IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`In the Post Grant Review of:
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`U.S. Patent No.: 10,583,362
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`For: CHANGING BATTLE CARD
`GAME CONDITIONS DURING
`DIFFERENT TERMS
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`Mail Stop Patent Board
`Patent Trial and Appeal Board
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`DECLARATION OF STEVE MERETZKY
`IN SUPPORT OF PETITION FOR POST GRANT
`REVIEW OF U.S. PATENT NO. 10,583,362
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`Supercell
`Exhibit 1005
`Page 1
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`In the Post Grant Review of:
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`U.S. Patent No.: 10,583,362
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`For: CHANGING BATTLE CARD
`GAME CONDITIONS DURING
`DIFFERENT TERMS
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`Mail Stop Patent Board
`Patent Trial and Appeal Board
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`DECLARATION OF STEVE MERETZKY
`IN SUPPORT OF PETITION FOR POST GRANT
`REVIEW OF U.S. PATENT NO. 10,583,362
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`Supercell
`Exhibit 1005
`Page 1
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`I, Steve Meretzky, declare as follows:
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`I.
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`INTRODUCTION
`I have been asked by the party requesting this review, Supercell Oy
`1.
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`(“Petitioner”), to provide my expert opinion in support of the above-captioned
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`petition for post grant review of U.S. Patent No. 10,583,362 (the “’362 patent”)
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`challenging the patentability of claims 1-27 of the ‘362 patent. For convenience, I
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`use the term “challenged patent” to refer to this patent and “challenged claims” to
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`refer collectively to the claims.
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`2.
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`3.
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`I currently hold the opinions set forth in this declaration.
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`In summary, it is my opinion that the challenged claims of the
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`challenged patent are invalid as obvious in view of the combination of references
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`cited below. My detailed opinions on the claims are set forth below.
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`II. BACKGROUND AND QUALIFICATIONS
`I am an expert in computer game design and computer games in
`4.
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`general. I have been designing computer games for almost forty years, since 1982.
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`Now more than twenty years ago, I was named one of 25 “Game Gods” by the
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`September 1999 issue of PC Gamer magazine.
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`5.
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`I received a Bachelor of Science in Construction Engineering and
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`Project Management and minor in Creative Writing from Massachusetts Institute of
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`Technology in 1979. My career in video games began soon after graduation.
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`2
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`Supercell
`Exhibit 1005
`Page 2
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`6.
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`I designed, coded, and creatively directed dozens of games. While
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`some examples follow here, a more complete list may be found in my CV, attached
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`as Exhibit 1006. Early in my career, I designed, wrote, and coded adventure games
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`for Infocom Inc., including the industry classics The Hitchhiker’s Guide to the
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`Galaxy, Zork Zero, Planetfall, and Sorcerer.
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`7.
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`In 1994, I co-founded Boffo Games where I was Designer/Director of
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`The Space Bar and Hodj ‘n’ Podj. I have also contributed towards game design and
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`development in roles as consultant, game designer, content director, and vice
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`president with companies including MicroProse, Electronic Arts, Disney, Blizzard,
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`Hasbro, GameFX (a division of THQ), GSN Games, King, and Draft Kings.
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`8.
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`As part of my experience, I have extensive experience creating and
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`evaluating game designs and mechanics for a variety of gaming platforms including
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`mobile, and PC. I have dealt with both “casual” games targeted to mass audiences
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`and “hardcore” games targeted to hobbyist gamers, as well as both solo and
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`multiplayer games. In these roles, I considered how the games address player
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`engagement and retention and how the games influence social interactions among
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`the players.
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`3
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`Supercell
`Exhibit 1005
`Page 3
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`III. COMPENSATION AND RELATIONSHIP WITH PARTIES
`I am being compensated for my time. This compensation is not
`9.
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`contingent upon my performance, the outcome of this matter, or any issues involved
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`in or related to this matter.
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`10.
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`I have no financial interest in Petitioner or any related parties. I have
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`been informed that GREE, Inc. (“GREE”) owns the challenged patent. I have no
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`financial interest in and have no contact with GREE beyond the kinds of cursory
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`interactions I often have with game industry professionals at conferences. I similarly
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`have no financial interest in the challenged patent and have not had any contact with
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`the named inventors.
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`IV. MATERIAL CONSIDERED
`I have reviewed and considered, in the preparation of this declaration,
`11.
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`the following related to the challenged patent:
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`a.
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`b.
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`The ‘362 patent (Ex. 1003) and the prosecution file history for
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`the ‘362 patent (Ex. 1004).
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`U.S. Patent No. 10,518,177 (parent of the ‘362 patent) (Ex. 1001
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`“the ’362 patent”) and the prosecution file history for the ’362
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`patent (Ex. 1002).
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`12.
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`I understand that, for purposes of determining whether a reference will
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`qualify as prior art, the challenged claims of the challenged patent are entitled to an
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`effective filing date of no earlier than February 25, 2014.
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`4
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`Supercell
`Exhibit 1005
`Page 4
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`13.
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`I have also reviewed and understand various references as discussed
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`herein, including the following:
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`a.
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`“Master Hearthstone in 10 Minutes! The Ultimate Beginner's
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`Guide” (Ex. 1011 “MH”)
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`b.
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`U.S. Patent Publication No. 2013/0281173 to Gilson et al.
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`(Ex. 1013 “Gilson”).
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`14.
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`I understand that the above references form the bases for the grounds
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`for invalidity set forth in the Petition for Post Grant Review of the challenged patent.
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`15. Additionally, I am aware of information generally available to, and
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`relied upon by, persons of ordinary skill in the art as of the effective filing date of
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`the challenged patent (POSITAs), including computer games, technical dictionaries
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`and technical reference materials (including, for example, textbooks, manuals,
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`technical papers, articles, and relevant technical standards); some of my statements
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`below are expressly based on such awareness.
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`16.
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`I reserve the right to supplement my opinions to address any
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`information obtained, or positions taken, based on any new information that comes
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`to light throughout this proceeding.
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`V. THE CHALLENGED PATENT
`17. The challenged patent was filed on June 19, 2019 and claims priority to
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`a Japanese application filed on February 25, 2014.
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`5
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`Supercell
`Exhibit 1005
`Page 5
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`18. The challenged patent is entitled “Changing Battle Card Game
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`Conditions During Different Terms.” The challenged patent is a continuation of the
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`‘177 patent, filed Feb. 25, 2015, and titled “Game Control Method, System, and
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`Non-Transitory Computer-Readable Recording Medium.” A request for post-grant
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`review was filed with respect to the ‘177 patent on September 29, 2020.
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`Purported Invention of the Challenged Patent
`A.
`19. The challenged patent describes a technique for changing a “battle
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`condition” during a game. Ex. 1001 at Abstract. Except where these patents differ,
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`I refer to the ‘177 patent specification for convenience of joining review of these
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`patents.
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`20. The challenged patent generally relates to setting battle conditions for
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`time slots in a game. According to the background, one type of game includes
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`groups of players battling one another within a predetermined time slot, such as an
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`hour between 20:00 and 21:00. Id., 1:35-43. According to the challenged patent,
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`players may intentionally concentrate attacks at the end of the time slot or otherwise
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`attack unevenly during the time slot for the battle, and such battles may be less
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`enjoyable for beginners or lower-level players as a result. Id., 1:66-2:34.
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`21. The challenged patent purports to provide an improved game that
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`allows “a wide range of players to enjoy a group battle” and to “improve the
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`participation rate throughout the set time slot.” Id., 2:35-42.
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`6
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`Supercell
`Exhibit 1005
`Page 6
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`22. To do so, the challenged patent provides a battle game in “a plurality of
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`time slots” in which “a battle condition is changed” from one time slot to another.
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`Id., 2:43-3:13. The challenged patent describes setting a battle condition for each
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`time slot, and changing the battle conditions in different time slots in ways that are
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`advantageous for certain players, thereby increasing participation rates throughout
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`the time slots. Id., 2:61-3:13.
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`23. Fig. 4 illustrates an example game screen for a game:
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`Id. at Fig. 4. In the ‘362 patent, the preceding figure is Fig. 4A, and an additional
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`Figure 4B is included that illustrates display of game cards 601, 602, and 603. See
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`Ex. 1003 at Figs. 4A-4B. In this example game, player characters for one group 300
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`7
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`Supercell
`Exhibit 1005
`Page 7
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`may battle a second group 400 as shown in an event field 201. Ex. 1001, 6:58-65.
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`In the “palette” 202 section, a player has a virtual deck of cards 600 and cards 601
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`602 and 603 selected from the deck 600. Id., 7:4-8. These cards represent skills
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`useable to attack opposing players and may indicate a type of skill, attack points,
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`defense points, or other attributes. Id., 7:8-14. A player “flips over” these cards to
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`attack the opposing characters. Id., 7:15-21.
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`24. The challenged patent discloses that a battle may be composed of
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`several “time slots.” See id., 7:32-60. Fig. 6 shows example time slots or “terms”
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`for the battle having a first portion, middle portion, and a last portion:
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`Id. at Fig. 6. The challenged patent describes changing the battle conditions during
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`the time slots, where the term battle condition “broadly includes additional
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`conditions added on during a group battle.” Id., 7:61-8:3. The challenged patent
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`describes examples of battle conditions:
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`While also described in detail below, a battle condition can include
`changing the ability value of an individual character, such as changing
`the parameters 70 (see FIG. 2) that allow a character to exercise certain
`abilities during a battle, such as a character's attack strength, defense
`strength, or the like. Battle conditions also can include any sort of
`condition applied during a battle, such as providing a reward to the
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`8
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`Supercell
`Exhibit 1005
`Page 8
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`player controlling a character or tallying the battle result during the first
`portion of a subdivided time slot and reflecting the battle result in a
`subsequent portion of the subdivided time slot.
`Id., 8:3-14.
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`25. The challenged patent provides two examples of changing battle
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`conditions in time slots. “In the first example, the battle condition is changed
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`randomly or by a predetermined setting in each of the subdivided time slots (see
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`FIG. 7(a)). In the second example, among the subdivided time slots, battle
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`participation and battle results are tallied during an earlier time slot, and the tallied
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`results are reflected in the battle conditions of time slots after the earlier time slot
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`(see FIG. 7(b)).” Id., 9:7-16. These two figures are reproduced below:
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`Id. at Figs. 7A-7B.
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`9
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`Supercell
`Exhibit 1005
`Page 9
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`26. The challenged patent includes various examples of changing battle
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`conditions using these two techniques. Examples of changing conditions according
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`to the technique of FIG. 7(a), which the challenged patent refers to as “changing the
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`battle condition as time progresses (Id., 9:18-19), include increasing the attack
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`strength of lowest ranked characters of a group, increasing item attribute attack
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`points, increasing attack points in accordance with a player attribute, and increasing
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`a combo effect. See id., 9:17-54.
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`27. Examples of changing conditions according to the technique of FIG.
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`7(b), which the patent refers to as “changing battle conditions in accordance with
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`battle participation and battle results” (Id., 9:63-64) include providing a reward card
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`or other incentive based on an intermediate tally and changing a battle condition such
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`as the attack strength of a group based on the intermediate tally. Id., 9:63-10:29.
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`28. The computer components described in the challenged patent for
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`executing the game are generic and conventional. See id. at FIGS. 1-3. Figure 1
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`illustrates a generic client-server architecture. The challenged patent describes the
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`“server device 10” as “a network node having a function to provide the battle game
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`service” which “may be configured using a general-purpose communication
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`terminal device.” Id., 3:55-60. Likewise, the challenged patent describes the “client
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`device 30” as “a network node having a function to receive provision of the battle
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`game service” which may be “configured using a general-purpose communication
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`10
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`Supercell
`Exhibit 1005
`Page 10
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`terminal device.” Id., 4:4-7. Figure 2 illustrates an example server device, and FIG.
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`3 illustrates an example client device. The game server and client device are each
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`described as including generic computing technologies such as a processor, memory,
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`and wireless capabilities. See id., 4:41-51; 5:49-61.
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`29. The software executing on the server and client devices is also
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`described in generic terms. The server device executes “the computer program
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`40…for executing game processing in response to requests from the plurality of
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`client devices 30 and includes a plurality of software modules that are called and
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`executed within a main program.” Id., 4:52-55. These modules include “a rendition
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`processing module 50” which provides the functions of a “battle processing unit 60,”
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`“quest processing unit 51,” and an “integrating unit 53.” Id., 4:62-5:8. The
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`challenged patent states that details on processing units other than the battle
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`processing unit “are omitted, since these units are not specific to the exemplary
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`embodiment.” Id., 5:10-12. The battle processing unit is described as “one
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`functional unit in the rendition processing module 50 [which] includes” other units.
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`Id., 7:32-37. These other units are described in purely functional terms. See id.,
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`7:32-9:6. The client device includes a “computer program 80 [which] is an
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`application program for connecting to the server device 10 and receiving provision
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`of the battle game service.” Id., 5:61-65.
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`11
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`Supercell
`Exhibit 1005
`Page 11
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`30. The independent claims of the challenged patent recite various
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`purported inventive aspects related to the time slots and battle conditions. There are
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`four claim sets: 1-11, 12-19, 20-26, and 27. Ex. 1003, 13:11-17:28. Independent
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`claim 1 recites a “method for controlling a battle game.” Id., 13:11-13:34.
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`Independent claim 12 recites “A game apparatus configured to provide a battle game
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`between a plurality of players.” Id., 14:23-55. Claim 20 and claim 27 recite a
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`computer program product embodied on a non-transitory computer-readable
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`medium with executable instructions for a game apparatus. Id., 15:44-16:5, 16:59-17.
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`31. Specifically, claim 1 recites a method for controlling a battle game
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`including steps for displaying a game screen and conducting a battle with a first and
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`a second term. Id., 13:12-34. Claim 1 recites displaying a game screen with a first
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`field at a lower position in the game screen, a second field above the first field, and
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`the first field having a plurality of cards selected from a deck arranged in a horizontal
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`direction. Id., 13:12-16. Claim 1 further recites that conducting a battle in the
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`second field during a first term of the battle game under a first battle condition using
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`a first-term parameter based on a first-term card selected by a player and ending the
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`first term at a predetermined end timing. Id., 13:17-23. Last, Claim 1 recites starting
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`a second term of the battle game starting at a predefined start timing based on the
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`start timing of the battle game and conducting a second term battle under a second
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`12
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`Supercell
`Exhibit 1005
`Page 12
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`battle condition using a second-term parameter based on a second-term card selected
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`by the player, and ending the battle at a second predefined end timing. Id., 13:24-34.
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`32. Claim 1 has various dependent claims. Id., 13:35-14:22. Claim 2
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`recites that the second battle condition is predetermined regardless of a battle result
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`in the first term. Id., 13:35-37. Claim 3 recites a third term under a third battle
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`condition that differs from the first and second battle condition and is dependent on
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`a battle result of the third term. Id., 13:38-45. Claim 4 depends on claim 3 and
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`recites that the third battle condition is a condition for giving a reward to the player.
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`Id., 13:46-47. Claim 5 recites that an attack strength to a second-term opponent
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`character under the second battle condition is higher than an attack strength against
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`a first-term opponent character under the first battle condition. Id., 13:48-52. Claim
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`6 recites that at least one of the first-term parameter and the second-term parameter
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`comprises an attack strength and a life force. Id., 13:53-55. Claim 7 recites that the
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`second battle condition is dependent on a battle result of the first term. Id., 13:56-
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`57. Claim 8 depends on claim 7 and recites that the second battle condition is
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`dependent on an attack status in the first term. Id., 58-59. Claim 9 recites that the
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`second battle condition is a condition for giving a reward to the player. Id., 13:60-
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`61. Claim 10 recites receiving a player card selection comprising a selection of a
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`card comprising the first-term card or the second-term card, maintaining an
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`“interface gauge element,” and dynamically adjusting the interface gauge element
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`13
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`Supercell
`Exhibit 1005
`Page 13
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`after the player card selection step. Id., 13:62-14:3. Finally, claim 11 recites that
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`conducting the battle against the first-term opponent or second-term opponent
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`comprises receiving a selection of a card comprising the first-term card or the
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`second-term card, displaying a player group on the second field including a
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`formation of player characters, modifying the player group based on the card
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`selected by the player, and the battle is conducted between a player character in the
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`player group and the first-term opponent character or the second-term opponent
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`character. Id., 14:4-22.
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`33.
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`Independent claim 12 recites a “game apparatus” including a
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`communication interface and a “rendition processing module comprising a battle
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`processing unit.” Id., 14:23-55. Claim 12 recites that the “rendition processing
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`module” and “battle processing unit” are configured to provide similar functionality
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`as the functionality claimed by the method of claim 1. See id., 14:28-55. Claims
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`13-19 depend on claim 12 and recite various limitations similar to those in claims
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`1-11, particularly claims 2-3, 5-8, and 10-11. Id., 14:56-15:43. There are some
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`apparent errors in these dependent claims as discussed more fully below. Notably,
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`claim 14 recites “a second battle condition which is different from the first battle
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`condition and second battle condition” and claim 19 recites various third-term
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`limitations without antecedent basis.
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`14
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`Supercell
`Exhibit 1005
`Page 14
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`34. Where claims 12-19 recited a game apparatus, claims 20-26 recite a
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`computer program product having instructions that, when executed, causes a game
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`apparatus to be configured to perform steps mirroring those of claims 12-19. Id.,
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`15:44-16:58. Claim 22 includes “a second battle condition which is different from
`
`the first battle condition and second battle condition” similar to its corresponding
`
`claim 14, while claim 26 does not include the “third-term” objects lacking
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`antecedent basis in claim 19. See id., 16:9-21; 16:33-58.
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`35. Finally, independent claim 27 recites a computer program product
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`having similar limitations to claims 1, 12, and 20, while further reciting conducting
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`a third term of the battle game similar to dependent claim 3. See id., 16:59-17:28.
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`Claim 27 has no dependent claims.
`
`Prosecution History
`B.
`36. The ‘362 patent was originally filed on June 19, 2019 and is a
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`continuation of the ‘177 patent, which was originally filed on February 25, 2015 as
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`U.S. Application No. 14/631,221 and claims priority to Japanese Application No.
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`2014-034003, filed February 25, 2014. I understand for the purposes of this Post
`
`Grant Review proceeding that the challenged patent has an effective filing date no
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`earlier than February 25, 2014.
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`37.
`
`I have reviewed the prosecution history of the ‘362 patent (Exhibit
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`1004). I also reviewed the prosecution history of the parent ’177 patent (Exhibit
`
`15
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`Supercell
`Exhibit 1005
`Page 15
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`
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`1002). I understand that comments made during prosecution of a particular patent
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`may influence the meaning of terms in the claims of that patent, as well as terms in
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`other claims in the same patent family.
`
`VI. LEVEL OF ORDINARY SKILL IN THE ART
`It is my understanding that the challenged patent is to be interpreted
`38.
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`based on how it would be read by a person of “ordinary skill in the art” (“POSITA”)
`
`at the time of the effective filing date of the patent. It is my understanding that
`
`factors such as the education level of those working in the field, the sophistication
`
`of the technology, the types of problems encountered in the art, the prior art solutions
`
`to those problems, and the speed at which innovations are made may help establish
`
`the level of skill in the art.
`
`39.
`
`I am familiar with the technology at issue and the state of the art at the
`
`effective filing date of the challenged patent, February 25, 2014.
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`40.
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`In my opinion, the level of ordinary skill in the art of the challenged
`
`patent at the time of the effective filing date is a person with a bachelor’s degree in
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`game design/development,
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`interactive media, computer science, computer
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`engineering, or a related field, with at least two years of professional experience
`
`working in computer game design/development. With more education, such as
`
`additional graduate degrees or study, less professional experience is needed to attain
`
`the ordinary level of skill. Similarly, with more experiential knowledge of computer
`
`16
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`Supercell
`Exhibit 1005
`Page 16
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`games, such as experience developed while developing or playing computer games,
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`less educational experience is needed to attain the ordinary level of skill.
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`41.
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`I consider myself to have at least such ordinary skill in the art with
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`respect to the subject matter of the challenged patent at the time of the effective filing
`
`date.
`
`VII. CLAIM CONSTRUCTION
`A. Legal Standard for Claim Construction
`It is my understanding that “[i]n a post-grant review proceeding, a
`42.
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`claim of a patent…shall be construed using the same claim construction standard
`
`that would be used to construe the claim in a civil action under 35 U.S.C. 282(b),
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`including construing the claim in accordance with the ordinary and customary
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`meaning of such claim as understood by one of ordinary skill in the art and the
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`prosecution history pertaining to the patent.” 37 C.F.R. § 42.200(b).
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`43. For purposes of my analysis in this post-grant review, I applied the
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`ordinary and customary meanings as would have been understood by a POSITA and
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`the prosecution histories of the ’177 and ’362 patents. I have also reviewed the claim
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`construction order issued in the related litigation of these patents, Exhibit 1021.
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`None of my analysis would change if that construction were adopted.
`
`B. GREE’s Infringement Contentions
`I reviewed GREE’s Amended Disclosure of Asserted Claims and
`44.
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`Infringement Contentions dated August 19, 2020 (Ex. 1007, “the ‘Contentions’”). I
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`17
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`Supercell
`Exhibit 1005
`Page 17
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`understand that GREE filed the Contentions in the corresponding litigation for the
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`’362 patent and the Contentions indicate why GREE believes that Supercell’s Clash
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`Royale game infringes certain claims of the ‘177 patent and claims 1, 2, 3, 6, 10-14,
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`18-21, 26, and 27 of the ‘362 patent. Hence, the Contentions are informative as they
`
`explain how GREE interprets the terms of the ’362 patent.
`
`45.
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`I understand GREE to allege that Clash Royale infringes the preamble
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`of claim 1 because “Clash Royale allows users to ‘[d]uel players from around the
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`world in real-time in both 1v1 and 2v2 Battles’ using servers, computers or mobile
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`devices.” Id. at 96. I also understand that GREE uses the following image to contend
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`that Clash Royale infringes the “displaying a game screen” element of claim 1:
`
`Id at 97-98.
`
`
`
`18
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`Supercell
`Exhibit 1005
`Page 18
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`
`
`
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`46. Regarding the “during a first term of the battle game” element, I
`
`understand GREE to contend that “In Clash Royale, a battle typically lasts for three
`
`minutes, and the first period of the battle is two minutes. Thus, the first term ends
`
`at a predefined time (two minutes) from the start time of the game. The first term of
`
`the battle also takes place under a first battle condition. For example, during that
`
`two minute period, elixir increases at a predetermined rate for the entirety of the first
`
`term. And, while the battle does not end if the Princess Towers are destroyed, it
`
`does end if the King’s Tower is destroyed. Id. at 99.
`
`
`
`Id. GREE also contends that “each card costs a specified amount of elixir to be
`
`deployed…And each card also includes attributes such as hit points, and damage,
`
`which reflect the life force and attack strength, respectively, of the troop associated
`
`with the card.” Id. at 100.
`
`47. Regarding the “starting a second term of the battle game at a predefined
`
`start timing based on the start timing of the battle game” element, I understand
`
`19
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`Supercell
`Exhibit 1005
`Page 19
`
`
`
`
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`GREE to contend that a battle in Clash Royale “typically lasts for three minutes, and
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`at the end of two minutes (the first term), the second term (one minute) immediately
`
`starts. Thus the start timing of the second term is based on the start timing of the
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`game because it starts two minutes after the start time of the game.” Id. at 101-102.
`
`
`
`Id at 13. GREE specifically states that “[d]uring the second term, Clash Royale
`
`conducts the battle against a second-term opponent character using a second-term
`
`parameter based on a second-term card selected by the player, and concluding the
`
`second term at a second predefined end timing based on the battle game’s start
`
`timing.” Id. at 103. Gree further states that “An example of the second battle
`
`condition is that during the second term, the player’s elixir increases at double the
`
`rate of the first term, and that while the battle does not end of [sic] the princess
`
`Towers are destroyed, it does end if the King’s Tower is destroyed.” Id. at 103.
`
`48. Regarding the “during a third term of the battle game…” element of
`
`claim 3, I understand GREE to contend that “[I]n Clash Royale, at the end of the
`
`20
`
`Supercell
`Exhibit 1005
`Page 20
`
`
`
`
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`second term, if (a) King's Towers of both players are not destroyed, and (b) the
`
`number of the destroyed Princess Towers is the same between the players, the Clash
`
`Royale battle game moves into a two-minute overtime period. During the first 60
`
`seconds of that overtime period, elixir continues to increase at the same rate as it did
`
`during the second term of the battle. The first 60 seconds of the overtime period is
`
`an example of a third term of the battle game. And the ending of which is an example
`
`of a third battle condition.” Id. at 109.
`
`
`
`Id. Regarding the “third battle condition,” GREE further contends that “[t]here is a
`
`third battle condition during the first 60 seconds of the overtime period (i.e., the third
`
`term): (a) the rate of elixir increase is double that of the first period, and (b) if at least
`
`one Princess Tower is standing after the second term ends, the battle ends if one
`
`Princess Tower or the King’s Tower is destroyed, but (c) if all Princess Towers are
`
`destroyed at the end of the second term, then the battle ends if the King’s Tower is
`
`destroyed.” Id. at 109-110.
`
`21
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`Supercell
`Exhibit 1005
`Page 21
`
`
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`
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`49. The Contentions allege that Clash Royale infringes the challenged
`
`patent even though given instances of the game may lack elements contended to
`
`meet the claim limitations. For example, GREE asserts that “a battle typically lasts
`
`for three minutes” and “the battle does not end if the Princess Towers are destroyed;
`
`instead the battle ends if the King’s Tower is destroyed.” Id. at 99. GREE also
`
`asserts that “at the end of the second term, if (a) King's Towers of both players are
`
`not destroyed, and (b) the number of the destroyed Princess Towers is the same
`
`between the players, the Clash Royale battle game moves into a two-minute
`
`overtime period.” Id. at 109. This phrasing implicitly recognizes that there are
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`games of Clash Royale that end before the overtime period or otherwise differ from
`
`the games described in the Contentions.
`
`50. As noted above, the Contentions identify various aspects of Clash
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`Royale as allegedly meeting the respective “battle condition” limitations. GREE
`
`asserts as an example first condition that “the rate of elixir increases at predetermined
`
`rate for the entirety of the first term.” Id. at 99. Similarly, GREE asserts as an
`
`example second condition that during the second term “the player’s elixir increases
`
`at double the rate of the first term.” Id. at 103. GREE identifies “the ending of [a]
`
`60 second [overtime] period [as] an example of a third battle condition.” Id. at 109.
`
`In addition, GREE identifies an additional third battle condition as “(a) the rate of
`
`elixir increase is double that of the first period, and (b) if at least one Princess Tower
`
`22
`
`Supercell
`Exhibit 1005
`Page 22
`
`
`
`
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`is standing after the second term ends, the battle ends if one Princess Tower or the
`
`King’s Tower is destroyed, but (c) if all Princess Towers are destroyed at the end of
`
`the second term, then the battle ends if the King’s Tower is destroyed.” Id. at
`
`109-110.
`
`C.
`
` “A second battle condition which is different from the first battle
`condition and the second battle condition” of claims 14 and 22.
`51. Claims 14 and 22 recite “a second battle condition which is different
`
`from . . . the second battle condition,” requiring the second battle condition for the
`
`third term to be different from itself. See Ex. 1003, 15:44-16:58, 16:9-21. To correct
`
`this error, I follow the claim construction in the related litigation, which construes
`
`this limitation to mean: “a third term after the second term, in the second field, under
`
`a third battle condition which is different from the first battle condition and second
`
`battle condition and is dependent on a battle result in the second term, conduct a
`
`battle against a third term opponent character appearing in the third-term using a
`
`third-term parameter based on a third-term card selected by the player.” Ex. 2021 at
`
`35. This construction replaces “a second condition” with “a third condition” and is
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`thus similar to the third-term limitations of claim 3. I use the same construction for
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`claim 22, which includes the same error.
`
`D.
`
`“The third term” . . . “The third-term opponent character” … “the
`third-term card” of claim 19.
`52. Claim 19 depends on claim 12 and recites various limitations that are
`
`not introduced in claim 12 or 19. See Ex. 1003, 15:15-43. Particularly, neither
`
`23
`
`Supercell
`Exhibit 1005
`Page 23
`
`
`
`
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`claims 12 and 19 introduce “the third term,” “the third-term opponent character,” or
`
`“the third-term card” (collectively the third-term limitations). While these third-
`
`term limitations make the scope of this claim difficult to ascertain with reasonable
`
`certainty with respect to a third term, the third-term limitations are claimed in the
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`alternative to corresponding first- or second-term limitations. As one example,
`
`claim 19 recites “receiving a player card selection of a card comprising at least one
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`of the set of: the first-term card, the second-term card, and the third-term card.” Id.,
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`15:23-25. Accordingly, for the purpose of this post-grant review, I discuss the
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`alternative first- or second-term limitations.
`
`VIII. ANTICIPATION AND OBVIOUSNESS STANDARDS
`I understand that “anticipation” is a question of fact and that for a
`53.
`
`reference to anticipate a claimed invention it must disclose each and every element
`
`set forth in the claim for that invention. I further understand that the requirement of
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`strict identity between the claim and the reference is not met if a single element or
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`limitation required by the claim is missing from the applied reference.
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`54.
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`It is my further understanding that a prior art reference is anticipatory
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`only if it discloses each and every limitation of the claim (as properly construed) at
`
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