” Pet. 31–32 (citing
`Ex. 1004 ¶ 154). In particular, Levine describes “states” in a “virtual
`environment” and discloses that “the term ‘object state’ does not refer to
`objects in the sense of object oriented programming, but refers to objects
`that represent entities (e.g., people, animals, castles, buildings, etc.).”
`Ex. 1004 ¶ 154. Petitioner additionally asserts “Levine teaches an
`interactive online game where players manipulate and control objects
`through their Avatars.” Pet. 32 (citing Ex. 1004 ¶¶ 14, 571 683, Figs. 45,
`46; Ex. 1003 ¶ 141); see, e.g., Ex. 1004 ¶ 571 (disclosing that a “bicycling
`Avatar pedals here and there”).
`
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`Petitioner argues that, “[i]n an online game implemented based on
`D&D, [persons of ordinary skill in the art] would have found it obvious for
`the player to control her character and associated animals, as taught by
`D&D, where the animal unit is a virtual object controlled by the player
`through her Avatar.” Pet. 33 (citing Ex. 1003 ¶ 142).
`On this record, we are persuaded Petitioner has shown, sufficiently for
`purposes of institution, that the combination of Levine and D&D Handbook
`teaches, suggests, or renders obvious “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,” as recited in
`claim 1.
`
`b. Pilot ability, unit ability, and sync point information
`The remaining limitations of claim 1 involve maintaining pilot and
`unit information databases having certain information, including pilot
`“ability” information, unit “ability” information, and “sync point
`information,” and updating that information. The independent claims define
`the term “sync point information” as “a ratio of which changes in said ability
`of pilot are applied to said ability of unit.” In this section, we discuss
`Petitioner’s contentions and Patent Owner’s arguments with respect to
`ability and sync point information, and in the next section, we will address
`the database requirements of the claims, for which Petitioner relies primarily
`on Levine’s teachings.
`Petitioner contends D&D Handbook teaches several examples of
`ability information for characters (i.e., pilots) and for animals (i.e., units) and
`sync points between these abilities. Pet. 17–25, 33, 42. One alleged ability
`
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`Petitioner identifies is “hit points.” Pet. 17–19, 33, 42. According to D&D
`Handbook, “[h]it points represent how much damage a character can take
`before falling unconscious or dying.” Ex. 1005, 139. D&D Handbook
`further discloses that “[t]he familiar has one-half the master’s total hit points
`(not including temporary hit points), rounded down, regardless of its actual
`Hit Dice. For example, at 2nd level, Hennet has 9 hit points, so his familiar
`has 4.” Ex. 1005, 56. Petitioner argues that, “[i]f Hennet reaches level 3
`and his hit points increase by 2, his familiar’s hit points would increase by
`1/2 that amount (i.e., 1 point), so that Hennet now has 11 hit points, and his
`familiar has 5.” Pet. 18–19 (citing Ex. 1005, 56; Ex. 1003 ¶ 113).
`Patent Owner argues “there are six basic abilities in Dungeons &
`Dragons: Strength, Dexterity, Constitution, Intelligence, Wisdom and
`Charisma,” and, according to Patent Owner, D&D Handbook does not
`disclose a sync point relationship between any of these abilities of a pilot
`and an ability of a unit. Prelim. Resp. 10–11 (citing Ex. 1005, 12–14, 308).
`Patent Owner’s argument is based on its proposed construction of “ability,”
`which we do not adopt, as discussed above. Rather, for the reasons
`discussed above, we determine “hit points” as described in D&D Handbook
`are within the broadest reasonable interpretation of “ability,” as that term is
`used in the ’243 patent.
`On this record, we are persuaded Petitioner has shown sufficiently for
`purposes of institution that D&D Handbook teaches pilot “ability”
`information and unit “ability” information and also teaches updating that
`unit information such that changes to unit ability are proportional to changes
`in pilot ability. In particular, we are persuaded on this record that an
`increase in a character’s hit points that results in one half of that increase in
`
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`that character’s familiar’s hit points teaches that “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,” as recited in the
`independent claims. See Pet. 18–19; Ex. 1003 ¶ 113.
`c. Database limitations
`As discussed in the previous section, claim 1 recites maintaining pilot
`and unit information databases having certain information, including pilot
`“ability” information, unit “ability” information, and “sync point
`information,” and updating that information. For example, claim 1 recites:
`maintaining a unit information database, the 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.
`For a teaching of a database, Petitioner cites Levine’s disclosure of an
`“application database.” Pet. 33–34. Levine discloses that “application
`database 104 is implemented using a relational database product” and further
`discloses:
`[A]t the center of every persistent-state, massively multi-player
`game lies its database 104. The database 104 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. When a player
`picks up a sword, the database 104 must record this fact and store
`it, otherwise the next time that player logs in they will wonder
`where they lost it. When the player spends a gold coin, the
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`database 104 must debit their virtual bank account, so that the
`online economy can function without embezzlement. The
`database 104 is the final authority on the state of the world at any
`given moment.
`Ex. 1004 ¶¶ 207, 211, cited in Pet. 34, 38. Petitioner also contends Levine’s
`disclosure of a globally unique identifier (“GUID”) teaches an identifier and
`that “the combination of Levine and D&D teaches an animal unit with a unit
`identifier (GUID) associated with the player character.” Pet. 42–43.
`Petitioner contends it would have been obvious to a person of
`ordinary skill in the art to store character (pilot) and animal (unit)
`information, including ability information, unit identifier, and sync point
`information, in a database as taught by Levine’s “application database.”
`Pet. 33, 40, 41, 42 (citing Ex. 1003 ¶¶ 144, 150–152, 156).
`On the current record, we determine Petitioner’s analysis explaining
`that this subject matter would have been obvious based on Levine’s
`disclosure of an “application database” in combination with D&D
`Handbook’s teachings of character and unit abilities is sufficient for
`institution. See Pet. 33–45. In particular, Levine itself discloses the use of a
`database in MMOGs to “manage[] the persistence of object state across the
`game world” and to “keep[] a record of all significant state changes.”
`Ex. 1004 ¶ 211. Furthermore, as Petitioner points out (Pet. 43), Levine
`teaches that the database tracks the inventory of the Avatar such that, for
`example, “[w]hen a player picks up a sword, the database 104 must record
`this fact and store it.” Ex. 1004 ¶ 211. Indeed, Levine discloses that this
`database “is the final authority on the state of the world at any given
`moment.” Ex. 1004 ¶ 211.
`
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`We also are persuaded Petitioner has shown, sufficiently for purposes
`of institution, that the combination of Levine and D&D Handbook teaches
`“searching for unit identifier information” and “searching for sync point
`information” as part of the ability updating process. Pet. 45–47. In
`particular, we find persuasive Petitioner’s contention that “[t]he use of
`unique identifiers for accessing database objects has been the typical
`practice in the industry for decades, and querying databases using such
`identifiers was well known in the art.” Pet. 46 (citing Ex. 1003 ¶ 167).
`Levine discloses the use of unique identifiers for updating objects in a video
`game database: “Upon exit from the invocation of any Python function,
`those Game Server objects whose GUIDs are referenced explicitly in the
`optional packet parameters are updated in the database 104 and
`checkpointed. This assures that all scripted changes will be persistent within
`the game world.” Ex. 1004 ¶ 594.
`d. Threshold Determination as to Independent Claim 1
`On this record, Petitioner has demonstrated a reasonable likelihood of
`prevailing on its assertion that independent claim 1 is unpatentable under
`35 U.S.C. § 103(a) over the combined teachings of Levine and D&D
`Handbook. Based on the foregoing, we determine the Petition meets the
`prerequisite for joinder of warranting institution, and, therefore, we turn to
`the merits of Petitioner’s request for joinder.
`
`D. Petitioner’s Request for Joinder
`
`Petitioner “moves . . . for joinder of its today-filed petition for inter
`partes review (‘Blizzard IPR’) with a previously instituted IPR filed by
`Wargaming Group Limited (Case No. IPR2017-01082, ‘Wargaming IPR’).”
`Motion 1. Petitioner contends that it
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`IPR2018-00157
`Patent 7,682,243 B2
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`is filing this petition and joinder motion to ensure that a petitioner
`remains to complete the trial in the event that Wargaming reaches
`a settlement with the Patent Owner or is otherwise terminated
`from the proceeding. As long as Wargaming continues to
`participate in the IPR proceedings, Petitioner is willing to take a
`passive, “understudy” role. In fact, Petitioner does not intend to
`introduce any briefing, arguments, or discovery separate from
`Wargaming in the joined proceedings.
`Motion 1–2. Petitioner contends that joinder is appropriate, among other
`reasons, because the Petition presents identical grounds as those instituted in
`the Wargaming IPR and because joinder will not impact the schedule in the
`Wargaming IPR. Motion 6–7.
`In its Opposition, Patent Owner argues “35 U.S.C. § 315(b) bars
`Activision Blizzard from joinder.” Opp. 7. In particular, Patent Owner
`argues 35 U.S.C. §§ 315(b) and (c)
`provide that, if a party properly files a petition within the one-
`year deadline described in subsection (b), and then files a request
`for joinder under subsection (c) after such deadline expires,
`subsection (b) would permit the Board to grant the joinder
`request. The statutory scheme codified at subsections (b) and (c)
`requires that the petition be “properly filed” for the consideration
`of both the petition and the joinder request, and as such a joinder
`request submitted with a petition that is filed after the one-year
`deadline, as in the present instance, should be denied.
`Opp. 8.
`We disagree with Patent Owner’s statutory interpretation. The joinder
`provision allows joinder of “any person who properly files a petition under
`section 311 that . . . warrants the institution of an inter partes review under
`section 314.” 35 U.S.C. § 315(c). The joinder provision does not state that
`the petition must also be one in which institution is not barred under
`35 U.S.C. § 315(b). Patent Owner does not assert that Petitioner fails to
`
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`IPR2018-00157
`Patent 7,682,243 B2
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`meet any of the requirements for filing a petition. The time bar of § 315(b)
`prohibits institution in certain circumstances, but it does not speak to
`whether the filing requirements are met. We determine that Petitioner has
`“properly file[d] a petition under section 311,” and, as discussed above, we
`determine that the Petition meets the “reasonable likelihood” threshold for
`institution of § 314(a) and, therefore, “warrants the institution of an inter
`partes review under section 314.” Because § 315(b) expressly states that
`“[t]he time limitation set forth in the preceding sentence shall not apply to a
`request for joinder under subsection (c),” Petitioner’s request for joinder is
`not time-barred.
`Patent Owner argues joinder will complicate discovery and impact the
`schedule in the Wargaming IPR because Activision relies on a different
`declarant from Wargaming, which will require Patent Owner to depose
`Activision’s declarant. Opp. 3–4. Patent Owner also asserts that having a
`separate declarant will preclude Activision from taking an understudy role if
`joined. Opp. 3–4, 6–7. In Reply, Petitioner states that “it would withdraw
`its expert declaration at the latest by Due Date 1 (currently January 29,
`2018) in the Wargaming IPR.” Reply 2 n.1.4 Petitioner also “agrees to
`assume a back-seat, understudy role in the Wargaming IPR, without any
`right to separate or additional briefing or discovery, unless authorized by the
`Board.” Reply 2 n.1.
`Having considered the parties’ positions, we determine that joinder of
`Activision as a party to the Wargaming IPR is appropriate. Furthermore,
`because we are joining Activision to an instituted inter partes review, we
`
`
`4 Due date 1 in the Wargaming IPR was changed to February 5, 2018.
`Wargaming IPR, Paper 35.
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`IPR2018-00157
`Patent 7,682,243 B2
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`determine that separate institution of this proceeding is unnecessary. We,
`therefore, dismiss the Petition pursuant to 37 C.F.R. § 42.71(a), which
`provides that “[t]he Board may take up petitions or motions for decisions in
`any order, may grant, deny, or dismiss any petition or motion, and may enter
`any appropriate order” (emphasis added). Because we are dismissing the
`Petition, Patent Owner’s c
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