Case 3:19-cv-07027-WHA Document 91 Filed 01/27/20 Page 1 of 10
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`BOT M8 LLC,
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`
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`Plaintiff,
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`v.
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`SONY CORPORATION OF AMERICA, et
`al.,
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`Defendants.
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`
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`No. C 19-07027 WHA
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`
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`ORDER GRANTING IN PART AND
`DENYING IN PART MOTION TO
`DISMISS
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`INTRODUCTION
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`In this patent infringement suit, defendants move to dismiss the amended complaint. For
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`the following reasons, the motion is GRANTED IN PART and DENIED IN PART.
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`STATEMENT
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`Patent owner asserts six patents against defendants: U.S. Patent Nos. 8,078,540 (“the ’540
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`patent”); 8,095,990 (“the ’990 patent”); 7,664,988 (“the ’988 patent”); 8,112,670 (“the ’670
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`patent”); 7,338,363 (“the ’363 patent”); and 7,497,777 (“the ’777 patent”). The asserted patents
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`are directed toward casino, arcade, and video games generally (Dkt. No. 79 at 2). The ’540,
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`’990, ’988, and ’670 patents are asserted against the Sony Play Station 4. The ’363 patent is
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`asserted against both the Sony PlayStation 4 and three video games: MLB The Show 19;
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`Uncharted 4; and Uncharted: the Lost Legacy (Dkt. No. 75 at 18). And, the ’777 patent is
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`asserted against the PlayStation 4 and three games: the two Uncharted games and God of War.
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`Patent Owner, Bot M8 LLC - Ex. 2004, p. 1
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`Case 3:19-cv-07027-WHA Document 91 Filed 01/27/20 Page 2 of 10
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`At a November 21 case management conference, plaintiff was directed to file an amended
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`complaint by December 5 specifying “every element of every claim that [patent owner] say[s] is
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`infringed and/or explain why it can’t be done [and] if this is a product you can buy on the
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`market and reverse engineer, you have got to do that.” Plaintiff obliged, stating “[w]e have torn
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`down the Sony PlayStation” (Dkt. No. 67 at 2–3). On December 5, patent owner timely filed its
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`amended complaint (Dkt. No. 68) and defendants moved to dismiss (Dkt. No. 75). Now, it’s
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`showtime.
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`Unsurprisingly, with six patents in suit and 25-page briefs, the parties’ briefs do not
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`expand on the technology at issue, or its alleged impact. Instead, they jump right into the merits
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`of infringement. Defendants challenge a key aspect of the infringement allegations for each
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`patent. Thus, this order does not evaluate the sufficiency of the pleadings in their entirety.
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`Rather, it decides only whether patent owner’s complaint is deficient on the challenged grounds.
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`ANALYSIS
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`To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient
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`factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft
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`v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible when there are sufficient
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`factual allegations to draw a reasonable inference that defendants are liable for the misconduct
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`alleged. While a court must take all of the factual allegations in the complaint as true, it is “not
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`bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to
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`relief above the speculative level.” Ibid. Of particular importance below, in both Twombly and
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`Iqbal the Court made plain: allegations merely consistent with liability are not enough. 550
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`U.S. at 556–57; 556 U.S. at 678. Allegations of infringement “without explanation as to the
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`how or why these products infringe . . . do[] not lead to any inference that plaintiff may be
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`entitled to relief.” PageMelding, Inc. v. ESPN, Inc., No. C 11-06263 WHA, 2012 WL 851574,
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`at *2 (N.D. Cal. Mar. 13, 2012).
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`Patent Owner, Bot M8 LLC - Ex. 2004, p. 2
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`Case 3:19-cv-07027-WHA Document 91 Filed 01/27/20 Page 3 of 10
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`1.
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`THE ’540 PATENT.
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`The ’540 patent describes an authentication mechanism for video games. Defendants
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`challenge the sufficiency of the complaint as to the limitations:
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`•
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`•
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`[A] board including a memory in which a game program
`for executing a game and an authentication program for
`authenticating the game program are stored.
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`[A] motherboard which is different from the board and
`connects to the board . . . .
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`(’540 patent, cl. 1). Specifically, defendants argue the complaint fails to sufficiently allege that
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`a game program and authentication program are stored together in a memory on a board other
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`than the motherboard (Dkt. No. 75 at 6–9). Patent owner offers four responses.
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`First, the complaint alleges that when a PlayStation 4 operates games offline, i.e. while
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`not connected to the internet, an authentication program checks if the PlayStation 4 is
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`designated the “primary” station for the user account. Patent owner, in its opposition brief, also
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`points in the complaint to three different “board[s]” with memory that are not the
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`“motherboard” (Dkt. No. 79 at 3–4). But, even accepting the pled program is an acceptable
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`“authentication program,” the complaint fails to allege when or where the game program and
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`authentication program are stored together on the same memory board. The complaint’s
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`allegation that the PlayStation 4 “hard drive includes an authentication program for verifying
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`that the PS4 is allowed to the play the game” is: (1) a conclusion unsupported by the allegations
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`offered, which merely allege an authentication program’s existence and not its storage location
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`(Dkt. No. 68, ¶ 80(b)–(d)); and (2) does not mean the game program is also stored on that same
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`hard drive, given the three memory boards patent owner notes (Dkt. No. 79 at 3). Moreover,
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`the picture of an alleged hard drive in the complaint (Dkt. No. 68 at ¶ 80(b)) provides no basis
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`to infer what is stored on that drive. Despite patent owner proclaiming “we have torn down the
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`Sony PlayStation,” the complaint does not allege what programs were found on the hard drive
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`or what, if anything, prevented such access.
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`Second, the complaint alleges each Blu-ray game disc includes a “ROM Mark” to confirm
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`the disc is an authentic copy of a game and that “[t]he PlayStation 4 includes an authentication
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`Patent Owner, Bot M8 LLC - Ex. 2004, p. 3
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`Case 3:19-cv-07027-WHA Document 91 Filed 01/27/20 Page 4 of 10
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`program to authenticate the game program on the Blu-ray discs.” But alleging the “PlayStation
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`4 includes an authentication program” indicates that the program is not stored on the Blu-ray
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`disc with the game program. And the complaint describes the ROM Mark as a key, or “Volume
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`ID,” required to “decrypt” the disc content, not an executable computer program that itself
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`authenticates the disc (Dkt. Nos. 68 at ¶ 80(e), 79 at 4) (emphasis added).
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`Third, the complaint alleges an authentication program which displays error codes if a
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`game program fails (Dkt. No. 79 at 5, 68 at ¶ 80(f)). But the existence of an authentication
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`program alone does not plausibly indicate the authentication program is stored together with the
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`game program. Again, despite patent owner proclaiming the reverse engineerability of the
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`PlayStation 4, the complaint does not explain what or where programs were found, or what
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`prevented such discovery.
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`Fourth, the complaint alleges the PlayStation Network servers authenticate game
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`programs when users connect. Indeed, it alleges the servers contain both game programs and
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`authentication programs (ibid.). But storage on the same server does not mean the game and
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`authentication programs are stored together on a memory board. Moreover, the complaint then
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`alleges the authentication program is within the PlayStation 4, not on the server: “[t]he
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`PlayStation 4 uses 2-step verification and a Cryptography algorithm as an authentication
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`program . . .” (Dkt. No. 68 at ¶ 80(i)).
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`Thus, the complaint fails to plausibly plead the shared location of the game and
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`authentication programs according to claim 1 of the ’540 patent. As patent infringement
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`requires the practice of every claim limitation, the failure to allege one limitation precludes
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`liability. The claim for infringement of the ’540 patent fails.
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`2.
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`THE ’990 PATENT.
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`The ’990 patent describes a mutual authentication mechanism for video games.
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`Defendants challenge the limitations:
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`•
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`•
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`[A] removable storage medium storing therein gaming
`information including a mutual authentication program.
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`[T]he mutual authentication unit confirmed to execute a
`mutual authentication process for the authentication
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`Patent Owner, Bot M8 LLC - Ex. 2004, p. 4
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`Case 3:19-cv-07027-WHA Document 91 Filed 01/27/20 Page 5 of 10
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`program to check that the authentication program is a
`legitimate program according to the mutual authentication
`program included in the gaming information authenticated
`by the authentication unit.
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`(’990 patent, cl. 1, 5, 9). Specifically, defendants contend the complaint fails to allege that the
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`mutual authentication program and game program are stored together (Dkt. No. 75 at 10–12).
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`Patent owner offers three responses.
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`First, the complaint alleges the authentication program referenced above regarding the
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`’540 patent is a mutual authentication program (Dkt. No. 79 at 7). But, as noted above,
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`accepting as true that the authentication program suffices, the complaint fails to allege when or
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`where the game program and mutual authentication program are stored together.
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`Second, the complaint alleges the PlayStation 4 “NOR flash memory chip includes
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`authentication functionality, as confirmed by the fact that the NOR chip must be removed in
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`order to play pirated (non-authentic) games” (ibid.). But, again as above, taking the NOR chip
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`authentication functionality as sufficient pleading of the mutual authentication program, the
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`complaint does not plead when or where the mutual authentication program and “gaming
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`information” are stored together.
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`Third, the complaint alleges a mutual authentication program facilitates communication
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`between the PlayStation 4 and the PlayStation Network Server (ibid.). Patent owner points to
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`the assertion in the complaint that “[t]he game program on the hard drive or disc contains a
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`mutual authentication process . . . .” But allegations that track the claim language that closely
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`are conclusory and require support not found in the substantive allegations (Dkt. Nos. 79 at 8,
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`68 at ¶ 106(o)). So the allegations still fail to allege where or when the game program and the
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`mutual authentication program are stored together.
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`Patent owner finally contends the complaint states “evidence that the flash memory
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`contains a mutual authentication program and that the game program is stored in the flash
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`memory when the game is loaded” (Dkt. No. 79 at 8) (citing Dkt. No. 68 at ¶ 106(e), 106(q)).
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`The cited allegations do not support this assertion because they do not address where the game
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`program is stored. Moreover, the complaint appears to indicate there are multiple flash memory
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`chips (Dkt. No. 68 at ¶ 106(e)). So merely alleging the mutual authentication program and the
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`Case 3:19-cv-07027-WHA Document 91 Filed 01/27/20 Page 6 of 10
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`game program are each stored on flash memory at some point hardly leads to the plausible
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`inference that they are stored together. This necessary limitation of the ’990 patent not
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`plausibly plead, the claims for infringement of the ’990 patent fail.
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`3.
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`THE ’988 AND ’670 PATENTS.
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`The ’988 and ’670 patents describe computer program fault inspection. Defendants
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`challenge the ’988 patent limitations:
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`[A] control device for executing a fault inspection program
`for the gaming device to inspect whether or not a fault
`occurs in the second memory device and the game
`application program stored therein.
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`[T]he control device executes the fault inspection program
`when the gaming device is started to operate and completes
`the execution of the fault inspection program before the
`game is started.
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`(’988 patent, cl. 1, 6, 10). Defendants also challenge similar limitations from the ’670 patent:
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`[A] second memory device configured to store a game
`application program.
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`[A] control device for executing a fault inspection program
`for the second memory to inspect whether or not a fault
`occurs in the second memory device.
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`[T]he control device completes the execution of the fault
`inspection program before the game is started.
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`(’670 patent, cl. 1). Specifically, defendants argue the complaint fails to plausibly allege an
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`inspection, completed before the game starts, of both the second memory device and game
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`program (Dkt. No. 75 at 13–17).
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`The complaint does plausibly allege the inspection for both the memory device and the
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`game stored therein. Specifically, it alleges the PlayStation 4 reports various error codes,
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`including “Error occurred while accessing the Hard Disk Drive (‘HDD’) or Blue-ray/DVD
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`Drive” and “The system cannot read the disc” (Dkt. No. 68 at ¶ 128(k)). Given the complaint
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`also alleges games can be stored on the hard drive and on Blu-ray discs (Dkt. No. 68 at ¶
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`128(e)–(f)), the inspection of the memory plausibly includes inspection of the game program as
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`well.
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`Patent Owner, Bot M8 LLC - Ex. 2004, p. 6
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`Case 3:19-cv-07027-WHA Document 91 Filed 01/27/20 Page 7 of 10
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`But the complaint provides no basis to infer the proper timing of the inspection. The
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`allegation too closely tracks the claim language to be entitled to the presumption of truth:
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`The PlayStation CPU will execute the fault
`inspection program when the gaming device
`is started to operate[] and completed before
`the game is started (Dkt. No. 68 at ¶ 128(n)).
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`[T]he control device executes the fault
`inspection program when the gaming device
`is started to operate and completes the
`execution of the fault inspection program
`before the game is started (’988 patent, cl. 1).
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`No underlying allegations of fact are offered. Thus, the complaint fails to plausibly allege an
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`essential element in the claim for infringement of the ’988 and ’670 patents.
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`4.
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`THE ’363 PATENT.
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`The ’363 patent describes gathering and using game result data from multiple networked
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`gaming devices. Defendants challenge the limitation:
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`[A] total result data receiving device for receiving from the
`server data of a total game result achieved by the first
`gaming machine and the second gaming machine.
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`[D]etermining a specification value based on the data of the
`total game result received by the total result data receiving
`device.
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`(’363 patent, cl. 1). Specifically, defendants contend the complaint fails to plausibly allege the
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`receipt of game results from a server (Dkt. No. 75 at 18–19).
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`The complaint alleges that multiple PlayStation 4 consoles connect via the PlayStation
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`Network server for online multiplayer gaming and specifies the hardware that connects the
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`PlayStation 4 to the network (Dkt. No. 68 at ¶ 48(a)–(f), (m)). For the Uncharted Games, the
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`complaint offers game screenshots: (1) explaining that player game performance is graded; and
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`(2) showing the summary of multiplayer grades (id. at ¶ 48(p), (r), (t), (u)). For MLB: The
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`Show 19, the complaint also includes screenshots: (1) explaining player performance ratings;
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`and (2) displaying player ratings and multiplayer game results (Dkt. No. 68 at ¶ 51(s)–(u)). The
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`allegations may be slim (Dkt. No. 81 at 12–13), but the game consoles plainly communicate
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`player performance data across the PlayStation Network server, from which individual consoles
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`receive the game result data.
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`Defendants also challenge the limitation:
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`Case 3:19-cv-07027-WHA Document 91 Filed 01/27/20 Page 8 of 10
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`•
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`[T]otaliz[ing] the game result of the first gaming machine
`and the game result of the second gaming machine on the
`basis of data of the game result transmitted from the first
`gaming machine and the data of the game result transmitted
`from the second gaming machine so as to calculate a total
`result.
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`•
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`[R]eceiving data of a game result from the first gaming
`machine and data of a game result transmitted from the
`second gaming machine.
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`(’363 patent, cl. 8). Here, defendants argue the complaint fails to plausibly allege the
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`totalization of game data.
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`The complaint includes screenshots explaining how player performance is evaluated in the
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`Uncharted games, on a graded scale from S to C, and for MLB: The Show 19, with baseball’s
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`standard runs-per-inning scorecard (Dkt. No. 68 at ¶ 49(n)–(p), ¶ 52(o)). Such data compilation
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`is a plausible allegation of post-game data totalization. And because defendants challenge the
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`infringement of claim 11 on similar grounds, the motion fails for the same reasons. Defendants’
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`motion to dismiss as to the ’363 patent is DENIED.
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`5.
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`THE ’777 PATENT.
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`The ’777 patent describes the calculation, display, and execution of game characters’
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`order of action. Defendants challenge the limitations:
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`[A]n execution order calculation section that calculates an
`execution order of actions of a plurality of characters in the
`battle.
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`[T]he display control section displays the execution order
`calculated by the execution order calculation section on the
`display.
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`[W]hen a predetermined combination condition . . . is
`satisfied, when executing an action of the predetermined
`ally character, the action execution section also executes an
`action of the different ally character without following the
`execution order calculated by the execution order
`calculation section.
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`(’777 patent, cl. 1, 12). Defendants contend the complaint fails to plausibly plead the
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`PlayStation 4 and video games calculate and display an execution order that is then disregarded
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`if a condition is met (Dkt. No. 75 at 22–24).
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`Patent Owner, Bot M8 LLC - Ex. 2004, p. 8
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`Case 3:19-cv-07027-WHA Document 91 Filed 01/27/20 Page 9 of 10
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`The complaint explains that both the Uncharted games and God of War enable player
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`interaction with non-player allied characters. In Uncharted, these are called “Sidekicks;” in
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`God of War the character is named Atreus. In both games, when a player gives an order to an
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`ally, the order displays on the video screen (Dkt. No. 68 at ¶ 174(n)–(o), ¶ 179(b)–(c), (h)).
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`Defendants argue the execution order must be displayed in advance, i.e. for future actions (Dkt.
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`No. 81 at 14). This claim interpretation is appropriate at summary judgment, not at a motion to
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`dismiss.
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`In each game, the complaint alleges allied characters can deviate from the initial execution
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`order under various circumstances. For example, for the Uncharted games, the complaint
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`shows a screenshot of an allied medic with orders to assist a wounded comrade. But, subjected
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`to enemy gunfire (the predetermined condition), the medic hides behind a wall and shoots back,
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`rather than simply running out and assisting the wounded as initially ordered (Dkt. No. 68 ¶
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`174(p)).
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`In God of War, the complaint offers a screenshot of instructions showing how a player
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`may instruct the ally character Atreus to fire arrows from his bow and how to change Atreus’
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`target (Dkt. No. 179(i)). The trigger, though, is the player’s command. Though in the above
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`example an aversion to gunfire may be a predetermined condition, the player’s real-time
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`command is not a predetermined condition causing a change in execution order. Thus, while
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`the claim for infringement of the ’777 patent may proceed against the two Uncharted games, the
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`claim against God of War fails.
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`CONCLUSION
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`For the above reasons, defendants’ motion to dismiss, as to the ’363 patent and the ’777
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`patent claim against the Uncharted games, is DENIED. The motion, to the remainder of the
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`claims, is GRANTED. The claims for infringement of the ’540, ’990, ’988, ’670, and (as to God
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`of War only) ’777 patents are DISMISSED.
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`Patent owner has already enjoyed its one free amendment under the rules and was given
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`clear directions to plead well, element-by-element. Patent owner does not deserve yet another
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`chance to re-plead. Nevertheless, should patent owner wish to file yet another amended
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`9
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`Northern District of California
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`United States District Court
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`Patent Owner, Bot M8 LLC - Ex. 2004, p. 9
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`Case 3:19-cv-07027-WHA Document 91 Filed 01/27/20 Page 10 of 10
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`complaint, it may do so by FEBRUARY 13 AT NOON on the condition that it pay all reasonable
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`fees and expenses incurred by defendants in responding to yet another amended complaint.
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`Any such motion must include as an exhibit a redlined version of the proposed amendment that
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`clearly identifies all changes from the amended complaint. This order highlighted certain
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`deficiencies in the amended complaint, but it will not necessarily be enough to add sentences
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`parroting each missing item identified herein. If patent owner moves for leave to file yet
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`another amended complaint, it should be sure to plead its best case and take into account all
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`criticisms made by defendants, including those not reached by this order.
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`IT IS SO ORDERED.
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`Dated: January 27, 2020.
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`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
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`Patent Owner, Bot M8 LLC - Ex. 2004, p. 10
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