Filed on behalf of Game Show Network, LLC and WorldWinner.com, Inc.
`By: Brenton R. Babcock
`
`Ted M. Cannon
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`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2040 Main Street, 14th Floor
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`Irvine, CA 92614
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`Tel.: (949) 760-0404
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`Fax: (949) 760-9502
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`Email: BoxGSN@Knobbe.com
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________
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`Game Show Network, LLC and WorldWinner.com, Inc.,
`Petitioners,
`v.
`Patent Owner of
`U.S. Patent 6,174,237 to Stephenson
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`Case IPR2013-00289
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`PETITIONERS’ OPPOSITION TO PATENT OWNER’S
`MOTION TO EXCLUDE EVIDENCE
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`By: Brenton R. Babcock
`
`Ted M. Cannon
`
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2040 Main Street, 14th Floor
`
`
`Irvine, CA 92614
`
`Tel.: (949) 760-0404
`
`Fax: (949) 760-9502
`
`Email: BoxGSN@Knobbe.com
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________
`
`Game Show Network, LLC and WorldWinner.com, Inc.,
`Petitioners,
`v.
`Patent Owner of
`U.S. Patent 6,174,237 to Stephenson
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`Case IPR2013-00289
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`PETITIONERS’ OPPOSITION TO PATENT OWNER’S
`MOTION TO EXCLUDE EVIDENCE
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`IPR2013-00289
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`I. EXHIBITS 1011-1014 AND 1021 ARE RELEVANT TO WHETHER THE
`PLAYING A GAME LIMITATIONS REQUIRE THAT THE HOST
`COMPUTER COMPETES HEAD-TO-HEAD WITH A HUMAN PLAYER
`The most fundamental claim construction dispute in this IPR is whether the
`“playing a game” limitations require that the host computer competes head-to-
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`head with a human player. Exhibits 1011-1014 and 1021 are directly relevant to
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`this dispute because they establish that, in 2009, when Stephenson sued MVP
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`Networks for patent infringement of the ’237 patent at issue in this IPR,
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`Stephenson acknowledged—or at least implicitly represented to the United States
`District Court for the Northern District of Oklahoma—that the “playing a game”
`limitations do not require such head-to-head competition. Indeed, had Stephenson
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`and his counsel believed that the “playing a game” limitations required the
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`computer to compete head-to-head with a human player, they could not have
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`complied with their ethical obligations in bringing the lawsuit, because the product
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`that Stephenson accused of infringement (the Golden Fairway computer game) did
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`not include a host computer that competed head-to-head with a human player.
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`Accordingly, Stephenson’s allegations in the MVP Network litigation
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`directly contradict his current position in this IPR that the “playing a game”
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`limitations require the host computer to compete head-to-head with a human
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`player. Indeed, Stephenson’s prior representations to a federal court demonstrate
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`that Petitioners’ position that the claims do not require head-to-head competition is
`the broadest reasonable construction. Indeed, if the claims required the host
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`computer to compete head-to-head with a human player, Stephenson could not
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`have ethically accused the Golden Fairway computer game—which lacks such
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`head-to-head competition—of infringement.
`-1-
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`IPR2013-00289
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`A. Exhibits 1011 and 1021 are relevant to show that Golden Fairway did
`not have a computer that competed head-to-head with a human player
`Exhibit 1011 is a printout of a review of the Golden Fairway computer game
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`that was published on the website http://molej.com on November 13, 2009. In
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`Exhibit 1021 (the Declaration of David Johnson), Mr. Johnson states that:
`Exhibit 11 is a true and correct printout of my November 13, 2009
`review of Golden Fairway. I wrote the review of Exhibit 1011 shortly
`after personally playing, and observing the operation of Golden
`Fairway. The review of Exhibit 1011 fairly and accurately records my
`observation of Golden Fairway, based upon my personal usage of the
`game.
`Ex. 1021 ¶ 4. Significantly, Exhibit 1011, a reasonably detailed review of Golden
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`Fairway, does not mention any mode in which Golden Fairway included a host
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`computer competing head-to-head with a human player. See Ex. 1011. Further,
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`Mr. Johnson declares in his declaration that he “played the game in each of the
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`different modes,” playing an estimated “100 rounds of golf with the Golden
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`Fairway game,” but that, from his experience, “Golden Fairway did not offer an
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`option to compete head-to-head against a computer-operated opponent that acted
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`as a player in the game.” Ex. 1021 ¶¶ 3, 5.
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`Stephenson argues that Exhibit 1021 should be excluded because Mr.
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`Johnson allegedly “did not indicate which version of the game he played, or that he
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`had personal knowledge of every mode or version of the game(s) at issue in the
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`lawsuit” and because “Johnson’s statements are irrelevant and unreliable because
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`on their face they do not purport to describe all functionality or versions of the
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`product at issue in the MVP lawsuit.” Paper 41 at 3. In essence, Stephenson
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`suggests that Mr. Johnson did not play Golden Fairway enough to know whether it
`-2-
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`IPR2013-00289
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`had a mode in which the computer competed head-to-head with a human player.
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`Stephenson’s arguments fail for at least two reasons. First, Stephenson
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`necessarily investigated Golden Fairway before accusing it of infringement and,
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`thus, he knows the true content and capabilities of Golden Fairway. Therefore, if
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`Exhibits 1011 and 1021 misrepresent Golden Fairway in any way, Stephenson
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`could have brought forth contrary evidence. He did not do so. Stephenson’s
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`failure to introduce any contrary evidence reveals that Exhibits 1011 and 1021 are
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`indeed accurate. Second, Stephenson could have cross-examined Mr. Johnson to
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`probe his experience with, and knowledge of, Golden Fairway. But Stephenson
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`declined to cross-examine Mr. Johnson. Thus, Stephenson has not shown that
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`Exhibits 1011 and 1021 are unreliable.
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`B.
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`For these reasons, Exhibits 1011 and 1021 should be admitted into evidence.
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`Exhibits 1012-1014 contain relevant admissions of Stephenson that the
`’237 Patent does not require the host computer to compete head-to-head
`with a human player
`Each of Stephenson’s allegations in the MVP Network litigation is “an
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`opposing party’s statement” under Federal Rule of Evidence 801(d)(2). Such
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`statements, commonly called “admissions,” are not hearsay. Therefore, party
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`admissions that are relevant to the issues in the case are admissible evidence
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`against the party that made the admission.
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`Stephenson’s allegations that Golden Fairway infringed the ’237 Patent are
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`relevant, and, therefore, admissible, because they are admissions that the ’237
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`Patent does not require the host computer to compete head-to-head with a human
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`player. In order to meet their Rule 11 obligations before filing the lawsuit accusing
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`-3-
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`IPR2013-00289
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`Golden Fairway of infringement, Stephenson and his counsel necessarily inspected
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`Golden Fairway and concluded that it was covered by at least one claim of the ’237
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`Patent. All of the claims of the ‘237 patent include the “playing a game”
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`limitations. Moreover, because the relevant features of Golden Fairway would
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`have been readily apparent through an inspection of the publicly available game,
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`without requiring discovery, it is simply implausible that Stephenson did not know
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`that Golden Fairway lacked such head-to-head competition.
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`Therefore, when Stephenson alleged in his Complaint (Ex. 1012 ¶¶ 11-14),
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`then later in his Motion for Default Judgment (Ex. 1013 at 2-3), that Golden
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`Fairway infringed the ’237 Patent, he admitted that the ’237 Patent does not
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`require the host computer to compete head-to-head with a human player. In his
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`motion to exclude, Stephenson attempts to disclaim his own admissions by
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`suggesting that the district court automatically entered default judgment and a
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`permanent injunction against MVP Network without considering Stephenson’s
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`evidence of infringement. Paper 41 at 2. Stephenson’s suggestion is both legally
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`irrelevant to the question of admissibility and factually incorrect. The suggestion
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`is
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`legally
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`irrelevant because Stephenson’s allegations are relevant party
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`admissions, which are admissible evidence without regard to whether the district
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`court relied upon them. The suggestion is also factually incorrect because, even in
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`cases of default judgment, the plaintiff must prove that it is entitled to a requested
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`remedy, such as a permanent injunction. Indeed, in the MVP Network litigation,
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`Stephenson actively argued that his infringement evidence was strong enough to
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`justify a permanent injunction. Ex. 1013 at 2-3. The district court agreed and
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`-4-
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`IPR2013-00289
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`entered a default judgment that included a permanent injunction preventing MVP
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`Network from selling Golden Fairway. Ex. 1014.
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`Stephenson’s allegations that Golden Fairway infringed the ’237 Patent are
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`thus admissions that the ’237 Patent does not require the host computer to compete
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`head-to-head with a human player. Consequently, Exhibits 1012-1014 should be
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`admitted into evidence.
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`II. STEPHENSON’S COLLATERAL ESTOPPEL ARGUMENT IS AN
`IRRELEVANT DISTRACTION
`Stephenson argues that his admissions that the ’237 Patent does not require
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`the host computer to compete head-to-head with human players are not admissible
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`evidence because collateral estoppel does not apply to default judgments. Paper 41
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`at 1-2. This argument is an irrelevant distraction from the question of whether
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`Stephenson’s admissions
`in
`the MVP Network
`litigation are admissible.
`Petitioners do not argue that Stephenson is legally estopped from arguing that the
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`’237 Patent requires the host computer to compete head-to-head with human
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`players. Instead, Petitioners assert that Stephenson’s admissions plainly contradict,
`and, thus, factually undermine, Stephenson’s proposed claim construction.
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`Indeed, Stephenson’s prior admissions show that the broadest reasonable
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`construction of the claims does not require head-to-head competition.
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`III. EXHIBITS 1011-1014 AND 1021 DO NOT UNFAIRLY PREJUDICE
`STEPHENSON
`Stephenson also argues that Exhibits 1011-1014 and 1021 should be
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`excluded under Federal Rule of Evidence 403. But FRE 403 is inapplicable
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`because the exhibits have significant probative value and there is no danger that the
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`-5-
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`IPR2013-00289
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`exhibits will unfairly prejudice the Board against Stephenson.
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`IV. CONCLUSION
`For the foregoing reasons, Exhibits 1011-1014 and 1021 are relevant to
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`claim construction, and, thus, those exhibits should be admitted into evidence.
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`
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`KNOBBE, MARTENS, OLSON & BEAR, LLP
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`Respectfully submitted,
`
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`Dated: June 9, 2014
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`
`
`By: /Brenton R. Babcock/
`Brenton R. Babcock, Reg. No. 39,592
`Ted M. Cannon, Reg No. 55,036
`Email: BoxGSN@Knobbe.com
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`Attorneys for Petitioners
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`-6-
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`IPR2013-00289
`GSN v. Stephenson
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of PETITIONERS’
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`OPPOSITION TO PATENT OWNER’S MOTION TO EXCLUDE
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`EVIDENCE is being served on June 9, 2014, via email pursuant to 37 C.F.R. §
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`42.6(e) per agreement of the parties, to counsel for Stephenson at the email address
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`set forth below:
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`MERCHANT & GOULD P.C.
`P.O. Box 2903
`Minneapolis, MN 55402-0903
`stephensonIPR@merchantgould.com
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`Dated: June 9, 2014
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`18074064
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`VIA EMAIL
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` /Brenton R. Babcock/
`Brenton R. Babcock
`Reg. No. 55,036
`Attorney for Petitioners
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