Case 2:19-cv-00310-JRG-RSP Document 84 Filed 10/13/20 Page 1 of 62 PageID #: 1063
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`GREE, INC.,
`
`
`
`
`
`
`
`Plaintiff,
`
`v.
`
`SUPERCELL OY,
`
`
`
`
`
`Defendant.
`
`
`
`
`
`Case No. 2:19-cv-00310-JRG-RSP
`Case No. 2:19-cv-00311-JRG-RSP
`
`CLAIM CONSTRUCTION MEMORANDUM OPINION AND ORDER
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`This Order addresses the claim-construction disputes presented by the parties in Case No.
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`2:19-cv-00310-JRG-RSP (the “’310 Case”) and Case No. 2:19-cv-00311-JRG-RSP (the “’311
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`Case”). Before the Court are the opening claim construction briefs of GREE, Inc. (“Plaintiff”)
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`(’310 Case Dkt. No. 63 and ’311 Case Dkt. No. 62, both filed on July 24, 2020), the responses of
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`Supercell Oy (“Defendant”) (’310 Case Dkt. No. 65 and ’311 Case Dkt. No. 64,1 both filed on
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`August 10, 2020), and Plaintiff’s replies (’310 Case Dkt. No. 68 and ’311 Case Dkt. No. 68,1 both
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`filed on August 17, 2020). The Court held a hearing on the issues of claim construction and claim
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`definiteness on September 1, 2020. Having considered the arguments and evidence presented by
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`the parties at the hearing and in their briefing, the Court issues this Order.
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`
`
`
`
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`1 ’311 Case Dkt. Nos. 64 and 68 were both filed under seal. Redacted versions were filed as Dkt.
`Nos. 67 and 69, respectively.
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`
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`1
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`Table of Contents
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`I.
`
`BACKGROUND ............................................................................................................... 4
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`A.
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`B.
`
`The ’708 and ’832 Patents ...................................................................................... 4
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`The ’107 and ’439 Patents ...................................................................................... 5
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`II.
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`LEGAL PRINCIPLES ..................................................................................................... 7
`
`A.
`
`B.
`
`C.
`
`Claim Construction ................................................................................................. 7
`
`Departing from the Ordinary Meaning of a Claim Term ...................................... 10
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`Definiteness Under 35 U.S.C. § 112, ¶ 2 (pre-AIA) / § 112(b) (AIA) ................. 11
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`III. AGREED CONSTRUCTIONS ..................................................................................... 12
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`IV. CONSTRUCTION OF DISPUTED TERMS ............................................................... 12
`
`A.
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`Case No. 2:19-cv-310 ........................................................................................... 12
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`A-1.
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`“selected randomly” .................................................................................. 12
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`A-2.
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`A-3.
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`A-4.
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`“character” and “and at least one of the cells including a character
`…” ............................................................................................................. 16
`
`“displaying, during the virtual game, an item associated with the
`selected cell, which is determined by the server based on the
`selection request” ...................................................................................... 19
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`“wherein each of a plurality of items extracted from an item
`information table pertaining to a user is associated with each of the
`plurality of the cells” ................................................................................. 22
`
`A-5. The Associated-Memory Terms ............................................................... 24
`
`A-6.
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`A-7.
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`“[sending information to a user terminal for displaying, in a virtual
`game,] a sheet comprising the plurality of cells and obtainable item
`information” and “[send information to a user terminal for
`displaying, in a virtual game,] a sheet comprising the plurality of
`cells and obtainable item information” ..................................................... 26
`
`“send[ing] information for differentiating, in the virtual game, a
`display of the one cell from another cell of the plurality of cells in
`the sheet, wherein the differentiating of the display of the one cell
`is done in response to the selection request to select the one cell” ........... 28
`
`A-8.
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`“providing” and “provide” ........................................................................ 32
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`B.
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`Case No. 2:19-cv-311 ........................................................................................... 34
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`B-1.
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`B-2.
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`“game pieces” ........................................................................................... 34
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`“game item” .............................................................................................. 38
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`B-3. The Skill-Level Terms .............................................................................. 42
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`B-4. The Allocation-Information Terms ........................................................... 48
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`B-5. The Parameter-Value Terms ..................................................................... 51
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`B-6.
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`“cooperatively participate in the game” .................................................... 56
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`2
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`B-7.
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`“periodically causing an event to occur for providing one of the
`plurality of game pieces to a user” ............................................................ 57
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`B-8.
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`“ranking point” .......................................................................................... 60
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`V.
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`CONCLUSION ............................................................................................................... 62
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`3
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`I.
`
`BACKGROUND
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`In the two cases addressed in this Order, Plaintiff alleges infringement of four U.S. Patents.
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`In the ’310 Case, Plaintiff asserts two U.S. Patents: No. 10,076,708 (the “’708 Patent”) and No.
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`10,413,832 (the “’832 Patent”). In the ’311 Case, Plaintiff asserts two U.S. Patents: No. 9,079,107
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`(the “’107 Patent”) and No. 9,561,439 (the “’439 Patent”). The ’107, ’439, ’708, and ’832 Patents
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`are collectively referred to herein as the “Asserted Patents.”
`
`A.
`
`The ’708 and ’832 Patents
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`The ’708 and ’832 Patents are related. As stated on the face of the patents, the application that
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`issued as the ’832 Patent is a continuation of the ’708 Patent’s application and both patents
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`ultimately claim priority to a Japanese application filed June 21, 2012.
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`The patents are generally directed to a computer-game control method, server, and program
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`“that can increase the variations on methods for acquiring battle cards and the like, increase the
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`predictability of acquisition of a card or the like with a high rarity value or the like, and heighten
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`interest in the game.” ’708 Patent col.1 ll.47–53. The two patents have the same abstract, which
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`provides:
`
`A game control method, game server, and program can increase variations on
`methods for acquiring items, increase the predictability of acquisition of an item
`with a high rarity value or the like, and heighten interest in the game. Included are
`the steps of presenting a communication terminal, connected over a communication
`line, with acquirable item information that, for each item type, includes a total count
`and an acquisition count or a non-acquisition count of items when receiving, from
`the communication terminal, a request to present information related to items
`acquirable by the communication terminal, determining an item to provide to the
`communication terminal when receiving an item acquisition request from the
`communication terminal, and changing the acquirable item information when
`receiving a reset request from the communication terminal.
`
`Claim 1 of the ’708 Patent and Claim 4 of the ’832 Patent, exemplary method and system
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`claims respectively, recite as follows (with terms in dispute in bold italics and those Defendant
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`contends render claims indefinite underlined):
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`
`
`4
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`

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`’708 Patent Claim 1. A game control method comprising the steps of:
`(a) initializing a virtual game;
`(b) displaying, during the virtual game, a plurality of cells and acquirable item
`information that is received from a server over a communication line, the
`plurality of cells being displayed in the same size, wherein each of a plurality
`of items extracted from an item information table pertaining to a user is
`associated with each of the plurality of cells, the plurality of items being
`selected randomly only from items in the item information table, and at least
`one of the cells including a character which indicates a rarity value of an
`item associated with the at least one of the cells;
`(c) receiving, during the virtual game, a selection request selecting one of the
`plurality of cells and sending the selection request to the server; and
`(d) displaying, during the virtual game, an item associated with the selected
`cell, which is determined by the server based on the selection request.
`
`’832 Patent Claim 4. A game server comprising:
`a memory in which each of a plurality of cells is associated with each of
`extracted items extracted from the memory; and
`a controller configured to
`send information to a user terminal for displaying, in a virtual game, a
`sheet comprising
`the plurality of cells and obtainable
`item
`information, the obtainable item information comprising at least one of
`(i) a total number of items for each item type, (ii) a number of obtained
`items and (iii) a number of un-obtained items,
`receive, in the virtual game, a selection request from the user terminal to
`select one cell among the plurality of cells,
`send information for differentiating, in the virtual game, a display of the
`one cell from another cell of the plurality of cells in the sheet, wherein
`the differentiating of the display of the one cell is done in response to
`the selection request to select the one cell, and
`provide, in the virtual game, an item of the extracted items that is
`associated with the one cell to a user of the user terminal.
`
`B.
`
`The ’107 and ’439 Patents
`
`The ’107 and ’439 Patents are related. As stated on the face of the patents, the application that
`
`issued as the ’439 Patent is a division of the ’107 Patent’s application and both patents ultimately
`
`claim priority to a Japanese application filed March 12, 2013.
`
`The patents are generally directed to a computer-game control method, server, and program
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`“in which a plurality of users plays in cooperation with one another.” ’107 Patent col.2 ll.26–29.
`
`The two patents have the same abstract, which provides:
`
`
`
`5
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`Provided is a game control method carried out by a game control device connected
`to communication terminals used by users who play a game. The device has a
`storage unit for storing group information indicative of a group consisting of users
`and game piece information indicative of game pieces constituting one item. The
`method includes giving a game piece to each user in accordance with a user
`operation to his/her communication terminal; storing obtained game piece
`information indicative of the game piece given to each user in the storage unit;
`determining whether all of the game pieces necessary to constitute the one item
`indicated by the game piece information are given to users constituting a group
`indicated by the group information based on the obtained game piece information;
`and giving a reward to users constituting the group if it is determined that all of the
`game pieces are given.
`
`Claim 1 of the ’107 Patent and Claim 7 of the ’439 Patent, exemplary method and Beauregard
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`claims respectively, recite as follows (with terms in dispute emphasized):
`
`’107 Patent Claim 1. A game control method carried out by a game control
`device for providing a game to a plurality of communication terminals
`respectively used by a plurality of users, the game control device communicating
`with the plurality of communication terminals and having a storage unit, the
`method comprising the steps of:
`(a) storing skill level information indicative of skill levels of each of the
`plurality of users of the game, in the storage unit;
`(b) grouping the plurality of users into one or more groups;
`(c) providing one or more of a plurality of game pieces to a first plurality of
`users in a first group of said one or more groups, based on the skill level
`information, while the first plurality of users are at certain events in the
`game;
`(d) storing allocation information indicating which game piece has been
`provided to which user with a respective skill level, and a number and type
`of game pieces required to obtain a game item as a reward, in the storage unit;
`(e) determining whether all of the game pieces required to obtain said game
`item have been provided to the first group, based on the allocation
`information stored in the storage unit; and
`(f) allocating in a memory, the game item to the first group or at least one of
`the first plurality of users, when it is determined that all the required game
`pieces have been provided.
`
`’439 Patent Claim 7. A non-transitory computer readable recording medium
`for storing a program that causes a processor of a game control device to execute
`a process, the game control device providing a game to a plurality of
`communication terminals respectively used by a plurality of users over a
`communication network, and having a storage unit, the process comprising the
`steps of:
`(a) grouping the plurality of users into one or more groups;
`
`
`
`6
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`(b) storing a correspondence between the plurality of users and the one or more
`groups in the storage unit;
`(c) transmitting information over the communication network to initiate a
`group event in which a first plurality of users forming a first group
`cooperatively participate in the game;
`(d) storing a parameter value for each of the plurality of users, wherein the
`parameter value for a respective user is increased as the respective user
`makes progress in the group event;
`(e) monitoring progress of the group event and updating the parameter value
`for each of the first plurality of users in accordance with the progress of
`the first group in the group event;
`(f) providing at least one of a plurality of game pieces to each of the first
`plurality of users in the group event, based on the parameter value for the
`corresponding user, wherein the plurality of game pieces are required to
`obtain a game item;
`(g) storing allocation information indicating which game piece has been
`provided to which user, in the storage unit;
`(h) determining whether all the required game pieces have been provided to
`the first plurality of users, based on the allocation information; and
`(i) allocating in a memory, the game item to the first group or at least one of
`the first plurality of users, when it is determined that all the required game
`pieces have been provided within a predetermined period of time during
`which the group event is taking place.
`
`II.
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`LEGAL PRINCIPLES
`
`A.
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`Claim Construction
`
`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to
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`which the patentee is entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312
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`(Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc.,
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`381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start by
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`considering the intrinsic evidence. Id. at 1313; C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d
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`858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Grp., Inc., 262 F.3d
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`1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims themselves, the
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`specification, and the prosecution history. Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d at
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`861. The general rule—subject to certain specific exceptions discussed infra—is that each claim
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`term is construed according to its ordinary and accustomed meaning as understood by one of
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`7
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`ordinary skill in the art at the time of the invention in the context of the patent. Phillips, 415 F.3d
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`at 1312–13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir. 2003); Azure
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`Networks, LLC v. CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014) (quotation marks omitted)
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`(“There is a heavy presumption that claim terms carry their accustomed meaning in the relevant
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`community at the relevant time.”) cert. granted, judgment vacated, 135 S. Ct. 1846 (2015).
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`“The claim construction inquiry . . . begins and ends in all cases with the actual words of the
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`claim.” Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998). “[I]n
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`all aspects of claim construction, ‘the name of the game is the claim.’” Apple Inc. v. Motorola,
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`Inc., 757 F.3d 1286, 1298 (Fed. Cir. 2014) (quoting In re Hiniker Co., 150 F.3d 1362, 1369 (Fed.
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`Cir. 1998)) overruled on other grounds by Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed.
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`Cir. 2015). First, a term’s context in the asserted claim can be instructive. Phillips, 415 F.3d at
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`1314. Other asserted or unasserted claims can also aid in determining the claim’s meaning, because
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`claim terms are typically used consistently throughout the patent. Id. Differences among the claim
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`terms can also assist in understanding a term’s meaning. Id. For example, when a dependent claim
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`adds a limitation to an independent claim, it is presumed that the independent claim does not
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`include the limitation. Id. at 1314–15.
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`“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id. (quoting
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`Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)). “[T]he
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`specification ‘is always highly relevant to the claim construction analysis. Usually, it is dispositive;
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`it is the single best guide to the meaning of a disputed term.’” Id. (quoting Vitronics Corp. v.
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`Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am. Corp.,
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`299 F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may define his own terms,
`
`give a claim term a different meaning than the term would otherwise possess, or disclaim or
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`8
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`disavow the claim scope. Phillips, 415 F.3d at 1316. In these situations, the inventor’s
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`lexicography governs. Id. The specification may also resolve ambiguous claim terms “where the
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`ordinary and accustomed meaning of the words used in the claims lack sufficient clarity to permit
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`the scope of the claim to be ascertained from the words alone.” Teleflex, Inc., 299 F.3d at 1325.
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`But, “‘[a]lthough the specification may aid the court in interpreting the meaning of disputed claim
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`language, particular embodiments and examples appearing in the specification will not generally
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`be read into the claims.’” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir.
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`1998) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988));
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`see also Phillips, 415 F.3d at 1323. “[I]t is improper to read limitations from a preferred
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`embodiment described in the specification—even if it is the only embodiment—into the claims
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`absent a clear indication in the intrinsic record that the patentee intended the claims to be so
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`limited.” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004).
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`The prosecution history is another tool to supply the proper context for claim construction
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`because, like the specification, the prosecution history provides evidence of how the U.S. Patent
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`and Trademark Office (“PTO”) and the inventor understood the patent. Phillips, 415 F.3d at 1317.
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`However, “because the prosecution history represents an ongoing negotiation between the PTO
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`and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the
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`specification and thus is less useful for claim construction purposes.” Id. at 1318; see also Athletic
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`Alts., Inc. v. Prince Mfg., 73 F.3d 1573, 1580 (Fed. Cir. 1996) (ambiguous prosecution history
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`may be “unhelpful as an interpretive resource”).
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`Although extrinsic evidence can also be useful, it is “‘less significant than the intrinsic record
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`in determining the legally operative meaning of claim language.’” Phillips, 415 F.3d at 1317
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`(quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court
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`9
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`understand the underlying technology and the manner in which one skilled in the art might use
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`claim terms, but technical dictionaries and treatises may provide definitions that are too broad or
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`may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert testimony
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`may aid a court in understanding the underlying technology and determining the particular
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`meaning of a term in the pertinent field, but an expert’s conclusory, unsupported assertions as to a
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`term’s definition are not helpful to a court. Id. Extrinsic evidence is “less reliable than the patent
`
`and its prosecution history in determining how to read claim terms.” Id. The Supreme Court has
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`explained the role of extrinsic evidence in claim construction:
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`In some cases, however, the district court will need to look beyond the patent’s
`intrinsic evidence and to consult extrinsic evidence in order to understand, for
`example, the background science or the meaning of a term in the relevant art during
`the relevant time period. See, e.g., Seymour v. Osborne, 11 Wall. 516, 546 (1871)
`(a patent may be “so interspersed with technical terms and terms of art that the
`testimony of scientific witnesses is indispensable to a correct understanding of its
`meaning”). In cases where those subsidiary facts are in dispute, courts will need to
`make subsidiary factual findings about that extrinsic evidence. These are the
`“evidentiary underpinnings” of claim construction that we discussed in Markman,
`and this subsidiary factfinding must be reviewed for clear error on appeal.
`
`Teva Pharm. USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 331–32 (2015).
`
`B.
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`Departing from the Ordinary Meaning of a Claim Term
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`There are “only two exceptions to [the] general rule” that claim terms are construed according
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`to their plain and ordinary meaning: “1) when a patentee sets out a definition and acts as his own
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`lexicographer, or 2) when the patentee disavows the full scope of the claim term either in the
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`specification or during prosecution.”2 Golden Bridge Tech., Inc. v. Apple Inc., 758 F.3d 1362, 1365
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`(Fed. Cir. 2014) (quoting Thorner v. Sony Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed.
`
`
`2 Some cases have characterized other principles of claim construction as “exceptions” to the
`general rule, such as the statutory requirement that a means-plus-function term is construed to
`cover the corresponding structure disclosed in the specification. See, e.g., CCS Fitness, Inc. v.
`Brunswick Corp., 288 F.3d 1359, 1367 (Fed. Cir. 2002).
`
`
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`10
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`Cir. 2012)); see also GE Lighting Sols., LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir.
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`2014) (“[T]he specification and prosecution history only compel departure from the plain meaning
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`in two instances: lexicography and disavowal.”). The standards for finding lexicography or
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`disavowal are “exacting.” GE Lighting Sols., 750 F.3d at 1309.
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`To act as his own lexicographer, the patentee must “clearly set forth a definition of the
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`disputed claim term,” and “clearly express an intent to define the term.” Id. (quoting Thorner, 669
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`F.3d at 1365); see also Renishaw, 158 F.3d at 1249. The patentee’s lexicography must appear
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`“with reasonable clarity, deliberateness, and precision.” Renishaw, 158 F.3d at 1249.
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`To disavow or disclaim the full scope of a claim term, the patentee’s statements in the
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`specification or prosecution history must amount to a “clear and unmistakable” surrender. Cordis
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`Corp. v. Bos. Sci. Corp., 561 F.3d 1319, 1329 (Fed. Cir. 2009); see also Thorner, 669 F.3d at 1366
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`(“The patentee may demonstrate intent to deviate from the ordinary and accustomed meaning of a
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`claim term by including in the specification expressions of manifest exclusion or restriction,
`
`representing a clear disavowal of claim scope.”). “Where an applicant’s statements are amenable
`
`to multiple reasonable interpretations, they cannot be deemed clear and unmistakable.” 3M
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`Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013).
`
`C.
`
`Definiteness Under 35 U.S.C. § 112, ¶ 2 (pre-AIA) / § 112(b) (AIA)
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`Patent claims must particularly point out and distinctly claim the subject matter regarded as
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`the invention. 35 U.S.C. § 112, ¶ 2. A claim, when viewed in light of the intrinsic evidence, must
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`“inform those skilled in the art about the scope of the invention with reasonable certainty.” Nautilus
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`Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910 (2014). If it does not, the claim fails § 112, ¶ 2
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`and is therefore invalid as indefinite. Id. at 901. Whether a claim is indefinite is determined from
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`the perspective of one of ordinary skill in the art as of the time the application for the patent was
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`filed. Id. at 911. As it is a challenge to the validity of a patent, the failure of any claim in suit to
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`comply with § 112 must be shown by clear and convincing evidence. BASF Corp. v. Johnson
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`Matthey Inc., 875 F.3d 1360, 1365 (Fed. Cir. 2017). “[I]ndefiniteness is a question of law and in
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`effect part of claim construction.” ePlus, Inc. v. Lawson Software, Inc., 700 F.3d 509, 517 (Fed.
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`Cir. 2012).
`
`When a term of degree is used in a claim, “the court must determine whether the patent
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`provides some standard for measuring that degree.” Biosig Instruments, Inc. v. Nautilus, Inc., 783
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`F.3d 1374, 1378 (Fed. Cir. 2015) (quotation marks omitted). Likewise, when a subjective term is
`
`used in a claim, “the court must determine whether the patent’s specification supplies some
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`standard for measuring the scope of the [term].” Datamize, LLC v. Plumtree Software, Inc., 417
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`F.3d 1342, 1351 (Fed. Cir. 2005). The standard “must provide objective boundaries for those of
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`skill in the art.” Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cir. 2014).
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`III. AGREED CONSTRUCTIONS
`
`The parties have agreed to constructions set forth in their Joint Claim Construction Charts
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`(’310 Case Dkt. No. 69; ’311 Case Dkt. No. 70). Based on the parties’ agreement, the Court hereby
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`adopts the agreed constructions for these cases.
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`IV. CONSTRUCTION OF DISPUTED TERMS
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`A.
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`Case No. 2:19-cv-310
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`A-1. “selected randomly”
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`Disputed Term3
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`“selected randomly”
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`•
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`’708 Patent Claims 1, 2, 3
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`Plaintiff’s Proposed
`Construction
`plain and ordinary meaning;
`no construction needed
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`Defendant’s Proposed
`Construction
`selected without preference to
`any particular item such that
`each item has an equal
`probability of being selected
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`3 For all term charts in this order, the claims in which the term is found are listed with the term
`but: (1) only the highest-level claim in each dependency chain is listed, and (2) only asserted claims
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`
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`12
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`

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`Case 2:19-cv-00310-JRG-RSP Document 84 Filed 10/13/20 Page 13 of 62 PageID #: 1075
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`The Parties’ Positions
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`Plaintiff submits: The meaning of the term “selected randomly” is plain without construction.
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`Defendant’s proposed construction improperly limits the term by injecting “selected without
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`preference” and “equal probability of being selected” limitations. Properly understood, “selected
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`randomly” encompasses selecting items from a table according to probabilities weighted in favor
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`of some items over others, such as when a particular item appears more often in the table. ’310
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`Case Dkt. No. 63 at 7–9.
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`In addition to the claims themselves, Plaintiff cites the following intrinsic evidence to support
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`its position: ’708 Patent col.4 ll.10–14, col.4 ll.24–26, col.4 ll.38–40, col.5 ll.1–2, col.5 ll.44–47.
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`Defendant responds: Under its plain meaning, “selected randomly” in the claims requires that
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`the items are selected from among unique items in the item information table without preference
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`for any item in the table. That is, each unique item in the table has the same probability of being
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`selected, though there may be more than one item of a particular item type. The “suggestion that
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`the plain and ordinary meaning of ‘randomly selected’ encompasses ‘weighted’ probabilities is
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`absurd.” ’310 Case Dkt. No. 65 at 7–10.
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`In addition to the claims themselves, Defendant cites the following intrinsic evidence to
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`support its position: ’708 Patent figs.2A, 9, col.4 ll.11–16, col.4 ll.24–32, col.4 ll.40–43.
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`Plaintiff replies: The claims expressly require that the items be selected from an item
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`information table, but do not require that each item in the information table appear only once in
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`the table. Thus, while each table entry may have the same probability of selection, a particular item
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`identified in the parties’ Joint Claim Construction Charts (’310 Case Dkt. No. 69, ’311 Case Dkt.
`No. 70) are listed.
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`13
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`

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`Case 2:19-cv-00310-JRG-RSP Document 84 Filed 10/13/20 Page 14 of 62 PageID #: 1076
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`may be found in more than one entry of the table and thus have a higher probability of selection
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`than an item that appears less frequently in the table. ’310 Case Dkt. No. 68 at 1–2.
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`Plaintiff cites further intrinsic evidence to support its position: ’708 Patent fig.2A, col.4 ll.14–
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`16.
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`Analysis
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`The issues in dispute distill to whether the requirement that items are “selected randomly”
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`from a table necessarily entails that each item have the same probability of selection. It does not.
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`The Court is not persuaded that “selected
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`’708 Patent, fig.2A
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`randomly” requires equal selection probability for
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`every potential item. As relevant here, the claims are
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`directed to selecting acquirable items from a table
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`“randomly.” For instance, ’708 Patent Claim 1
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`recites: “displaying, during the virtual game, a
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`plurality of cells and acquirable item information . . .
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`the plurality of items extracted from an item
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`information . . ., the plurality of items being selected
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`randomly only from items in the item information
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`table.” ’708 Patent col.14 ll.1–5. As described in the
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`patent, different items have different “rarity values.”
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`See, e.g., ’708 Patent col.3 l.53 – col.4 l.16 (“The
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`item type is a numerical value representing the rarity
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`value of the item”), col.7 ll.47–55 (describing “an
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`item with a high rarity value or the like”). Items with
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`14
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`Case 2:19-cv-00310-JRG-RSP Document 84 Filed 10/13/20 Page 15 of 62 PageID #: 1077
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`higher rarity values are less likely to be found than those with lower rarity values. See, e.g., id. at
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`col.1 ll.43–44 (“it is difficult to acquire a battle card or the like with a high rarity value”). This
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`suggests that the probability of acquiring an item varies with an item’s “rarity value.”
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`The described embodiments also suggest the probability of acquiring an item may vary from
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`item to item. For instance, in the table depicted in Figure 2A, reproduced here and annotated by
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`the Court, Item K appears three times in the table whereas Item A appears only once in the table.
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`If each table entry is as likely as another, the probability of randomly selecting Item K from the
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`table is three times that of selecting Item A. There is a preference for Item K.
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`The Court is not convinced that the item selection of the claims necessarily is restricted to a
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`particular instance of an item, as Defendant suggests. ’310 Case Dkt. No. 65 at 10. It is true that
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`items may be uniquely identified. For instance, Figure 2A lists unique “Item Identification
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`Information” for each instance of an item. ’708 Pat