Case 2:19-cv-00413-JRG-RSP Document 85 Filed 11/06/20 Page 1 of 40 PageID #: 1471
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`GREE, INC.,
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`
`
`
`
`
`
`Plaintiff,
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`v.
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`SUPERCELL OY,
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`
`
`
`
`Defendant.
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`
`
`
`
`Case No. 2:19-cv-00413-JRG-RSP
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`CLAIM CONSTRUCTION MEMORANDUM OPINION AND ORDER
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`Before the Court is the opening claim construction brief of GREE, Inc. (“Plaintiff”), Dkt. No.
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`65, filed on September 9, 2020,1 the response of Supercell Oy (“Defendant”), Dkt. No. 67, filed
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`on September 23, 2020, and Plaintiff’s reply, Dkt. No. 68, filed on September 30, 2020. The Court
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`held a hearing on the issues of claim construction and claim definiteness on October 27, 2020.
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`Having considered the arguments and evidence presented by the parties at the hearing and in their
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`briefing, the Court issues this Order.
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`
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`
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`1 Citations to the parties’ filings are to the filing’s number in the docket (Dkt. No.) and pin cites
`are to the page numbers assigned through ECF.
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`
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`1
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`Patent Owner Gree, Inc.
`Exhibit 2009 - Page 1 of 40
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`

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`Case 2:19-cv-00413-JRG-RSP Document 85 Filed 11/06/20 Page 2 of 40 PageID #: 1472
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`Table of Contents
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`I.
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`II.
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`BACKGROUND ............................................................................................................... 3
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`LEGAL PRINCIPLES ..................................................................................................... 4
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`A.
`
`B.
`
`C.
`
`D.
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`Claim Construction ................................................................................................. 4
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`Departing from the Ordinary Meaning of a Claim Term ........................................ 7
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`Functional Claiming and 35 U.S.C. § 112, ¶ 6 (pre-AIA) / § 112(f) (AIA) ........... 8
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`Definiteness Under 35 U.S.C. § 112, ¶ 2 (pre-AIA) / § 112(b) (AIA) ................. 10
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`III. AGREED CONSTRUCTIONS...................................................................................... 11
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`IV. CONSTRUCTION OF DISPUTED TERMS ............................................................... 12
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`A.
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`B.
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`C.
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`D.
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`E.
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`F.
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`G.
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`“stack of virtual cards”.......................................................................................... 12
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`The Parameter Terms ............................................................................................ 16
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`“automatically initiating a second term of the battle game” ................................. 24
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`“a third term of the battle game continued from the second term” ....................... 25
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`“… dependent on a battle result …” ..................................................................... 28
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`“the second field” .................................................................................................. 30
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`“a third term after the second term, in the second field, under a second
`battle condition which is different from the first battle condition and
`second battle condition and is dependent on a battle result in the second
`term, conduct a battle against a third-term opponent character appearing in
`the third term using a third-term parameter based on a third-term card
`selected by the player” .......................................................................................... 32
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`H.
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`“ … rendition processing module … configured to …” ....................................... 36
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`V.
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`CONCLUSION ............................................................................................................... 40
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`2
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`Patent Owner Gree, Inc.
`Exhibit 2009 - Page 2 of 40
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`

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`Case 2:19-cv-00413-JRG-RSP Document 85 Filed 11/06/20 Page 3 of 40 PageID #: 1473
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`I.
`
`BACKGROUND
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`Plaintiff alleges infringement of two U.S. Patents: No. 10,518,177 (the “’177 Patent”) and No.
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`10,583,362 (the “’362 Patent”) (collectively, the “Asserted Patents”). The ’362 Patent issued from
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`a continuation of the application for the ’177 Patent and both patents list a priority claim to a
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`Japanese patent application filed on February 25, 2014.
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`In general, the Asserted Patents are directed to technology for providing a computer game to
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`client devices over a network.
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`The abstracts of the Asserted Patents are identical and provide:
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`Players with a wide range of levels or attack strength can enjoy a time-limited group
`battle, and the participation rate can be expected to improve throughout the set time
`slot. A battle time managing unit refers to a timer and a memory resource to manage
`the time of a battle between groups. A battle condition extraction unit refers to the
`memory resource and checks whether to change a battle condition during the time
`of the battle. A target changing unit refers to the memory resource to set a target of
`change based on the battle condition. A battle condition changing unit changes the
`battle condition for the target of change that was selected by the target changing
`unit. Based on the changed battle condition, a battle rendering unit executes
`rendition processing for the game related to the battle.
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`Claims 15 and 16 of the ’177 Patent, exemplary method and system claims respectively, recite
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`as follows, with terms in dispute emphasized:
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`15. A battle game control method executed by one or a plurality of computers
`capable of being used by a player, the method comprising:
`displaying, on a first field, a plurality of cards selected from a deck which is a
`stack of virtual cards;
`during a first term of the battle game, conducting a battle to a first opponent
`character based on a parameter set on a card selected by a player’s operation
`under a first battle condition on a second field different from the first field,
`wherein the first battle condition is not changed during the first term; and
`at a conclusion of the first term of the battle game, automatically initiating a
`second term of the battle game, and during the second term of the battle game
`continued from the first term, conducting the battle to a second opponent
`character based on the parameter set on the card selected by the player’s
`operation under a second battle condition, wherein the second battle
`condition is different from the first battle condition and is predetermined
`independent from a battle result of the first term, and the first opponent
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`
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`3
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`Patent Owner Gree, Inc.
`Exhibit 2009 - Page 3 of 40
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`

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`character and the second opponent character are same or different, and
`wherein the second battle condition is not changed during the second term.
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`16. A battle game control system comprising:
`one or more computers;
`a memory storing instructions; and
`a processor, by executing the instructions, programmed to:
`display, on a first field, a plurality of cards selected from a deck which is
`a stack of virtual cards;
`during a first term of the battle game, conducting a battle to a first
`opponent character based on a parameter set on a card selected by a
`player’s operation under a first battle condition, wherein the first battle
`condition is not changed during the first term;
`at a conclusion of the first term of the battle game, automatically initiating
`a second term of the battle game, and during the second term of the
`battle game continued from the first term, conducting the battle to a
`second opponent character based on the parameter set on the card
`selected by the player’s operation under a second battle condition,
`wherein the second battle condition is different from the first battle
`condition and is predetermined independent from a battle result of the
`first term, and the first opponent character and the second opponent
`character are same or different, and wherein the second battle condition
`is not changed during the second term; and
`during a third term of the battle game continued from the second term,
`conducting the battle to a third opponent character based on the
`parameter set on the card selected by the player’s operation under a
`third battle condition, wherein the third battle condition is different
`from the second battle condition and is dependent on a battle result of
`the second term, and the second opponent character and the third
`opponent character are same or different, and wherein the third battle
`condition is not changed during the third term.
`
`II.
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`LEGAL PRINCIPLES
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`A.
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`Claim Construction
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` “It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to
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`which the patentee is entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312
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`(Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc.,
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`381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start by
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`considering the intrinsic evidence. Id. at 1313; C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d
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`858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Grp., Inc., 262 F.3d
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`4
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`Patent Owner Gree, Inc.
`Exhibit 2009 - Page 4 of 40
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`

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`Case 2:19-cv-00413-JRG-RSP Document 85 Filed 11/06/20 Page 5 of 40 PageID #: 1475
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`1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims themselves, the
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`specification, and the prosecution history. Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d at
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`861. The general rule—subject to certain specific exceptions discussed infra—is that each claim
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`term is construed according to its ordinary and accustomed meaning as understood by one of
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`ordinary skill in the art at the time of the invention in the context of the patent. Phillips, 415 F.3d
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`at 1312–13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir. 2003); Azure
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`Networks, LLC v. CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014) (quotation marks omitted)
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`(“There is a heavy presumption that claim terms carry their accustomed meaning in the relevant
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`community at the relevant time.”) cert. granted, judgment vacated, 135 S. Ct. 1846 (2015).
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` “The claim construction inquiry . . . begins and ends in all cases with the actual words of the
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`claim.” Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998). “[I]n
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`all aspects of claim construction, ‘the name of the game is the claim.’” Apple Inc. v. Motorola,
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`Inc., 757 F.3d 1286, 1298 (Fed. Cir. 2014) (quoting In re Hiniker Co., 150 F.3d 1362, 1369 (Fed.
`
`Cir. 1998)) overruled on other grounds by Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed.
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`Cir. 2015). First, a term’s context in the asserted claim can be instructive. Phillips, 415 F.3d at
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`1314. Other asserted or unasserted claims can also aid in determining the claim’s meaning, because
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`claim terms are typically used consistently throughout the patent. Id. Differences among the claim
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`terms can also assist in understanding a term’s meaning. Id. For example, when a dependent claim
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`adds a limitation to an independent claim, it is presumed that the independent claim does not
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`include the limitation. Id. at 1314–15.
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`“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id. (quoting
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`Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)). “[T]he
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`specification ‘is always highly relevant to the claim construction analysis. Usually, it is dispositive;
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`5
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`Patent Owner Gree, Inc.
`Exhibit 2009 - Page 5 of 40
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`it is the single best guide to the meaning of a disputed term.’” Id. (quoting Vitronics Corp. v.
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`Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am. Corp.,
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`299 F.3d 1313, 1325 (Fed. Cir. 2002). But, “‘[a]lthough the specification may aid the court in
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`interpreting the meaning of disputed claim language, particular embodiments and examples
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`appearing in the specification will not generally be read into the claims.’” Comark Commc’ns, Inc.
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`v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-
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`Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)); see also Phillips, 415 F.3d at 1323. “[I]t is
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`improper to read limitations from a preferred embodiment described in the specification—even if
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`it is the only embodiment—into the claims absent a clear indication in the intrinsic record that the
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`patentee intended the claims to be so limited.” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d
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`898, 913 (Fed. Cir. 2004).
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`The prosecution history is another tool to supply the proper context for claim construction
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`because, like the specification, the prosecution history provides evidence of how the U.S. Patent
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`and Trademark Office (“PTO”) and the inventor understood the patent. Phillips, 415 F.3d at 1317.
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`However, “because 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 the
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`specification and thus is less useful for claim construction purposes.” Id. at 1318; see also Athletic
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`Alts., Inc. v. Prince Mfg., 73 F.3d 1573, 1580 (Fed. Cir. 1996) (ambiguous prosecution history
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`may be “unhelpful as an interpretive resource”).
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`Although extrinsic evidence can also be useful, it is “‘less significant than the intrinsic record
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`in determining the legally operative meaning of claim language.’” Phillips, 415 F.3d at 1317
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`(quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court
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`understand the underlying technology and the manner in which one skilled in the art might use
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`6
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`Patent Owner Gree, Inc.
`Exhibit 2009 - Page 6 of 40
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`

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`claim terms, but technical dictionaries and treatises may provide definitions that are too broad or
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`may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert testimony
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`may aid a court in understanding the underlying technology and determining the particular
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`meaning of a term in the pertinent field, but an expert’s conclusory, unsupported assertions as to a
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`term’s definition are not helpful to a court. Id. Extrinsic evidence is “less reliable than the patent
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`and its prosecution history in determining how to read claim terms.” Id. The Supreme Court has
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`explained the role of extrinsic evidence in claim construction:
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`In some cases, however, the district court will need to look beyond the patent’s
`intrinsic evidence and to consult extrinsic evidence in order to understand, for
`example, the background science or the meaning of a term in the relevant art during
`the relevant time period. See, e.g., Seymour v. Osborne, 11 Wall. 516, 546 (1871)
`(a patent may be “so interspersed with technical terms and terms of art that the
`testimony of scientific witnesses is indispensable to a correct understanding of its
`meaning”). In cases where those subsidiary facts are in dispute, courts will need to
`make subsidiary factual findings about that extrinsic evidence. These are the
`“evidentiary underpinnings” of claim construction that we discussed in Markman,
`and this subsidiary factfinding must be reviewed for clear error on appeal.
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`Teva Pharm. USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 331–32 (2015).
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`B.
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`Departing from the Ordinary Meaning of a Claim Term
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`There are “only two exceptions to [the] general rule” that claim terms are construed according
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`to their plain and ordinary meaning: “1) when a patentee sets out a definition and acts as his own
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`lexicographer, or 2) when the patentee disavows the full scope of the claim term either in the
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`specification or during prosecution.”2 Golden Bridge Tech., Inc. v. Apple Inc., 758 F.3d 1362, 1365
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`(Fed. Cir. 2014) (quoting Thorner v. Sony Comput. Ent. Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir.
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`2012)); see also GE Lighting Sols., LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014)
`
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`2 Some cases have characterized other principles of claim construction as “exceptions” to the
`general rule, such as the statutory requirement that a means-plus-function term is construed to
`cover the corresponding structure disclosed in the specification. See, e.g., CCS Fitness, Inc. v.
`Brunswick Corp., 288 F.3d 1359, 1367 (Fed. Cir. 2002).
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`7
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`Patent Owner Gree, Inc.
`Exhibit 2009 - Page 7 of 40
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`

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`(“[T]he specification and prosecution history only compel departure from the plain meaning in
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`two instances: lexicography and disavowal.”). The standards for finding lexicography or disavowal
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`are “exacting.” GE Lighting Sols., 750 F.3d at 1309.
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`To act as his own lexicographer, the patentee must “clearly set forth a definition of the
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`disputed claim term,” and “clearly express an intent to define the term.” Id. (quoting Thorner, 669
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`F.3d at 1365); see also Renishaw, 158 F.3d at 1249. The patentee’s lexicography must appear
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`“with reasonable clarity, deliberateness, and precision.” Renishaw, 158 F.3d at 1249.
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`To disavow or disclaim the full scope of a claim term, the patentee’s statements in the
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`specification or prosecution history must amount to a “clear and unmistakable” surrender. Cordis
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`Corp. v. Bos. Sci. Corp., 561 F.3d 1319, 1329 (Fed. Cir. 2009); see also Thorner, 669 F.3d at 1366
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`(“The patentee may demonstrate intent to deviate from the ordinary and accustomed meaning of a
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`claim term by including in the specification expressions of manifest exclusion or restriction,
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`representing a clear disavowal of claim scope.”). “Where an applicant’s statements are amenable
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`to multiple reasonable interpretations, they cannot be deemed clear and unmistakable.” 3M
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`Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013).
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`C.
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`Functional Claiming and 35 U.S.C. § 112, ¶ 6 (pre-AIA) / § 112(f) (AIA)
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`A patent claim may be expressed using functional language. See 35 U.S.C. § 112, ¶ 6;
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`Williamson, 792 F.3d at 1347–49 & n.3 (en banc in relevant portion).3 Section 112, Paragraph 6,
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`provides that a structure may be claimed as a “means . . . for performing a specified function” and
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`that an act may be claimed as a “step for performing a specified function.” Masco Corp. v. United
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`States, 303 F.3d 1316, 1326 (Fed. Cir. 2002).
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`3 This provision is also known as 35 U.S.C. § 112(f).
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`8
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`Patent Owner Gree, Inc.
`Exhibit 2009 - Page 8 of 40
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`Case 2:19-cv-00413-JRG-RSP Document 85 Filed 11/06/20 Page 9 of 40 PageID #: 1479
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`But § 112, ¶ 6 does not apply to all functional claim language. There is a rebuttable
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`presumption that § 112, ¶ 6 applies when the claim language includes “means” or “step for” terms,
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`and that it does not apply in the absence of those terms. Id.; Williamson, 792 F.3d at 1348. The
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`presumption stands or falls according to whether one of ordinary skill in the art would understand
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`the claim with the functional language, in the context of the entire specification, to denote
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`sufficiently definite structure or acts for performing the function. See Media Rights Techs., Inc. v.
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`Cap. One Fin. Corp., 800 F.3d 1366, 1372 (Fed. Cir. 2015) (§ 112, ¶ 6 does not apply when “the
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`claim language, read in light of the specification, recites sufficiently definite structure” (quotation
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`marks omitted) (citing Williamson, 792 F.3d at 1349 (§ 112, ¶ 6 does not apply when “the words
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`of the claim are understood by persons of ordinary skill in the art to have sufficiently definite
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`meaning as the name for structure”); Robert Bosch, LLC v. Snap-On Inc., 769 F.3d 1094, 1099
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`(Fed. Cir. 2014))); Masco Corp., 303 F.3d at 1326 (§ 112, ¶ 6 does not apply when the claim
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`includes an “act” corresponding to “how the function is performed”); Personalized Media
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`Commc’ns, L.L.C. v. Int’l Trade Comm’n, 161 F.3d 696, 704 (Fed. Cir. 1998) (§ 112, ¶ 6 does not
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`apply when the claim includes “sufficient structure, material, or acts within the claim itself to
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`perform entirely the recited function . . . even if the claim uses the term ‘means.’” (quotation marks
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`and citation omitted)).
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`When it applies, § 112, ¶ 6 limits the scope of the functional term “to only the structure,
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`materials, or acts described in the specification as corresponding to the claimed function and
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`equivalents thereof.” Williamson, 792 F.3d at 1347–48 (citation omitted). Construing a means-
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`plus-function limitation involves multiple steps. “The first step … is a determination of the
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`function of the means-plus-function limitation.” Medtronic, Inc. v. Advanced Cardiovascular Sys.,
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`Inc., 248 F.3d 1303, 1311 (Fed. Cir. 2001) (citation omitted). “[T]he next step is to determine the
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`9
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`Patent Owner Gree, Inc.
`Exhibit 2009 - Page 9 of 40
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`

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`Case 2:19-cv-00413-JRG-RSP Document 85 Filed 11/06/20 Page 10 of 40 PageID #: 1480
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`corresponding structure disclosed in the specification and equivalents thereof.” Id. A “[s]tructure
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`disclosed in the specification is ‘corresponding’ structure only if the specification or prosecution
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`history clearly links or associates that structure to the function recited in the claim.” Id. (citation
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`omitted). The focus of the “corresponding structure” inquiry is not merely whether a structure is
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`capable of performing the recited function, but rather whether the corresponding structure is
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`“clearly linked or associated with the [recited] function . . . .” Id. The corresponding structure
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`“must include all structure that actually performs the recited function.” Default Proof Credit Card
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`Sys. v. Home Depot U.S.A., Inc. (d/b/a The Home Depot), 412 F.3d 1291, 1298 (Fed. Cir. 2005)
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`(citation omitted). However, § 112 does not permit “incorporation of structure from the written
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`description beyond that necessary to perform the claimed function.” Micro Chem., Inc. v. Great
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`Plains Chem. Co., Inc., 194 F.3d 1250, 1258 (Fed. Cir. 1999) (citation omitted).
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`For § 112, ¶ 6 limitations implemented by a programmed general-purpose computer or
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`microprocessor, the corresponding structure described in the patent specification must include an
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`algorithm for performing the function. WMS Gaming Inc. v. Int’l Game Tech., 184 F.3d 1339,
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`1349 (Fed. Cir. 1999). The corresponding structure is not a general-purpose computer but rather
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`the special purpose computer programmed to perform the disclosed algorithm. Aristocrat Techs.
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`Austl. Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008).
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`D.
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`Definiteness Under 35 U.S.C. § 112, ¶ 2 (pre-AIA) / § 112(b) (AIA)
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`Patent claims must particularly point out and distinctly claim the subject matter regarded as
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`the invention. 35 U.S.C. § 112, ¶ 2. A claim, when viewed in light of the intrinsic evidence, must
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`“inform those skilled in the art about the scope of the invention with reasonable certainty.” Nautilus
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`Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910 (2014). If it does not, the claim fails § 112, ¶ 2
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`and is therefore invalid as indefinite. Id. at 901. Whether a claim is indefinite is determined from
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`the perspective of one of ordinary skill in the art as of the time the application for the patent was
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`10
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`Patent Owner Gree, Inc.
`Exhibit 2009 - Page 10 of 40
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`Case 2:19-cv-00413-JRG-RSP Document 85 Filed 11/06/20 Page 11 of 40 PageID #: 1481
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`filed. Id. at 911. As it is a challenge to the validity of a patent, the failure of any claim in suit to
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`comply with § 112 must be shown by clear and convincing evidence. BASF Corp. v. Johnson
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`Matthey Inc., 875 F.3d 1360, 1365 (Fed. Cir. 2017). “[I]ndefiniteness is a question of law and in
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`effect part of claim construction.” ePlus, Inc. v. Lawson Software, Inc., 700 F.3d 509, 517 (Fed.
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`Cir. 2012).
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`When a term of degree is used in a claim, “the court must determine whether the patent
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`provides some standard for measuring that degree.” Biosig Instruments, Inc. v. Nautilus, Inc., 783
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`F.3d 1374, 1378 (Fed. Cir. 2015) (quotation marks omitted). Likewise, when a subjective term is
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`used in a claim, “the court must determine whether the patent’s specification supplies some
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`standard for measuring the scope of the [term].” Datamize, LLC v. Plumtree Software, Inc., 417
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`F.3d 1342, 1351 (Fed. Cir. 2005). The standard “must provide objective boundaries for those of
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`skill in the art.” Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cir. 2014).
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`In the context of a claim governed by 35 U.S.C. § 112, ¶ 6, the claim is invalid as indefinite
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`if the claim fails to disclose adequate corresponding structure to perform the claimed function.
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`Williamson, 792 F.3d at 1351–52. The disclosure is inadequate when one of ordinary skill in the
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`art “would be unable to recognize the structure in the specification and associate it with the
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`corresponding function in the claim.” Id. at 1352.
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`III. AGREED CONSTRUCTIONS
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`The parties have agreed to constructions set forth in their Joint Claim Construction Chart. Dkt.
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`No. 69. Based on the agreement, the Court hereby adopts the agreed constructions for this case.
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`11
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`Patent Owner Gree, Inc.
`Exhibit 2009 - Page 11 of 40
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`IV. CONSTRUCTION OF DISPUTED TERMS
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`A.
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`“stack of virtual cards”
`
`Plaintiff’s Proposed
`Construction
`set of images of cards that
`can each be displayed on a
`screen
`
`Defendant’s Proposed
`Construction
`a plurality of digital cards
`displayed in a pile such that
`the face of only one card is
`shown
`
`Disputed Term4
`
`“stack of virtual cards”
`
`•
`
`•
`
`’177 Patent Claims 1, 8,
`14, 15, 16, 17
`’362 Patent Claims 1, 12,
`20, 27
`
`The Parties’ Positions
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`Plaintiff submits: As is well known, a card deck, which is an exemplary stack of cards, may
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`be displayed in a variety of ways other than Defendant’s proposed “in a pile such that the face of
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`only one card is shown.” Further, “[t]he term ‘digital’ in [Defendant’s proposed] ‘digital cards’ is
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`superfluous, and ‘digital cards’ are undefined in the specification or claims.” Dkt. No. 65 at 16–
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`18.
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`In addition to the claims themselves, Plaintiff cites the following intrinsic evidence to support
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`its position: ’177 Patent fig.4, col.7 ll.6–8.
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`Defendant responds: As described in the Asserted Patents and consistent with the plain
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`meaning of “virtual,” “virtual” cards are cards that are simulated by a computer, they are digital.
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`A “stack” of cards, as described in the patents and consistent with the plain meaning of “stack,” is
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`a pile of cards with only the top card visible. This stack of “cards” plainly requires more than one
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`card. Dkt. No. 67 at 9–13.
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`In addition to the claims themselves, Defendant cites the following intrinsic and extrinsic
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`evidence to support its position: Intrinsic evidence: ’177 Patent fig.4, col.6 ll.36–38, col.6 ll.60–
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`The term charts in this order list claims identified in the parties’ Joint Claim Construction Chart
`Pursuant to P.R. 4-5(d) (Dkt. No. 69).
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`12
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`Patent Owner Gree, Inc.
`Exhibit 2009 - Page 12 of 40
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`61, col.7 ll.6–8. Extrinsic evidence: Merriam-Webster.com Dictionary “virtual,”5 (Defendant’s
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`Ex. A, Dkt. No. 67-2); Merriam-Webster.com Dictionary “stack,”6 (Defendant’s Ex. B, Dkt. No.
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`67-3).
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`Plaintiff replies: The concept of a “virtual card” is better expressed as an image of a card than
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`as a digital card because the meaning of “digital card” is not clear and the use of “digital card” in
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`a construction does not clarify claim scope. A “stack” plainly may include only one card, as when
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`one starts with a deck of multiple cards and removes cards until only one is remaining. Dkt. No.
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`68 at 4–5.
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`Plaintiff cites further extrinsic evidence to support its position: Petition for Post-Grant
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`Review of U.S. Patent No. 10,518,177 at 48–49, Supercell Oy v. GREE, Inc., PGR2020-00088,
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`(P.T.A.B. Sept. 29, 2020), paper 2 (Plaintiff’s Reply Ex. A, Dkt. No. 68-2 at 61–62).
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`Analysis
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`The dispute distills to four issues. First, whether the stack of virtual cards necessarily requires
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`more than one card. It does. Second, whether a stack of cards refers to cards in a pile. It plainly
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`refers to a geometric configuration, but that configuration is best expressed as a “stack.” Third,
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`whether a stack of cards necessarily has to show the face of only one card. It does not. Fourth,
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`whether a “virtual card” is best expressed as an image of a card or a digital card. It is best expressed
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`as a computer-simulated card.
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`The stack of virtual cards plainly has a plurality of cards. To begin, that the term “cards” is
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`expressed in the plural indicates that the there is more than one card. See Leggett & Platt, Inc. v.
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`Hickory Springs Mfg. Co., 285 F.3d 1353, 1357 (Fed. Cir. 2002) (“At the outset, the claim recites
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`5 https://www.merriam-webster.com/dictionary/virtual
`6 https://www.merriam-webster.com/dictionary/stack
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`Patent Owner Gree, Inc.
`Exhibit 2009 - Page 13 of 40
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`‘support wires’ in the plural, thus requiring more than one welded ‘support wire.’”). The context
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`of the surrounding claim language further dictates that the stack of cards has more than one card.
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`For example, Claim 1 of the ’177 Patent recites “a plurality of cards selected from a deck which is
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`a stack of virtual cards.” ’177 Patent col.13 ll.3–4. That a “plurality” of cards is selected from the
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`deck which is a stack of cards means that the stack has at least a plurality of cards.
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`A stack of cards is not simply a set of cards, it refers to a particular geometric configuration—
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`a kind of pile. Construing “stack” as “set,” as Plaintiff suggests, would improperly render other
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`claim language superfluous. Specifically, the claims recite “a deck which is a stack.” See, e.g., id.
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`at col.13 l.4. That both “deck” and “stack” are used in the claim suggests that the terms have
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`different meanings. The Court understands a “deck” of cards to be a set of cards. Thus, if “stack”
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`is simply a set of cards, then either “deck” or “stack” are entirely redundant in the claim. Further,
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`the plain meaning of “stack” suggests a particular geometric configuration. See e.g., Merriam-
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`Webster.com Dictionary (defining “stack” variously as “a large usually conical pile (as of hay,
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`straw, or grain in the sheaf) left standing in the field for storage,” “an orderly pile or heap,” and “a
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`pile of poker chips”), Dkt. No. 67-3 at 2. Plus, the “stack” described in the Asserted Patents (“deck
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`600, which is a stack of virtual cards”) and depicted as a single card profile in Figure 4 is consistent
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`with this plain meaning. ’177 Patent fig.4, col.7 ll.6–7. Ultimately, the geometric nature of a
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`“stack” is plain without construction.
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`However, the stack of cards is not limited to a particular configuration where the face of only
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`one card is shown. While the stack depicted in Figure 4 of the patents shows the profile of only a
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`single card, this depiction is not limiting. The plain meaning of “stack” suggests that the
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`arrangement of cards is not limited to this particular configuration. Further, there is nothing in the
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`14
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`Patent Owner Gree, Inc.
`Exhibit 2009 - Page 14 of 40
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`plain meaning or the patents that suggests that the face of any card must be shown or that the face
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`of more than one card may not be shown when the cards are ordered in a stack.
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`Finally, in the context of the patents, a “virtual card” is simply a computer-simulated card.
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`The patents are directed to computer-implemented games. See, e.g., ’177 Patent col.1 ll.14–17
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`(“Exemplary embodiments of the present disclosure relate to a game control method, a system,
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`and a non-transitory computer-readable recording medium for providing client devices with a
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`battle game over a network.”); col.3 ll.52–55 (“The game system 100 includes a server device 10
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`that provides a battle game service to a plurality of client devices 30 over a network 20.”). The
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`patents use “virtual” to describe objects that are simulated in the game, rather than simply to denote
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`an image or digital representation of such objects. Specifically, the patents provide:
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`On the personalized screen, a menu screen related to the group to which an
`individual player belongs is displayed. A “group” can be a virt