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
`
`Patent No. 7,682,243
`
`Filing Date: June 23, 2005
`
`Issue Date: March 23, 2010
`
`Title: METHOD FOR PROVIDING ONLINE GAME
`WHICH CHANGES PILOT DATA AND UNIT DATA IN GEAR AND
`SYSTEM THEREOF
`
`_____________________________________________
`
`Inter Partes Review No.: To be Assigned
`
`__________________________________________________________________
`
`PETITION FOR INTER PARTES REVIEW OF
`CLAIMS 1 – 7 OF U.S. PATENT NO. 7,682,243
`UNDER 35 U.S.C. §§ 311-319 AND C.F.R. § 42.100 ET SEQ.
`
`
`
`_____________________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________________________________________
`
`ACTIVISION BLIZZARD, INC.
`
`Petitioner
`
`V.
`
`GAME AND TECHNOLOGY CO., LTD
`
`Patent Owner
`
`Patent No. 7,682,243
`
`Filing Date: June 23, 2005
`
`Issue Date: March 23, 2010
`
`Title: METHOD FOR PROVIDING ONLINE GAME
`WHICH CHANGES PILOT DATA AND UNIT DATA IN GEAR AND
`SYSTEM THEREOF
`
`_____________________________________________
`
`Inter Partes Review No.: To be Assigned
`
`__________________________________________________________________
`
`PETITION FOR INTER PARTES REVIEW OF
`CLAIMS 1 – 7 OF U.S. PATENT NO. 7,682,243
`UNDER 35 U.S.C. §§ 311-319 AND C.F.R. § 42.100 ET SEQ.
`
`
`
`TABLE OF CONTENTS
`
`I. MANDATORY NOTICES UNDER 37 C.F.R. § 42.8 ................................ 1
`
`A. Real Parties-In-Interest under 37 C.F.R. § 42.8(b)(1). .................... 1
`
`B. Related Matters under 37 C.F.R. § 42.8(b)(2). ................................. 1
`
`C. Designation of Lead and Back-Up Counsel and Service
`
`Information under 37 C.F.R. §§ 42.8 (b)(3) & (b)(4). ...................... 2
`
`II.
`
`PAYMENT OF FEES – 37 C.F.R. § 42.103 ................................................ 3
`
`III. REQUIREMENTS FOR IPR UNDER 37 C.F.R. § 42.104 ....................... 4
`
`A. Ground for Standing under 37 C.F.R § 42.104(a)............................ 4
`
`IV. BACKGROUND OF THE TECHNOLOGY .............................................. 5
`
`A. Dungeons and Dragons ....................................................................... 6
`
`B. Videogame RPG .................................................................................. 8
`
`V. OVERVIEW OF THE ’243 PATENT ......................................................... 9
`
`VI. SUMMARY OF PRIOR ART AND GROUNDS .....................................10
`
`A.
`
`Publications Relied Upon ..................................................................10
`
`B. Grounds ..............................................................................................11
`
`VII. CLAIM CONSTRUCTION ........................................................................11
`
`A.
`
`Level of Skill .......................................................................................11
`
`B.
`
`“Pilot” .................................................................................................12
`
`C.
`
`“Unit”..................................................................................................13
`
`i
`
`
`
`D.
`
`“Ability” .............................................................................................14
`
`VIII. A REASONABLE LIKELIHOOD EXISTS THAT THE
`
`CHALLENGED CLAIMS ARE UNPATENTABLE ..............................16
`
`A. Ground 1: Claims 1-7 are obvious under Levine in view of D&D
`
` .............................................................................................................16
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
`
`7.
`
`8.
`
`9.
`
`Sync Points ................................................................................17
`
`KSR Factors ...............................................................................25
`
`Claim 1 ......................................................................................26
`
`Claim 2 ......................................................................................51
`
`Claim 3 ......................................................................................54
`
`Claim 4 ......................................................................................55
`
`Claim 5 ......................................................................................55
`
`Claim 6 ......................................................................................59
`
`Claim 7 ......................................................................................60
`
`IX. CONCLUSION ............................................................................................64
`
`
`
`
`
`ii
`
`
`
`EXHIBITS
`
`Document
`
`Exhibit No.
`
`U.S. Patent No. 7,682,243 (“the ’243 Patent”)
`
`File History for U.S. Patent No. 7,682,243
`
`Declaration of Garry Kitchen (submitted in IPR2017-01082)
`
`U.S. Patent Application Publication No. 2003/0177187 A1
`(“Levine”)
`
`Dungeons and Dragons Player’s Handbook Core Rulebook
`I v.3.5 (“D&D”)1
`
`Patent Owner’s Claim Chart for Blizzard World of Warcraft
`
`Patent Owner’s Preliminary Response to Petition Under 37
`C.F.R. § 42.107 in Case IPR2016-01918
`
`Declaration of Ted Beckstead
`
`NOT USED2
`
`NOT USED
`
`NOT USED
`
`Declaration of Kenneth Apple
`
`1001
`
`1002
`
`1003
`
`1004
`
`1005
`
`1006
`
`1007
`
`1008
`
`1009
`
`1010
`
`1011
`
`1012
`
`
`1 Exhibit 1005 in the present Petition refers to supplemental Exhibit 1005-S
`
`filed by Wargaming on October 20, 2017 in IPR2017-01082.
`
`2 To maintain consistency with the exhibit numbering used by Wargaming in
`
`its IPR Petition (IPR2017-01082, Paper 1), Exhibits 1009-1011 and 1013-1016 are
`
`not used.
`
`iii
`
`
`
`Document
`
`Exhibit No.
`
`NOT USED
`
`NOT USED
`
`NOT USED
`
`NOT USED
`
`Declaration of David Crane
`
`1013
`
`1014
`
`1015
`
`1016
`
`1017
`
`iv
`
`
`
`Activision Blizzard, Inc. (“Petitioner”) requests that the Board institute inter
`
`partes review of and cancel claims 1-7 (“the challenged claims”) of U.S. Patent
`
`7,682,243 (“the ’243 Patent”), which is assigned to Patent Owner Game and
`
`Technology Co., Ltd. (“GAT”). Ex. 1001. Inter parties review of claims 1-7 of
`
`the ’243 Patent was instituted in IPR2017-01082 on October 6, 2017, based on a
`
`petition filed by Wargaming Group Ltd. (“the Wargaming IPR”). Petitioner
`
`hereby files its own Petition on the same ground as that instituted in the
`
`Wargaming IPR and concurrently seeks to join the instituted Wargaming IPR
`
`proceeding (IPR2017-01082). A motion for joinder with IPR2017-01082 is being
`
`filed concurrently with this Petition.
`
`I. MANDATORY NOTICES UNDER 37 C.F.R. § 42.8
`
`A. Real Parties-In-Interest under 37 C.F.R. § 42.8(b)(1).
`
`Activision Blizzard, Inc.; Blizzard Entertainment, Inc. (“Blizzard”);
`
`Activision Publishing, Inc.; and Activision Entertainment Holdings, Inc. are the
`
`real parties-in-interest for this Petition.
`
`B. Related Matters under 37 C.F.R. § 42.8(b)(2).
`
`GAT filed a Complaint against Blizzard alleging infringement of the ’243
`
`Patent in the U.S. District Court for the Eastern District of Texas on July 9, 2015.
`
`(GAT v. Blizzard, No. 2:15-cv-1257.) Against Blizzard, GAT also alleged
`
`infringement of U.S. Patent Nos. 8,253,743 (“the ’743 Patent”) and 8,035,649
`
`(“the ’649 Patent”).
`
`1
`
`
`
`On July 9, 2015, GAT filed a Complaint alleging infringement of the ‘243
`
`Patent against Wargaming in the U.S. District Court for the Eastern District of
`
`Texas. (GAT v. Wargaming, No. 2:15-cv-1260).
`
`The Blizzard and Wargaming cases (along with cases against Riot Games,
`
`Inc. and Valve Corporation) were consolidated for pretrial purposes in the Eastern
`
`District of Texas. Subsequently, the Court transferred the cases, and the case
`
`against Blizzard is now pending in the Central District of California as GAT v.
`
`Blizzard, 2:16-cv-6499, along with GAT v. Wargaming (2:16-cv-6554), and GAT v.
`
`Riot (2:16-cv-6486), the latter of which does not involve the ‘243 patent.
`
`In addition to the present Petition, on September 30, 2016, Activision
`
`Blizzard, Inc. filed a petition for IPR on the ‘243 patent (IPR2016-1918).
`
`IPR2016-1918 was based on different grounds than the present petition. The
`
`Board denied institution of IPR2016-1918 on March 21, 2017.
`
`Wargaming filed a petition for IPR on the ’243 Patent (IPR2017-01082) on
`
`March 13, 2017, and trial has been instituted on the following ground: Claims 1-7
`
`as unpatentable under 35 U.S.C. § 103(a) over the combined teachings of Levine
`
`and the D&D Handbook. (IPR2017-01082, Paper 14.)
`
`C. Designation of Lead and Back-Up Counsel and Service
`Information under 37 C.F.R. §§ 42.8 (b)(3) & (b)(4).
`
`Petitioner provides the following designation of counsel:
`
`2
`
`
`
`LEAD COUNSEL:
`
`BACK-UP COUNSEL:
`
`For Petitioner:
`
`For Petitioner:
`
`Sharon A. Israel (Reg. No. 41,867)
`(sisrael@shb.com)
`Shook, Hardy & Bacon L.L.P.
`600 Travis St., Suite 3400
`Houston, TX 77002-2926
`Phone: (713) 546-5689
`Fax: (713) 227-9508
`
`John D. Garretson (Reg. No. 39,681)
`(jgarretson@shb.com)
`Shook, Hardy & Bacon L.L.P.
`2555 Grand Blvd.
`Kansas City, MO 64108-2613
`Phone: (816) 474-6550
`Fax: (816) 421-5547
`
`BACK-UP COUNSEL:
`
`
`
`For Petitioner:
`
`Tanya Chaney (Reg. No. 55,080)
`(tchaney@shb.com)
`Shook, Hardy & Bacon L.L.P.
`600 Travis St., Suite 3400
`Houston, TX 77002-2926
`Phone: (713) 227- 8008
`Fax: (713) 227-9508
`
`As identified in the Certificate of Service, a copy of the present petition, in
`
`its entirety, is being served to the addresses of the attorneys or agents of record.
`
`Petitioner may be served at the lead counsel address provided above. In addition, a
`
`power of attorney is being filed with the designation of counsel in accordance with
`
`37 C.F.R. § 42.10(b).
`
`II.
`
`PAYMENT OF FEES – 37 C.F.R. § 42.103
`
`This Petition for inter partes review requests review of claims 1-7 of the
`
`‘243 Patent and is accompanied by the required Petition fee. Thus, this Petition
`
`meets the fee requirements under 35 U.S.C. § 312(a)(1). Petitioner hereby
`
`3
`
`
`
`authorizes charging Deposit Account 19-2112 in the amount of the required
`
`Petition fee and further authorizes any additional charges that may be necessary (or
`
`any credit of overpayment) to that account.
`
`III. REQUIREMENTS FOR IPR UNDER 37 C.F.R. § 42.104
`
`This Petition is complete, complies with all requirements including those
`
`under 35 U.S.C. § 312(a) and 37 C.F.R. §§ 42. 8, 42.15, 42.104 and 42.105, and
`
`thus should be accorded a filing date as the date of filing of this Petition under 37
`
`C.F.R. § 42.106.
`
`A. Ground for Standing under 37 C.F.R § 42.104(a).
`
`Pursuant to §§ 42.104(a) and 42.122(b),3 Petitioner certifies that the ’243
`
`patent is available for IPR and that the Petitioner is not barred or estopped from
`
`requesting IPR challenging claims of the ’243 patent on the grounds identified
`
`herein. Concurrent with the filing of this petition, Petitioner is filing a
`
`corresponding motion for joinder with IPR2017-01082.
`
`
`3 GAT currently disputes Wargaming’s claim for standing in the Wargaming
`
`IPR. See IPR2017-01082, Paper 16 at 2-4. Petitioner recognizes that Petitioner’s
`
`standing in the present Petition is contingent on the Board’s resolution of the
`
`standing issue in the Wargaming IPR.
`
`4
`
`
`
`IV. BACKGROUND OF THE TECHNOLOGY
`
`Role Playing Games (“RPGs”) began in the 1970s as tabletop games. See
`
`Ex. 1004 at 8–9; Ex. 1003 ¶75.4 Players controlled their respective characters,
`
`while one person acted as “dungeon master” by narrating the action and refereeing
`
`the game. Id. RPG rules were designed to encourage creativity and imagination.
`
`Id. The first—and to this day the most popular—RPG was called Dungeons and
`
`Dragons. Id.
`
`By the 1980s, the RPG format had carried over to videogames, which
`
`adopted rules from tabletop RPGs. Id. ¶76. Many videogames were inspired by
`
`Dungeons and Dragons, with some taking official licenses and others unofficially
`
`looking to the game for inspiration. Id. Dungeons and Dragons created the RPG
`
`genre and has been hugely influential in both tabletop and videogame formats. Id.
`
`
`4 Petitioner relies on the Declaration of David Crane. Ex. 1017. Mr. Crane
`
`relies on the Declaration of Garry Kitchen, submitted in conjunction with
`
`Wargaming’s Petition for IPR on the ’243 Patent. See IPR2017-01082, Ex. 1002.
`
`Mr. Crane has reviewed the analyses and conclusions provided by Mr. Kitchen.
`
`Ex. 1017 at ¶¶ 70 to 71. Mr. Crane agrees that claims 1-7 of the ’243 patent are
`
`obvious under Levine in view of D&D, for all of the reasons as stated in Mr.
`
`Kitchen’s Declaration. Ex. 1017 at ¶¶ 72 to 74. For brevity throughout, Petitioner
`
`cites to Mr. Kitchen’s Declaration, attached as Exhibit 1003 to the present Petition.
`
`5
`
`
`
`A. Dungeons and Dragons
`
`Player characters typically had a class representing their occupation, such as
`
`a sorcerer, paladin, or druid. See Ex. 1005 at 27; Ex. 1003 ¶77. They also had
`
`statistics representing their abilities, such as strength, dexterity, hit points,5 saving
`
`throws,6 and class level, which reflected the character’s progression in her class.
`
`See Ex. 1005 at 26–27, 62, 140; Ex. 1003 ¶¶77–78. When a character gained
`
`enough experience, her level and other abilities increased. See id. Generally,
`
`player characters started at level 1 and advanced to more powerful levels as they
`
`gained experience. See Ex. 1005 at 8, 10; Ex. 1003 ¶78. The advancement of
`
`character abilities is a defining feature of an RPG. See id.
`
`In Dungeons and Dragons, several classes controlled animal units. Ex. 1003
`
`¶79. The paladin had a mount (typically a horse), sorcerers and wizards had animal
`
`familiars7 (chosen by the player), and druids and rangers had animal companions
`
`(including horses and other animals). See Ex. 1005 at 39, 48, 58; Ex. 1003 ¶79.
`
`
`5 Hit points reflect a character’s ability to take damage before dying. See
`
`Ex. 1005 at 140.
`
`6 Saving throws allow characters to avoid or reduce harmful effects. Ex.
`
`1005 at 140. Reflex saves, for example, test your ability to dodge area attacks. Id.
`
`7 “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 at 56.
`
`6
`
`
`
`Ex. 1005 at 38 (showing druid and wolf).
`
`
`
`These animals had abilities—e.g., hit points, strength, and dexterity, and
`
`bonus tricks—that increased proportionally with the character’s abilities. See Ex.
`
`1005 at 40, 49, 56–57; Ex. 1003 ¶80. This relationship was intuitive because
`
`player characters generally grew more powerful as they gained levels, allowing
`
`them to face more difficult challenges. Ex. 1003 ¶80. If an animal did not grow
`
`more powerful alongside her character, the animal would die or become useless as
`
`the character faced increasingly powerful enemies. Id.
`
`Thus, the Dungeons and Dragons Player’s Handbook explains that, as a
`
`paladin becomes more powerful, her mount also grows stronger. See infra
`
`Section VIII.A.1; Ex. 1003 ¶81. When a sorcerer gains hit points, so does her
`
`animal familiar. See id. When a druid goes up a level, her abilities and those
`
`of her animal increase together. See id. The character and animal abilities
`
`7
`
`
`
`were synchronized so they could face challenges of increasing difficulty together,
`
`without either feeling under- or over-powered. See id.
`
`B. Videogame RPG
`
`Many videogames have followed the RPG format. Ex. 1003 ¶82. Most were
`
`inspired, to some extent, by Dungeons and Dragons, and many were sold under an
`
`official license. For example, BioWare produced a series of popular games,
`
`including Baldur’s Gate (1998), Icewind Dale (2000), and Neverwinter Nights
`
`(2002), that licensed and directly implemented rules from Dungeons and Dragons
`
`tabletop games. Id. ¶83. Neverwinter Nights implemented rules from version 3.0
`
`of the Player’s Handbook, the direct precursor to version 3.5 relied upon by this
`
`Petition. Id.
`
`The advent of the Internet led to Massively Multiplayer Online Role Playing
`
`Games (“MMORPGs”), which allowed thousands of users to simultaneously play
`
`in the same online world. Ex. 1003 ¶84. These MMORPGs included Ultima
`
`Online and Everquest. See id.; Ex. 1004 ¶[0014].
`
`Given the popularity of RPGs, common RPG features wove their way into
`
`other genres by the 1990s and early 2000s. Ex. 1003 ¶85. Action and strategy
`
`games, for instance, began offering customizable characters, customizable
`
`vehicles, and ability growth. Id.
`
`8
`
`
`
`V. OVERVIEW OF THE ’243 PATENT
`
`The ’243 Patent is directed to online games, in particular “an online RPG.”
`
`Ex. 1001 cols. 1:20–25, 3:31–33. According to the ’243 Patent, previous games
`
`allowed players to control characters and associated units, but “the player character
`
`and the unit operate as independent objects.” Id. cols. 1:44–48. “[W]hile the
`
`ability of the player character grows, the ability of the unit does not change.” Id.
`
`col. 1:48–50. Thus, the ’243 Patent recognizes an alleged problem where “it is
`
`difficult to induce interests of a gamer about a game since the gamer continues the
`
`game without recognizing a connection between [player character and unit]
`
`objects.” See id. col. 1:56–60.
`
`The ’243 Patent purportedly addresses this problem by “providing an online
`
`game, in which a pilot and unit information associated with the pilot interoperate.”
`
`Id. col. 2:5–9. In particular, the ’243 Patent aims “to make the growth of a pilot
`
`affect the growth of a unit and [thus] enable a gamer to recognize a connection
`
`between the pilot and the unit.” Id. col. 2:14–18. The alleged solution proposed
`
`by the ’243 Patent is the use of a “sync point” which is “a ratio of which changes
`
`in said ability of pilot are applied to said ability of unit.” See id. cols. 2:44–49,
`
`11:43– 48.
`
`However, this concept was widely known in the art. Ex. 1003 ¶88.
`
`Dungeons and Dragons taught synchronizing the ability growth of characters and
`
`9
`
`
`
`their animal units based on ratios, and that teaching has been implemented in
`
`numerous games throughout the years. Id.; see supra Section IV. While the ’243
`
`Patent further recites generic database operations that had long been known and
`
`used in the art, those recitations do not make the alleged invention any less
`
`obvious. Ex. 1003 ¶88; see Ex. 1004 ¶¶[0207–0209] (disclosing using database
`
`software for videogames).
`
`VI. SUMMARY OF PRIOR ART AND GROUNDS
`
`None of the below references were considered by the Patent Office during
`
`prosecution.
`
`A.
`
`Publications Relied Upon
`
`Exhibit 1004—U.S. Patent Publication No. 2003/0177187 (“Levine”) is
`
`prior art under at least §102(a) and (b) because it was published September 18,
`
`2003, over one year before the ’243 Patent was effectively filed in the United
`
`States (June 23, 2005). See Ex. 1004 at 1; Ex. 1003 ¶101. Levine teaches an
`
`online gaming platform and explains the rules of many online games were
`
`“popularized in the dice game Dungeons and Dragons.” See Ex. 1004 ¶¶[0021],
`
`[0014].
`
`Exhibit 1005—DUNGEONS AND DRAGONS PLAYER’S HANDBOOK
`
`CORE RULEBOOK I v.3.5 (“D&D”) was published July 2003 and is prior art
`
`under §102(a) and (b). See Ex. 1008; Ex. 1012; Ex. 1005 at 5; Ex. 1003 ¶102.
`
`10
`
`
`
`D&D teaches RPG rules with player characters and animals units whose abilities
`
`increase proportionally. See infra Section VIII.A.1.
`
`B. Grounds
`
`Petitioner requests cancellation under 35 U.S.C. §103 based on the following
`
`ground:
`
`Claims 1–7 are obvious under Levine in view of D&D.
`
`VII. CLAIM CONSTRUCTION
`
`Pursuant to § 42.100(b), solely for purposes of this review, Petitioner
`
`construes the claim language such that claim terms are given their broadest
`
`reasonable interpretation (“BRI”).8 For terms not specifically listed below,
`
`Petitioner interprets them for purposes of this review in accordance with their plain
`
`and ordinary meaning under the BRI standard.
`
`A. Level of Skill
`
`A person of ordinary skill in the art (“POSITA”) would have had (1) at least
`
`a four-year Bachelor of Science degree in computer science or a commensurate
`
`degree OR at least 5 years of professional experience as a video game
`
`
`8 Petitioner reserves the right to seek different claim constructions in
`
`different forums that apply different standards (e.g., district court litigation
`
`applying the Phillips standard).
`
`11
`
`
`
`designer/developer; and (2) a working understanding of computer programming
`
`and the videogame industry. Ex. 1003 ¶74.
`
`B.
`
`“Pilot”
`
`A POSITA would have understood this term to mean “a player character
`
`representing a gamer.” Ex. 1003 ¶93. The specification expressly provides this
`
`definition:
`
`1) Pilot
`
`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.
`
`See id.; Ex. 1001 col. 3:4–10.
`
`To the extent Patent Owner contends this term should be limited to specific
`
`embodiments, the ’243 Patent explains that “descriptions of specific embodiments
`
`of the present invention . . . are not intended to be exhaustive or to limit the
`
`invention to the precise forms disclosed.” Ex. 1001 col. 9:59–64, 10:21–26
`
`(“[A]spects of the present invention are not limited by the particular details of the
`
`examples
`
`illustrated herein, and
`
`it
`
`is
`
`therefore contemplated
`
`that other
`
`modifications and applications, or equivalents thereof, will occur to those skilled
`
`in the art.”). The specification further explains that one of the goals of the alleged
`
`12
`
`
`
`invention “is to apply a variety of game scenarios through the diversified
`
`combination of a pilot and a unit, thereby enhancing interests about a game.” Id.
`
`col. 2:23–26.
`
`Under BRI, POSITAs would have understood “pilot” to encompass any
`
`“player character representing a gamer.” See Ex. 1001 col. 3:4–10; Ex. 1003 ¶95.
`
`At the very least, the BRI of “pilot” should include a player character that rides an
`
`animal because Patent Owner has repeatedly argued that a “pilot” is a “player-
`
`operated game character that operates the motion controls of a mount” including a
`
`“game character (pilot) [that] can travel within the virtual world by a riding mount
`
`(unit).” See Ex. 1007 at 12–13; Ex. 1006 at 2 (accusing World of Warcraft); Ex.
`
`1003 ¶95.
`
`C.
`
`“Unit”
`
`A POSITA would have understood this term to mean “an object operated by
`
`a control of a gamer.” Ex. 1003 ¶96. The specification expressly provides this
`
`definition:
`
`2) Unit
`
`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
`
`13
`
`
`
`target for the gamer to import his/her feelings. Also, a concept of item
`
`belonging to the gamer may be applied to the unit.
`
`See id.; Ex. 1001 col. 3:12–18. Although the patent provides an “example” of a
`
`robot, it expressly states that its definition may also encompass an “item belonging
`
`to the gamer.” See id. To the extent Patent Owner contends this term should be
`
`limited to particular embodiments, the ’243 Patent explains that would be
`
`improper. See Ex. 1001 cols. 2:23–26, 9:59–64, 10:21–26; Ex. 1003 ¶96.
`
`At the very least, the BRI of this term should include animals units
`
`associated with the player. Ex. 1003 ¶97. Patent Owner has repeatedly argued that
`
`“a ‘unit’ is a mount,” in reference to an animal mount. See Ex. 1006 at 2; Ex. 1007
`
`at 14; Ex. 1003 ¶97.
`
`D.
`
`“Ability”
`
`Under BRI a POSITA would have understood this term to mean “a numeric
`
`representation of an attribute.” Ex. 1003 ¶98. The claims require “ability
`
`information” to be added with “numeric” values—and thus itself be a numeric
`
`value. See Ex. 1001 col. 11:60–12:5; Ex. 1003 ¶98. The specification explains
`
`“[t]he ability value 407 indicates numerical value information with respect to
`
`information on the ability kind 406 of each pilot.” Ex. 1001 col. 6:19–22. The
`
`pilot and unit abilities disclosed by the specification, such as “attack power” and
`
`14
`
`
`
`“hit power,” are numeric representations of attributes. See id. col. 5:22–27, FIGS.
`
`3–5; Ex. 1003 ¶98.
`
`Furthermore, POSITAs would have understood “ability” to include the
`
`pilot’s “level.” Ex. 1003 ¶99. “As illustrated in FIG. 5, pilot ability information
`
`and unit ability information may be conceptually linked through sync pipes 500,
`
`501, 502, 503, and 504.” Ex. 1001 col. 6:58–60 (emphasis added), 6:62–67
`
`(“Level information of a pilot is associated with sync point information of a unit
`
`through the sync pipe 500...”), FIG. 5:
`
`See also Ex. 1003 ¶99. FIG. 5 discloses an embodiment of claim 2 (see infra n. 7)
`
`where a unit’s sync point is itself the product of a sync point calculation, so that
`
`when the pilot ability (“Level information”) increases, the unit ability (sync point)
`
`
`
`15
`
`
`
`increases proportionally. Ex. 1001 col. 6:62–67; Ex. 1003 ¶99. Thus the ’243
`
`Patent discloses level as a pilot ability. See id.
`
`VIII. A REASONABLE LIKELIHOOD EXISTS THAT THE
`CHALLENGED CLAIMS ARE UNPATENTABLE
`
`A. Ground 1: Claims 1-7 are obvious under Levine in view of D&D
`
`Levine teaches “a computing grid for massively Multiplayer on-line games.”
`
`See Ex. 1004 ¶[0021]; Ex. 1003 ¶104. D&D teaches a game system for RPGs. See
`
`Ex. 1005 at 8; Ex. 1003 ¶104. POSITAs 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. Ex. 1003 ¶104; see Ex. 1004 ¶¶[0021], [0035], [0163].
`
`A POSITA would have been motivated to do so because Levine expressly
`
`teaches the application of D&D rules to Massively Multiplayer Online Games. See
`
`Ex. 1004 ¶[0014] (“The rules of many MMOGs are based on paper and dice role-
`
`playing games popularized in the dice game Dungeons and Dragons.”) (emphasis
`
`added); Ex. 1003 ¶105. Levine further teaches games with dragons and wizards.
`
`See id ¶¶[0526], [0658]; Ex. 1003 ¶105. POSITAs would have understood D&D
`
`rules to be well-suited for videogames because many successful games had
`
`implemented them. Ex. 1003 ¶105; see supra Section IV.B. The combination of
`
`Levine with D&D renders the challenged claims obvious. See id.
`
`16
`
`
`
`1.
`
`Sync Points
`
`The ’243 Patent’s alleged novelty is the concept of a “sync point,” which “is
`
`a ratio of which changes in said ability of pilot are applied to said ability of unit.”
`
`See Ex. 1001 col. 11:40–46; Ex. 1003 ¶106. However, D&D had already taught
`
`this concept years before. Ex. 1003 ¶106.
`
`D&D discloses player characters with animals whose abilities are
`
`synchronized based on ratio relationships, so that increases to the character’s
`
`abilities are applied proportionally to the animal’s abilities. Ex. 1003 ¶107. While
`
`D&D discloses much of this information in the form of pre-computed tables, a
`
`POSITA would have found it obvious to derive the underlying ratios using algebra
`
`and to directly use those ratios when programming an online game. Id.
`
`Increasing Levels. As characters gain experience, their levels and other
`
`abilities increase. See Ex. 1005 at 62; Ex. 1003 ¶108. “Characters accumulate XP
`
`[experience points] from one adventure to another. When a character earns enough
`
`XP, he or she attains a new character level.” Ex. 1005 at 62, 26; Ex. 1003 ¶108.
`
`“Going up a level provides the character with several immediate benefits.”
`
`Ex. 1005 at 62. For example, the character’s hit points increase when she goes up a
`
`level.
`
` See id. (“When your character attains a new level, make these
`
`changes. . . . Hit Points: Roll a Hit Die . . . and add the total roll to his or her hit
`
`points.”). The number of feats a character can perform also increases based on
`
`17
`
`
`
`level advancement, as does her reflex save. See id. at 26 (Table 3-2), 39; Ex. 1003
`
`¶109.
`
`For sorcerers, druids, and paladins, the abilities of their associated animals
`
`increase as they level up. Ex. 1003 ¶110. “Each character class description
`
`includes a table that shows how the class features and statistics increase as a
`
`member of that class advances in level.” Ex. 1005 at 62. The sorcerer’s “Class
`
`Features” include an animal “Familiar”; the druid’s include an “Animal
`
`Companion”; and the paladin’s include a “Special Mount.” Ex. 1005 at 39, 48, 58;
`
`Ex. 1003 ¶110.
`
`Sorcerer’s Familiar.9 D&D teaches a 1/2 ratio: “[t]he familiar has one-half
`
`the master’s total hit points (not including temporary hit points), rounded
`
`down . . . .” Ex. 1005 at 56 (emphasis added); Ex. 1003 ¶113. When a sorcerer
`
`gains a level, her hit points increase and her familiar’s hit points increase by 1/2
`
`that amount. See id. “For example, at 2nd level, Hennet has 9 hit points, so his
`
`familiar has 4.” Id. If Hennet reaches level 3 and his hit points increase by 2, his
`
`
`9 “A wizard can obtain a familiar in exactly the same manner as a sorcerer
`
`can.” Ex. 1004 at 61. For simplicity, this Petition will discuss sorcerers, though
`
`POSITAs would have understood these teachings applied to wizards also. See Ex.
`
`1003 ¶111.
`
`18
`
`
`
`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. See id.
`
`Druid’s Animal Companion.10 The animal companion “is superior to a
`
`normal animal of its kind and has special powers.” Ex. 1005 at 40. As the druid’s
`
`level and other abilities increased, the abilities of her animal companion similarly
`
`increased:
`
`
`
`See Ex. 1005 at 40; Ex. 1003 ¶114. POSITAs would have recognized that these
`
`abilities follow several sync points as explained below. See id.
`
`First, the animal’s Bonus Hit Dice (“HD”) increases as a ratio of the druid’s
`
`reflex save (“Ref Save”) ability; the below table lists the progression of both
`
`abilities, showing a clear 1:2 ratio:
`
`
`10 For simplicity, this Petition will discuss druids, though POSITAs would
`
`have understood these teachings generally applied to rangers too. See Ex. 1005 at
`
`52; Ex. 1003 ¶119.
`
`19
`
`
`
`Druid Level
`
`Druid Ref Save
`
`Animal Bonus HD
`
`1st
`2nd
`3rd
`4th
`5th
`6th
`7th
`8th
`9th
`10th
`11th
`12th
`13th
`14th
`15th
`16th
`17th
`18th
`19th
`20th
`
`
`
`+0
`+0
`+1
`+1
`+1
`+2
`+2
`+2
`+3
`+3
`+3
`+4
`+4
`+4
`+5
`+5
`+5
`+6
`+6
`+6
`
`+0
`+0
`+2
`+2
`+2
`+4
`+4
`+4
`+6
`+6
`+6
`+8
`+8
`+8
`+10
`+10
`+10
`+12
`+12
`+12
`
`See Ex. 1005 at 39–40 (Table 3-8); Ex. 1003 ¶115. Using algebra or visual
`
`inspection, a POSITA would have recognized that changes in the druid’s reflex
`
`save ability are applied to the animal’s bonus HD using a ratio of 1/2:
`
`Ex. 1003 ¶ 115.
`
`Second, the animal’s number of bonus tricks follows a 1:1 sync point ratio
`
`with the number of feats that a druid may learn:
`
`
`
`20
`
`
`
`Level
`
`Druid: Number of Feats
`
`Animal: Bonus Tricks
`
`1st
`2nd
`3rd
`4th
`5th
`6th
`7th
`8th
`9th
`10th
`11th
`12th
`13th
`14th
`15th
`16th
`17th
`18th
`19th
`20th
`
`1
`1
`2
`2
`2
`3
`3
`3
`4
`4
`4
`5
`5
`5
`6
`6
`6
`7
`7
`7
`
`1
`1
`2
`2
`2
`3
`3
`3
`4
`4
`4
`5
`5
`5
`6
`6
`6
`7
`7
`7
`
`
`
`See Ex. 1005 at 40, 26 (“Every character gains one feat at 1st level and another at
`
`every level divisible by three (3rd, 6th, 9th, 12th, 15th, and 18th level).”); Ex. 1003
`
`¶117.
`
`21
`
`
`
`Third, 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:11
`
`Level
`
`Druid: Number of
`Feats
`
`Animal: Str/Dex Adj. Sync Point Ratio
`
`1st
`2nd
`3rd
`4th
`5th
`6th
`7th
`8th
`9th
`10th
`11th
`12th
`13th
`14th
`15th
`16th
`17th
`18th
`19th
`20th
`
`
`1
`1
`2
`2
`2
`3
`3
`3
`4
`4
`4
`5
`5
`5
`6
`6
`6
`7
`7
`7
`
`+0
`+0
`+1
`+1
`+1
`+2
`+2
`+2
`+3
`+3
`+3
`+4
`+4
`+4
`+5
`+5
`+5
`+6
`+6
`+6
`
`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
`0.83
`0.83
`0.86
`0.86
`0.86
`
`See Ex. 1005 at 26, 40; Ex. 1003 ¶118. A POSITA would have recognized
`
`these ratio relationships. See id.
`
`
`11 Claim 2 recites increasing sync point information. See infra Section
`
`V(A)(3) (ii).
`
`22
`
`
`
`Paladin’s Mount. The mount’s abilities increased as the paladin gained
`
`levels:
`
`
`
`See Ex. 1005 at 49; Ex. 1003 ¶120.12
`
`First, POSITAs would have found it obvious, using algebra, that the
`
`animal’s strength adjustment (“Str Adj.”) is synchronized by the ratios shown
`
`below, rounded to the nearest whole number, to the number of feats the paladin
`
`may learn:
`
`Paladin Level
`
`Mount Str Adj.
`
`Sync Point
`Ratio
`
`5th
`6th
`7th
`8th
`9th
`10th
`11th
`12th
`13th
`
`12 The paladin obtains her mount at 5th
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