Supercell Oy v. GREE, Inc.
`PGR2018-00050
`U.S. Patent No. 9,675,886
`
`June 26, 2019
`
`Jennifer Bush
`Michael Sacksteder
`Geoffrey Miller
`Attorneys for Petitioner
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`Exhibit 1009
`
`
`PGR2018-00050
`U.S. Patent No. 9,675,886
`
`June 26, 2019
`
`Jennifer Bush
`Michael Sacksteder
`Geoffrey Miller
`Attorneys for Petitioner
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`Exhibit 1009
`
`
`
`PGR2018-00050
`U.S. Patent No. 9,675,886 (“’886 patent”)
`
` “Specifically, the independent
`claims are directed to the basic
`concept of controlling the
`transmission of game data, which
`inherently would include a number
`of rounds, based on an attribute of
`a receiving terminal . . .”
`Decision Granting Institution, p. 8.
`
` “Thus, we determine that
`Supercell’s analysis sufficiently
`explains, through factual evidence
`and case law comparison, why the
`claims do not provide an inventive
`concept.”
`Decision Granting Institution, p. 14.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`2
`
`Exhibit 1009
`
`
`
`Step One: Claims are directed to an abstract idea
`
`The claims are directed on the
`abstract idea of:
`
`“controlling the transmission of
`game data based on an attribute of
`a user terminal device”
`
`Reply, p 1.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`Ex. 1001, FIG. 5.
`
`3
`
`Exhibit 1009
`
`
`
`Step One: Claims are directed to an abstract idea
`
`1. A method comprising:
`by a controller, collectively transmitting game
`view data of a game involving multiple opponents
`and having a set of a plurality of rounds to a user
`terminal, the game view data corresponding to a
`first subset of rounds including a predetermined
`number of rounds in the plurality of rounds;
`identifying a terminal attribute of the user
`terminal;
`determining the predetermined number based
`on the terminal attribute; and
`responsive to detecting that the first subset of the
`rounds is completed, collectively transmitting, to
`the user terminal, game view data corresponding
`to a second subset of rounds including the
`predetermined number of rounds subsequent to
`the completed rounds.
`
`Ex. 1001, Claim 1, FIG. 5.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`4
`
`Exhibit 1009
`
`
`
`Step One: Claims are directed to an abstract idea
`
`The ‘886 patent is abstract because the claims:
`
`Prong One:
`
`(1) Recite only result-oriented functions without a non-abstract means of
`achieving those results;
`
`Prong Two:
`
`(2) Provide no improvement in computer functionality;
`
`(3) Recites no improvement in graphical user interfaces.
`
`Petition, p. 33-42; Reply, p. 1-13.
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`5
`
`Exhibit 1009
`
`
`
`(1) The Claims Recite Only Result-Oriented Functions
`
`1. A method comprising:
`by a controller, collectively transmitting game view
`data of a game involving multiple opponents and
`having a set of a plurality of rounds to a user
`terminal, the game view data corresponding to a
`first subset of rounds including a predetermined
`number of rounds in the plurality of rounds;
`identifying a terminal attribute of the user
`terminal;
`determining the predetermined number based
`on the terminal attribute; and
`responsive to detecting that the first subset of the
`rounds is completed, collectively transmitting, to
`the user terminal, game view data corresponding
`to a second subset of rounds including the
`predetermined number of rounds subsequent to
`the completed rounds.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`Ex. 1001, Claim 1, FIG. 5;
`Petition, p. 34-42.
`
`6
`
`Exhibit 1009
`
`
`
`(1) The Claims Recite Only Result-Oriented Functions
`
`1. A method comprising:
`by a controller, collectively transmitting game
`view data of a game involving multiple opponents
`and having a set of a plurality of rounds to a user
`terminal, the game view data corresponding to a
`first subset of rounds including a predetermined
`number of rounds in the plurality of rounds;
`identifying a terminal attribute of the user
`terminal;
`determining the predetermined number based on
`the terminal attribute; and
`responsive to detecting that the first subset of the
`rounds is completed, collectively transmitting, to
`the user terminal, game view data corresponding
`to a second subset of rounds including the
`predetermined number of rounds subsequent to
`the completed rounds.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`Ex. 1001, Claim 1, FIG. 5;
`Petition, p. 34-42.
`
`7
`
`Exhibit 1009
`
`
`
`(1) The Claims Recite Only Result-Oriented Functions
`
`•
`
`•
`
`•
`
`In re TLI Commc’ns LLC, 823 F.3d 607, (Fed. Cir. 2016
`(claims abstract where “no restriction on how the result
`is accomplished”)
`
`Two-Way Media Ltd. v. Comcast Cable Commc’n, LLC,
`874 F.3d 1329, 1337 (Fed. Cir. 2017) (“Claims directed
`to generalized steps to be performed on a computer
`using conventional computer activity are not patent
`eligible”);
`
`Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253
`(Fed. Cir. 2016) (claim abstract that only claimed “the
`function of wirelessly communicating regional broadcast
`content to an out-of-region recipient, not a particular
`way of performing that function.”)
`
`Ex. 1001, FIG. 5;
`Petition, p. 34-42.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`8
`
`Exhibit 1009
`
`
`
`(1) The Claims Recite Only Result-Oriented Functions
`No Overgeneralization
`
`No Overgeneralization
`by a controller, collectively transmitting game
`view data of a game involving multiple opponents
`and having a set of a plurality of rounds to a user
`terminal, the game view data corresponding to a
`first subset of rounds including a predetermined
`number of rounds in the plurality of rounds;
`identifying a terminal attribute of the user
`terminal;
`determining the predetermined number based
`on the terminal attribute; and
`responsive to detecting that the first subset of the
`rounds is completed, collectively transmitting, to
`the user terminal, game view data corresponding
`to a second subset of rounds including the
`predetermined number of rounds subsequent to
`the completed rounds.
`
`Ex. 1001, Claim 1, FIG. 5;
`Petition, p. 34-42; Reply, 2-6;
`Institution Decision, p. 8-9.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`9
`
`Exhibit 1009
`
`
`
`(1) The Claims Recite Only Result-Oriented Functions
`
`“[T]he basic concept of controlling the transmission of game data,
`which inherently would include a number of rounds, based on an
`attribute of a receiving terminal . . . is common to the transmittal
`of game content in virtually any online game, in other words,
`accounting for the capability of the user terminal to receive data
`in order to determine the rate, i.e., efficiency, at which game data
`is transmitted.
`
`Institution Decision, p. 8-9 (citing Ex. 1001, 1:19–54; Ex 1002, 50).
`
`Ex. 1001, FIG. 1.
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`10
`
`Exhibit 1009
`
`
`
`(1) The Claims Recite Only Result-Oriented Functions
`Prong 1: Broadly Tracking Information With Functional Results Is
`An Abstract “Method of Organizing Human Activity”
`
` Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1351 (Fed. Cir. 2016)
`(finding abstract “monitoring of an electric power grid by collecting data
`from multiple data sources, analyzing the data, and displaying the results”);
`In re TLI Commc’ns LLC Pat. Litig., 823 F.3d 607, 612–13 (Fed. Cir. 2016);
`Intellectual Ventures I LLC v. Capital One Bank, 792 F.3d 1363, 1369 (Fed. Cir.
`2015) (“customizing information based on . . . information known about the
`user” is abstract).
`
`
`
`
`
`Petition, p. 26, 40-42; Reply, p. 6
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`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`11
`
`Exhibit 1009
`
`
`
`(2) No Improvement in Computer Functionality
`Prong 2: No Practical Application
`
` Prong 2 evaluates whether the claim as a whole integrates the
`recited judicial exception into a practical application of the exception.
`
`Prong 2 Exemplary Considerations:
`
` an additional element reflects an improvement in the functioning of a computer, or
`an improvement to other technology or technical field;
`
` an additional element applies or uses the judicial exception in some other
`meaningful way beyond generally linking the use of the judicial exception to a
`Result
`particular technological environment, such that the claim as a whole is more than a
`drafting effort designed to monopolize the exception.
`Based
`
`Reply, p. 7-11.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`12
`
`Exhibit 1009
`
`
`
`(2) No Improvement in Computer Functionality
`Prong 2: No Practical Application
`
`McRO, Inc. v. Bandai Namco Games Am. Inc.,
`837 F.3d 1299, 1314-15 (Fed. Cir. 2016)
`• The patent “is focused on a specific asserted
`improvement in computer animation, i.e.,
`the automatic use of rules of a particular
`type.”
`“The claimed process uses a combined order
`of specific rules that renders information into
`a specific format that is then used and
`applied to create desired results: a sequence
`of synchronized, animated characters.”
`
`•
`
`Petition, p. 32-37; Reply, p. 8.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`13
`
`Exhibit 1009
`
`
`
`(2) No Improvement in Computer Functionality
`Prong 2: No Practical Application
`Compare McRO
`A method for automatically animating lip synchronization and facial expression
`of three-dimensional characters comprising:
`
`obtaining a first set of rules that define output morph weight set stream as
`a function of phoneme sequence and time of said phoneme sequence;
`
`obtaining a timed data file of phonemes having a plurality of sub-sequences;
`
`generating an intermediate stream of output morph weight sets and a plurality
`of transition parameters between two adjacent morph weight sets by
`evaluating said plurality of sub-sequences against said first set of rules;
`
`generating a final stream of output morph weight sets at a desired frame rate
`from said intermediate stream of output morph weight sets and said plurality
`of transition parameters; and
`
`applying said final stream of output morph weight sets to a sequence of
`animated characters to produce lip synchronization and facial expression
`control of said animated characters.
`Petition, p. 32-37; Reply, p. 8.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`14
`
`Exhibit 1009
`
`
`
`(2) No Improvement in Computer Functionality
`Prong 2: No Practical Application
`
`With ‘886 Patent Claim 1:
`Desired result: “efficiently providing game content through a web application.”
`Ex. 1001, 1:58-60.
`
`Claims limitation directed toward the effect:
`
`“by a controller, collectively transmitting game view data of a game involving
`multiple opponents and having a set of a plurality of rounds to a user terminal,
`the game view data corresponding to a first subset of rounds including a
`predetermined number of rounds in the plurality of rounds;
`identifying a terminal attribute of the user terminal;
`determining the predetermined number based on the terminal attribute; and
`responsive to detecting that the first subset of the rounds is completed,
`collectively transmitting, to the user terminal, game view data corresponding
`to a second subset of rounds including the predetermined number of rounds
`subsequent to the completed rounds.”
`
`Petition, p. 32-37; Reply, p. 8.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`15
`
`Exhibit 1009
`
`
`
`(2) No Improvement in Computer Functionality
`Prong 2: No Practical Application
`• Compare Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336-37 (Fed. Cir.
`2016)
`• Recited a specific “four-step algorithm”—to carry out a “specific
`improvement to the way computers operate,” i.e., to store data in a
`“self-referential table functions differently than conventional database
`structures.”
`• With the ‘886 patent:
`
`Petition, p. 38;
`Reply, p. 4-5, 8-9;
`Ex. 1001, Fig. 5.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`16
`
`Exhibit 1009
`
`
`
`(2) No Improvement in Computer Functionality
`Prong 2: No Practical Application
`• No “specific function” for achieving “an improved manner” of transmitting
`game data is recited in the claims.
`• PO can only point to the specification which provides a non-exhaustive list of
`“terminal attributes” and no relation between those attributes and a
`“number of rounds based on that attribute.”
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`Petition, p. 38;
`Reply, p. 4-5, 8-10;
`Ex. 1001, 11:24-41.
`
`17
`
`Exhibit 1009
`
`
`
`(2) No Improvement in Computer Functionality
`Prong 2: No Practical Application
`
`•
`
`• No “specific function” for achieving “an improved manner” of transmitting
`game data is recited in the claims.
`If “terminal attribute table” is determined to be part of the claim limitations,
`the claim is still abstract.
`Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315, 1327 (Fed.
`•
`Cir. 2017) (finding ineligible claims directed to the idea of “creating an
`index and using that index to search for and retrieve data”) (cited in
`Decision, p. 10).
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`Petition, p. 38;
`Reply, p. 4-5, 8-10.
`
`18
`
`Exhibit 1009
`
`
`
`(3) No Improvement in Graphical User Interface Technology
`Prong 2: No Practical Application
`
`PO’s caselaw is inapposite:
`• Data Engine Techs. LLC v. Google LLC, 906 F.3d 999 (Fed. Cir. 2018)
`the claims recited “a specific structure (i.e., notebook tabs) within a
`•
`particular spreadsheet display that performs a specific function (i.e.,
`navigating within a three-dimensional spreadsheet),” which provided a
`specific technological solution to “a known technological problem in
`computers.” Id. at 1009.
`• Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356 (Fed. Cir. 2018)
`Improved the efficient functioning of a computer by reciting “a particular
`•
`manner of summarizing and presenting information in electronic
`devices.”
`
`Reply, p. 11-12.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`19
`
`Exhibit 1009
`
`
`
`(3) No Improvement in Graphical User Interface Technology
`Prong 2: No Practical Application
`
`PO’s caselaw is inapposite:
`• PO’s expert admits the ‘886 patent is unrelated to user interface technology.
`
`Reply, p. 11-13;
`Ex. 1007, 13:1-5.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`20
`
`Exhibit 1009
`
`
`
`Step Two: No Inventive concept
`
` PO admits “the recited hardware elements
`are arguably conventional”
`• user terminal
`• “a personal computer or a
`smartphone.”
`• controller
`• “a CPU, a RAM, a ROM and the
`like”
`
`Reply, p. 13; Ex. 1001, 1:19-23, 3:66-4:8, 4:57-59;
`POR, p. 36.
`
`Ex. 1001, FIG. 1; Reply, p. 13.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`21
`
`Exhibit 1009
`
`
`
`Step Two: No Inventive concept
`
` The Conventional Hardware Performs
`Routine Functions:
`• “transmitting game view data”
`• “responsive to detecting that the first
`subset of rounds is completed,
`collectivity transmitting . . . game
`view data”
` The admitted prior art completed these
`conventional steps. Ex. 1001, 1:19-54.
`
`Ex. 1001, FIG. 1; Reply, p. 14.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`22
`
`Exhibit 1009
`
`
`
`Step Two: No Inventive concept
`
` The Conventional Hardware Performs
`Routine Functions:
`• “transmitting game view data”
`• “responsive to detecting that the
`first subset of rounds is completed,
`collectivity transmitting . . . game
`view data”
` PO’s expert admits these are well-
`understood, routine, and conventional
`functions.
` The Federal Circuit agrees:
`• See, e.g., Smartflash LLC v. Apple Inc., 680 F.
`App’x 977, 983 (Fed. Cir. 2017).
`
`Ex. 1007, 73:4-18; Reply, p. 10-11, 14.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`23
`
`Exhibit 1009
`
`
`
`Step Two: No Inventive concept
`
` The Conventional Hardware Performs
`Routine Functions:
`• “identifying a terminal attribute”
` PO’s expert admits this is a well-understood,
`routine, and conventional function.
`
`Ex. 1007, 70:10-17; Reply, p. 11.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`24
`
`Exhibit 1009
`
`
`
`Step Two: No Inventive concept
`
` The Conventional Hardware Performs Routine Functions:
`• “determining a predetermined number based on the terminal
`attribute”
` The Federal Circuit has found this is a well-understood, routine, and
`conventional function.
`• See, e.g., Intel. Ventures v. Erie Indemnity I, 850 F.3d 1315, 1327 (Fed. Cir.
`2017) (finding claims drawn to the idea of “creating an index and using
`that index to search for and retrieve data,” ineligible under Section 101).
`
`Petition, p. 41; Reply, p. 10 n.2.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`25
`
`Exhibit 1009
`
`
`
`Step Two: No Inventive concept
`
`The purported “advance” is not
`captured in the claims.
` Neither “efficiently providing
`game content through a web
`application,”
` Nor, as PO formulates it,
`“improv[ing] gameplay
`efficiency and optimiz[ing]
`processing load as well as
`network load,” is required or
`recited in the claims.
`
`No relationship between the
`“terminal attribute” and the
`“predetermined number” is
`recited.
`
`1. A method comprising:
`by a controller, collectively transmitting game view
`data of a game involving multiple opponents and
`having a set of a plurality of rounds to a user
`terminal, the game view data corresponding to a
`first subset of rounds including a predetermined
`number of rounds in the plurality of rounds;
`identifying a terminal attribute of the user
`terminal;
`determining the predetermined number based on
`the terminal attribute; and
`responsive to detecting that the first subset of the
`rounds is completed, collectively transmitting, to
`the user terminal, game view data corresponding
`to a second subset of rounds including the
`predetermined number of rounds subsequent to
`the completed rounds.
`Ex. 1001, claim 1; Petition, p. 60;
`Reply, 16-17.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`26
`
`Exhibit 1009
`
`
`
`Step Two: No Inventive concept
`
` PO’s caselaw is again inapposite:
`• BASCOM Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350
`(Fed. Cir. 2016) (emphasis added)”
`• The Federal Circuit found that the claims at issue contained an inventive
`arrangement of elements through “the installation of a filtering tool at a specific
`location, remote from the end-users, with customizable filtering features specific
`to each end user,” which solved a problem in the prior art.
`
`• PO’s expert admits the architecture disclosed in the ’886 patent is entirely
`conventional:
`
`Reply, p. 15; Ex. 1007, 29:1-4.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`27
`
`Exhibit 1009
`
`
`
`Dependent Claims: Same Abstract Idea; No Inventive Concept
`
` Claim 2:
`The method according to claim 1, further
`comprising
`transmitting view data presenting
`intermediate result information to the
`user terminal, responsive to detecting
`that the first subset of the rounds is
`completed.
`
` Routine data collection
` Does not capture purported
`“advance”
`
`Ex. 1001, Claim 2; Petition, p. 51-52.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`28
`
`Exhibit 1009
`
`
`
`Dependent Claims: Same Abstract Idea; No Inventive Concept
`
` Claim 3:
`The method according to claim 1, further
`comprising
`transmitting, to the user terminal, view
`data for checking a user of his/her
`willingness to continue with a battle,
`responsive to detecting that the first
`subset of the rounds is completed.
`
` Routine data collection
` Does not capture purported
`“advance”
`
`Ex. 1001, Claim 3; Petition, p. 51-52.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`29
`
`Exhibit 1009
`
`
`
`Dependent Claims: Same Abstract Idea; No Inventive Concept
`
` Claim 4:
`The method according to claim 1, further
`comprising
`transmitting view data for informing a
`user of an achieved round count to the
`user terminal, responsive to detecting
`that the first subset of the rounds is
`completed.
`
` Routine data collection
` Does not capture purported
`“advance”
`
`Ex. 1001, Claim 4; Petition, p. 51-52.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`30
`
`Exhibit 1009
`
`
`
`Dependent Claims: Same Abstract Idea; No Inventive Concept
`
` Routine data collection
` Does not capture purported
`“advance”
`
` Claim 5:
`The method according to claim 1, further
`comprising
`responsive to detecting that the first
`subset of the rounds is completed:
`identifying a user related to the user
`who uses the user terminal;
`identifying a progress status of the
`game of the related user; and
`transmitting, to the user terminal,
`view data for informing progress
`information of the game of the
`related user.
`
`Ex. 1001, Claim 5; Petition, p. 51-52.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`31
`
`Exhibit 1009
`
`
`
`Dependent Claims: Same Abstract Idea; No Inventive Concept
`
` Claim 6:
`The method according to claim 1, further
`comprising
`retrieving a user attribute of the user
`who uses the user terminal; and
`determining the predetermined number
`based on the user attribute.
`
` Routine data collection
` Does not capture purported
`“advance”
`
`Ex. 1001, Claim 6, FIG. 6; Petition, p. 51-53.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`32
`
`Exhibit 1009
`
`
`
`Dependent Claims: Same Abstract Idea; No Inventive Concept
`
` Unclear what is being claimed
` Does not capture purported
`“advance”
`
` Claim 7:
`The method according to claim 1, further
`comprising
`retrieving relevance to a newly
`transmitted round; and
`determining the predetermined number
`based on the relevance such that the
`subset of rounds includes a round having
`high relevance.
`
`Ex. 1001, Claim 7; Petition, p. 51-53.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`33
`
`Exhibit 1009
`
`
`
`Dependent Claims: Same Abstract Idea; No Inventive Concept
`
` Unclear what is being claimed
` Does not capture purported
`“advance”
`
` Claim 8:
`The method according to claim 1, further
`comprising
`specifying an upper limit value of the
`predetermined number of the rounds in
`the game; and
`determining a desired number of rounds
`as the predetermined number when the
`desired number of rounds equal to or
`less than the upper limit value is
`acquired from the user terminal.
`
`Ex. 1001, Claim 8; Petition, p. 51-54.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
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`34
`
`Exhibit 1009
`
`
`
`35 U.S.C. §112(A) – Lack of Written Description
` The analysis of whether the specification complies with the
`written description requirement calls for comparison of the scope
`of the claim with the scope of the description to determine
`whether applicant has demonstrated possession of the claimed
`invention.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`35
`
`Petition, p. 55; Ex. 1001, Claim 1.
`
`Exhibit 1009
`
`
`
`35 U.S.C. §112(A) – Lack of Written Description
` The specification never describes how the system “determin[es] the
`predetermined number based on the user attribute.”
`1. There is no description of how the predetermined number is “predetermined” in
`the first place.
`2. No actual table is disclosed.
`3. The specification discloses that “[i]n the terminal attribute table, the
`predetermined number of rounds is recorded in association with the terminal
`attributes.” Ex. 1001, 11:15-17 (emphasis added) .
`No information is provided about how the information is recorded and by what
`•
`component of the system, nor what is meant by recording the predetermined number “in
`association with” the terminal attributes.
`It does not explain how a “predetermined number” may later be “determined.”
`4.
`5. There is no description of what the relationship is between the predetermined
`number and the terminal attribute.
`6. No information is provided as to which of a variety of terminal attributes is
`identified as the basis for the number of rounds determination.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`Petition, p. 58-61
`
`36
`
`Exhibit 1009
`
`
`
`35 U.S.C. §112(B) – Indefiniteness
` “Determining the predetermined number based on the user attribute.”
`1. How is the predetermined number is “predetermined” in the first place and by
`what?
`2. How does the predetermined number get into the attribute table and by what
`component of the system?
`3. How is the predetermined number recorded “in association with” the terminal
`attributes?
`4. How does the system determine the predetermined number of rounds “based on”
`the terminal attribute?
`5. How is the table “used” for the determination?
`6. Which of the various terminal attributes is identified as the basis for the number of
`rounds determination?
`• What is the relationship/association between a predetermined number and a terminal
`attribute?
`• What constitutes a “high” predetermined number and how will that vary for any given
`terminal attribute?
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`Petition, 64-65.
`
`37
`
`Exhibit 1009
`
`
`
`35 U.S.C. §112(B) – Indefiniteness
` The specification adds further confusion:
`
` And it is not clear as to what constitutes “attribute information” or a “terminal
`attribute”:
`
`Petition, 65; Ex. 1001, 11:8-14, 33-35.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`38
`
`Exhibit 1009
`
`
`
`35 U.S.C. §112(B) – Indefiniteness
` PO’s expert agrees what constitutes “attribute information” is open to
`interpretation:
`
`Reply, p. 23; Ex. 1007, 81:23-82:12 (objection omitted).
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`39
`
`Exhibit 1009
`
`
`
`Deficiencies of PO’s Contingent Motion to Amend
`
`PO’s Motion to Amend, 3-4.
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`40
`
`Exhibit 1009
`
`
`
`Deficiencies of PO’s Contingent Motion to Amend
` PO’s Motion to Amend should be denied, as it does not provide an
`explanation of how its citations to the underlying patent applications
`support the proposed substitute claims.
`• Under Aqua Products, merely citing to the specification alongside the
`proposed claims, without explanation, is insufficient.
`
`• The PTAB has similarly held that claim chart with specification cites did not
`excuse Patent Owner “from setting forth how the original disclosure
`provides written description support for the proposed substitute claim.”
`Cisco Systems, Inc. v. Focal IP, LLP, IPR2016-01254, Paper 56, p. 93 (P.T.A.B Dec. 27, 2017).
`
`Sur-reply to Opposition to Motion to Amend, 1-2.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`41
`
`Exhibit 1009
`
`
`
`Deficiencies of PO’s Contingent Motion to Amend
` Proposed Claims 11, 19, and 20 Improperly Broaden the Claim Scope
`
` Computer (“Management Server”) > Controller
`
`Sur-reply to Opposition to Motion to Amend, p. 3-5; Ex. 1001, Fig. 1.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`42
`
`Exhibit 1009
`
`
`
`Deficiencies of PO’s Contingent Motion to Amend
` The Proposed Amendments Fail to Address the Grounds of
`Unpatentability
`• The Motion relied on nearly identical arguments as the POR
`• The Motion is largely silent regarding the impact that the “terminal attribute
`table” has on the patent eligibility of the claims. Motion, p. 4-5.
`
`Sur-reply to Opposition to Motion to Amend, p. 5-6.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`43
`
`Exhibit 1009
`
`
`
`Deficiencies of PO’s Contingent Motion to Amend
` Prong 1
`• The proposed claims are directed to the abstract idea of “controlling the
`transmission of game data, including the number of rounds in a game, based on an
`attribute of a receiving terminal.”
`• Method of Organizing Human Activity
`• Analogous Federal Circuit cases:
`• In re TLI Commc’ns LLC Pat. Litig., 823 F.3d 607 (Fed. Cir. 2016)
`• Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat'l Ass'n, 776 F.3d 1343, 1347
`(Fed. Cir. 2014)
`• Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)
`
`Sur-reply to Opposition to Motion to Amend, p. 6.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`44
`
`Exhibit 1009
`
`
`
`Deficiencies of PO’s Contingent Motion to Amend
` Prong 2: whether the claim recites additional elements that integrate
`the exception into a practical application of that exception
`• Example 40 v. Proposed Claims
`• Similar intended result
`• Claims stand in stark contrast
`
` Example 40
` Intended Result:
` Only collect NetFlow protocol data
`when abnormal network
`conditions are detected so as to
`prevent drag on network
`resources and limit collection of
`such data to relevant times.
`
` ‘886 Proposed Claims
` Intended Result:
` “efficiently providing game
`content through a web
`application” (Ex. 1001, 1:58-60).
`
`Sur-reply to Opposition to Motion to Amend, p. 7-10.
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`45
`
`Exhibit 1009
`
`
`
`Deficiencies of PO’s Contingent Motion to Amend
` Example 40
` ‘886 Proposed Claims
`A method of optimizing data transmission of a battle game . . . :
`collecting, by the network appliance, traffic data
`relating to the network traffic passing through the
`network appliance, the traffic data comprising at
`least one of network delay, packet loss, or jitter;
`comparing, by the network appliance, at least one of
`the collected traffic data to a predefined threshold;
`and collecting additional traffic data relating to the
`network traffic when the collected traffic data is
`greater than the predefined threshold,
`the additional traffic data comprising Netflow
`protocol data. Id.
`
`identifying a terminal attribute of the user terminal;
`
`determining a predetermined number of rounds of battle game
`data to be transmitted to the user terminal, the determination of
`the predetermined number of rounds being based on the
`identified terminal attribute and a terminal attribute table
`storing an association between a plurality of terminal attributes
`and respective predetermined numbers of rounds of the battle
`game;
`
`collectively transmitting to the user terminal first game view data
`of the battle game involving multiple opponents and having first
`subset of rounds including the predetermined number of rounds;
`and
`
`Sur-reply to MTA, 7-10.
`
`responsive to detecting that the first subset of theof rounds is
`completed, collectively transmitting, to the user terminal, second
`game view data having a second subset of rounds including the
`predetermined number of rounds subsequent to the completed
`rounds.
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`46
`
`Exhibit 1009
`
`
`
`35 U.S.C. §112(B) – The Claims Remain Indefinite
` “Determining the predetermined number based on the terminal attribute and a
`terminal attribute table”
`1. The proposed claims fail to resolve the problems in the original claims.
`It is not clear from the claims how the determining step is accomplished based on
`2.
`both the terminal attribute and a terminal attribute table, or how the two relate to
`one another.
`3. Which of the various terminal attributes is identified as the basis for the number of
`rounds determination?
`• What is the relationship/association between a predetermined number and a terminal
`attribute?
`• What constitutes a “high” predetermined number and how will that vary for any given
`terminal attribute?
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`47
`
`Sur-reply to MTA, 11-12.
`
`Exhibit 1009
`
`
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