Paper No. __
`Filed: July 17, 2018
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`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`
`SUPERCELL OY,
`Petitioner
`
`v.
`
`GREE, INC.,
`Patent Owner
`____________________
`
`Case PGR2018-00050
`Patent 9,675,886
`____________________
`
`
`
`DECLARATION OF MICHAEL ZYDA
`(EXHIBIT 2001)
`
`
`
`
`
`
`
`Filed: July 17, 2018
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`
`SUPERCELL OY,
`Petitioner
`
`v.
`
`GREE, INC.,
`Patent Owner
`____________________
`
`Case PGR2018-00050
`Patent 9,675,886
`____________________
`
`
`
`DECLARATION OF MICHAEL ZYDA
`(EXHIBIT 2001)
`
`
`
`
`
`
`
`
`PGR2018-00050
`U.S. Patent No. 9,675,886
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`
`I. MY BACKGROUND
`
`1. My name is Michael Zyda, and I reside in California. I am an independent
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`consultant. I am not employed by GREE, Inc., have never been an employee of
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`GREE, Inc., and have not otherwise had a professional relationship with GREE,
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`Inc. I am over eighteen years of age, and I would otherwise be competent to testify
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`as to the matters set forth herein if I am called upon to do so.
`
`2.
`
`I submit this Declaration at the request of GREE, Inc., for consideration by
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`the Patent Trial and Appeal Board (PTAB) in Post-Grant Review (PGR) No.
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`PGR2018-00050 of U.S. Patent No. 9,675,886 (886 Patent). I am being
`
`compensated for my work in connection with this Declaration. No part of my
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`compensation in this matter is dependent upon the outcome of this proceeding or
`
`any issue in this proceeding.
`
`3.
`
`In forming my opinions, I rely on my knowledge and experience in the field
`
`and on documents and information referenced in this Declaration.
`
`4.
`
`I began my career in Computer Graphics in 1973 as part of an undergraduate
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`research group, the Senses Bureau, at the University of California, San Diego.
`
`5.
`
`I earned a Master of Science in Computer and Information Science from the
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`University of Massachusetts in 1978. I was also Teaching Assistant in the
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`Department of Computer and Information Science from September 1976 - August
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`1978.
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`
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`PGR2018-00050
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`6.
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`I earned a Doctor of Science in Computer Science from Washington
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`University in 1984 based on my Doctoral Thesis entitled "Algorithm Directed
`
`Architectures for Real-Time Surface Display Generation." I was also Research
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`Associate/Assistant in the Department of Computer Science from September 1978
`
`- March 1983, and August 1983 - January 1984.
`
`7.
`
`I began my career as a full-time teacher of Computer Science at the Naval
`
`Postgraduate School (NPS) in Monterey, California, in February of 1984 as an
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`Assistant Professor in the Department of Computer Science. In July 1990, I was
`
`granted tenure. After being granted tenure and until the Fall of 2004, I held a
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`number of Positions in the Computer Science department of NPS, including
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`Academic Associate Chair for the Department of Computer Sciences, Academic
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`Associate Chair for the Modeling, Virtual Environments and Simulation
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`Curriculum, Founding Chair, Modeling, Virtual Environments and Simulation
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`Academic Group, and Professor of Computer Science.
`
`8.
`
`From November 2000 - November 2004, while a Professor of Computer
`
`Science, I was the Founding Director of the MOVES (modeling, virtual
`
`environments, and simulation) Institute at NPS. Also at NPS, my NPSNET
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`Research Group built the first networked virtual environment with fully
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`instrumented body suits that played across the Internet. My work on the
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`networking of virtual environments contributed to the development of the IEEE
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`PGR2018-00050
`U.S. Patent No. 9,675,886
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`1278.1 standard for distributed interactive simulation. I helped found the
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`subspecialty in modeling and simulation for the United States Navy, the simulation
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`operations functional area (57) for the US Army and the simulation operations area
`
`(MOS-9625) for the US Marine Corps.
`
`9.
`
`Since October 2004, I have been the Founding Director of the University of
`
`Southern California (USC) GamePipe Laboratory, and a Professor of Engineering
`
`Practice in the USC Department of Computer Science. At USC, I founded the B.S.
`
`in Computer Science (Games), the M.S. in Computer Science (Game
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`Development), and the USC Games joint Advanced Games course. That program
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`has been rated #1 by the Princeton Review for eight of the last nine years, and
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`program alumni have shipped games played by over 2.5 billion players (about
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`$100B in revenue).
`
`10. As can be seen from the attached Curriculum Vitae (Exhibit A), I have (i)
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`authored numerous publications in the field of video games and especially
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`mobile/online gaming, (ii) numerous National Academy appointments (including a
`
`lifetime appointment for "extraordinary service"), (iii) been named as an inventor
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`on numerous video-game related patent applications and patents, (iv) been named
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`to numerous video-game-related Advisory Boards, and (v) acted as an expert
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`witness in numerous video-game-related litigations and PTAB trials.
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`
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`PGR2018-00050
`U.S. Patent No. 9,675,886
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`II. MATERIALS I CONSIDERED
`
`11.
`
`I have reviewed and considered the following documents in forming the
`
`opinions set forth in this Declaration:
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`G.
`
`The 886 Patent (filed as Exhibit 1001 by Supercell OY).
`
`Supercell OY’s Petition for Post-Grant Review of the 886 Patent.
`
`Exhibit 1002 – the prosecution history of the 886 Patent.
`
`Exhibit 1003 –USPTO Memorandum dated November 2, 2016.
`
`Exhibit 1004 –USPTO Subject Matter Eligibility Examples dated
`December 2016.
`
`Exhibit 2002– USPTO Memorandum dated April 19, 2018.
`
`Exhibit 2003 –AMERICAN HERITAGE COLLEGE DICTIONARY 1077 (3rd
`ed. 1997).
`
`III. MY UNDERSTANDING OF LEGAL STANDARDS
`
`A. Claim Construction
`
`12.
`
`I have been informed and understand that a claim in an unexpired patent
`
`shall be given its broadest reasonable interpretation in light of the patent’s
`
`specification. I have been informed and understand that claim terms are generally
`
`given their plain meaning as would be understood by a person of ordinary skill in
`
`the art in the context of the entire disclosure.
`
`B.
`
`Patent-Eligibility for Computer-Related Inventions
`
`13.
`
`I have been informed and understand that an invention is patent-eligible
`
`under 35 U.S.C. §101 if it claims a new and useful process, machine, manufacture,
`
`
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`PGR2018-00050
`U.S. Patent No. 9,675,886
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`or composition of matter. But, under judicially-created exceptions to patent
`
`eligibility, laws of nature, natural phenomena, and abstract ideas are not patentable.
`
`With respect to the abstract idea exception, I have been informed and understand
`
`that the inquiry to determine whether or not an invention is patent-eligible has two
`
`steps: (1) determine whether the claim is directed to a patent-ineligible abstract
`
`idea, and (2) if so, determine whether the elements of the claim individually or as
`
`an ordered combination transform the nature of the claim into a patent-eligible
`
`application of the abstract idea. I have been informed and understand that claim
`
`elements reciting well-understood, routine, conventional activity in the field are
`
`insufficient to render the claims patent-eligible, and the question of whether a
`
`claim element or combination of elements is well-understood, routine and
`
`conventional to a skilled artisan in the relevant field is a question of fact.
`
`C. Written Description
`
`14.
`
`I have been informed and understand that claims have sufficient written
`
`description under 35 U.S.C. §112(a) when the disclosure of the application relied
`
`upon reasonably conveys to those skilled in the art that the inventor had possession
`
`of the claimed subject matter as of the filing date. I have been informed and
`
`understand that this test requires an objective inquiry into the four corners of the
`
`specification from the perspective of a person of ordinary skill in the art, and based
`
`
`
`
`on that inquiry, the specification must describe an invention understandable to that
`
`skilled artisan and show that the inventor actually invented the invention claimed.
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`D. Definiteness
`
`15.
`
`I have been informed and understand that a claim must particularly point out
`
`and distinctly claim the subject matter. I have been informed and understand that a
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`claim is indefinite under 35 U.S.C. §112(b) when it contains words or phrases
`
`whose meaning is unclear. I have been informed and understand that the
`
`definiteness requirement is not a demand for unreasonable precision, and the
`
`amount of clarity that is required necessarily invokes some standard of reasonable
`
`precision in the use of language in the context of the circumstances. I have been
`
`informed and understand that whether claims are sufficiently definite is based on
`
`the perspective of one of ordinary skill in the art in view of the entire written
`
`description and developing prosecution history.
`
`IV. LEVEL OF ORDINARY SKILL IN THE ART
`
`16. A person of ordinary skill in the art ("skilled artisan") of the 886 Patent
`
`would possess at least an associate degree in the field of computer science (or a
`
`related discipline, such as computer engineering, to the extent the course of study
`
`involved the design and programming of video games) and at least two years of
`
`practical (e.g., work) experience in the field of video-game design and
`
`programming. If the skilled artisan did not obtain a formal degree, then they
`
`
`
`
`would have at least four years of practical (e.g., work) experience in the field of
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`PGR2018-00050
`U.S. Patent No. 9,675,886
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`video-game design and programming.
`
`V. THE INVENTION CLAIMED IN THE 886 PATENT IMPROVES
`THE MOBILE VIDEO GAME SYSTEM AND/OR IMPROVES
`THE TECHNOLOGICAL FIELD OF MOBILE VIDEO GAMES
`
`A.
`
`The Recited Transmission of the Second Subset
`of Rounds Improves the Technological Field
`
`17. The invention described in the 886 Patent and recited in independent claims
`
`1, 9, and 10 represents an innovative technological improvement over prior art
`
`video game systems.
`
`18. One specific technological improvement is the feature of, "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," recited in claims 1, 9, and 10 of the 886 Patent.
`
`19. This feature improves the video game system and the technological field of
`
`video game design because it transmits only a subset of the rounds at different
`
`times based on gameplay progress (i.e., responsive to detecting that the first subset
`
`of the rounds is completed). In contrast to transmitting the entire set of rounds in a
`
`game at a single time as some conventional games do, the invention reduces
`
`processing load on, and processing time by, the system by detecting gameplay
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`PGR2018-00050
`U.S. Patent No. 9,675,886
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`progress and transmitting a subset of the entire set of rounds when the previously
`
`transmitted subset is completed. Exhibit 1001, 1:46-54, 2:40-42, and 10:15-36.
`
`20. Also, in contrast to transmitting only one round at a time as some
`
`conventional games do, the invention increases the efficiency of gameplay and
`
`increases processing speed by allowing a user to progress through each round
`
`included in the already transmitted subset without waiting for each subsequent
`
`round to be transmitted. Id. at 1:46-54, 2:40-42, and 10:15-36. At the same time,
`
`the invention reduces the unnecessary draw on system and network resources that
`
`would result from interrupting gameplay to transmit each round one at a time.
`
`21. Based on my experience, at the time of the invention, a skilled artisan would
`
`have understood that detecting gameplay progress and transmitting a second subset
`
`of rounds when the previously transmitted first subset is completed would
`
`beneficially reduce the processing load and time because the processor would not
`
`need to transmit the entire set of rounds of the game at one time. A skilled artisan
`
`also would have understood that this feature reduces the unnecessary draw on
`
`system and network resources that would result from interrupting gameplay to
`
`transmit each round one at a time. When reading the specification of the 886
`
`Patent, the skilled artisan would recognize these improvements as important
`
`technological benefits to the overall system and to the field of mobile gaming that
`
`
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`PGR2018-00050
`U.S. Patent No. 9,675,886
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`directly result from transmitting "a second subset of rounds including the
`
`predetermined number of rounds subsequent to the completed rounds."
`
`22.
`
`In particular, at the time of the invention, the skilled artisan would have
`
`understood that one problem recognized by the inventors of the 886 Patent in
`
`conventional combat-style games is that the conventional games were too
`
`burdensome on processing and network resources and thus were inefficient for the
`
`system. Id. at 1:46-54, 2:40-42, and 10:15-36. These games were also tedious and
`
`inefficient for the user whose wait time was increased either initially (in the games
`
`transmitting the entire set of rounds at once) or between rounds (in the games
`
`transmitting only one round at a time). Id.
`
`23.
`
`It is my opinion that the feature of transmitting a second subset of rounds,
`
`responsive to detecting that the first subset of rounds is completed, strikes a
`
`balance between (i) transmitting all rounds at a single time and (ii) transmitting
`
`only one round at a time. This balance results in both improved gameplay
`
`efficiency and also optimization of processing and network loads which the
`
`conventional systems could not accomplish.
`
`24. Based on my experience, at the time of the invention, the skilled artisan in
`
`network-based video games for user terminals (e.g., mobile phones) would have
`
`understood that it is very important to prevent an unnecessary draw on the
`
`resources of the user terminal and the overall system. Among other things,
`
`
`
`
`unnecessary memory usage and unnecessary processing load increase the time for
`
`the system to conduct the battle and unnecessarily decrease battery life of the user
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`PGR2018-00050
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`terminal.
`
`25. At the time of the invention, the skilled artisan would have further
`
`understood how the claimed features result in this benefit at least because the 886
`
`Patent describes an example of how the claimed transmitting of the second subset
`
`of rounds achieves these benefits. The management server 20 identifies the game
`
`progress status in the user terminal 10 based on progress data acquired from the
`
`user terminal 10. Id. at 7:29-44, and 10:3-14. When the progress data is received,
`
`indicating that the first subset of rounds is completed, the management server 20
`
`transmits the new battle view data in the form of the second subset of rounds
`
`having the predetermined number of rounds. Id. at 8:11-15. Because a first subset
`
`of rounds is initially transmitted and then a second subset of rounds is transmitted
`
`responsive to detecting that the first subset of the rounds is completed, the
`
`gameplay progress efficiency is increased while the user's wait time is decreased.
`
`Id. at 1:44-54, 2:40-42, and 10:15-36.
`
`26. Based on the above, it is my opinion that, at the time of the invention, the
`
`skilled artisan would have considered the claimed transmission of a second subset
`
`of rounds, responsive to detecting that the first subset of the rounds is completed,
`
`to be a technological improvement over prior art video game systems because it
`
`
`
`
`beneficially reduces processing and network loads while increasing gameplay
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`PGR2018-00050
`U.S. Patent No. 9,675,886
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`efficiency.
`
`B.
`
`The Recited Determination of the Predetermined Number
`Based on the Terminal Attribute Improves the Technological Field
`
`27. Another specific technological improvement is the feature of, "identifying a
`
`terminal attribute of the user terminal [and] determining the predetermined number
`
`based on the terminal attribute," recited in claims 1, 9, and 10 of the 886 Patent.
`
`28. This feature improves the video game system and the technological field of
`
`video game design because it takes into consideration an attribute of the user
`
`terminal when determining the predetermined number of rounds to be included in
`
`each subset of rounds. In other words, the user terminal's usability (i.e., attribute),
`
`such as the communication speed or processing speed, is used to determine how
`
`many rounds should be included in each subset being transmitted. Id. at 11:20-35.
`
`29. Based on my experience, at the time of the invention, a skilled artisan would
`
`have understood that determining the number of rounds to be transmitted at a time
`
`while taking into consideration an attribute of the user terminal would beneficially
`
`improve the efficiency of game data transmission and therefore processing speed
`
`because the amount of data (i.e., the number of rounds) to transmit is set according
`
`to the capabilities of the user terminal. For example, the number of rounds could
`
`be set high if the communication speed is high. At the same time, a skilled artisan
`
`
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`PGR2018-00050
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`
`would have understood that this feature reduces the unnecessary draw on system
`
`and network resources that would result from determining the number of rounds
`
`without taking into consideration the attributes of the user terminal such as, for
`
`example, for communication speed. When reading the specification of the 886
`
`Patent, the skilled artisan would recognize these improvements as important
`
`technological benefits to the overall system and the field of mobile gaming that
`
`directly result from "identifying a terminal attribute of the user terminal [and]
`
`determining the predetermined number based on the terminal attribute."
`
`30.
`
`In particular, at the time of the invention, the skilled artisan would have
`
`understood that one problem recognized by the inventors of the 886 Patent in
`
`conventional combat-style games is that the conventional games did not choose
`
`how many rounds to transmit at a time based on any attribute of the user terminal.
`
`Because different user terminals will have different attributes or usability (e.g.,
`
`communication speed, browser type, terminal type), the processing load and time
`
`of the different user terminals may be different. As discussed above, the skilled
`
`artisan would have understood that it is very important to prevent an unnecessary
`
`draw on the resources of the user terminal and the overall system because
`
`unnecessary memory usage and unnecessary processing load increase the time for
`
`the system to conduct the battle and unnecessarily decrease battery life of the user
`
`terminal. Thus, the feature of determining the predetermined number based on the
`
`
`
`
`user terminal attribute improves the efficiency of game data transmission for each
`
`user terminal by taking into account different terminal attributes. Conventional
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`PGR2018-00050
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`systems at the time of the invention did not consider a terminal's attribute and
`
`could not make adjustments based on, for example, communication speed or
`
`processing speed, resulting in less overall efficiency.
`
`31. At the time of the invention, the skilled artisan would have further
`
`understood how the claimed features result in this benefit at least because the 886
`
`Patent describes an example of how the claimed determining of the predetermined
`
`number based on the terminal attribute achieves these benefits. The management
`
`server 20 first identifies a terminal attribute of the user terminal 10, and then the
`
`management server 20 determines the predetermined number of rounds to be
`
`included in each subset based on the identified terminal attribute. Exhibit 1001,
`
`11:28-41. One example given is setting the predetermined number of rounds to be
`
`high where the management server 20 determines that the user terminal 10 has a
`
`high communication speed (as an example of an "attribute"). Id. at 11:20-23.
`
`Because the number of rounds to be transmitted at a time is determined based on
`
`the usability or attribute of the user terminal 10, the transmission of the game view
`
`data is more efficiently carried out. Id. at 3:6-11.
`
`32. Based on the above, it is my opinion that, at the time of the invention, the
`
`skilled artisan would have considered the claimed determination of the
`
`
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`predetermined number based on the terminal attribute to be a technological
`
`improvement over prior art video game systems because it beneficially improves
`
`the efficiency of game data transmission and reduces the processing load for each
`
`user terminal having different terminal attributes.
`
`VI. AT LEAST INDEPENDENT CLAIMS 1, 9, AND 10
`RECITE FEATURES THAT ARE NOT WELL-
`UNDERSTOOD, ROUTINE, AND CONVENTIONAL
`
`33.
`
`I have no reason to believe that the skilled artisan would have considered the
`
`feature of, "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," and the feature of "identifying a terminal attribute of the
`
`user terminal [and] determining the predetermined number based on the terminal
`
`attribute," recited in claims 1, 9, and 10 of the 886 Patent, to have been well-
`
`understood, routine, and conventional features at the time of the 886 Patent's
`
`invention for at least the following reasons:
`
`34. Neither the 886 Patent specification nor prosecution history identifies these
`
`features as having been well-understood, routine, and conventional features.
`
`35.
`
`I am not aware of any Federal Circuit or Supreme Court decision that
`
`describes these features as having been well-understood, routine, and conventional
`
`features.
`
`
`
`
`36. The Petitioner did not identify any prior art game system that incorporates
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`such features.
`
`37. No prior art game system that incorporates such features was identified by
`
`the examiner during prosecution of the 886 Patent.
`
`38.
`
`I am not aware of any prior art game system that incorporates such features.
`
`VII. THE CLAIMS OF THE 886 PATENT ARE NOT INDEFINITE
`
`A.
`
`The Recited "Identifying a Terminal
`Attribute of the User Terminal" is Definite
`
`39. There is nothing unclear or confusing about the recited identification of a
`
`terminal attribute of the user terminal. As explained above, the 886 Patent
`
`discloses examples of such terminal attributes, and the skilled artisan would have
`
`certainly understood what was meant by identifying, for example, the
`
`communication speed or the browser type of the user terminal. Id. at 11:28-35.
`
`Moreover, the meaning of "identifying a terminal attribute of the user terminal" is
`
`clear even without reference to the specification of the 886 Patent because the
`
`skilled artisan would understand what is meant by an attribute of the gaming user's
`
`computer or other terminal, and also how to identify such an attribute. Thus, the
`
`skilled artisan would have clearly understood from the specification the "metes and
`
`bounds" of the recited "identifying a terminal attribute of the user terminal."
`
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`B.
`
`The Recited "Determining the Predetermined
`Number Based on the Terminal Attribute" is Definite
`
`40. There is nothing unclear or confusing about the recited determination of the
`
`predetermined number based on the terminal attribute. As explained above, the
`
`886 Patent discloses an example of setting the predetermined number of rounds to
`
`be large if the communication speed (i.e., the "attribute") is high. Id. at 11:20-35.
`
`Moreover, the meaning of "determining the predetermined number based on the
`
`terminal attribute" is clear even without reference to the specification of the 886
`
`Patent because the skilled artisan would understand what is meant by determining
`
`(i.e., setting) the number of rounds for the subset based on the identified attribute
`
`of the user terminal.
`
`41. There is also nothing unclear about "determining the predetermined
`
`number." The claims of the 886 Patent are clearly referring to determining in
`
`advance a number based on the terminal attribute. It is clear from the claim
`
`language that the point of the recited step is to "determine" in advance the
`
`"predetermined number" based on the attribute of the user terminal. This is
`
`confirmed by the specification of the 886 Patent which describes setting the
`
`number of rounds for the first and second subset in advance (i.e., before
`
`transmitting the subset) based on the terminal attribute. Id. at 11:36-41.
`
`
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`42. Thus, the skilled artisan would have clearly understood from the
`
`specification the "metes and bounds" of the recited "determining the predetermined
`
`number based on the terminal attribute."
`
`
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`VIII. CONCLUSION
`
`43.
`
`I declare under penalty of perjury that the foregoing Declaration is true and
`
`correct. Of course, my analysis is continuing and I may modify or supplement my
`
`conclusions as I receive additional information.
`
`
`
`Dated: July 17, 2018
`
`
`
`
`
`Attachment:
`
`Exhibit A: Curriculum Vitae of Michael Zyda
`
`
`
`
`___________________________
`Michael Zyda
`
`
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