throbber
trials@uspto.gov
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`
`
`
`
`
`IPR2015- 01264, Paper No. 41
`IPR2015- 01268, Paper No. 43
`IPR2015- 01269, Paper No. 41
`IPR2015- 01319, Paper No. 41
`IPR2015- 01321, Paper No. 41
`IPR2015- 01325, Paper No. 41
`September 12, 2016
`
`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`BUNGIE, INC.,
`Petitioner,
`
`vs.
`
`WORLDS INC.,
`Patent Owner.
`- - - - - -
`Case IPR2015-01264 (Patent 7,945,856)
`Case IPR2015-01268 (Patent 7,181,690)
`Case IPR2015-01269 (Patent 7,493,558)
`Case IPR2015-01319 (Patent 8,082,501)
`Case IPR2015-01321 (Patent 8,145,998)
`Case IPR2015-01325 (Patent 8,145,998)
`
`
`
`BEFORE: KARL D. EASTHOM, KERRY BEGLEY, and
`JASON J. CHUNG, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Wednesday,
`August 17, 2016, at 10:00 a.m., Hearing Room A, taken at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`REPORTED BY: RAYMOND G. BRYNTESON, RMR,
`
`CRR, RDR
`
`

`
`APPEARANCES:
`
`
`
`ON BEHALF OF THE PETITIONER:
`
`
`
`
`
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`
`
`
`
`
`
`
`WAYNE HELGE, ESQ.
`ALAN A. WRIGHT, ESQ.
`Davidson Berquist Jackson & Gowdey, LLP
`8300 Greensboro Drive
`Suite 500
`McLean, Virginia 22102
`571-765-7700
`
`
`
`
`
`
`
`
`
`
`
`
`2
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`MICHAEL T. ROSATO, ESQ.
`ANDREW S. BROWN, ESQ.
`Wilson Sonsini Goodrich & Rosati, P.C.
`701 Fifth Avenue, Suite 5100
`Seattle, Washington 98104-7036
`206-883-2500
`
`MATTHEW A. ARGENTI, ESQ.
`Wilson Sonsini Goodrich & Rosati, P.C.
`650 Page Mill Road
`Palo Alto, California 94304-1050
`650-493-9300
`
`
`
`
`
`
`
`
`
`
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`P R O C E E D I N G S
`
`
`
`(10:00 a.m.)
`JUDGE CHUNG: Please be seated. This is the
`hearing for IPR2015- 01264, 01268, 01269, 01319, 01321 and
`01325.
`
`Who do we have for Petitioner?
`MR. ROSATO: Thank you, Your Honor. Michael
`Rosato for Petitioner. I have at counsel table with me
`Mr. Argenti as well as Mr. Brown, who are both co-counsel in
`this case.
`
`JUDGE CHUNG: Who do we have for Patent
`
`Owner?
`
`MR. HELGE: Good morning, Your Honor. Wayne
`Helge here for Patent Owner, Worlds Inc. At my table here I
`have Alan Wright, who is not attorney of record, he will not
`be presenting this morning, but he is here from my firm.
`JUDGE CHUNG: Each side will have two and a
`half hours to present their arguments. Petitioner can reserve
`rebuttal time.
`Would the Petitioner like to reserve any rebuttal
`
`time?
`
`MR. ROSATO: Yes, we would, Your Honor. I
`will reserve an hour as of now.
`JUDGE CHUNG: An hour rebuttal time?
`MR. ROSATO: Yes.
`
`
`
`3
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`JUDGE CHUNG: Okay. At the conclusion of
`Petitioner's presentation, not including their rebuttal time, we
`will take a break for lunch.
`At this time the Panel also respectfully requests
`each party to speak clearly into the microphone. One of the
`Panel members is sitting remotely. And when discussing the
`slides, please refer to the slide number and, last but not least,
`I would like to introduce the Panel members.
`With me today are Judges Karl Easthom and Kerry
`Begley, and myself, Jason Chung.
`And I would also like to add that if any of the
`parties would like to have -- would like to get up in the
`middle of the presentation to use the facilities, please do so
`quietly at around 11 o'clock to minimize disturbances.
`At this time Petitioner may proceed.
`MR. ARGENTI: May I approach?
`JUDGE CHUNG: You may.
`MR. ROSATO: As a housecleaning issue, Your
`Honor, would the Panel prefer any objections made during the
`hearing be held in reserve until the end or during the
`presentation? I have had panels request the former, but just a
`question.
`
`JUDGE CHUNG: If I understand your question
`correctly, you are asking whether or not to reserve objections
`until the end or --
`
`
`
`4
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`MR. ROSATO: Exactly, just so counsel is not -- I
`wouldn't want to interrupt counsel. I'm happy to wait until
`the end of their speaking to note any objections that may
`arise. If that's acceptable to the Panel, I will take that
`approach.
`
`JUDGE CHUNG: I would prefer not to have
`objections during the proceedings.
`MR. ROSATO: I would, too, Your Honor, but if
`any come up.
`JUDGE CHUNG: Okay.
`MR. ROSATO: Okay. Well, as an initial matter
`before we get started I just want to thank both the Panel and
`the Patent Owner for their time today and throughout this
`proceeding.
`I'm going to be referring to the demonstrative
`exhibits. And in order to try to address the issues, primarily
`address the issues that are in dispute between the parties, I
`may move among the slide deck and, Judge Begley, I will
`make a point of referencing the slides so it is easy for you to
`follow along.
`I'm going to start with reference to slide 2. And
`as everyone knows, there are five patents being challenged
`here, six IPRs. The identification of those patents, the IPR
`docket numbers and the corresponding instituted grounds of
`challenge are presented in the slides at slides 2 through 6.
`
`
`
`5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`And as I indicated, there is some measure of
`efficiency. There is a fair degree of overlap in the content,
`the claim content and the issues in dispute, such that I plan to
`address some particular items subject, of course, to questions
`from the Panel.
`The approach I'm going to take just for an
`overview is first to provide a brief overview of the subject
`matter of the patents and then briefly address the two primary
`references of Funkhouser and Durward, and then move to
`focus on the issues that appear to be primarily in dispute
`between the parties.
`These include addressing the meaning of the
`so-called determining steps of the challenged claims, also
`addressing the meaning of the claim term avatar, as well as
`the different claim term three-dimensional avatar.
`And we will have a discussion of how those
`different claim constructions may affect the prior art
`application, if at all. We will also address Patent Owner's
`attempt to swear behind the Funkhouser reference.
`And finally there is some miscellaneous issues that
`will be addressed with regard to the dependent claims.
`I will jump to slide 7, starting with a brief
`overview of the challenged claims. Each of the challenged
`patents shares an identical specification and each patent
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`6
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`issued from a continuation application following from a
`common initial application.
`As far as content is concerned, the patents are
`directed to interaction between users in a virtual world. And
`management of the data in that virtual world includes two
`main aspects. First, a server process receives positional
`information updates regarding users present in the virtual
`world and sends positional updates to individual client
`computers.
`Second, as stated in the abstract of the patent, the
`user can execute a client process to view the virtual world
`from the perspective of the user. Such a view or perspective
`is determined taking into account positional updates received
`from the server. And such client processing can include, of
`course, a field of view determination.
`Slide 8.
`JUDGE BEGLEY: Before you switch that slide, I
`just have a question that relates to the field of view
`determination.
`In the patent at issue here, you haven't discussed N
`and N prime yet, but if N and N prime are greater than the
`avatars in a particular avatar's field of view, does the
`rendering engine show only the avatars in the viewpoint of the
`avatar?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`
`
`7
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`MR. ROSATO: So we are absolutely going to talk
`about the claim construction issue, Your Honor, with regard to
`the determining step. And the construction that we advanced,
`and we think is appropriate, is that the broad and generic term
`of determining would encompass a field of view
`determination. It would also encompass this N, N prime,
`so-called client side crowd control.
`I believe that that is -- I will have to go look at
`that in the specification -- but I believe it is described as
`separate from the field of view determination.
`JUDGE BEGLEY: That wasn't the question,
`though. If those variables N and N prime are higher than what
`is in view, what does the rendering engine show?
`What shows to the avatar? Is it N and N prime,
`that many avatars, or is it only those that are in the field -- in
`the viewpoint of the avatar?
`MR. ROSATO: I see. So what shows is what is in
`the viewpoint of the avatar.
`JUDGE BEGLEY: Okay. Do you have any
`support in the specification for that?
`MR. ROSATO: I mean, I can look for it. I
`remember the provision where the N, N prime embodiment is
`discussed. It doesn't make sense that this pre-rendering, if it
`is a pre-rendering step that, you know, a limitation of the
`number of avatars that can be displayed is only -- it would
`
`
`
`8
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`make sense that it would be separate from a pure field of view
`determination.
`But I would have to look at that disclosure. I will
`take another look at it and follow up with that.
`And my understanding, we will get to this, but to
`follow-up on that, my understanding from the Patent Owner's
`argument is that they are arguing that those two things are
`separate. At the end of the day, our position is that both of
`those processes would fall within the scope of the
`determining.
`So at the end of the day, I don't believe that the
`distinction impacts our application of the prior art but,
`nevertheless, I will take another look at that and make sure I
`follow up with you on it.
`JUDGE BEGLEY: Thank you.
`MR. ROSATO: Okay. So we are on slide 8. And
`this illustrates claim 1, which is a representative claim of the
`'856 patent. And as is common with many of the claims of the
`challenged patents, these claims recite the central concept of
`the patents.
`That central concept is represented by step A,
`including the step of server filtering by which the server
`filters information sent to a client so the client will receive
`positional information on a subset of users in the virtual
`world.
`
`
`
`9
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`And then step B, which addresses determining
`from the received positions what is then to be displayed to the
`user. And this can be a client process.
`I can move quickly through the remaining slides
`addressing or illustrating some of the representative claims,
`but briefly turning to slide 9, this illustrates claim 1 of the
`'690 patent and illustrates that the subject matter is claimed in
`a similar fashion with the two steps of server filtering, and
`then step B of determining from the server filtered
`information avatars that are to be displayed.
`Slide 10. Claim 4 of the '558 patent represents the
`same type of subject matter. Claim 4 is written as a
`Beauregard style claim where the program includes similar
`server filtering and client determining steps.
`Turning be to slide 11, the remaining two patents
`offer slight variations to the same theme. What is illustrated
`here is claim 1 of the '501 patent. It includes a first step of
`customizing the user's avatar, followed by the same central
`concept that we see in the previous claims. That includes
`server filtering, followed by determining from the received
`positions user avatars that are to be displayed.
`And then finally turning to slide 12, it illustrates
`claim 1 of the '998 patent which offers a slightly different
`spin on the same subject matter. There is receiving the server
`filter information, generating a remote avatar on a graphic
`
`
`
`10
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`display, and then further includes aspects of switching
`rendering between a perspective of a remote user and a view
`that allows the local user to view their avatar in a virtual
`environment.
`I would like to turn to slide 13. But following a
`brief review of the claim subject matter what we see in the
`prior art is that each of the challenged -- each of the aspects
`of the challenged claims can be traced to the prior art. And
`that is particularly true for the central concept that dominates
`the subject matter claimed and, that is, server processing or
`filtering followed by a client determination of what to
`display.
`
`So starting with the Funkhouser reference, this
`was submitted as Exhibit 1005, and, very briefly, Funkhouser
`describes a virtual world in which multiple users can navigate
`the world and interact.
`Just like the claimed subject matter, Funkhouser
`discloses server-based filtering or culling followed by a
`determination from the server-filtered information what is to
`be displayed to the user.
`Slide 14 briefly illustrates how the message
`reduction is accomplished. It is accomplished in Funkhouser
`by sending avatar update information only to workstations
`with entities that can potentially perceive a change in
`
`
`
`11
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`positional information or a change in the location of a remote
`avatar.
`
`As claimed in the Worlds' patents, Funkhouser
`discloses server-based filtering where the Funkhouser system
`filters distribution of positional update messages only to the
`users to which the updates are potentially relevant, and then
`upon receiving the server-filtered update information, the
`client workstations process the updated messages and also
`make a determination of which users should be displayed.
`Turning to slide 15, I will briefly address the
`Durward reference. This is the second primary reference that
`is cited and relied on throughout the petition. And Durward,
`like the claimed subject matter, addresses a 3-D virtual world
`in which users interact.
`And Durward discloses selective distribution and
`updating of data for the purpose of reducing the bandwidth
`processing requirements and more efficiently managing the
`data.
`
`As shown in slide 16, Durward discloses the same
`type of server filtering as claimed in the various Worlds
`patents. In particular Durward discloses that the users are
`assigned a visual relevant space within the virtual world and
`that relevant space is used to determine which state changes
`are communicated to the user.
`
`
`
`12
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`This is illustrated in figure 5 of Durward. It is
`discussed in the petition materials and shown here as well.
`Durward also discloses client processing in the
`manner claimed in the various Worlds patents. In particular
`Durward discloses the system displays a portion of the visual
`relevant space viewed from the perspective of the virtual
`being. And that includes other virtual beings and objects
`within its perspective or field of vision.
`Durward discloses that the field of view or vision
`may be narrower than the relevant space, as illustrated in
`figure 5, or it could be broader. So in sum both Funkhouser
`and Durward disclose the primary concept that is central to
`the Worlds patents.
`I will turn to some of the issues that are
`particularly in dispute between the parties, starting with slide
`23. One of the central issues in dispute is the scope or
`meaning of the so-called determining limitations of the
`challenged claims. And some of those limitations are
`illustrated here and certainly representative of what is at the
`heart of the dispute.
`'856, for example, claim 1 of '856 --
`JUDGE CHUNG: Excuse me, counselor, before we
`get into the claim construction, Patent Owner did file a
`supplemental response indicating the expiration dates of the
`patents.
`
`
`
`13
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`Are you in agreement with those expiration dates?
`MR. ROSATO: I think those expiration dates are
`
`correct.
`
`JUDGE CHUNG: Okay, because there would be a
`potential issue of whether or not we would be using the
`Phillips standard versus broadest reasonable interpretation.
`Okay. I just wanted to clarify that.
`JUDGE BEGLEY: Sorry to interrupt.
`JUDGE CHUNG: That's all right. Go ahead.
`JUDGE BEGLEY: But I am not sure I am content
`with that. You think that they are right. We need a little bit
`more than that. We need a confirmation that you agree with
`that and, if you don't, then you need to let us know because
`the expiration dates are critical to your case.
`MR. ROSATO: I don't challenge their stated
`expiration dates.
`As far as the claim construction standard, I would
`add that at the end of the day, I don't think it matters which
`construction standard is applied. The same outcome is
`warranted in either case and our petitions were written in that
`manner, specifically stating --
`JUDGE BEGLEY: Sorry to interrupt again. Do
`you dispute that if the patents do expire before the final
`written decision is issued that we should be applying Phillips
`instead of the BRI standard?
`
`
`
`14
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`MR. ROSATO: I believe that is what the Federal
`Circuit has told you, yes.
`JUDGE BEGLEY: I was asking because there was
`a statement in your brief about Patent Owner not filing a
`motion that Phillips applies. So I wasn't sure whether that
`was something you were disputing.
`MR. ROSATO: Well, not -- okay. So the Board is
`in control here in the sense of when the final written decision
`comes out. So I want to be clear. As Petitioners we
`recognize that. We have written and constructed our cases in
`a manner such that it doesn't matter what claim construction
`applies.
`
`It is hard for me to say when the Board is going to
`issue a final written decision because the dates of expiration
`and the statutory period for issuing a final written decision
`come in fairly close proximity.
`We believe we have not restricted the Board or
`made your job any more difficult. In fact, tried to make it
`more streamlined by addressing both -- by proffering
`constructions that would be applicable under either standard.
`So at the end of the day, we just don't think it
`matters. Okay?
`JUDGE BEGLEY: I understand. We just need
`your position as to when the patents are expiring and whether
`
`
`
`15
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`that expiration impacts the standard. So you have given us
`that so we have what we need. Thank you.
`MR. ROSATO: Great.
`JUDGE CHUNG: And while we are on the subject
`of dates, we noticed that there is a provisional priority date
`for these patents, and we were wondering what your position
`is on whether or not those patents are entitled to the
`provisional priority date with respect to the challenged
`claims?
`
`MR. ROSATO: If I remember correctly, we
`assumed that they are entitled to that provisional date, and
`that does, I think -- may I see a copy of the patent? I don't
`believe that that affects the prior art application. Okay.
`The one I'm looking at simply lists the
`continuation, so let me at the intermission here look at the
`exact priority claim and what we stated in our petition. But
`my recollection is that we are assuming for prior art
`application purposes that they are entitled to their earliest
`priority date.
`So we will take a look at that and confirm the
`position on that. Okay?
`JUDGE CHUNG: Thanks.
`JUDGE BEGLEY: Just for your purposes of when
`you are checking, again, I don't believe that an assumption is
`
`
`
`16
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`enough, but that we need your position as to whether the
`patents are entitled to the priority date.
`MR. ROSATO: The provisional priority date?
`JUDGE BEGLEY: Yes.
`MR. ROSATO: Okay.
`Okay. I was talking about the determining step
`and the claim construction dispute. The construction for the
`determining steps that was proposed in Bungie's petitions
`were such that executing a client process to determine from
`the user positions that are received from the server, other user
`avatars located in the point of view of perspective of the first
`user would fall within the scope of the determining step of
`each of these claims.
`Now, Patent Owner has challenged that
`construction and in particular challenged whether such a field
`of view determination would fall within the scope of the
`claimed determining step. We certainly believe that the
`proposed construction is supported for a number of reasons.
`It is supported by a plain reading of the claims
`and, that is, they simply recite generically that a
`determination is made. There is no qualification in the claims
`about crowd control or graphics pipelines or any type of
`negative limitation regarding field of view determinations.
`They simply generically recite determining a displayable set
`or a set of other users' avatars.
`
`
`
`17
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`Looking at the specification of each of the patents,
`there is no special definition or any definition that is
`advanced in the specifications and there is nothing in the
`specifications that indicates that field of view should be
`excluded from a determination of what to display.
`In fact, just the opposite. The abstract, for
`example, states that "each user executes a client process to
`view a virtual world from the perspective of that user." And
`there is similar discussion throughout the specification.
`To the extent there are embodiments that describe
`ways to affect what gets displayed, such as the so-called N
`prime crowd control embodiment, those embodiments are
`examples. They are not exclusive disclosures of the
`displaying step.
`And that is something that has been expressly
`acknowledged by the Patent Owner. That can be found, for
`example, in the Patent Owner responses in footnote 7, for
`example, of the 01268 case on page 17.
`Slide 24.
`JUDGE BEGLEY: Sorry, what does that footnote
`
`say?
`
`MR. ROSATO: The footnote states -- I can read it
`in part -- it states: "Patent Owner does not contend that
`selecting N prime avatars is the sole disclosed mechanism of
`client side crowd control."
`
`
`
`18
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`There is more to the quote there, but --
`JUDGE BEGLEY: Thank you.
`MR. ROSATO: Sure. So returning to slide 24,
`looking at -- one of the issues to note with the Patent Owner's
`proposed construction is that they advance their argument that
`the determining step does not include a field of view
`determination for only a subset of the patents.
`Specifically they advance that argument in the
`context of the '856 patent, the '690 patent, the '558 patent. It
`is noteworthy that they don't advance that argument for the
`'501 patent. Instead, in that, in the Patent Owner response
`filed in that case, they simply say that no construction is
`required and that Bungie's construction should be rejected.
`If one looks at the claims that are presented in the
`'501 patent, it is clear that those claims make more express
`that a field of view determination falls within the scope of the
`determining step.
`Claim 1 of the '501 patent recites determining
`from the received positions a set of other users' avatars that
`are to be displayed to the first user, much like the determining
`step in every other one of the patents that includes the step.
`Claim 2 of the '501 further refines the determining
`step by clarifying that wherein the step of determining
`comprises filtering the other users' avatars based on the
`orientation of the first user avatar.
`
`
`
`19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`So that is an orientation field of view
`determination. That is in contrast and contradicts the
`arguments that the Patent Owner has advanced that
`determining is mutually exclusive to a field of view
`determination.
`Of course, the '856, '690, '558 and '501 patents all
`share the identical specification. As such, claims should be
`construed consistently across those patents.
`Slide 25. Patent Owner also advances an argument
`essentially stating that the determining step of the claims
`must be performed in advance of the display, and that fact, as
`it is argued by Patent Owner, would contradict or undermine
`Bungie's proposed construction.
`But that's not the case. Bungie's proposed
`construction is not inconsistent with that argument. A client
`can determine a set of avatars to display and then a client can
`then display that set of avatars.
`Dr. Zyda provided testimony along these lines, and
`presumably in the event that a computer monitor becomes
`unplugged, for example, the computer is still going to perform
`a determination without displaying it. Once the monitor is
`plugged in the display occurs. So this is not a real
`meaningful distinction that's being advanced here.
`The second aspect of this argument that Patent
`Owner advances relates to the concept of a graphics pipeline.
`
`
`
`20
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`This argument really also fails to make a meaningful
`distinction. As I interpret the argument or as I understand it,
`the Patent Owner is arguing that the act of displaying or the
`display aspect is part of the graphics pipeline.
`Their argument continues that a field of view
`determination is also part of the graphics pipeline, and then
`jumps to the conclusion that the entire graphics pipeline must,
`therefore, be outside the scope of a determining step.
`That doesn't actually make sense when one
`considers what constitutes a graphics pipeline, including the
`characterization provided by their expert. Mr. Pesce, he
`testified that characterizing the -- sorry, I'm looking at the
`slide here -- Mr. Pesce testified that even looking at this
`concept of graphics pipeline, a field of view determination
`would be the very first step of that multi-step process and the
`display would be the very last step of that process.
`So there is no reason why different steps in a
`rendering process or graphics pipeline or whatever you want
`to call it, there is no reason and no requirement in the claims
`that the entire process be treated as one continuous or single
`unit.
`
`So at the end of the day where does that leave us
`with regard to the prior art that is being asserted? So with
`regard to Funkhouser, the Funkhouser reference, the dispute
`
`
`
`21
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`over whether Funkhouser discloses the determining steps is
`entirely based on the claim construction dispute.
`In other words, if the Board adopts Bungie's
`construction, the Patent Owner does not dispute that
`Funkhouser's disclosure of determining meets the claim
`limitations.
`Funkhouser also discloses the determining
`limitations even under the Patent Owner's proposed
`construction. In particular, Funkhouser discloses client
`processing that takes place before the graphics pipeline and
`impacts which remote users will be displayed by determining
`their positions. This is the simulation that is discussed in
`Funkhouser.
`JUDGE BEGLEY: Does it just impact the -- sorry,
`does it just impact which avatars will be displayed or does it
`determine which avatars will be displayed?
`MR. ROSATO: It determines their position or
`simulates their position, and if a determination of what is
`going to display it is based on positional information, then it
`would in turn determine what is to be displayed. And that
`simulation would occur prior to the so-called graphics
`pipeline theory that Patent Owner advances.
`So this was addressed, this disclosure of
`Funkhouser was addressed in the petition. It was addressed in
`detail in the Board's Institution Decision, and there was no
`
`
`
`22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`rebuttal to that point in Patent Owner's response. So it does
`not -- it is not clear that they are contesting that.
`With regard to Durward, again, the dispute over
`whether Durward meets the determining step of the claims is
`based entirely on the claim construction dispute. So, again,
`like as with Funkhouser, if the Board adopts Bungie's
`construction or rejects the distinction that Patent Owner
`attempts to make, then there is really no dispute as to whether
`Durward meets the determining steps of the claims.
`I want to turn to slide 35 and address Patent
`Owner's attempt to swear behind or antedate the Funkhouser
`reference.
`
`JUDGE BEGLEY: Before we leave the
`determining step, for the 1264 case, the '856 patent, can you
`address the Board's construction in the Institution Decision
`which held that the determining step is broad enough to
`include determining that takes place at the client, the server,
`or both?
`
`MR. ROSATO: Sure. So it is not an unreasonable
`construction. The approach that we took in our petition, and
`this also relates somewhat back to the question that was posed
`to me regarding the different standards, we took a
`conservative approach in proposing claim constructions,
`essentially focusing on what -- the most conservative
`
`
`
`23
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
`

`
`Case Nos. IPR2015-01264, 01268, 01269, 01319, 01321, and 01325
`
`
`
`construction that might be advanced for the claim, and that's
`true with the '856.
`So the Board is correct that step B doesn't
`specifically require the client process to perform that step.
`The Board was also correct that, whether the narrower
`construction is applied or the broader construction that the
`Board identified, it really doesn't -- it doesn't affect the prior
`art application that Bungie had advanced.
`So it was, you know, a good and astute observation
`by the Board in the Institution Decision. I don't necessarily
`think it is wrong, but it is not necessary to our prior art
`position.
`
`JUDGE BEGLEY: So you don't dispute it?
`MR. ROSATO: Well, I know Patent Owner
`disputes it. We are making a showing that, even if it is
`performed on a client process, the prior art clearly discloses
`that.
`
`JUDGE BEGLEY: Okay.
`MR. ROSATO: Turning to the issue of antedating
`Funkhouser. Patent Owner has

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket