IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`In the Post Grant Review of:
`
`
`
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`)
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`)
`)
`)
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`)
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`For: COMPUTER CONTROL
`METHOD, CONTROL PROGRAM )
`AND COMPUTER
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`)
`
`U.S. Patent No.: 10,518,177
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`DECLARATION OF STEVE MERETZKY
`IN SUPPORT OF PETITION FOR POST GRANT
`REVIEW OF U.S. PATENT NO. 10,518,177
`
`Supercell
`Exhibit 1005
`Page 1
`
`
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`In the Post Grant Review of:
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`For: COMPUTER CONTROL
`METHOD, CONTROL PROGRAM )
`AND COMPUTER
`)
`)
`
`U.S. Patent No.: 10,518,177
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`DECLARATION OF STEVE MERETZKY
`IN SUPPORT OF PETITION FOR POST GRANT
`REVIEW OF U.S. PATENT NO. 10,518,177
`
`Supercell
`Exhibit 1005
`Page 1
`
`
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`I, Steve Meretzky, declare as follows:
`
`I.
`
`INTRODUCTION
`I have been asked by the party requesting this review, Supercell Oy
`1.
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`(“Petitioner”), to provide my expert opinion in support of the above-captioned
`
`petition for post grant review of U.S. Patent No. 10,518,177 (the “’177 patent”)
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`challenging the patentability of claims 1-17 of the ‘177 patent. For convenience, I
`
`use the term “challenged patent” to refer to this patent and “challenged claims” to
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`refer collectively to the claims.
`
`2.
`
`3.
`
`I currently hold the opinions set forth in this declaration.
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`In summary, it is my opinion that the challenged claims of the
`
`challenged patent are invalid as obvious in view of the combination of references
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`cited below. My detailed opinions on the claims are set forth below.
`
`II. BACKGROUND AND QUALIFICATIONS
`I am an expert in computer game design and computer games in
`4.
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`general. I have been designing computer games for almost forty years, since 1982.
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`Now more than twenty years ago, I was named one of 25 “Game Gods” by the
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`September 1999 issue of PC Gamer magazine.
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`5.
`
`I received a Bachelor of Science in Construction Engineering and
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`Project Management and minor in Creative Writing from Massachusetts Institute of
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`Technology in 1979. My career in video games began soon after graduation.
`
`2
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`Supercell
`Exhibit 1005
`Page 2
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`
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`6.
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`I designed, coded, and creatively directed dozens of games. While
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`some examples follow here, a more complete list may be found in my CV, attached
`
`as Exhibit 1006. Early in my career, I designed, wrote, and coded adventure games
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`for Infocom Inc., including the industry classics The Hitchhiker’s Guide to the
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`Galaxy, Zork Zero, Planetfall, and Sorcerer.
`
`7.
`
`In 1994, I co-founded Boffo Games where I was Designer/Director of
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`The Space Bar and Hodj ‘n’ Podj. I have also contributed towards game design and
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`development in roles as consultant, game designer, content director, and vice
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`president with companies including MicroProse, Electronic Arts, Disney, Blizzard,
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`Hasbro, GameFX (a division of THQ), GSN Games, King, and Draft Kings.
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`8.
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`As part of my experience, I have extensive experience creating and
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`evaluating game designs and mechanics for a variety of gaming platforms including
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`mobile, and PC. I have dealt with both “casual” games targeted to mass audiences
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`and “hardcore” games targeted to hobbyist gamers, as well as both solo and
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`multiplayer games. In these roles, I considered how the games address player
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`engagement and retention and how the games influence social interactions among
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`the players.
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`3
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`Supercell
`Exhibit 1005
`Page 3
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`
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`III. COMPENSATION AND RELATIONSHIP WITH PARTIES
`I am being compensated for my time. This compensation is not
`9.
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`contingent upon my performance, the outcome of this matter, or any issues involved
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`in or related to this matter.
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`10.
`
`I have no financial interest in Petitioner or any related parties. I have
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`been informed that GREE, Inc. (“GREE”) owns the challenged patent. I have no
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`financial interest in and have no contact with GREE beyond the kinds of cursory
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`interactions I often have with game industry professionals at conferences. I similarly
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`have no financial interest in the challenged patent and have not had any contact with
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`the named inventors.
`
`IV. MATERIAL CONSIDERED
`I have reviewed and considered, in the preparation of this declaration,
`11.
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`the following related to the challenged patent:
`
`a.
`
`b.
`
`The ‘177 patent (Ex. 1001) and the prosecution file history for
`
`the ‘177 patent (Ex. 1002).
`
`U.S. Patent No. 10,583,362 (Ex. 1003 “the ’362 patent”) and the
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`prosecution file history for the ’362 patent (Ex. 1004).
`
`12.
`
`I understand that, for purposes of determining whether a reference will
`
`qualify as prior art, the challenged claims of the challenged patent are entitled to an
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`effective filing date of no earlier than February 25, 2014.
`
`4
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`Supercell
`Exhibit 1005
`Page 4
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`13.
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`I have also reviewed and understand various references as discussed
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`herein, including the following:
`
`a.
`
`“Master Hearthstone in 10 Minutes! The Ultimate Beginner's
`
`Guide” (Ex. 1011 “MH”)
`
`b.
`
`U.S. Patent Publication No. 2013/0281173 to Gilson et al.
`
`(Ex. 1013 “Gilson”).
`
`14.
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`I understand that the above references form the bases for the grounds
`
`for invalidity set forth in the Petition for Post Grant Review of the challenged patent.
`
`15. Additionally, I am aware of information generally available to, and
`
`relied upon by, persons of ordinary skill in the art as of the effective filing date of
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`the challenged patent (POSITAs), including computer games, technical dictionaries
`
`and technical reference materials (including, for example, textbooks, manuals,
`
`technical papers, articles, and relevant technical standards); some of my statements
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`below are expressly based on such awareness.
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`16.
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`I reserve the right to supplement my opinions to address any
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`information obtained, or positions taken, based on any new information that comes
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`to light throughout this proceeding.
`
`V. THE CHALLENGED PATENT
`17. The challenged patent was filed on February 25, 2015 and claims
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`priority to a Japanese application filed on February 25, 2014.
`
`5
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`Supercell
`Exhibit 1005
`Page 5
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`
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`
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`18. The challenged patent is entitled “Game Control Method, System, and
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`Non-Transitory Computer-Readable Recording Medium.”
`
`Purported Invention of the Challenged Patent
`A.
`19. The challenged patent describes a technique for changing a “battle
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`condition” during a game. Ex. 1001 at Abstract.
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`20. The challenged patent generally relates to setting battle conditions for
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`time slots in a game. According to the background, one type of game includes
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`groups of players battling one another within a predetermined time slot, such as an
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`hour between 20:00 and 21:00. Id. at 1:35-43. According to the challenged patent,
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`players may intentionally concentrate attacks at the end of the time slot or otherwise
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`attack unevenly during the time slot for the battle, and such battles may be less
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`enjoyable for beginners or lower-level players as a result. Id. at 1:66-2:34.
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`21. The challenged patent purports to provide an improved game that
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`allows “a wide range of players to enjoy a group battle” and to “improve the
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`participation rate throughout the set time slot.” Id. at 2:35-42.
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`22. To do so, the challenged patent provides a battle game in “a plurality of
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`time slots” in which “a battle condition is changed” from one time slot to another.
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`Id. 2:43-3:13. The challenged patent describes setting a battle condition for each
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`time slot, and changing the battle conditions in different time slots in ways that are
`
`6
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`Supercell
`Exhibit 1005
`Page 6
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`
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`
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`advantageous for certain players, thereby increasing participation rates throughout
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`the time slots. Id. at 2:61-3:13.
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`23. Fig. 4 illustrates an example game screen for a game:
`
`
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`Id. at 6. In this example game, player characters for one group 300 may battle a
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`second group 400 as shown in an event field 201. Id. at 6:58-65. In the “palette”
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`202 section, a player has a virtual deck of cards 600 and cards 601 602 and 603
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`selected from the deck 600. Id. at 7:4-7. These cards represent skills useable to
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`attack opposing players and may indicate a type of skill, attack points, defense
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`points, or other attributes. Id. at 7:7-14. A player “flips over” these cards to attack
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`the opposing characters. Id. at 7:15-21.
`
`7
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`Supercell
`Exhibit 1005
`Page 7
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`
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`24. The challenged patent discloses that a battle may be composed of
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`several “time slots.” See id. 7:32-60. Fig. 6 shows example time slots or “terms”
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`for the battle having a first portion, middle portion, and a last portion:
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`Id. at 7. The challenged patent describes changing the battle conditions during the
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`time slots, where the term battle condition “broadly includes additional conditions
`
`added on during a group battle.” Id. at 7:61-8:1-3. The challenged patent describes
`
`
`
`examples of battle conditions:
`
`While also described in detail below, a battle condition can include
`changing the ability value of an individual character, such as changing
`the parameters 70 (see FIG. 2) that allow a character to exercise certain
`abilities during a battle, such as a character's attack strength, defense
`strength, or the like. Battle conditions also can include any sort of
`condition applied during a battle, such as providing a reward to the
`player controlling a character or tallying the battle result during the first
`portion of a subdivided time slot and reflecting the battle result in a
`subsequent portion of the subdivided time slot.
`Id. at 8:3-14.
`
`25. The challenged patent provides two examples of changing battle
`
`conditions in time slots. “In the first example, the battle condition is changed
`
`randomly or by a predetermined setting in each of the subdivided time slots (see
`
`8
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`Supercell
`Exhibit 1005
`Page 8
`
`
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`
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`FIG. 7(a)). In the second example, among the subdivided time slots, battle
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`participation and battle results are tallied during an earlier time slot, and the tallied
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`results are reflected in the battle conditions of time slots after the earlier time slot
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`(see FIG. 7(b)).” Id. 9:7-16. These two figures are reproduced below:
`
`
`
`Id. at 8.
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`26. The challenged patent includes various examples of changing battle
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`conditions using these two techniques. Examples of changing conditions according
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`to the technique of FIG. 7(a), which the challenged patent refers to as “changing the
`
`battle condition as time progresses (Id. at 9:18-19), include increasing the attack
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`strength of lowest ranked characters of a group, increasing item attribute attack
`
`9
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`Supercell
`Exhibit 1005
`Page 9
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`
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`points, increasing attack points in accordance with a player attribute, and increasing
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`a combo effect. See id. 9:17-54.
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`27. Examples of changing conditions according to the technique of FIG.
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`7(b), which the patent refers to as “changing battle conditions in accordance with
`
`battle participation and battle results” (Id. 9:63-64) include providing a reward card
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`or other incentive based on an intermediate tally and changing a battle condition
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`such as the attack strength of a group based on the intermediate tally. Id. 9:63-10:29.
`
`28. The computer components described in the challenged patent for
`
`executing the game are generic and conventional. See id. at 3-5 (FIGS. 1-3). Figure
`
`1 illustrates a generic client-server architecture. The challenged patent describes the
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`“server device 10” as “a network node having a function to provide the battle game
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`service” which “may be configured using a general-purpose communication
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`terminal device.” Id. 3:55-60. Likewise, the challenged patent describes the “client
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`device 30” as “a network node having a function to receive provision of the battle
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`game service” which may be “configured using a general-purpose communication
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`terminal device.” Id. 4:4-7. Figure 2 illustrates an example server device, and FIG.
`
`3 illustrates an example client device. The game server and client device are each
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`described as including generic computing technologies such as a processor, memory,
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`and wireless capabilities. See id. at 4:41-51; 5:49-61.
`
`10
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`Supercell
`Exhibit 1005
`Page 10
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`
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`
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`29. The software executing on the server and client devices is also
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`described in generic terms. The server device executes “the computer program
`
`40…for executing game processing in response to requests from the plurality of
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`client devices 30 and includes a plurality of software modules that are called and
`
`executed within a main program.” Id. 4:52-55. These modules include “a rendition
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`processing module 50” which provides the functions of a “battle processing unit 60,”
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`“quest processing unit 51,” and an “integrating unit 53.” Id. at 4:62-5:8. The
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`challenged patent states that details on processing units other than the battle
`
`processing unit “are omitted, since these units are not specific to the exemplary
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`embodiment.” Id. at 5:10-12. The battle processing unit is described as “one
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`functional unit in the rendition processing module 50 [which] includes” other units.
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`Id. at 7:32-37. These other units are described in purely functional terms. See id. at.
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`7:32-9:6. The client device includes a “computer program 80 [which] is an
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`application program for connecting to the server device 10 and receiving provision
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`of the battle game service.” Id. at 5:61-65.
`
`30. The independent claims of the challenged patent recite various
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`purported inventive aspects related to the time slots and battle conditions. There are
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`six claim sets: 1-7, 8-13, 14, 15, 16, and 17. Id. at 12:65-16:42. Independent claims
`
`1 and 8 recite non-transitory computer-readable recording media having instructions
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`for causing one or a plurality of computers to execute recited steps. Id. at 12:65-
`
`11
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`Supercell
`Exhibit 1005
`Page 11
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`
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`
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`13:32; 13:55-14:13. Independent claims 14 and 15 each recite a “battle control
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`method” executed by one or a plurality of computers, and independent claims 16 and
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`17 recite “a battle game control system” having one or more computers, a memory
`
`storing instructions, and a processor executing the instructions. Id. at 14:35-16:42.
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`31. More particularly, claim 1 recites a “non-transitory computer-readable
`
`recording medium storing instructions to be executed by one or a plurality of computers
`
`capable of being used by a player conducting a battle game.” Id. at 12:65-13:1. The
`
`instructions cause the or more computers to execute steps including displaying, on a
`
`field, a plurality of cards selected from a deck of virtual cards. Id. at 13:2-4. Claim 1
`
`further recites that during a first term of the battle game, a battle is conducted to a first
`
`opponent character based on a parameter on a card selected by a player under a first
`
`battle condition that does not change during the first term. Id. 13:5-9.
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`32. Claim 1 also recites, at the conclusion of the first term, “automatically
`
`initiating a second term of the battle game, and during the second term…continued
`
`from the first term, conducting the battle to a second opponent character based on
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`the parameter set on the card selected by the player’s operation under a second battle
`
`condition.” “[T]he second battle condition is different from the first battle condition
`
`and is predetermined independent from a battle result of the first term.” Id. at 13:11-
`
`19. The first and second opponent characters are the same or different, and “the
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`second battle condition is not changed during the second term.” Id. at 13:19-22.
`
`12
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`Supercell
`Exhibit 1005
`Page 12
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`
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`
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`33. Similarly, claim 1 recites a third battle term continued from the second
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`term during which a battle is conducted “to a third opponent character based on the
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`parameter set on the card selected by the player’s operation under a third battle
`
`condition.” Id. at 13:23-27. The third opponent character is different or the same as
`
`the first and second opponents and the third battle condition is different from the
`
`second battle condition, not changed during the third term and is “dependent on a
`
`battle result” of the second term. Id. at 13:23-32.
`
`34. Claim 2 recites that the third battle condition is a condition for
`
`providing a reward to the player. Id. at 13:33-35. Claim 3 recites that the start and
`
`end timing of the first and second terms are predetermined using the start timing of
`
`the battle game. Id. at 13:36-40. Claim 4 recites that the attack strength to the
`
`opponent character under the second battle condition is higher than an attack strength
`
`under the first battle condition. Id. at 13:41-45. Claim 5 recites that the parameter
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`(of the parameter set on the selected card) includes an attack strength and a life force.
`
`Id. at 13:46-48. Claim 6 recites that the battle is conducted on a “second field”
`
`different from the first field in which the cards are displayed. Id. at 13:49-51. Claim
`
`7 depends on claim 1 (although it refers to the second field) and recites that the first
`
`field and second field are included in a game screen. Id. 13:52-54.
`
`35.
`
`Independent claim 8 is identical to claim 1, except that it omits the third
`
`battle term, third opponent character, and third battle condition, and recites that the
`
`13
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`Supercell
`Exhibit 1005
`Page 13
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`
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`
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`battle is conducted “on a second field different from the first field.” Id. at 13:55-
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`14:13. Claims 9-13 depend on claim 8 and mirror claims 2-5 and 7. Id. at 14:15-33.
`
`36. Finally, independent claims 14 and 15 recite a method having steps that
`
`mirror claims 1 and 8, respectively. Id. at 14:34-15:24. Similarly, independent
`
`claims 16 and 17 recite a “battle game control system” comprising one or more
`
`computers, a memory storing instructions, and a processor “by executing the
`
`instructions, programmed to” perform steps mirroring those of claims 1 and 8,
`
`respectively. Id. at 15:25-16:42.
`
`Prosecution History
`B.
`37. The ‘177 patent was originally filed on February 25, 2015 as U.S.
`
`Application No. 14/631,221 and claims priority to Japanese Application No. 2014-
`
`034003, filed February 25, 2014. I understand for the purposes of this Post Grant
`
`Review proceeding that the challenged patent has an effective filing date no earlier
`
`than February 25, 2014.
`
`38.
`
`I have reviewed the prosecution history of the ‘177 patent (Exhibit
`
`1002). I also reviewed the prosecution history of the ’362 patent, which is a
`
`continuation of the ’177 patent (Exhibit 1004). I understand that comments made
`
`during prosecution of a particular patent may influence the meaning of terms in the
`
`claims of that patent, as well as terms in other claims in the same patent family.
`
`14
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`Supercell
`Exhibit 1005
`Page 14
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`
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`
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`VI. LEVEL OF ORDINARY SKILL IN THE ART
`It is my understanding that the challenged patent is to be interpreted
`39.
`
`based on how it would be read by a person of “ordinary skill in the art” (“POSITA”)
`
`at the time of the effective filing date of the patent. It is my understanding that
`
`factors such as the education level of those working in the field, the sophistication
`
`of the technology, the types of problems encountered in the art, the prior art solutions
`
`to those problems, and the speed at which innovations are made may help establish
`
`the level of skill in the art.
`
`40.
`
`I am familiar with the technology at issue and the state of the art at the
`
`effective filing date of the challenged patent, February 25, 2014.
`
`41.
`
`In my opinion, the level of ordinary skill in the art of the challenged
`
`patent at the time of the effective filing date is a person with a bachelor’s degree in
`
`game design/development,
`
`interactive media, computer science, computer
`
`engineering, or a related field, with at least two years of professional experience
`
`working in computer game design/development. With more education, such as
`
`additional graduate degrees or study, less professional experience is needed to attain
`
`the ordinary level of skill. Similarly, with more experiential knowledge of computer
`
`games, such as experience developed while developing or playing computer games,
`
`less educational experience is needed to attain the ordinary level of skill.
`
`15
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`Supercell
`Exhibit 1005
`Page 15
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`42.
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`I consider myself to have at least such ordinary skill in the art with
`
`respect to the subject matter of the challenged patent at the time of the effective filing
`
`date.
`
`VII. LEGAL STANDARD FOR CLAIM CONSTRUCTION
`It is my understanding that “[i]n a post-grant review proceeding, a
`43.
`
`claim of a patent…shall be construed using the same claim construction standard
`
`that would be used to construe the claim in a civil action under 35 U.S.C. 282(b),
`
`including construing the claim in accordance with the ordinary and customary
`
`meaning of such claim as understood by one of ordinary skill in the art and the
`
`prosecution history pertaining to the patent.” 37 C.F.R. § 42.200(b).
`
`44. For purposes of my analysis, I applied the ordinary and customary
`
`meanings as would have been understood by a POSITA and the prosecution histories
`
`of the ’177 and ’362 patents.
`
`VIII. GREE’S INFRINGEMENT CONTENTIONS
`I reviewed GREE’s Amended Disclosure of Asserted Claims and
`45.
`
`Infringement Contentions dated August 19, 2020 (Ex. 1007, “the ‘Contentions’”). I
`
`understand that GREE filed the Contentions in the corresponding litigation for the
`
`’177 patent and the Contentions indicate why GREE believes that Supercell’s Clash
`
`Royale game infringes claims 1, 3, 5-8, 10, and 12-17. Hence, the Contentions are
`
`informative as they explain how GREE interprets the terms of the ’177 patent.
`
`16
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`Supercell
`Exhibit 1005
`Page 16
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`46.
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`I understand GREE to allege that Clash Royale infringes the preamble
`
`of claim 1 because “Clash Royale allows users to ‘[d]uel players from around the
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`world in real-time in both 1v1 and 2v2 Battles’ using servers, computers or mobile
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`devices.” Id. at 6. I also understand that GREE uses the following image to contend
`
`that Clash Royale infringes the “displaying” element of claim 1:
`
`
`
`Id at 8.
`
`47. Regarding the “during a first term of the battle game” element, I
`
`understand GREE to contend that “[i]n Clash Royale, a battle typically lasts for three
`
`minutes, and the first period of the battle is two minutes. During that two minute
`
`period, elixir increases at a predetermined rate for the entirety of the first term. This
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`rate of elixir is an example of a first battle condition. Also, the battle does not end if
`
`17
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`Supercell
`Exhibit 1005
`Page 17
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`
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`the Princess Towers are destroyed; instead the battle ends if the King’s Tower is
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`destroyed.” Id. at 9.
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`
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`Id. GREE also contends that “each card costs a specified amount of elixir to be
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`deployed…And each card also includes attributes such as hit points, and damage,
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`which reflect the life force and attack strength, respectively, of the troop associated
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`with the card.” Id. at 9-10.
`
`48. Regarding the “at a conclusion of the first term of the battle game,
`
`automatically initiating a second term of the battle game…” element, I understand
`
`GREE to contend that “Clash Royale automatically initiates a second term of the
`
`battle game at the conclusion of the first term” and that the “second battle condition”
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`is “X2 Elixir,” i.e., that the rate of elixir generation is doubled. Id. at 11-13.
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`18
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`Supercell
`Exhibit 1005
`Page 18
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`Id at 13. GREE specifically states that “[d]urging the second term, Clash Royale
`
`conducts the battle to a second opponent character based on a parameter set on the
`
`card selected by the player’s operation under a second battle condition, which is
`
`different from the first battle condition and independent of a battle result of the first
`
`term, and the second battle condition is not changed during the second term. Here,
`
`for example, when the second term begins, the player’s elixir increases at double the
`
`rate of the first term…” Id.
`
`49. Regarding the “during a third term of the battle game…” element, I
`
`understand GREE to contend that “[I]n Clash Royale, at the end of the second term,
`
`if (a) King's Towers of both players are not destroyed, and (b) the number of the
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`destroyed Princess Towers is the same between the players, the Clash Royale battle
`
`game moves into a two-minute overtime period. During the first 60 seconds of that
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`overtime period, elixir continues to increase at the same rate as it did during the
`
`19
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`Supercell
`Exhibit 1005
`Page 19
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`
`
`second term of the battle. The first 60 seconds of the overtime period is an example
`
`of a third term of the battle game. And the ending of that 60 second period is an
`
`example of a third battle condition.” Id. at 16.
`
`
`
`Id. Regarding the “third battle condition,” GREE further contends that “[t]here is a
`
`third battle condition during the first 60 seconds of the overtime period (i.e., the third
`
`term): (a) the rate of elixir increase is double that of the first period, and (b) if at least
`
`one Princess Tower is standing after the second term ends, the battle ends if one
`
`Princess Tower or the King’s Tower is destroyed, but (c) if all Princess Towers are
`
`destroyed at the end of the second term, then the battle ends if the King’s Tower is
`
`destroyed.” Id. at 16-17.
`
`50. The Contentions allege that Clash Royale infringes the challenged
`
`patent event though given instances of the game may lack elements contended to
`
`meet the claim limitations. For example, GREE asserts that “a battle typically lasts
`
`20
`
`Supercell
`Exhibit 1005
`Page 20
`
`
`
`
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`for three minutes” and “the battle does not end if the Princess Towers are destroyed;
`
`instead the battle ends if the King’s Tower is destroyed.” Id. at 9. GREE also asserts
`
`that “at the end of the second term, if (a) King's Towers of both players are not
`
`destroyed, and (b) the number of the destroyed Princess Towers is the same between
`
`the players, the Clash Royale battle game moves into a two-minute overtime period.”
`
`Id. at 16. This phrasing implicitly recognizes that there are games of Clash Royale
`
`that end before the overtime period or otherwise differ from the games described in
`
`the Contentions.
`
`51. As noted above, the Contentions identify various aspects of Clash
`
`Royale as allegedly meeting the respective “battle condition” limitations. GREE
`
`asserts that “the “rate of elixir is an example of a first battle condition.” Id. at 9.
`
`Similarly, GREE asserts that during the second term “the player’s elixir increases at
`
`double the rate of the first term” and this doubled rate of elixir is the “second battle
`
`condition.” Id. at 13. GREE identifies “the ending of [a] 60 second [overtime]
`
`period [as] an example of a third battle condition.” Id. at 16. In addition, GREE
`
`identifies an additional third battle condition as “(a) the rate of elixir increase is
`
`double that of the first period, and (b) if at least one Princess Tower is standing after
`
`the second term ends, the battle ends if one Princess Tower or the King’s Tower is
`
`destroyed, but (c) if all Princess Towers are destroyed at the end of the second term,
`
`then the battle ends if the King’s Tower is destroyed.” Id. at 16-17.
`
`21
`
`Supercell
`Exhibit 1005
`Page 21
`
`
`
`
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`IX. ANTICIPATION AND OBVIOUSNESS STANDARDS
`I understand that “anticipation” is a question of fact and that for a
`52.
`
`reference to anticipate a claimed invention it must disclose each and every element
`
`set forth in the claim for that invention. I further understand that the requirement of
`
`strict identity between the claim and the reference is not met if a single element or
`
`limitation required by the claim is missing from the applied reference.
`
`53.
`
`It is my further understanding that a prior art reference is anticipatory
`
`only if it discloses each and every limitation of the claim (as properly construed) at
`
`issue. In other words, every limitation of a claim must identically appear in a single
`
`prior art reference for it to anticipate a claim.
`
`54.
`
`It is further my understanding that a claimed invention is unpatentable
`
`if the differences between the invention and the prior art are such that the subject
`
`matter of the claim as a whole would have been obvious at the time the invention
`
`was made to a person having ordinary skill in the art to which the subject matter
`
`pertains (i.e., a POSITA).
`
`55.
`
`It is my understanding that obviousness is a question of law based on
`
`underlying factual issues including (1) the scope and content of the prior art, (2) the
`
`differences between the prior art and the asserted claims, (3) the level of ordinary
`
`skill in the pertinent art, and (4) the existence of secondary considerations such as
`
`commercial success, long-felt but unresolved needs, failure of others, etc.
`
`22
`
`Supercell
`Exhibit 1005
`Page 22
`
`
`
`
`
`56.
`
`I understand that for a single reference or a combination of references
`
`to render obvious the claimed invention, a POSITA must have been able to arrive at
`
`the claims by altering or combining the applied references.
`
`57.
`
`I understand that an obviousness evaluation can be based on a
`
`combination of multiple prior art references. I understand that the prior art references
`
`themselves may provide a suggestion, motivation, or reason to combine, but other
`
`times the nexus linking two or more prior art references is simple common sense. I
`
`further understand that obviousness analysis recognizes that market demand, rather
`
`than scientific literature, often drives innovation, and that a motivation to combine
`
`references may be supplied by the direction of the marketplace.
`
`58.
`
`I understand that if a technique has been used to improve one device or
`
`product, and a POSITA would recognize that it would improve similar devices or
`
`products in the same way, using the technique is obvious unless its actual application
`
`is beyond his or her skill.
`
`59.
`
`I also understand that practical and common sense considerations should
`
`guide a proper obviousness analysis, because familiar items may have obvious uses
`
`beyond their primary purposes. I further understand that a POSITA looking to
`
`overcome a problem will often be able to fit together the teaching of multiple
`
`publications. I understand that obviousness analysis therefore takes into account the
`
`inferences and creative steps that a POSITA would employ under the circumstances.
`
`23
`
`Supercell
`Exhibit 1005
`Page 23
`
`
`
`
`
`60.
`
`I understand that a particular combination may be proven obvious
`
`merely by showing that it was obvious to try the combination. For example, when
`
`there is a design need or market pressure to solve a problem and there are a finite
`
`number of identified, predictable solutions, a POSITA has good reason to pursue the
`
`known options within his or her technical grasp because the result is likely the
`
`product not of innovation but of ordinary skill and common sense.
`
`61.
`
`I also understand that the combination of familiar elements according
`
`to known methods is likely to be obvious when it does no more than yield predictable
`
`results. When a work is available in one field of endeavor, design incentives and
`
`other market forces can prompt variation of it, either in the same field or a different
`
`one. If a POSITA can implement a predictable variation, the patent claims are likely
`
`obvious.
`
`62.
`
`It is further my understanding that a proper obviousness analysis
`
`focuses on what was known or obvious to a POSITA, not just the patentee.
`
`Accordingly, I understand that any need or problem known in the field of endeavor
`
`at the time of invention and addressed by the patent can provide a reason for
`
`combining the elements in the manner claimed.
`
`63.
`
`I understand that a claim can be obvious in light of a single reference,
`
`without the need to combine references, if the elements of the claim that are not
`
`found explicitly or inherently in the reference can be supplied by the common sense
`
`24
`
`Supercell
`Exhibit 1005
`Page 24
`
`
`
`
`
`of one of skill in the art. In addition, a reference may be relied upon for all that it
`
`would have reasonably suggested to one having ordinary skill in the art, including
`
`nonpreferred embodiments. Disclosed examples and preferred embodiments do not
`
`teach away from a broader disclosure or nonpreferred embodiments.
`
`64.
`
`I understand that secondary indicia of non-obviousness may include (1) a
`
`long felt but unmet need in the prior art that was satisfied by the invention of the
`
`patent; (2) commercial success of processes covered by the patent; (3) unexpected
`
`results achieved by the invention; (4) praise of the invention by others skilled in the
`
`art; (5) taking of licenses under the patent by others; (6) deliberate copying of the
`
`inve
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