Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 1 of 26 PageID #: 478
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`GREE, INC.,
`
`Plaintiff,
`
`v.
`
`SUPERCELL OY,
`
`Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`Case No. 2:19-cv-00310-JRG-RSP
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`JURY TRIAL DEMANDED
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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`Supercell
`Exhibit 1023
`Page 1
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`

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`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 2 of 26 PageID #: 479
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`TABLE OF CONTENTS
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`I.
`
`II.
`
`III.
`
`IV.
`
`INTRODUCTION .......................................................................................................... 1
`
`LEGAL STANDARD ..................................................................................................... 2
`
`A.
`
`B.
`
`C.
`
`Claim Terms Are Presumed to Have Their Plain and Ordinary
`Meaning. ............................................................................................................. 2
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`The Court Looks First to Intrinsic Evidence to Determine Claim
`Meaning. ............................................................................................................. 3
`
`Supercell Must Show Indefiniteness By Clear and Convincing
`Evidence. ............................................................................................................. 4
`
`OVERVIEW OF THE YOSHIKAWA PATENTS ........................................................ 5
`
`DISPUTED CLAIM TERMS ......................................................................................... 7
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`“selected randomly” (Claims 1, 2, 3 of the ‘708 Patent) .................................... 7
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`“character” (Claims 1, 2, 3 of the ’708 Patent and Claims 2, 6, 14 of the
`’832 Patent) ......................................................................................................... 9
`
`“displaying, during the virtual game, an item associated with the
`selected cell, which is determined by the server based on the selection
`request” (Claims 1 & 3 of the ’708 Patent) ....................................................... 11
`
`“wherein each of a plurality of items extracted from an item
`information table pertaining to a user is associated with each of the
`plurality of the cells” (Claims 1, 2, 3 of the ’708 Patent) ................................. 12
`
`“and at least one of the cells including a character which indicates a
`rarity value of an item associated with the at least one of the cells”
`(Claims 1, 2, 3 of the ’708 Patent) .................................................................... 13
`
`“associating, in a memory of the game server, each of a plurality of
`cells with each of extracted items extracted from the memory” / “a
`memory in which each of a plurality of cells is associated with each of
`extracted items extracted from the memory” / “associating, in a
`memory of the computer, each of a plurality of cells with each of
`extracted items extracted from the memory” (Claims 1, 4, 9 of the ’832
`Patent) ............................................................................................................... 13
`
`G.
`
`“[sending information to a user terminal for displaying, in a virtual
`game,] a sheet comprising the plurality of cells and obtainable item
`information” (Claims 1, 4, 9 of the ’832 Patent) .............................................. 15
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`Supercell
`Exhibit 1023
`Page 2
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`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 3 of 26 PageID #: 480
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`H.
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`“send[ing] information for differentiating, in the virtual game, a display
`of the one cell from another cell of the plurality of cells in the sheet,
`wherein the differentiating of the display of the one cell is done in
`response to the selection request to select the one cell” (Claims 1, 4, 9
`of the ’832 Patent) ............................................................................................. 16
`
`I.
`
`“providing” / “provide” (Claims 1, 4, 9 of the ’832 Patent) ............................. 18
`
`V.
`
`CONCLUSION ............................................................................................................. 19
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`Supercell
`Exhibit 1023
`Page 3
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`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 4 of 26 PageID #: 481
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`Federal Cases 
`
`TABLE OF AUTHORITIES
`
`Alcatel USA Res. Inc. v. Microsoft Corp.,
`No. 6:06 CV 500, 2008 WL 2625852 (E.D. Tex. June 27, 2008) ..................................... passim
`
`Hill-Rom Servs., Inc. v. Stryker Corp.,
`755 F.3d 1367 (Fed. Cir. 2014) .............................................................................................. 2, 4
`
`Hoganas AB v. Dresser Indus., Inc.,
`9 F.3d 948 (Fed. Cir. 1993) ...................................................................................................... 18
`
`Home Diagnostics, Inc. v. LifeScan, Inc.,
`381 F.3d 1352 (Fed. Cir. 2004) .............................................................................................. 1, 7
`
`In re Gardner,
`427 F.2d 786 (C.C.P.A. 1970) .................................................................................................. 14
`
`Liquid Dynamics Corp. v. Vaughan Co.,
`355 F.3d 1361 (Fed. Cir. 2004) .............................................................................................. 3, 4
`
`Markman v. Westview Instruments, Inc.,
`52 F.3d 967 (Fed. Cir. 1995),
`aff’d, 517 U.S. 370 (1996) .......................................................................................................... 3
`
`McCarty v. Lehigh Valley R.R. Co.,
`160 U.S. 110 (1895) .................................................................................................................. 16
`
`Merck & Co., Inc. v. Teva Pharm. USA, Inc.,
`347 F.3d 1367 (Fed. Cir. 2003) .................................................................................................. 4
`
`Merck & Co., Inc. v. Teva Pharm. USA, Inc.,
`395 F.3d 1364 (Fed. Cir. 2005) ........................................................................................ 3, 4, 16
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) .......................................................................................................... 4, 5, 13
`
`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008) ......................................................................................... passim
`
`Perdiem Co, LLC v. IndusTrack LLC,
`No. 2:15-cv-727-JRG-RSP, 2016 WL 3633627 (E.D. Tex. July 7, 2016) ............................... 14
`
`Pfizer, Inc. v. Alkem Labs. LTD.,
`No. 13-1110-GMS, 2014 WL 12798743 (D. Del. Dec. 2, 2014) ............................................. 19
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) ......................................................................................... passim
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`- iii -
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`Supercell
`Exhibit 1023
`Page 4
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`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 5 of 26 PageID #: 482
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`Power-One, Inc. v. Artesyn Techs., Inc.,
`599 F.3d 1343 (Fed. Cir. 2010) .................................................................................................. 2
`
`Source Vagabond Sys. Ltd. v. Hydrapak, Inc.,
`753 F.3d 1291 (Fed. Cir. 2014) .......................................................................................... 16, 17
`
`Summit 6, LLC v. Samsung Elecs. Co., Ltd.,
`802 F.3d 1283 (Fed. Cir. 2015) ......................................................................................... passim
`
`Teva Pharm. USA, Inc. v. Sandoz, Inc.,
`789 F.3d 1335 (Fed. Cir. 2015) .................................................................................................. 5
`
`U.S. Surgical Corp. v. Ethicon, Inc.,
`103 F.3d 1554 (Fed. Cir. 1997) .................................................................................................. 3
`
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996) ................................................................................................ 3, 4
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`- iv -
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`Supercell
`Exhibit 1023
`Page 5
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`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 6 of 26 PageID #: 483
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`I.
`
`INTRODUCTION
`
`Plaintiff GREE, Inc. (“GREE”) is a global social media company that provides mobile
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`content and services, including mobile games, and has long sought to develop and create
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`innovative solutions in gaming and social networking. The proliferation of games on mobile
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`devices such as smartphones has played a major role in the popularity and commercial success
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`of such devices. Battle games have long been popular on other platforms such as consoles and
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`personal computers; however, there were challenges to implementing such games on mobile
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`devices and retaining player interest with smaller screens than those used in traditional console
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`games. Further, the difficulty for players of a battle game to acquire battle cards of differing
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`rarity values resulted in a drastic decrease in interest in the game. The patents asserted in this
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`case claim inventions that improve on these limitations.
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`The patents asserted in this case are U.S. Patent Nos. 10,076,708 (“the ’708 Patent”)
`
`and 10,413,832 (“the ’832 Patent”) (collectively, “the Yoshikawa Patents”). Each patent
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`explains the claimed technology in a straightforward and clear manner in its claims and
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`specification, and thus extensive claim construction is not necessary. Rather, consistent with
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`the “‘heavy presumption’ that claim terms carry their accustomed meaning” to those of skill in
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`the art, the Court should generally decline to redefine the claims, except to the extent necessary
`
`to explain technical terms for easier understanding by the lay jury. See, e.g., Home
`
`Diagnostics, Inc. v. LifeScan, Inc., 381 F.3d 1352, 1355 (Fed. Cir. 2004). Based on this
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`approach, GREE proposes only one term for construction: “character” in the ’708 and ’832
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`Patents.
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`In contrast, Supercell contends that multiple otherwise readily understandable terms and
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`phrases require construction and asks the Court to invalidate the ’832 Patent by arguing that a
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`phrase is indefinite. Supercell would have the Court disregard the plain and ordinary meaning
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`Supercell
`Exhibit 1023
`Page 6
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`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 7 of 26 PageID #: 484
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`of the claim terms. Instead it adds self-serving limitations into the claims through elaborate
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`proposed constructions that violate the basic tenets of claim construction. Supercell’s
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`constructions are unnecessary and redundant of other claim language.
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`The purpose of claim construction is to clarify the meaning of patent claims for the
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`jury—if the meaning is clear, no construction is necessary. Each of the terms and phrases
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`Supercell proposes for construction has a commonly understood meaning.
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`As such, and for the reasons explained below, with the exception of the term
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`“character,” each of the terms should be given its plain and ordinary meaning and not be
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`otherwise construed.
`
`II.
`
`LEGAL STANDARD
`A.
`
`Claim Terms Are Presumed to Have Their Plain and Ordinary Meaning.
`
`Claim terms should be “given their ordinary and customary meaning.” O2 Micro Int’l
`
`Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008); see also Hill-Rom
`
`Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1374 (Fed. Cir. 2014). Indeed, “[i]n some cases,
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`the ordinary meaning of claim language as understood by a person of skill in the art may be
`
`readily apparent even to lay judges, and claim construction in such cases involves little more
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`than the application of the widely accepted meaning of commonly understood words.” Phillips
`
`v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc) (citation omitted).
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`Terms that are not unfamiliar or confusing to the jury, or affected by the specification or
`
`prosecution history need no construction. Power-One, Inc. v. Artesyn Techs., Inc., 599 F.3d
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`1343, 1348 (Fed. Cir. 2010); O2 Micro., 521 F.3d at 1360. Courts must not disturb the plain
`
`and ordinary meaning of claim terms unless required by (1) an express definition in the
`
`specification, or (2) a clear and unmistakable disavowal of the full scope of the claim terms in
`
`the specification or the prosecution history. See Hill-Rom, 755 F.3d at 1371; Merck & Co., Inc.
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`Supercell
`Exhibit 1023
`Page 7
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`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 8 of 26 PageID #: 485
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`v. Teva Pharm. USA, Inc., 395 F.3d 1364, 1379 (Fed. Cir. 2005).
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`Moreover, courts are not required to construe every word or limitation in the asserted
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`claims of a patent. See O2 Micro, 521 F.3d at 1360; U.S. Surgical Corp. v. Ethicon, Inc., 103
`
`F.3d 1554, 1568 (Fed. Cir. 1997) (finding claim construction “is not an obligatory exercise in
`
`redundancy,” but rather “a matter of resolution of disputed meanings and technical scope, to
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`clarify and when necessary to explain what the patentee covered by the claims, for use in the
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`determination of infringement”).
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`B.
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`The Court Looks First to Intrinsic Evidence to Determine Claim Meaning.
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`There are two types of evidence commonly used in claim construction—intrinsic and
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`extrinsic evidence. Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995),
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`aff’d, 517 U.S. 370 (1996). The Court looks first to intrinsic evidence, starting with the claims,
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`then the specification, and finally the prosecution history. Phillips, 415 F.3d at 1312-13; Liquid
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`Dynamics Corp. v. Vaughan Co., 355 F.3d 1361, 1367 (Fed. Cir. 2004). Extrinsic evidence,
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`considered last, is everything else. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1584
`
`(Fed. Cir. 1996).
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`The claims define the invention and are therefore the primary source of intrinsic
`
`evidence for claim construction. Phillips, 415 F.3d at 1312. The “claims themselves provide
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`substantial guidance as to the meaning of particular claim terms,” as does “the context in which
`
`a term is used in the asserted claim.” Id. at 1314. “As a starting point, [the Court] give[s]
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`claim terms their ordinary and accustomed meaning as understood by one of ordinary skill in
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`the art.” Liquid Dynamics, 355 F.3d at 1367 (citation omitted). Where the claim language is
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`clear and not contradicted by the specification or the file history, the ordinary and customary
`
`meanings of the claim terms control. See id.
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`The patent specification “is always highly relevant to the claim construction analysis.
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`Supercell
`Exhibit 1023
`Page 8
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`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 9 of 26 PageID #: 486
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`Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.”
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`Vitronics, 90 F.3d at 1582. But while the claims are interpreted in light of the specification, the
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`Court should not read limitations from the specification into the claims. Hill-Rom, 755 F.3d at
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`1371; Liquid Dynamics, 355 F.3d at 1369-70. For example, the disclosure of a narrow
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`embodiment in the specification will not narrow the claims. Phillips, 415 F.3d at 1323. Unless
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`the specification “clearly, deliberately, and precisely” spells out how a claim term is to be used,
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`the plain and ordinary meaning controls. Merck, 395 F.3d at 1379; see also Hill-Rom, 755 F.3d
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`at 1371.
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`“[B]ecause the prosecution history represents an ongoing negotiation between the PTO
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`and the applicant, rather than the final product of that negotiation, it often lacks the clarity of
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`the specification and thus is less useful for claim construction purposes.” Phillips, 415 F.3d at
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`1317. The prosecution history can only be used to alter the claim language if it contains a clear
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`disavowal of claim scope. Hill-Rom, 755 F.3d at 1371-72. “The standards for finding . . .
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`disavowal are exacting,” and require that the history make clear that the invention does not
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`include a particular feature, or is clearly limited to a particular form of the invention. Id.
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`Finally, “evidence extrinsic to the patent documents cannot change the meaning of a
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`term as used in the claim from the meaning with which it is used in the specification.” Merck
`
`& Co., Inc. v. Teva Pharm. USA, Inc., 347 F.3d 1367, 1372 (Fed. Cir. 2003).
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`C.
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`Supercell Must Show Indefiniteness By Clear and Convincing Evidence.
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`To determine whether Supercell can meet its burden of proof of clear and convincing
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`evidence to show invalidity by indefiniteness, a claim is “to be read in light of the patent’s
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`specification and prosecution history.” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898,
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`908 (2014). “[A] patent is invalid for indefiniteness if its claims, read in light of the
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`specification delineating the patent, and the prosecution history, fail to inform, with reasonable
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`Supercell
`Exhibit 1023
`Page 9
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`

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`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 10 of 26 PageID #: 487
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`certainty, those skilled in the art about the scope of the invention.” Id. at 901. “The
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`definiteness requirement must take into account the inherent limitations of language. ‘Some
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`modicum of uncertainty . . . is the price of ensuring the appropriate incentives for innovation.’”
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`Teva Pharm. USA, Inc. v. Sandoz, Inc., 789 F.3d 1335, 1341 (Fed. Cir. 2015) (quoting
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`Nautilus, 572 U.S. at 910).
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`III. OVERVIEW OF THE YOSHIKAWA PATENTS
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`The Yoshikawa Patents share a specification and describe innovative communication
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`systems and methods for controlling network-based and computer-implemented battle games.1
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`As described, the claimed inventions increase variation in ways in which items are acquired in
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`a virtual game and increase the predictability of the acquisition of a rare item. The claimed
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`invention heightens interest in the game.
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`Before the innovations claimed in the Yoshikawa Patents, the methods of acquiring
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`battle cards in conventional battle games over a server were limited. For example, it was
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`“difficult to acquire a battle card or the like with a high rarity value,” causing users to conclude
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`“such an item cannot be acquired at all” in the game—thereby causing users to lose interest in
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`the game. ’708 Patent 1:42-46.
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`In light of this problem, the Yoshikawa Patents improve card acquiring and in turn
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`player interest by providing “a game control method, a game server, and a program that can
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`increase the variations on methods for acquiring battle cards and the like, increase the
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`predictability of acquisition of a card or the like with a high rarity value.” Id. at 1:47-53. Thus,
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`the claimed inventions make acquisition of a rare card more predictable, preventing users from
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`losing interest in games.
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`1 The Yoshikawa patents share a common specification. The ’708 Patent was attached as Exhibit A to the
`complaint. Dkt. 1-1. Specification citations herein are to the ’708 Patent. Further, a copy of the ’832 Patent is
`attached hereto as Exhibit A to this brief.
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`Supercell
`Exhibit 1023
`Page 10
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`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 11 of 26 PageID #: 488
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`In particular, the Yoshikawa Patents describe “displaying, during the virtual game, a
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`plurality of cells and acquirable item information . . . received over a communication line, . . .
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`displayed in the same size, and “extracted from an item information table pertaining to a user.”
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`Id. at 13:53-56; 14:1-2.
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`Id. at Fig. 5. The plurality of items are “selected randomly only from items in the item
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`information table, and at least one of the cells includ[es] a character which indicates a rarity
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`value of an item.” ’708 Patent 14:3-6.
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`Supercell
`Exhibit 1023
`Page 11
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`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 12 of 26 PageID #: 489
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`IV. DISPUTED CLAIM TERMS
`A.
`
`“selected randomly” (Claims 1, 2, 3 of the ’708 Patent)
`
`Plaintiff’s Proposed Constructions
`Plain and Ordinary Meaning;
`No Construction Needed.
`
`Defendant’s Proposed Constructions
`“selected without preference to
`any particular item such that
`each item has an equal
`probability of being selected”
`
` lay juror or person having ordinary skill in the art would easily understand the term
`
` A
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`“selected randomly” without the need for any further construction, especially in the context of
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`the surrounding words of the claims and the specification. See Phillips, 415 F.3d at 1303. This
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`claim phrase uses commonly understood English words according to their normal uses, and no
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`further elaboration is needed. Summit 6, LLC v. Samsung Elecs. Co., Ltd., 802 F.3d 1283, 1291
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`(Fed. Cir. 2015) (“Because the plain and ordinary meaning of the disputed claim language is
`
`clear, the district court did not err by declining to construe the claim term.”); Alcatel USA Res.
`
`Inc. v. Microsoft Corp., No. 6:06 CV 500, 2008 WL 2625852, at *20 (E.D. Tex. June 27, 2008)
`
`(finding construction unnecessary where “[a] lay jury will understand the meaning of” disputed
`
`terms); see also O2 Micro, 521 F.3d at 1360.
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`Nor does the specification redefine or disavow the ordinary meaning of “selected
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`randomly” to otherwise overcome the “heavy presumption” that the plain and ordinary meaning
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`applies. Home Diagnostics, 381 F.3d at 1355. The specification provides that “the control unit
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`. . . randomly selects an item not included in the identification information of provided items,
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`and determines that the selected item is the item to provide to the communication terminal.”
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`’708 Patent 5:44-47.
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`Rather than having the jury apply the easily understandable words of this claim phrase,
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`Supercell proposes they be rewritten as “selected without preference to any particular item such
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`that each item has an equal probability of being selected.” Supercell attempts to improperly
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`Supercell
`Exhibit 1023
`Page 12
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`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 13 of 26 PageID #: 490
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`narrow the term, requiring that the selection is “without preference” and that “each item has an
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`equal probability of being selected.” Nothing in the plain language of the specification or claim
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`requires this narrowing construction requiring an equal distribution of likelihood that an item is
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`selected.
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`To the contrary, the claim language suggests otherwise, such as that the item
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`information table can be weighted. Specifically, it recites “selected randomly only from items
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`in the item information table” without any requirement that the “item information table” must
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`contain only one instance of each “item.” ‘708 Patent 14:3-5. Thus, an item information table
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`could include more than one of the same item, and thereby increase the likelihood that a
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`specific item would be selected randomly, without an equal probability compared to other
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`items.
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`This is fully consistent with the plain meaning of random. For example, a person who
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`buys ten tickets to a random raffle is ten times as likely to win the prize than a person who only
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`buys one ticket, but this does not make the selection any less random. Further, this is fully
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`consistent with the claim term “item,” which “refers to any of a variety of objects used within a
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`game, such as a battle card constituting a user’s deck, a character, a weapon, armor, an
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`ornament, a plant, food, and the like.” ’708 Patent 4:11-14. This includes no suggestion that
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`each “item” may appear only once. Indeed, the immediately preceding sentence suggests
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`otherwise, stating that the memory stores “a total count of items.” Id. at 4:10. The
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`specification further describes that the “user information table 112 is a table storing, for each
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`user, the provided items and information for calculating an item acquisition count.” Id. at 4:38-
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`40; see, e.g., id. at 4:24-26 (“The item information tables 111a to 111c are tables including
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`information on the total count of items and the item type.”) (emphasis added); id. at 4:24-25
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`Supercell
`Exhibit 1023
`Page 13
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`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 14 of 26 PageID #: 491
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`(“[I]tem information tables 111a to 111c are tables including information on the total count of
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`items.” (emphasis added)); id. at 5:1-2 (“[T]he information presentation unit 12 tallies the total
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`count of items for each item type.” (emphasis added)).
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`Supercell references in the JCC citations to the prosecution history of the ’708 Patent.
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`Dkt. 59-3. However, these citations do not suggest redefining the term as “selected without
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`preference to any particular item such that each item has an equal probability of being
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`selected.” Rather, these citations do not address “selected randomly” at all, much less suggest
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`that the clear term “selected randomly” should be construed contrary to the heavy presumption
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`of plain and ordinary meaning.
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`“Selected randomly” should be given its plain and ordinary meaning, and this Court
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`should reject Supercell’s proposed limiting construction.
`
`B.
`
`“character” (Claims 1, 2, 3 of the ’708 Patent and Claims 2, 6, 14 of the ’832
`Patent)
`
`Plaintiff’s Proposed Constructions
`“attribute”
`
`The claim language recites “at least one of the cells including a character which
`
`Defendant’s Proposed Constructions
`“a symbol, which is distinct from an item.”
`
`indicates a rarity value of an item associated with the at least one of the cells.” ’708 Patent
`
`14:24-26. Thus, the plain language of the claim indicates that the character is an “attribute”
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`“which indicates a rarity value of an item.” Id. at 14:25. Providing the construction “attribute”
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`clarifies the meaning of this term for the jury.
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`GREE’s construction is consistent with the specification. For example, the ’708 Patent
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`explains using a “pattern” to indicate the “item type” (11:61-63), and makes clear that “[t]he
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`item type is a numerical value representing the rarity value of the item.” Id. at 4:14-16. The
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`specification is not limited to a pattern, explaining that “[t]he patterns for displaying boxes . . .
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`Supercell
`Exhibit 1023
`Page 14
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`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 15 of 26 PageID #: 492
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`are not limited to these examples. The boxes . . . may be painted a predetermined color in
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`accordance with the item type, or a predetermined icon, character, or the like may be displayed
`
`in the boxes.” Id. at 9:63-67. Thus, the specification fully contemplates using a character as an
`
`attribute to indicate rarity.
`
`Supercell’s construction employs the improper narrowing interpretation of “a symbol,
`
`which is distinct from an item.” The plain language of the claim does not require anything
`
`“distinct from an item.” Further, Supercell’s construction risks confusing the jury by requiring
`
`that the “character” “is distinct from an item.” This is not consistent with the specification.
`
`Indeed, the example in the specification above is a pattern applied to boxes in the item
`
`information table. Id. at 9:63-67. This is illustrated by reference to Figure 8, which clearly
`
`shows a pattern in each cell indicating rarity, confirming that the item is not required to be
`
`distinct from the character.
`
`Thus, the proper construction of “character” is “attribute.”
`
`
`
`
`
`- 10 -
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`Supercell
`Exhibit 1023
`Page 15
`
`

`

`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 16 of 26 PageID #: 493
`
`C.
`
`“displaying, during the virtual game, an item associated with the selected
`cell, which is determined by the server based on the selection request”
`(Claims 1 & 3 of the ’708 Patent)
`
`Plaintiff’s Proposed Constructions
`Plain and Ordinary Meaning;
`No Construction Needed.
`
`Defendant’s Proposed Constructions
`“the server determines what item to display
`during the virtual game based on the selection
`request received by the server, and displaying
`that item.”
`
`A person having ordinary skill in the art would easily understand the term “displaying,
`
`during the virtual game, an item associated with the selected cell, which is determined by the
`
`server based on the selection request” without the need for any further construction, especially
`
`in the context of the surrounding words of the claim. ’708 Patent 14:11-13. See Phillips, 415
`
`F.3d at 1303. This claim phrase uses commonly understood English words according to their
`
`normal uses, and no further elaboration is needed. Summit 6, 802 F.3d at 1291; Alcatel, 2008
`
`WL 2625852, at *20; O2 Micro, 521 F.3d at 1360.
`
`Rather than have the jury apply these easily understood English words, Supercell
`
`proposes modifying the plain language of the claim. First, Supercell proposes that “the server
`
`determines what item to display.” Yet nothing in the plain language of the claim requires that
`
`this determination is made by the server. To the contrary, the plain language of the claim
`
`requires that “an item associated with the selected cell, which is determined by the server based
`
`on the selection request.” Thus, the server must only determine “an item associated with the
`
`selected cell.” There is no requirement that the server determines an item to display. Second,
`
`Supercell essentially writes out the requirement of “an item associated with the selected cell,”
`
`instead requiring that “the server determines [an] item . . . based on the selection request.”
`
`Supercell can point to no prosecution history or statements in the specification to support
`
`eliminating this claim language. This term should be given its plain and ordinary meaning,
`
`- 11 -
`
`Supercell
`Exhibit 1023
`Page 16
`
`

`

`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 17 of 26 PageID #: 494
`
`without additional construction.
`
`D.
`
`“wherein each of a plurality of items extracted from an item information
`table pertaining to a user is associated with each of the plurality of the
`cells” (Claims 1, 2, 3 of the ’708 Patent)
`
`Plaintiff’s Proposed Constructions
`Plain and Ordinary Meaning;
`No Construction Needed.
`
`Defendant’s Proposed Constructions
`“wherein each of a plurality of items extracted
`from a table associated with a particular user
`storing items, is associated with each of the
`plurality of cells”
`
`Again, one of skill in the art would need no further explanation to determine, based on
`
`the words of the claims and the specification, the plain and ordinary meaning of “wherein each
`
`of a plurality of items extracted from an item information table pertaining to a user is associated
`
`with each of the plurality of the cells.” This claim term uses commonly used English words
`
`that are clear and understandable. Summit 6, 802 F.3d at 1291; Alcatel, 2008 WL 2625852, at
`
`*20; O2 Micro, 521 F.3d at 1360.
`
`Supercell’s proposed construction is little more than effort to rewrite otherwise clear
`
`claim language. Specifically, Supercell’s construction replaces the following emphasized
`
`words “wherein each of a plurality of items extracted from an item information table
`
`pertaining to a user is associated with each of the plurality of the cells” with “a table
`
`associated with a particular user storing items.” There is no basis to replace “item information
`
`table” with “table.” The specification describes that “the memory unit stores this information
`
`by dividing the information among tables. A plurality of item information tables, a user
`
`information table, and item data are stored in the memory unit.” ’708 Patent 4:17-20.
`
`Supercell’s construction seeks to broaden “item information table” to “table” despite the claim
`
`explicitly stating “item information table,” and the specification distinguishing the “item
`
`information table” from other tables. See, e.g., id. at 4:17-23; Fig. 1. Further, there is no basis
`
`- 12 -
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`Supercell
`Exhibit 1023
`Page 17
`
`

`

`Case 2:19-cv-00310-JRG Document 63 Filed 07/24/20 Page 18 of 26 PageID #: 495
`
`to replace “pertaining to a user” with “associated with a particular user.” There is no
`
`description in the specification or claims limiting the item information table to “a particular
`
`user.” Further, the specification describes a different “user information table” for “storing, for
`
`each user, the provided items.” Id. at 4:38-40. There is no need for the Court to construe this
`
`easily understood claim term.
`
`E.
`
`“and at least one of the cells including a character which indicates a rarity
`value of an item associated with the at least one of the cells” (Claims 1, 2, 3
`of the ’708 Patent)
`
`Plaintiff’s Propo