PGR2018-00008, No. 3001 Exhibit - Ex 3001 (P.T.A.B. Nov. 29, 2018)

U.S. Patent No. 9,597,594
`
` The claims are directed to
`“creating and applying a
`template.”
`
` Patent Owner does not directly
`dispute Petitioner’s assertions
`concerning the first step of the
`Mayo and Alice framework.
`
` “[W]e are persuaded that
`Petitioner’s assertion, that
`claims 1–20 are directed to
`“creating and applying a
`template,” is credible and
`adequately supported.
`PGR2018-0008
`Ex. 3001
`Decision Granting Institution, 8.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`1
`
`

`Petitioner arguments found persuasive by Board
`
`Claims are directed to an abstract idea
`
`Decision Granting Institution, 7-8.
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`2
`
`

`Petitioner arguments found persuasive by Board
`
`Claims contain no “inventive concept”
`
`…
`
`Decision Granting Institution, 11-13.
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`3
`
`

`Petitioner arguments found persuasive by Board
`
`Claim 12 is representative
`
`Decision Granting Institution, 3, 14.
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`4
`
`

`Claim 12 is Representative
` The Board already considered the language that the POR argued (overlap in bold)
` Language of claims 1 &10 argued:
` Nearly identical language (claim 11):
`“when the template is applied, the
`processing unit moves the game
`contents arranged at the first
`positions within the game space to
`second positions of the game
`contents defined by the template.”
` Decision, p. 10.
`
`“moving, by the computer, the game
`contents arranged at the first
`positions within the game space to
`the second positions of the game
`contents defined by the template
`within the predetermined area.”
` POR, p. 17.
`
` PO provided no new evidence/argument that the claims of the ’594 are
`substantially dissimilar or linked to a different abstract idea than the
`representative claim.
`• See Cleveland Clinic Found. v. True Health Diagnostics LLC, 859 F.3d 1352, 1360 (Fed. Cir.
`2017). Reply 5-6.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`5
`
`

`Patent Owner Response:
`Rehashes rejected arguments
`
`PO’s Rehashed Rejected Argument Decision Granting Institution (Paper No. 15)
`
`Claims don’t recite an abstract idea
`• Sur-reply, p. 8-9, 19.
`
`No evidence of abstract idea
`• Sur-reply, p. 8.
`
`Boredom and monotony is a technical
`problem.
`• Sur-reply, p. 2.
`
`The template itself is unconventional.
`• Sur-reply, p. 8.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`DI, 7.
`
`DI, 7.
`
`DI, 13.
`
`DI, 13.
`
`6
`
`

`Patent Owner’s New Arguments Fail
` Patent Owner’s new arguments rely on a limitations not recited in the claims.
`• Simultaneous movement of game pieces
`• Competitive game context
`• Game played in turns
`• Specific GUI
`• Specific asset storage
`• Specific template structure
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`7
`
`

`Step One: Claims are directed to an abstract idea
`The claims focus on the abstract idea of “creating and applying a template.”
`
`12. A device in communication with a server, comprising:
`a memory device storing game software instructions;
`and one or more hardware processors configured to
`execute the game software instructions perform
`operations including:
`storing first positions of game contents;
`creating a template defining game contents and second
`positions of one or more of the game contents
`arranged in a game space based on a template creation
`command by a game player,
`storing the created template in the memory device,
`and
`applying the template to a predetermined area within
`the game space based on a template application
`command by the game player.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`8
`
`

`Step One: Claims are directed to an abstract idea
`Creating and applying a template is an abstract idea because it:
`
`(1) Consists entirely of mental steps that can be carried out by a human,
`either mentally, using pen and paper, or with real-world game pieces;
`
`(2) Merely automates a manually-achievable process; and
`
`(3) Does not improve computer technology.
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`9
`
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`Mental Steps or Manual Process
`
` Creating and applying a template consists entirely of mental steps that
`can be carried out by a human, either mentally, using pen and paper, or
`with real-world game pieces:
`1. Correspondence Chess
`A Guide to Correspondence Chess
`i.
`in Wales (Ex. 1003)
`ii. Correspondence Chess in America
`(Ex. 1004)
`
`i.
`
`Shatranj & Tabi’at
`
`ii. Admitted prior art: SimCity & Clash of
`Clans (Ex. 1001, 1:27-53)
`
`iii. Planet Bingo, LLC v. VKGS LLC (Fed.
`Cir. 2014)
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`10
`
`

`Mental Steps or Manual Process
`
` PO’s Arguments Distinguishing Correspondence Chess Fail
`
`A.
`
`“Iterative” v. “Simultaneous”
`i.
`“Simultaneous” movement is not a claim requirement.
`ii.
`“Simultaneous” movement is permitted in
`Correspondence Chess by sending multiple moves at
`once. (Ex. 1004, p. 5)
`
`B. All pieces start from the exact same beginning board positions
`in every game. POR, p. 37
`i.
`PO fails to consider a point in time in correspondence
`chess other than the very beginning of the game.
`PO ignores shatranj and strategic battle arrays known
`as tabi’at.
`
`ii.
`
`Petition, p. 22-23; Reply to POPR, p. 4; Reply, 17-19.
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`11
`
`

`Mental Steps or Manual Process
`Claims directed to automating a manually-achievable
`process are abstract.
`
`Tranxition, Inc. v. Lenovo (U.S.), Inc., Fed. App’x 968,
`971 (Fed. Cir. 2016)
`1. Correspondence Chess
`
`2. Shatranj & Tabi’at (Ex. 1011)
`
`3. Admitted prior art: SimCity & Clash of Clans
`(Ex. 1001, 1:27-53)
`
`4. Planet Bingo, LLC v. VKGS LLC (Fed. Cir.
`2014)
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`12
`
`

`Mental Steps or Manual Process
`Claims directed to automating a manually-achievable
`process are abstract.
`
`- Tranxition, Inc. v. Lenovo (U.S.), Inc., Fed. App’x
`968, 971 (Fed. Cir. 2016)
`
`1. Correspondence Chess
`
`2. Shatranj & Tabi’at
`
`3. Admitted prior art: Sim City & Clash of Clans
`(Ex. 1001, 1:27-53)
`
`4. Planet Bingo, LLC v. VKGS LLC (Fed. Cir.
`2014)
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`13
`
`

`Mental Steps or Manual Process
`
`1. Correspondence Chess
`
`2. Shatranj & Tabi’at
`
`3. Admitted prior art: Sim City & Clash of
`Clans
`
`4. Planet Bingo, LLC v. VKGS LLC (Fed.
`Cir. 2014)
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`14
`
`

`Mental Steps or Manual Process
`Data Engine Techs. LLC v. Google LLC
`
` PO misrepresents Data Engine:
`• “Claims that recite a specific structure (templates) to perform a specific
`function (moving game contents) are not abstract. POSR 15, citing Data
`Engine.
`
` This is the same standard as in Trading Techs.: the claims “require[d] a
`specific, structured graphical user interface paired with a prescribed
`functionality.
`• The template (alleged structure) is not recited as part of a structured
`graphical user interface, such as the bid and ask display regions of a GUI
`(Trading Techs.) or tabs within a GUI (Data Engine).
`
`Reply, 12-15.
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`17
`
`

`Mental Steps or Manual Process
`Similarities to Planet Bingo, LLC v. VKGS LLC
`
`PO’s “distinctions” from Planet Bingo fail
`
`1. The claims are not limited to “city-
`building” games.
`
`2. The claims are not limited to a “player vs.
`player mechanic of attacking another
`player’s city” or a game played in turns.
`
`3. The claims are not directed to and do not
`recite a user interface. (Ex. 1001, Claim 12)
`
`4. All templates serve a “future” use.
`
`5. No specific tables or data structures
`recited.
`
`•
`
`No “specific, structured graphical user interface paired
`with a prescribed functionality directly related to the
`graphical user interface's structure that is addressed to
`and resolves a specifically identified problem in the prior
`state of the art.” Cf. Trading Techs. and Data Engine.
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`18
`
`

`Mental Steps or Manual Process
`Similarities to Planet Bingo, LLC v. VKGS LLC
`
`PO’s “distinctions” from Planet Bingo fail
`1. The claims are not limited to “city-
`building” games.
`
`2. The claims are not limited to a “player
`vs. player mechanic of attacking another
`player’s city” or a game played in turns.
`
`3. The claims are not directed to and do
`not recite a user interface.
`
`4. All templates serve a “future” use.
`
`5. No specific tables or data structures are
`recited.
`
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`20
`
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`Mental Steps or Manual Process
`
` PO’s expert admitted that the claimed template automates a manually-achievable
`process:
`
` Ex. 1010, 70:21-71:4 (objections omitted); Reply 9.
`
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`21
`
`

`Mental Steps or Manual Process
`
` PO’s contrary arguments fail.
`
`Failed Argument
`“The ’594 patent is directed to improving
`the usability of the interface for city-building
`video games through the creation and
`application of templates.” Sur-reply, p. 19.
`
`Reason
`Limiting the invention to a “technological
`environment” does not make an abstract
`concept any less abstract under step one.
`
`Intellectual Ventures I LLC v. Capital One Fin. Corp.,
`850 F.3d 1332, 1340 (Fed. Cir. 2017).
`
`The claims require “simultaneous”
`movement of game pieces.
`
`Patent Owner’s expert admits there is no
`such requirement.
`
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`22
`
`

`The claims do not require “simultaneous” movement of game pieces
` The claims expressly allow for the creating and applying of a
`template of one game piece.
`
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`23
`
`

`The claims do not require “simultaneous” movement of game pieces
` PO’s expert admitted the claims require movement of only a single piece:
`
`Ex. 1010, 87:19-88:20, 89:19-25
`(excerpted and objections omitted)
`
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`24
`
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`The claims do not require “simultaneous” movement of game pieces
` The specification describes the movement of a single game piece during the
`application of a template (Ex. 1001, FIG. 9)
`
` Q: When 910 is applied, there's only one facility that moves, correct?
` CRANE: That's correct. Ex. 1010, 95:22-25.
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`25
`
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`The claims do not require “simultaneous” movement of game pieces
`’594 FIGURE 9 (cont’d)
`
`TEMPLATE
`
` Q: And when 930 is applied, there's only one facility that moves, correct?
` CRANE: That's correct. Ex. 1010, 96:2-5.
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`26
`
`

`The claims do not require “simultaneous” movement of game pieces
` The movement of “one” game piece cannot be “simultaneous.”
` PO’s Expert admits “one” game piece movement is not “simultaneous”
`
`Ex. 1010, 90:9-16 (objection omitted).
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`27
`
`

`No Improvement in Computer Technology
`
` The only thing the claimed device needs to do is execute a basic command from a user –
`the most basic computer function.
`
`• Microsoft Computer Dictionary, Fourth Ed., 1999 (Ex. 1005).
`
` The patent purports to solve “monotony” of game play, which is a “a
`mental or business problem, and not a technical one.”
`• Decision Granting Institution, p. 12-13.
`
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`28
`
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`Step One: Claims are directed to an abstract idea
` PO’s Expert did not opine on “abstract” nature of claims.
`
`Ex. 1010, 43:10-16
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`29
`
`

`Step Two: No Inventive concept
` The recited components are entirely generic and conventional
`
`12. A device in communication with a server, comprising:
`a memory device storing game software
`instructions; and one or more hardware processors
`configured to execute the game software
`instructions perform operations including:
`storing first positions of game contents;
`creating a template defining game contents and
`second positions of one or more of the game
`contents arranged in a game space based on a
`template creation command by a game player,
`storing the created template in the memory device,
`and
`applying the template to a predetermined area
`within the game space based on a template
`application command by the game player.
`
`Ex. 1001, Claim 12; e.g. Petition, 29-33.
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`30
`
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`Step Two: No Inventive Concept
` Any generic computer can be used to perform the abstract idea:
`
`• Decision Granting Institution, p. 12, 13.
`
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`31
`
`

`Step Two: No Inventive Concept
` PO’s expert agrees – Recited technology is conventional:
`
` Ex. 1010, 113:21-24, 114:6-9, 15-17 (objections omitted).
`
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`32
`
`

`Step Two: No Inventive Concept
`
`PO’s Expert: No mechanism recited for “creating a template”:
`
`Ex. 1010, 130:9-16, 131:2-8.
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`33
`
`

`Step Two: No Inventive Concept
`
`PO’s Expert: No mechanism recited for “applying a template”:
`
`Ex. 1010, 132:7-12.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`34
`
`

`Step Two: No Inventive Concept
`
`PO’s Expert: No mechanism recited for any result-oriented
`function: “creating,” “storing,” or “applying” the template.
`
`Ex. 1010, 132:20-133:9 (objections omitted).
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`35
`
`

`Step Two: No Inventive Concept
` PO admits the claims recite nothing beyond the abstract idea, with no
`mechanism to implement it:
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`36
`
`

`Step Two: No Inventive Concept
`
` The Board found that applying the template encompassed
`movement of game contents:
`“We view Petitioner’s discussion of “applying the
`template” as also addressing claim 11’s recitation of the
`steps taken when the template is applied, in that
`applying a template would appear to reasonably
`encompass movement of game contents.”
`
`Decision Granting Institution, p. 10.
` PO’s argument is circular: “templates are the mechanism” to move
`the game contents, i.e., to apply the template.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`37
`
`

`Step Two: No Inventive Concept
`PO’s Argument is – again – “Misplaced”
`
`Decision Granting Institution, p. 13.
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`38
`
`

`Step Two: No Inventive Concept
`
` PO’s “misplaced” analysis fails under Berkheimer
`
`• Under Berkheimer “improvements in the specification, to the extent they are
`captured in the claims, create a factual dispute regarding whether the
`invention describes well-understood, routine, and conventional activities.”
`Berkheimer, 881 F.3d at 1369.
`
`• The “game changer” of the patent is “moving multiple pieces simultaneously”:
`
`» Ex. 1010, 60:8-12.
`• The claims recite the movement “one or more” – which cannot be simultaneous
`• The claims “fail to capture” this concept and thus fall under Berkheimer.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`39
`
`

`Step Two: No Inventive Concept
`
` The ’594 Patent Is Non-Inventive Under Berkheimer
`
`Problem
`
`Purported Solution
`
`The primary innovation of the claimed
`invention is “the simultaneous, rather
`than iterative, arrangement of game
`contents.”
`
`POR, p. 38 (emphasis in original)
`
`“However, since the items (game
`contents) of a city of a player increase as
`the city develops, it is very complicated
`for a player to change positions, types,
`levels, etc., of individual items. Further, it
`is hard to understand what kind of effect
`changing a city would have against an
`attack from a different player. Therefore,
`many players have limited themselves to
`change only certain kinds of items, such as
`soldiers and weapons, for which changing
`positions, types, levels, etc., is easy. As a
`result, as the game progresses, it becomes
`monotonous, and players might become
`bored with it.”
`
`594 Patent, 1:50-60.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`40
`
`

`Step Two: No Inventive Concept
`
` Under Berkheimer, the inventive concept must “captured by the claims.”
` None of the claims require “simultaneous” movement, only the generic
`“application” of the template.
`
`12. A device in communication with a server, comprising:
`a memory device storing game software instructions; and
`one or more hardware processors configured to execute the
`game software instructions perform operations including:
`storing first positions of game contents;
`creating a template defining game contents and second
`positions of one or more of the game contents arranged in a
`game space based on a template creation command by a
`game player,
`storing the created template in the memory device, and
`applying the template to a predetermined area within the
`game space based on a template application command by
`the game player.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`41
`
`

`Step Two: No Inventive Concept
` Berkheimer-type admissions
` PO agrees that moving individual pieces is not inventive:
`• “After all, an improvement to a game that involves only one movement of a single
`piece would hardly address the problems solved by the ‘594 patent - namely,
`avoiding boredom and monotony in game play.” POSR 1.
`
` Crane admitted that the template could defines the second position of only one
`game content.
`• Q: So you could create a template that only defines the position of one game
`content, correct?
`• CRANE: It could define second positions of one or more, yes.
`• Q: So that includes one, correct?
`• CRANE: Yes.
`
`Ex. 1010, 87:10-17.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`42
`
`

`Step Two: No Inventive Concept
` PO admits “templates” are a generic, well-known concept:
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`43
`
`

`Role of Expert Testimony
` Expert Testimony Is Not Required to Invalidate a Patent Under
`35 U.S.C. § 101
` Crane Testimony Deserves No Weight
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`44
`
`

`Expert Testimony Is Not Required
` Expert testimony is unnecessary to invalidate a patent under §
`101
`
`• This issue can often be decided at the pleading stage in district court
`litigation. Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018).
`
`• The Federal Circuit has cautioned against “extraneous fact finding outside
`the record,” especially where the specification describes the computer
`components as performing functions known in the art. Paper No. 15
`(“Decision”), p. 11; see, e.g., In re TLI Commc’ns LLC Patent Litig., 823 F.3d
`607, 613-14 (Fed. Cir. 2016).
`
`e.g. Reply, 4-5.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`45
`
`

`Crane Testimony Deserves No Weight
` Trial Practice Guide requires expert testimony to disclose
`underlying facts or data. See Fed. R. Evid. 705 and § 42.65.
` Opinions failing to meet this requirement deserve little or no
`weight.
`
` Crane’s opinions:
`• are unsupported by facts,
`• fail to address the ’594 claims, and
`• do not reach part two of Alice.
`
`Reply, 6-8.
`
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`46
`
`

`Crane Testimony Deserves No Weight
` Crane did not conduct a claim-by-claim analysis:
`
`“The §101 inquiry must focus on the
`language of the Asserted Claims
`themselves.”
`Synopsys, Inc. v. Mentor Graphics
`Corp., 839 F.3d 1138, 1149 (Fed. Cir.
`2016) (emphasis added).
`
`Ex. 1010, 134:15-135:17 (excerpted and objections omitted)
`
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`47
`
`

`Crane Testimony Deserves No Weight
` Crane relied ENTIRELY on specification for analysis of “creating and applying a
`template”:
`1. “Creating a template”
`(Ex. 1010, 130:11-20)
`
`2. “Applying a template”
`(Ex. 1010, 132:2-12)
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`48
`
`

`Crane Testimony Deserves No Weight
` But Crane did not conduct claim construction analysis:
`1. “Creating a template”
`2. “Applying a template”
`
`Ex. 1010, 130:22-131:16, 132:7-18 (excerpted & objections omitted)
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`49
`
`

`Crane Testimony Deserves No Weight
` Crane did not conduct a “step two” analysis:
`
`Ex. 1010, 44:7-45:9, 46:21-47:4, 52:18-24 (excerpted and objections omitted)
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`50
`
`

`PO’s Section 325(d) Argument is Baseless
` No statute or caselaw provides any reason to terminate review of
`a parent matured patent based on an examiner’s preliminary
`review of a child application under § 101 or an applicant’s
`terminal disclaimers.
` PO’s request fails to show that the examinations of the child
`applications are relevant
`• Terminal disclaimers are not an admission that claims are patentably
`indistinct. See M.P.E.P. § 804.02 (citing Quad Envtl. Techs. Corp. v.
`Union Sanitary Dist., 946 F.2d 870, 874 (Fed. Cir. 1991)).
`
`Reply, 1-4.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`51
`
`

`Exhibits 1011 & 1012 Are Not Hearsay
`FRE 801:
`Hearsay is an out of court statement entered into evidence for the truth of the matter
`asserted.
`
`1. PO failed to identify any statement offered for its truth.
`
`2.
`
`Exhibits 1011 & 1012 are non-hearsay verbal acts – i.e. not submitted for the truth of
`their content addressed in the document, but for the fact of their disclosure.
`• Knorr v. Pearson, 671 F.2d 1368, 1372 (Cust. & Pat. App. 1982).
`• EMC Corp. v. PersonalWeb Tech., LLC, IPR2013-00085, Paper No. 73, p. 66 (PTAB May 15, 2014).
`
`3. Machine generated “statements” are not hearsay
`United States v. Khorozian, 333 F.3d 499, 506 (3d Cir. 2003) (cited by EMC Corp., IPR2013-00086,
`•
`Paper No. 66, pp. 32-33).
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`53
`
`

`Exhibits 1011 & 1012 Are Not Hearsay
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`54
`
`

`Exhibits 1011 & 1012 Are Not Hearsay
`FRE 807:
`Under the following circumstances, a hearsay statement is not excluded by the rule against
`hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803
`or 804:
`the statement has equivalent circumstantial guarantees of trustworthiness;
`1)
`it is offered as evidence of a material fact;
`2)
`it is more probative on the point for which it is offered than any other evidence that the
`3)
`proponent can obtain through reasonable efforts; and
`4) admitting it will best serve the purposes of these rules and the interests of justice.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`55
`
`

`Exhibits 1011 & 1012 Are Not Hearsay
`Ex. 1012
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`56
`
`

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