Paper No. ____
`Filed: June 24, 2016
`
`Filed on behalf of: Bungie, Inc.
`By: Michael T. Rosato (mrosato@wsgr.com)
`
`Matthew A. Argenti (margenti@wsgr.com)
`
`Andrew S. Brown (asbrown@wsgr.com)
`
`WILSON SONSINI GOODRICH & ROSATI
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________________
`
`BUNGIE, INC.,
`Bungie,
`
`v.
`
`WORLDS INC.,
`Patent Owner.
`_____________________________
`
`IPR2015-01319
`Patent No. 8,082,501
`_____________________________
`
`
`
`PETITIONER BUNGIE’S REPLY TO PATENT OWNER RESPONSE
`
`
`Filed: June 24, 2016
`
`Filed on behalf of: Bungie, Inc.
`By: Michael T. Rosato (mrosato@wsgr.com)
`
`Matthew A. Argenti (margenti@wsgr.com)
`
`Andrew S. Brown (asbrown@wsgr.com)
`
`WILSON SONSINI GOODRICH & ROSATI
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________________
`
`BUNGIE, INC.,
`Bungie,
`
`v.
`
`WORLDS INC.,
`Patent Owner.
`_____________________________
`
`IPR2015-01319
`Patent No. 8,082,501
`_____________________________
`
`
`
`PETITIONER BUNGIE’S REPLY TO PATENT OWNER RESPONSE
`
`
`
`
`
`I.
`
`II.
`
`Table of Contents
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`Page
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`INTRODUCTION .............................................................................................. 1
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`PO’S EXPERT TESTIMONY SHOULD BE GIVEN NO WEIGHT ............................. 1
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`III. CLAIM CONSTRUCTION .................................................................................. 3
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`A. Applicable Standard ............................................................................ 3
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`B.
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`C.
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`“determining” ..................................................................................... 4
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`“avatar” ............................................................................................... 7
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`IV.
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`INSTITUTED GROUNDS ................................................................................... 9
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`A.
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`B.
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`C.
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`Claims 1-6, 12, 14, and 15 are Obvious over Funkhouser and
`Sitrick ................................................................................................. 9
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`Claims 7 and 16 are Obvious over Funkhouser, Sitrick, and
`Wexelblat.......................................................................................... 10
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`Claims 8 and 10 are Obvious over Funkhouser, Sitrick, and
`Funkhouser ’93 ................................................................................. 14
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`D.
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`Claims 1-6, 12, 14, and 15 are Anticipated by Durward .................... 16
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`E.
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`F.
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`Claims 7 and 16 are Obvious over Durward and Wexelblat .............. 17
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`Claims 8 and 10 are Obvious over Durward and Schneider .............. 17
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`V.
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`BUNGIE IS THE SOLE REAL PARTY ................................................................ 20
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`VI. THIS PROCEEDING IS NOT UNCONSTITUTIONAL ............................................. 20
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`VII. CONCLUSION ............................................................................................... 20
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`VIII. APPENDIX – LIST OF EXHIBITS ............................................................ 21
`
`-i-
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`
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`I.
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`Introduction
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`Bungie requests final written decision finding claims 1-8, 10, 12, and 14-16
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`of U.S. Patent No. 8,082,501 (“the ’501 patent,” Ex. 1001) unpatentable as set
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`forth in the Petition (“Pet.,” Paper 3). Bungie’s rebuttal remarks to the Patent
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`Owner (“PO”) Response (“Resp.,” Paper 20) are provided herein.
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`PO’s arguments in response to the merits of the instituted anticipation and
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`obviousness grounds are largely based on untenable claim construction positions
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`that are legally and factually erroneous, unsubstantiated, and/or that seek to read in
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`examples from the specification. PO’s arguments addressing obviousness in view
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`of the prior art resorts to attacking references individually rather than addressing
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`the proposed combination, and further advance untenable and unsubstantiated
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`arguments. Because these and other arguments in the Response can be dismissed,
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`PO has failed to rebut Bungie’s showing of unpatentability and the ’501 patent
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`claims found unpatentable and canceled.
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`II.
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`PO’s Expert Testimony Should be Given No Weight
`
`PO relies on testimony of its expert Mark Pesce. Mr. Pesce’s declaration
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`testimony often is inconsistent, lacks objective support and/or was incapable of
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`being substantiated during on cross-examination.
`
`Mr. Pesce’s opinions regarding how the claims of the Worlds patents should
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`be construed are inconsistent and unreliable. First, Mr. Pesce expressed a mistaken
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`belief that they all differ in their written descriptions (they do not) and stated that
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`“I haven’t read through this [patent] very carefully.” Ex 1046 97:3-98:21 (“There
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`are some differences, I think, from specification to specification. . . . They’re all
`
`-1-
`
`
`
`
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`written slightly differently. . . . I’ve studied all of these, and I remember them
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`being not exactly similar when I was reading them.”). Despite his contention that
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`he “studied” the Worlds patents, when asked later about whether the term
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`“graphics pipeline” is used in the Worlds patents (it is not) he responded “I haven’t
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`read through this [patent] very carefully.” Id. at 113:10-19. Second, Mr. Pesce’s
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`positions deviate from established claim construction principles, as he at times
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`imported limitations from specification embodiments (or from nowhere). For
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`example, he testified on cross-examination that claim 1 of the ’690 patent requires
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`the N' “crowd control” filtering scheme described in the specification. Ex. 1046
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`135:10-136:6; see also id. at 246:2-7 (Q: Is it your understanding that . . . claim 1
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`of the ’501 patent requires the particular custom avatar images database discussed
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`in the specification? . . . A. Yes.”). Conversely, he was willing to veer to overly
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`narrow interpretations unsupported by the written description when necessary.
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`See, e.g., id. at 158:25-160:25 (interpreting “determining . . . based on the
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`monitored orientation of the first user avatar” to refer to whether other avatars are
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`upside down, because “the specification is silent” on meaning of limitation). He
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`was also willing to ignore (i.e., render meaningless) express claim language when
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`it contradicted his positions. Id. at 100:2-101:1, 104:21-105:4 (agreeing that his
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`construction of “avatar” renders the claim term “three-dimensional” in claim 1 of
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`’501 patent redundant).
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`Mr. Pesce’s opinions about the relevant field in the early to mid-1990s are
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`unsubstantiated and inconsistent. For example, at one point he testified that three-
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`dimensional avatars were just “starting to become known in the art by 1995” (as
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`-2-
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`
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`
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`opposed to well-known), yet at another point he testified that the plain and
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`ordinary meaning of the term “avatar” by late 1995 had so drastically changed to
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`require 3-D even when 3-D was unstated. Id. at 85:15-21, 89:18-90:1, 220:1-4;
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`see also id. at 259:13-262:1 (waffling regarding acceptable system lag after
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`realizing his initial response undermined his declaration testimony).
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`It is not clear how Mr. Pesce qualifies as an expert in this field. Compare
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`Ex. 1046 40:10-20 (“Q. So again, it’s not true that as of 1995 you have possessed
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`more than five years of experience in the computer graphics industry with an
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`emphasis on virtual reality, is it? A. Correct.”) with Ex. 2017 ¶ 35 (“[A]s of 1995
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`I possessed more than 5 years of experience in the computer graphics industry with
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`an emphasis on virtual reality.”); see also Ex. 1046 18:12-19:2, 21:8-15. Mr.
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`Pesce was unwilling to address his documented heavy use of psychedelic drugs
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`during the 1990s (Ex. 1041) and whether that drug use affected his recollection of
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`events during the period relevant to the Worlds patents. See also, Ex. 1046 at
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`46:11-47:21, 50:25-53.
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`III. Claim Construction
`
`A. Applicable Standard
`
`PO did not file a motion requesting application of the Phillips claim
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`construction standard (see amended 37 C.F.R. § 42.100(b)). Black & Decker Inc.
`
`v. Positec USA, Inc., --- Fed.Appx. ----, 2016 WL 2898102 *4 (Fed. Cir. May 18,
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`2016) (“Claims of an expired patent are given their ordinary and customary
`
`meaning in accordance with our decision in Phillips.”); see also Paper 25. In any
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`case, PO does not argue that application of either claim construction standard
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`-3-
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`
`
`
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`compels a different result (Resp. 12-19) and Bungie’s proposed constructions are
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`correct under either standard.
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`B.
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`“determining”
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`Bungie’s proposed construction for this term should be uncontested, both
`
`because it is consistent with the plain language of the claims, particularly in view
`
`of claim 2, and because PO does not contest disclosure of this element in the prior
`
`art. But rather than acquiesce to Bungie’s straightforward and proper
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`interpretation, PO contends the term needs no construction. Resp. 17. PO does so
`
`to mask the fact that it offers a construction for “determining” in the other Worlds
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`patents that is expressly at odds with the plain language of the “determining”
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`aspect of the ’501 patent claims.
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`In the IPRs for the related ’690, ’856, and ’558 patents (all of which share a
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`common specification with the ’501 patent), PO offers a claim construction for
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`“determining” that boils down to an unsubstantiated argument that a field of view
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`determination falls outside the scope of the “determining” step of the claims of
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`those patents.1 PO’s argument fails, however, in view of claim 2 of the ’501
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`patent, which recites that “the step of determining comprises filtering the other user
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`
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`1 Despite PO’s contention that Bungie merely addresses “determining” in
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`isolation, “separate from the remaining language of the claimed step” (Resp. 12-
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`13), Bungie did discuss the entire “determining” step in the petition and provide a
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`construction for same. Pet. 10-11.
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`-4-
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`
`
`
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`avatars based on the monitored orientation of the first user avatar.” Claim 2 of the
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`’501 patent thus claims a field of view determination as expressly falling within the
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`scope of the “determining” step of the independent claim (thereby, undermining
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`PO’s argument regarding both the ’501 patent as well as the ’690, ’558, and ’856
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`patents). PO attempts to sidestep this issue by stating that no construction is
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`necessary for the determining limitation in the ’501 patent.2 PO cannot justify so
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`ignoring the ’501 patent, or otherwise justify treating it differently, when
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`construing the same terminology in view of identical specifications See, e.g., NTP,
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`Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1293 (Fed. Cir. 2005) (where
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`multiple patents “derive from the same parent application and share many common
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`terms, we must interpret the claims consistently across all asserted patents.”).
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`PO’s arguments regarding testimony of Bungie’s expert Dr. Zyda, as it
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`applies to claim construction, are inaccurate and of no moment. Resp. 14-15. PO
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`incorrectly argues that “Dr. Zyda…never testified that he read the entire
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`specification of any challenged patent.” Resp. 15. Dr. Zyda testifies in his direct
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`testimony that “I have reviewed the ’501 patent and its file history” (Ex. 1002
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`¶ 13) and, as set forth herein, PO advances no credible argument that Dr. Zyda’s
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`testimony is incorrect. Dr. Zyda’s plain reading of the claim is logical and credible
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`(and essentially agreed upon by Mr. Pesce), and the specification of the ’501 patent
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`
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`2 The fifth patent challenged by Bungie, the ’998 patent, does not recite a
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`“determining” limitation. Ex. 2044.
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`-5-
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`
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`compels no alternate interpretation.
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`Mr. Pesce admitted during cross-examination that “determining” had no
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`special meaning in the relevant field in 1995 (Ex. 1046 240:17-241:3) and
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`characterized “determining” as a “vague term” and a “catchall.” Id. 242:9-14,
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`242:17-19. Mr. Pesce also admitted that a computer process to cull objects that fall
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`outside of a field-of-view would fall within the plain and ordinary meaning of
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`“determining,” because such a process could be more specifically referred to as a
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`“calculation,” a narrower term that is a type of determining. Id. at 242:2-6,
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`243:15-244:15.
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`To support its position that this broad plain and ordinary meaning does not
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`apply, PO argues that Bungie’s construction is inconsistent with the “monitoring”
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`limitation in claim 2 of the ’501 patent, because interpreting “determining” to
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`encompass field of view filtering would result in the claimed monitoring being
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`“subsumed” into the determining step. Resp. 15-17. But monitoring the
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`orientation of the user’s avatar is facially not the same thing as determining which
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`remote users fall within a field of view, even if that field of view is based on
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`orientation. For example, field of view content may be determined at a point and it
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`may be monitored for a period of time. PO’s expert described field of view
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`determination as a “calculation,” which is different than monitoring orientation.
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`See, e.g., Ex. 1046 241:18-24. This is consistent with claims 1 and 2 of the ’501
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`patent, which recite “determining” and “monitoring” as separate steps, where
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`“determining comprises filtering the other user avatars based on the monitored
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`orientation.” Ex. 1001.
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`-6-
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`C.
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`“avatar”
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`The claims of the ’501 patent recite a “three-dimensional avatar,” but PO
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`tries to define the term “avatar” alone as requiring 3-D.3 Not only is PO’s
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`argument unsupported by the specification, it would render the surrounding claim
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`language meaningless.
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`The Worlds patents do not define “avatar” to be three-dimensional. The
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`statement PO cites that “[e]ach avatar 18 is a three dimensional figure” (Resp. 18,
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`citing Ex. 1001 3:25-27) is referring to a specific example, not a fundamental
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`aspect of the invention. That portion of the specification relates to two particular
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`figures (elements 18) in Figure 1, which the patent explains is “an example of what
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`a client might display” in “the example of a client-server architecture for use in a
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`virtual world ‘chat’ system.” Ex. 1001 3:6-13, 3:22-25. In providing this
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`“example,” the specification does not define the invention to require three-
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`dimensional user representations. Id. at 15:61-67 (“The above description is
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`illustrative and not restrictive.”).
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`The specification does not even describe its “3-D” avatars as true three-
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`dimensional renderings. The specification actually describes its avatars as “two-
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`dimensional panels,” where the particular two-dimensional panel a user sees in the
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`virtual space depends on the viewing angle. Id. at 7:39-44 (describing an avatar
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`
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`3 PO’s argument is misplaced here and may be directed toward other Worlds
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`patents, where those other claims recite the term “avatar” but not the term “three-
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`dimensional avatar.”
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`-7-
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`
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`images database that “comprises N two-dimensional panels, where the i-th panel is
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`the view of the avatar from an angle of 360*i/N degrees”); see also Ex. 1046
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`204:12-205:20 (describing similar “quasi-3-D” approach in early 1990s computer
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`game).
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`In attempting to import “3-D” into the term “avatar,” PO relies on naked
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`testimony of Mr. Pesce. Resp. 17-18. Mr. Pesce’s views are unsubstantiated and
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`simply not credible. He testified that in 1992, “avatar” was used “to refer to things
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`that were 2-D representations,” but that just three years later that same term
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`“necessarily implied 3-D.” Ex. 1046 85:15-21, 89:23-90:1. That is, in Mr. Pesce’s
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`opinion the meaning of “avatar” changed from 1992 (when addressing the
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`Durward reference) to 1995 (when addressing the ’501 patent), such that its plain
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`and ordinary meaning required 3-D. Id. at 92:18-93:13. Yet this purported change
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`in meaning occurred despite his conflicting testimony that three-dimensional user
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`representations were only “starting to become known in the art by 1995” and
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`three-dimensional avatars did not appear in systems using his own VRML
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`language until late 1995 or 1996. Id. at 222:1-13. Mr. Pesce also was unwilling to
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`accept the 1997 Microsoft Computer Dictionary definition of “avatar,” which does
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`not define the term to require 3-D. Id. at 91:20-92:1; Ex. 1010. Mr. Pesce’s
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`opinion that by 1995 the plain and ordinary meaning of “avatar” required 3-D is at
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`odds with the record and logic.
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`Finally, PO’s construction of “avatar” would render claim language
`
`meaningless. Claim 1 of the ’501 patent expressly requires a “three dimensional
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`avatar.” Mr. Pesce stated that under PO’s proposed construction, “three
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`-8-
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`
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`dimensional” could be dropped from claim 1 with no impact to the meaning and
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`scope of the claim, i.e., it “would still refer to something that was three-
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`dimensional.” Ex. 1046 at 104:21-105:4. Such a construction should not be
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`adopted, particularly where it is unsupported by the intrinsic and extrinsic evidence
`
`of record. See Cat Tech LLC v. TubeMaster, Inc., 528 F.2d 871, 885 (Fed. Cir.
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`2008) (“Claims are interpreted with an eye toward giving effect to all terms in the
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`claim”).
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`PO’s additional point of distinction, that an avatar must correspond to a
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`user/person and not an AI character or object, is unsubstantiated and irrelevant
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`given the plain disclosure in the prior art, including Funkhouser and Durward, for
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`user controlled avatars.
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`IV.
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`Instituted Grounds
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`A. Claims 1-6, 12, 14, and 15 are Obvious over Funkhouser and
`Sitrick
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`PO’s sole argument with respect to Ground 1 is that the cited prior art does
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`not disclose customizing an avatar. Resp. 20-22. PO, however, merely attacks
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`Sitrick individually for its purported failure to disclose customization of a three-
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`dimensional avatar, rather than addressing the prior art combination. Id. PO is left
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`with no argument should the Board reject PO’s construction of “avatar” and adopt
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`the one proposed by Bungie.
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`In focusing solely on whether Sitrick on its own discloses a customizable
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`avatar PO fails to address the teaching of the combination as a whole. “Non-
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`obviousness cannot be established by attacking references individually where the
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`-9-
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`
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`rejection is based upon the teachings of a combination of references.” In re Merck
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`& Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Even under PO’s proposed
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`construction Sitrick discloses a customizable user “representation” and Funkhouser
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`provides 3-D user representations, i.e., avatars. Ex. 1013 at, e.g., Abstract, 11:41-
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`45; Ex. 1005 at 01, Plates I & II. Moreover, as explained in the petition,
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`Funkhouser also teaches basic customization of avatars. Pet. 17; Ex. 1005 03, 04,
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`Ex. 1002 ¶ 82. Dr. Zyda explains that a person of ordinary skill in the art would
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`understand Sitrick to teach numerous avatar customization methods, and that the
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`combined teachings of the two references disclose the customization recited in the
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`claims. Ex. 1002 ¶¶ 83-85. PO simply attacks the teaching of Sitrick on its own
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`and does not address the combination as discussed in the petition.
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`Similarly, aside from simply asserting that Sitrick discloses customizable
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`two-dimensional representations instead of customizable three-dimensional
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`avatars, PO makes no showing that the identified “differences” between these
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`references would have rendered the claims non-obvious in view of these
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`references. Resp. 21. PO has failed to rebut the obviousness challenge presented
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`in the petition and instituted by the Board.
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`B. Claims 7 and 16 are Obvious over Funkhouser, Sitrick, and
`Wexelblat
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`PO’s argument with respect claims 7 and 16 is that Wexelblat’s teleportation
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`feature is incompatible with Funkhouser’s server-side message filtering. Resp. 31-
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`36. PO’s argument is unavailing. As Bungie demonstrated in the petition, the
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`combination of references would add a desirable feature to a virtual environment
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`-10-
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`system such as the one described in Funkhouser, and PO’s argument that the
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`teachings are incompatible is flawed in numerous ways.
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`PO presents two alternative theories in support of its argument that the
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`teachings of the references are incompatible. First, PO contends that allowing
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`teleporting would expand the “potentially visible” area to the entire virtual
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`environment, thereby requiring the server to send positional updates for the entire
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`environment and negating the message culling described in Funkhouser. Resp. 33-
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`34. Second, PO argues that adding a teleportation feature to the Funkhouser
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`system would create a lag while the information for the new location is sent from
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`the server to the client. Resp. 34-36.
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`While PO does not expressly acknowledge it, these are mutually exclusive
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`arguments. If the server sends updates for the entire virtual space there would be
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`no possibility of additional lag as it downloads updates for a specific location after
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`a teleportation. Conversely, if the server sends updates for only a limited portion
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`of the environment potentially visible to a user avatar based on its location (as
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`Funkhouser discloses) there would be no need to send updates for the entire space
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`as the potentially visible region could be recalculated after a perspective switch.
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`Because PO’s first argument depends on eliminating server-side message culling,
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`contrary to both Funkhouser’s teaching and the ground of challenge instituted by
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`the Board, it can be easily dismissed.
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`As to PO’s second theory, PO’s argument that the addition of a teleportation
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`feature would result in unacceptable lag is unsupported by the record and ignores
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`addressing the capabilities one of ordinary skill in the art. PO mischaracterizes Dr.
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`-11-
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`Zyda’s testimony on this point, exaggerating both the amount of hypothetical lag
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`he discussed and the effect of this lag on user experience. While Dr. Zyda did say
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`that a teleport feature could result in a system stalling from one to four frames
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`while the information for the new area is loaded, he also explained that “[i]t may
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`not be noticeable.” Ex. 2016 164:8-165:17. When asked about the particular NPS
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`system he worked on in the early 1990s, which predated the Worlds patents, he
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`explained that system was capable of frame rates displaying between three and
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`twenty frames per second. Id. 166:4-12. Accordingly, even at the highest delay he
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`identified (four frames) and the lowest possible framerate his NPS system
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`displayed (three frames per second on a “bad day” when they “added a bunch of
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`new features that were horrible,” versus a more typical twenty frames per second),
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`the longest possible delay would have been 1.33 seconds. Id. But Mr. Pesce
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`testified that such a delay after teleportation would not have been irritating to a
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`user and would be well below the threshold of acceptability for lag in a system in
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`the mid-1990s:
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`Q: Would five seconds [lag] be irritating?
`
`A. Yes.
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`Q. Would one second be irritating?
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`A. No.
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`Q. How about two?
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`A. Probably not.
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`Ex. 1046 260:18-261:19.
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`Mr. Pesce also admitted that his opinion that adding a perspective switching
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`or teleporting feature to the system utilizing server-side message filtering would be
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`-12-
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`detrimental to a user’s experience is improperly based on the slowest type of
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`network mentioned in the Worlds patents, rather than the faster networks disclosed
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`in Funkhouser. Specifically, he considered only network transmissions over a 14.4
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`kbps modem (or possibly a 9600 bps modem), because “all of the Worlds patents
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`talk about using dial-up systems, not using Ethernet.” Id. 256:20-257:10, 264:17-
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`265:14; Ex. 2017 ¶ 101.
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`PO does not argue the claims of the Worlds patents, however, are limited to
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`a slow dial-up modem. Certainly, Funkhouser, which teaches significantly faster
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`network transmissions, is not so limited. Ex. 1046 266:6-15 (“[Funkhouser’s] test
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`environment seems to have been on a faster network for his results. . . .
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`[Transmitting] around 2 megabits.”); Ex. 1005 05. Mr. Pesce admitted that he did
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`not analyze whether the addition of a perspective switching feature would have
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`been feasible in a system with these higher transmission speeds:
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`Q. And have you thought about whether the lag you identify would
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`be unacceptable to a user on a 2-megabit transmission network?
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`MR. HELGE: Object to Form.
`
`A. No.
`
`Q. You haven’t thought about that?
`
`A. I haven’t thought about that.
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`Ex. 1046 266:16-23. PO’s argument that the proposed combination would result in
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`unacceptable system lag is based on Mr. Pesce’s misconception the system must
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`utilize a dial-up network, rather than the faster networks actually in use at the time
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`and disclosed in the prior art.
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`Finally, PO’s argument that the lag produced by adding a perspective
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`-13-
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`
`
`switching feature to a system utilizing server-side message filtering would have
`
`been unacceptable to a user is undermined by the fact that the Worlds patents
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`themselves provide no solution to this alleged problem. The “built-in latency”
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`issue PO identifies with respect to Funkhouser (Resp. 35) would also have been an
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`issue in the system described in the Worlds patents, which similarly perform
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`computations “in the servers before messages are propagated.” Id. If something
`
`more is required to implement a perspective switching feature in a system utilizing
`
`server-filtering—which PO does not dispute Funkhouser discloses—it is not
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`described or enabled by the Worlds patents. See, e.g., Ex. 1001 12:42-59
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`(discussing teleport feature without addressing any delay caused by need to receive
`
`information for new location).
`
`C. Claims 8 and 10 are Obvious over Funkhouser, Sitrick, and
`Funkhouser ’93
`
`PO contends that Funkhouser ’93 does not disclose determining a maximum
`
`number of avatars to display, because the books left out of the display in Figure
`
`11c are not avatars. Resp. 25-26. But whether Funkhouser ’93 discloses avatars is
`
`beside the point, because Bungie has shown that aspect is disclosed by
`
`Funkhouser. “Non-obviousness cannot be established by attacking references
`
`individually where the rejection is based upon the teachings of a combination of
`
`references.” In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The
`
`issue is whether the combination of Funkhouser and Funkhouser ’93 teaches or
`
`suggests the aspects of claims 4, 8, 13, and 16, not Funkhouser ’93 on its own.
`
`PO further argues that Funkhouser ’93 does not disclose omitting objects
`
`-14-
`
`
`
`
`
`from its display, because the books left out of the display in Figure 11c are mere
`
`“textures.” But Funkhouser ’93 distinguishes between textures and the omitted
`
`books:
`
`Notice . . . the omission of texture on the bookshelves in Figure 11b1.
`
`Similarly, notice . . . the omission of books on bookshelves and
`
`texture on doors in Figure 11 c1.
`
`Ex. 1017 253. Consistent with the discussion of Figure 11, Funkhouser ’93
`
`expressly states that its optimization algorithm can omit entire objects from the
`
`display:
`
`If levels of detail representing “no polygons at all” are allowed, this
`
`approach handles cases where the target time frame is not long
`
`enough to render all potentially visible objects even at the lowest level
`
`of detail. In such case, only the most “valuable” objects are rendered
`
`so that the time frame constrain is not violated.
`
`Id. at 249.
`
`PO’s argument that Funkhouser ’93 does not disclose determining a “limit”
`
`of objects to be displayed is similarly misplaced. Resp. 27-28. PO argues that
`
`Funkhouser ’93 discloses only increasing or decreasing the rendering accuracy of
`
`each object, and “does not, however, disclose omitting objects having lower value
`
`once the ‘maximum cumulative benefit’ is reached.” Id. This is directly at odds
`
`with Funkhouser ’93’s disclosure that objects can be assigned a “no polygons at
`
`all” detail level that will result in them being omitted from the display once the
`
`maximum number of objects displayable within the “maximum cost” is exceeded.
`
`Ex. 1017 249, 251.
`
`-15-
`
`
`
`
`
`D. Claims 1-6, 12, 14, and 15 are Anticipated by Durward
`
`As with Funkhouser, PO does not dispute that Durward teaches the server-
`
`side filtering recited in the ’501 patent claims (e.g., the “receiving” step of claim
`
`1). Resp. 22-23; see also Ex. 1046 218:9-12. PO’s argument that Durward does
`
`not anticipate the instituted claims is limited to a contention that Durward does not
`
`disclose a three-dimensional avatar. Resp. 22-23.
`
`Durward discloses three-dimensional avatars. Durward discloses a “three-
`
`dimensional virtual space” in which a user is represented by a “virtual being within
`
`the virtual space.” Ex. 1008 1:52-64. The user’s 3-D movements in the real world
`
`can be closely matched by the virtual being within the 3-D space, further indicating
`
`the 3-D nature of the beings in the 3-D world. Id. at 7:29-34 (“For example, data
`
`designating flexure and position of the user’s legs, arms, fingers, etc. may be
`
`assigned to the virtual being’s legs, arms, fingers, etc. so that the virtual being may
`
`emulate the gestures of the user for running, kicking, catching virtual balls,
`
`painting, writing, etc.”). PO attempts to trivialize the virtual beings disclosed in
`
`Durward being described consistent with a three-dimensional representation, but
`
`does not explain how the complex correlation between a user’s three dimensional-
`
`movement in the real world and a virtual being in a three-dimensional virtual world
`
`would be restricted to two-dimensions. Durward discloses no such restriction and
`
`PO’s argument is inconsistent with the reference’s disclosure of a three-
`
`dimensional virtual reality system. Simply put, PO is trying to read a 2-D
`
`limitation into Durward that the reference itself does not provide, and which is a
`
`limitation that does not exist.
`
`-16-
`
`
`
`
`
`Not only that, but PO relies on Mr. Pesce’s unsubstantiated and incredible
`
`testimony regarding the art—that the state of computer graphics advanced so
`
`dramatically in two years that a person of skill in 1995 would necessarily
`
`understand that an avatar must be three-dimensional. Resp. 22; Ex. 2017 ¶ 59. See
`
`Section III.C., above. As such, there is no reasonable basis to conclude that a
`
`person at the time would have understood Durward’s 3-D world virtual beings
`
`were limited to two-dimensional objects where Durward provides no such
`
`limitation, but disclosure to the contrary.
`
`E. Claims 7 and 16 are Obvious over Durward and Wexelblat
`
`PO’s argument that Wexelblat’s teleportation is incompatible with Durward
`
`relies on the same logic discussed above with respect to the combination of
`
`Funkhouser, Sitrick, and Wexelblat and PO makes no meaningful distinction
`
`between the two primary references (Funkhouser and Durward). Accordingly,
`
`PO’s argument fails for the reasons discussed above in Section IV.B. In particular,
`
`like Funkhouser, Durward discloses a faster network than Mr. Pesce considered in
`
`his analysis, rendering his opinions on this point irrelevant. Ex. 1046 266:266:24-
`
`268:13 (acknowledging Durward discloses the use of “high speed digital
`
`communication lines” capable of transmission speeds of “1.5 megabits per
`
`second”), 268:14-17 (acknowledging he had not analyzed whether the lag he
`
`identified would be unacceptable at Durward’s transmission speeds); Ex. 1008
`
`2:60-64.
`
`F.
`
`Claims 8 and 10 are Obvious over Durward and Schneider
`
`Bungie’s contention that the combination of Durward and Schneider fails to
`
`-17-
`
`
`
`
`
`teach or suggest the limitations of claims 8 and 10 relies heavily on the proposition
`
`that Schneider dismisses the object culling technique it discusses in its
`
`Background. Resp. 29. Schneider does no such thing, and even Mr. Pesce
`
`admitted on cross that Schneider “doesn’t say that anywhere” when asked if object
`
`culling is expressly excluded from the reference’s quality control mechanism. Ex.
`
`1046 237:10-16. Schneider’s discussion of a “piecemeal approach using a number
`
`of selectable options to impact the speed/quality tradeoff is merely an introduction
`
`for its own more unified approach, whereby the various known approaches—
`
`including object culling—can be combined to allow a user to “select a desired
`
`point in the overall speed/quality rendering trade-off . . . without being concerned
`
`with individual rendering parameters.” Ex. 1019 5:27-52. That Schneider
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`discloses allowing the system to determine the values of those individual rendering
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`variables instead of a user does not mean it teaches away from them.
`
`PO also argues Schneider’s object culling is not based on a limit. Resp. 29-
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`30. But this argument is based on adding a requirement that the user choose to
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`limit the display of avatars
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