[00:00:00] Speaker 04: Swann, CG technology versus Van Du. [00:00:34] Speaker 05: Good morning. [00:00:35] Speaker 05: Good morning, and may it please the court. [00:00:37] Speaker 05: FanDuel's red brief has simplified the issues on appeal in two telling ways. [00:00:42] Speaker 05: First, it makes no attempt to defend the board's erroneous claim construction, which served as the basis for finding that Kelly teaches the authorized claim limitation. [00:00:51] Speaker 05: And second, FanDuel does not contest our proposed claim construction for purposes of this appeal [00:00:59] Speaker 05: the court should assume that our proposed construction for authorizing limitation applies. [00:01:05] Speaker 05: And that construction is wholly consistent with the arguments that we made before the board, which the authorizing limitation means prohibits the operation of a video game based on user age in the first instance. [00:01:19] Speaker 02: Am I right in thinking that when this case came up to the hearing level at the board, both sides looked up it [00:01:28] Speaker 02: I think it was, and said, well, for claim construction, the plain meaning of the term applies, sir. [00:01:37] Speaker 05: They both did, Your Honor. [00:01:38] Speaker 02: That's exactly correct. [00:01:40] Speaker 02: So they didn't say, well, we've got some differing views about what the plain meaning is. [00:01:45] Speaker 02: Some of us think the plain meaning is prohibited. [00:01:52] Speaker 02: It didn't say anything to them about that. [00:01:55] Speaker 02: So the board had to muscle through what it could, and it looks at the specification of the patent. [00:02:02] Speaker 02: There's only one place in the whole specification that talks about age, and there it has the linkage of the two factors that the board picked up on, and then the board issues its opinion, and nobody files a petition for reconsideration. [00:02:20] Speaker 02: I don't believe so, Your Honor. [00:02:43] Speaker 05: In fact, the board [00:02:48] Speaker 05: both on A-17 and on A-19, the board recognized that the parties have argued their respective claim constructions on the merits. [00:02:57] Speaker 05: And on appendix 19, they state that the patent owner contends authorizing gameplay as used in claims 1 and 16 requires restricting authorizing gameplay in its entirety. [00:03:11] Speaker 05: It goes on to note that while the petitioner disagreed with this construction, it offered no construction of its own. [00:03:18] Speaker 05: To answer your question, the fact of the matter is that the board clearly erred in conflating two different claim terms with authorizing in the challenged claims and then in the unchallenged claims combining the adjusting claim feature, which is separately disclosed. [00:03:35] Speaker 05: and separately claimed in the 818 patent. [00:03:39] Speaker 05: So there's no doubt that there's legal error here. [00:03:41] Speaker 05: I don't think that there was, based on the hearing and the record. [00:03:50] Speaker 05: There was no motion for reconsideration, Your Honor. [00:03:55] Speaker 05: That's correct. [00:03:58] Speaker 05: The result of the board's legal error, however, is not harmless. [00:04:01] Speaker 05: It's prejudicial. [00:04:02] Speaker 05: There's good reason to believe that the board would have obtained a different result had it adopted our claim construction, which is not contested today, and not erroneously also included. [00:04:13] Speaker 02: You might have found out if you filed a petition for reconsideration. [00:04:17] Speaker 05: Potentially, Your Honor. [00:04:21] Speaker 05: That was the strategic decision. [00:04:28] Speaker 05: And it's clearly prejudicial here, because nowhere in Kelly does it say in the first instance that a user is prohibited from operation of a video game system based on age. [00:04:42] Speaker 05: And I think it's important to put the- Didn't the board make precisely that finding? [00:04:46] Speaker 03: Or draw that conclusion? [00:04:47] Speaker 05: The board did not. [00:04:49] Speaker 05: The board's analysis based on its erroneous claim construction was confusing at best. [00:04:55] Speaker 05: But it did not make a specific finding and certainly to the extent that My friends on the other side may argue that it does it certainly wasn't supported by substantial evidence because nowhere does fan duals expert Mr.. Kitchen ever say that That Kelly prohibits You operation of a video game in its entirety based on age I think that that question may be best answered your honor by [00:05:24] Speaker 05: by hypothesizing what the court could have done but didn't do as well, which is if it did find that Kelly did in fact prohibit in its entirety, it could have agreed with our proposed claim construction as it understood it at the time. [00:05:37] Speaker 00: But you keep saying in its entirety. [00:05:39] Speaker 00: That's not part of the claim construction. [00:05:42] Speaker 05: It's not part of the claim construction that's being proffered today. [00:05:46] Speaker 05: I think in terms of... It's not part of what you proffered. [00:05:50] Speaker 00: It's not part of what the board found. [00:05:51] Speaker 00: This in its entirety thing is really the crux of whether you win or lose, and yet that isn't an argument you made before them or before us. [00:05:59] Speaker 00: I mean, I guess I could say you sort of made it in a backdoor way by saying Kelly doesn't disclose, but that's kind of the heart of it. [00:06:06] Speaker 00: Prohibits operation of a video game based on user's age. [00:06:10] Speaker 00: Does that mean prohibit operation of the game in part or in whole? [00:06:16] Speaker 00: Because that's what it comes down to, because Kelly does at least disclose prohibiting it in part. [00:06:20] Speaker 05: And it's in whole. [00:06:22] Speaker 05: It's a binary issue that's made in the first instance. [00:06:25] Speaker 05: But let me just correct one thing, Your Honor. [00:06:28] Speaker 05: We do argue throughout the board proceedings, and it's recognized on A19, that they completely understood that it's restricting authorizing gameplay in its entirety. [00:06:38] Speaker 05: And that's at the top of appendix 19. [00:06:40] Speaker 05: And they rejected that claim construction, adopted one that erroneously included this whole idea of adjusting, which can only happen to gameplay [00:06:49] Speaker 05: once that decision is made as a threshold determination. [00:06:53] Speaker 05: Are you authorized to play it? [00:06:55] Speaker 00: What does the specification say in terms of adjusting? [00:06:57] Speaker 00: I remember reading a part of it that it said basically educational games can be adjusted depending on age. [00:07:04] Speaker 00: You have an educational math game for a kindergartner. [00:07:07] Speaker 00: It might be addition. [00:07:08] Speaker 00: For a first grader, it might be multiplication, something like that. [00:07:10] Speaker 05: Right. [00:07:10] Speaker 05: And that goes more to the adjusting, which is taught in Cali, not to the authorization. [00:07:15] Speaker 05: If I could refer, Your Honor, to a [00:07:18] Speaker 05: 104. [00:07:21] Speaker 05: It's a column 3. [00:07:23] Speaker 05: And there's really two separate disclosures that are separately claimed. [00:07:26] Speaker 05: On one hand, we have the authorizing claim limitations. [00:07:29] Speaker 05: Those are found in the challenge. [00:07:31] Speaker 00: Wait, column 3 is long. [00:07:31] Speaker 00: So what line? [00:07:32] Speaker 05: I'm sorry, column 3 starting at line 39. [00:07:34] Speaker 05: Right. [00:07:37] Speaker 05: And there's two separately disclosed embodiments taught here. [00:07:40] Speaker 05: It says, it will be appreciated that a controller of the present invention [00:07:45] Speaker 05: provides an advantage in allowing each child in a household to have a personalized controller. [00:07:50] Speaker 05: By including the age of a user, it will be appreciated that amusement games designed for specific age proof is not operated by an inappropriate user. [00:08:00] Speaker 05: Thus, operation of a video game can be prohibited based on the user age. [00:08:06] Speaker 05: That's authorization. [00:08:07] Speaker 05: It's a binary threshold decision. [00:08:09] Speaker 05: You can either operate the video game system or you can't. [00:08:13] Speaker 05: And that's what the claims of the 818 say. [00:08:15] Speaker 05: It's a video game system. [00:08:17] Speaker 05: It's not adjusting play of some game. [00:08:20] Speaker 05: We're talking about a video game system. [00:08:22] Speaker 05: So a user, if I may expand a little bit on the example that we have on bottom of page 9, top of page 10 of our reply brief, there's a video game Mortal Kombat. [00:08:33] Speaker 05: It has an age threshold associated with it. [00:08:36] Speaker 05: If my 14-year-old boy picks up that cartridge, Mortal Kombat, and puts it in the controller, this personalized controller that is part of the claims determines whether or not he's age appropriate to play that video game. [00:08:51] Speaker 05: If the personalized wireless controller says, yep, he's appropriate, then it authorizes or allows gameplay. [00:08:58] Speaker 05: If it's not, it doesn't. [00:08:59] Speaker 05: It's a binary threshold decision. [00:09:01] Speaker 05: I have a daughter who's 12. [00:09:02] Speaker 05: If she were to pick up that same video game and insert it in the cartridge and use her own personalized controller as the claims read, with her age in that controller, it would say she does not meet that appropriate age level. [00:09:15] Speaker 00: So tell me, I certainly understand your argument, but tell me why column 42 at the very bottom of Kelly [00:09:23] Speaker 00: And carrying over onto 43 doesn't disclose that when it says age can be a predefined characteristic that can prohibit you from participating in tournaments. [00:09:33] Speaker 05: OK, so a tournament is not a game. [00:09:35] Speaker 00: Feels like a game. [00:09:37] Speaker 05: Well, our vandals expert agrees with us that a tournament is not a game. [00:09:41] Speaker 05: If we go to appendix 4245, he was asked this question. [00:09:47] Speaker 00: 4245? [00:09:48] Speaker 05: 4245. [00:09:54] Speaker 05: And while you get there, a tournament is a mode of a game. [00:09:59] Speaker 05: So page 11, he's asked, so a tournament is one mode in which you can experience gameplay. [00:10:06] Speaker 05: At line 19, Mr. Kitchen, Fandle's expert, testifies, so tournament is more about the structure of the event than what you're playing. [00:10:15] Speaker 05: If I was in a room with a bunch of game designers and I said, what kind of game do you want to build? [00:10:21] Speaker 05: And one guy says, I want to build a chess game. [00:10:23] Speaker 05: I want to build a baseball game. [00:10:25] Speaker 05: I want to build a golf game. [00:10:27] Speaker 05: It would make no sense for the other person to say, I want to build a tournament. [00:10:32] Speaker 05: Well, what's a tournament? [00:10:34] Speaker 05: It's not a game. [00:10:36] Speaker 05: Tell me about gameplay. [00:10:37] Speaker 05: So a tournament is just how it's all structured. [00:10:39] Speaker 05: And that's perfectly consistent with the disclosure in Kelly. [00:10:43] Speaker 05: I think the other reference that the board relies on is column 22, which is at appendix 3454. [00:10:51] Speaker 05: And this goes to those prerequisites, Your Honor, the certain conditions requirement that the board relied on, remembering against this backdrop that they also improperly included this adjusting limitation. [00:11:09] Speaker 05: That's exactly what Kelly discloses. [00:11:11] Speaker 05: But what Kelly doesn't disclose anywhere [00:11:13] Speaker 05: is prohibiting gameplay in the first instance as a threshold issue. [00:11:18] Speaker 00: So suppose that I agree with you on your claim construction. [00:11:24] Speaker 00: Suppose that I even agree with you that Kelly talks about prohibiting tournaments based on age and adjusting potentially based on a predefined characteristic such as age. [00:11:37] Speaker 00: But this is obviousness. [00:11:39] Speaker 00: This is an obviousness rejection. [00:11:41] Speaker 00: What the heck does it get you other than [00:11:43] Speaker 00: More legal fees, if I send that back. [00:11:45] Speaker 05: I think we win, Your Honor. [00:11:46] Speaker 05: I think we win under those. [00:11:47] Speaker 00: How in the world do you win? [00:11:49] Speaker 05: Because Kelly, because let's look at the goal. [00:11:52] Speaker 05: The goal in Kelly is a prize redemption system. [00:11:56] Speaker 05: That's what it is for video games. [00:11:58] Speaker 05: The essence of Kelly is to encourage gameplay, not to prohibit it. [00:12:03] Speaker 05: In every instance in Kelly, in every embodiment, a user is allowed to play the game. [00:12:08] Speaker 05: It's not prohibited based on a user's age. [00:12:11] Speaker 05: They can always play a credit game. [00:12:14] Speaker 05: The gameplay is only adjusted, not authorized, after that threshold inquiry. [00:12:20] Speaker 05: And that's exactly what claim, that's exactly what column 22 at 3454 says. [00:12:26] Speaker 00: It talks about, for example... But column 22 says in some embodiments, players can be required to meet certain conditions before participating in a game. [00:12:34] Speaker 00: So it does allow you to prohibit people from playing in a game altogether. [00:12:40] Speaker 05: It does not. [00:12:41] Speaker 05: It's only in a term, but the only disclosures here [00:12:44] Speaker 00: It says in a credit game or a tournament? [00:12:46] Speaker 05: Or in a tournament. [00:12:46] Speaker 00: And if you go on... So how can you say it's only in a tournament when it says in a credit game or in a tournament? [00:12:50] Speaker 05: It does say that, Your Honor, but if you go on, the rest of the disclosures are very clear. [00:12:55] Speaker 00: The rest of the disclosures, for example. [00:12:57] Speaker 00: So how is that... They are for examples, but nowhere does it say... Nowhere does it give an example of the thing it expressly says? [00:13:05] Speaker 05: Nowhere does it give an example where gameplay is prohibited in its entirety as a threshold issue. [00:13:10] Speaker 00: Except that it says it can be. [00:13:12] Speaker 05: I don't believe that's exactly what it says. [00:13:14] Speaker 05: And I think they parse out the words. [00:13:17] Speaker 05: It says, in some embodiments, a cleric can also be required to meet certain conditions before participating in a credit game or a tournament. [00:13:25] Speaker 05: What it's saying there is you can play in a credit game. [00:13:28] Speaker 05: You might not always be able to play in a tournament. [00:13:30] Speaker 05: And that's what the disclosures are clear about, that you can hit that credit button as many times as you can. [00:13:35] Speaker 05: You might need to hit it five times. [00:13:37] Speaker 05: You might need to hit it 10 times in order to participate in a tournament. [00:13:41] Speaker 05: A tournament is a mode. [00:13:42] Speaker 05: And I think based on this, it says the player can either choose to play a prize credit game or a tournament. [00:13:49] Speaker 05: It certainly does describe that certain requirements are necessary to participate in a tournament, but that's not a game. [00:13:55] Speaker 05: If we look a little bit lower in column 22 at 59, for example, it says, an example of the selection screen showing the player to choose the type of redemption game is shown in 5B. [00:14:05] Speaker 00: All right. [00:14:05] Speaker 00: Well, so let's just assume that I [00:14:09] Speaker 00: agree with you most of the way, but not all of the way, meaning certainly all the examples you're going to point to are about a tournament. [00:14:16] Speaker 00: I don't disagree with that. [00:14:17] Speaker 00: But the predicate sentence that is the topic sentence of the entire paragraph is players can also be required to meet certain conditions before participating in a credit game or a tournament. [00:14:28] Speaker 00: So assume that I'm going to give the idea of credit game meaning, because I don't see how I cannot give it some meaning and have it mean something since it's disclosed. [00:14:37] Speaker 00: What did the [00:14:40] Speaker 00: Isn't that enough? [00:14:41] Speaker 00: I mean, isn't that enough for the agency? [00:14:43] Speaker 00: And why do I have to send it back? [00:14:45] Speaker 05: I think we need something more there, Your Honor. [00:14:47] Speaker 05: I don't think it's enough, because it's not a clear finding. [00:14:49] Speaker 05: It's not supported. [00:14:51] Speaker 00: Well, I guess that's what I'm wondering is, did the agency sort of fail? [00:14:56] Speaker 00: I mean, what I'm not going to do is do the agency's job for it on appeal. [00:15:00] Speaker 00: So did the agency sort of fail to clearly articulate this in some way to you, so that even if I think this, I shouldn't do it on appeal? [00:15:09] Speaker 05: There's no question that the reasoned analysis is very unclear. [00:15:13] Speaker 05: And they don't make any specific findings that are supported by any evidence, much less substantial evidence, that go to the fact that you cannot always play a credit game, as disclosed in Kelly. [00:15:24] Speaker 05: In fact, on pages 9 through 11, Mr. Kitchen concedes the fact that you can always play a credit game, that you're sometimes not allowed to participate. [00:15:33] Speaker 05: That's in our reply brief, Your Honor. [00:15:34] Speaker 05: That you're sometimes not allowed to participate in a tournament game. [00:15:38] Speaker 05: That's something different. [00:15:39] Speaker 05: That's adjusting. [00:15:40] Speaker 05: That's a different claim to embodiment than the unchallenged claim. [00:15:42] Speaker 00: Yeah, but Mr. Kitchen can say that. [00:15:43] Speaker 00: But if the board finds the reference discloses something nonetheless, Mr. Kitchen's testimony is not really relevant. [00:15:47] Speaker 05: Well, and the fact of the matter is it's almost asking me to prove a negative, Your Honor, because nowhere in here does it say that you are sometimes prohibited from playing a tournament game based on user's age. [00:15:58] Speaker 05: It doesn't say that anywhere. [00:16:00] Speaker 05: In fact, the board recognized that in 22, with respect to these certain conditions requirement, it doesn't disclose age at all. [00:16:06] Speaker 05: It's not until 42, column 42, that it does. [00:16:10] Speaker 05: But I think that's really neither here nor there, Your Honor. [00:16:13] Speaker 05: The fact of the matter is that nowhere does it say that you can't play a credit game. [00:16:19] Speaker 03: If I could just briefly turn your attention to- I'll just alert you of the fact that you've exceeded all of your time. [00:16:25] Speaker 03: I realize you've had a lot of questions, so if you have one more quick statement, fine. [00:16:29] Speaker 03: I'll come back, Your Honor. [00:16:30] Speaker 03: Thank you. [00:16:41] Speaker 01: Good morning, Your Honors. [00:16:42] Speaker 01: May it please the court? [00:16:44] Speaker 01: I'm going to begin with the notion that the board did not make an express finding with respect to the disclosure of Kelly. [00:16:51] Speaker 01: And I would refer the court to appendix page 40, which is the final written decision. [00:16:58] Speaker 01: And to the very bottom of page 40, and as a lead-in to this, I would say there are nine pages preceding this where the board is discussing expert testimony as well as the disclosure of Kelly and what we're going to look at here in a minute. [00:17:12] Speaker 01: And at the very bottom of the page, the paragraph begins at the last two lines. [00:17:17] Speaker 01: The board states, based on the disclosures in Kelly and the testimony of Mr. Kitchen and Dr. Akel, we find that a preponderance of the evidence establishes that Kelly's disclosure, that a player must meet predefined characteristics such as age, experience, and other collected data before the player is authorized or allowed to participate in a game [00:17:42] Speaker 01: is a game control that prohibits operation of a video game based on the user's age. [00:17:48] Speaker 01: That is an express finding by the board that comports with the very construction that you have heard from my friend on the other side. [00:17:56] Speaker 01: The construction that everyone was pursuing during the underlying proceeding was that gameplay must be prohibited in order to show that [00:18:07] Speaker 00: Gameplay is authorized based upon age the claim limitations in question clear and you lose no You lose no points for agreeing that something's wrong when it clearly is [00:18:18] Speaker 00: You agree that to the extent that the board said authorizing and adjusting, that the adjusting part's wrong. [00:18:26] Speaker 00: Because the claim does delineate two different concepts, authorizing on the one hand and adjusting on the other. [00:18:31] Speaker 01: Other claims describe the adjusting. [00:18:33] Speaker 00: Well, the specification. [00:18:34] Speaker 00: The claims are included in the specification. [00:18:36] Speaker 00: The specification discloses two different embodiments. [00:18:39] Speaker 00: One is, or maybe more than two, I don't know, but there's authorizing and then there's adjusting. [00:18:43] Speaker 00: And those are two different things. [00:18:45] Speaker 00: So to the extent that the board said prohibit or adjust is covered by authorizing, it's too broad. [00:18:50] Speaker 00: It doesn't mean they didn't make specific fact findings that still cover under the correct construction, but you do agree the construction's wrong, right? [00:18:56] Speaker 01: I agree that the or adjust portion of the construction is not correct. [00:19:01] Speaker 00: Yeah, OK. [00:19:03] Speaker 01: And my point on appeal and for affirmation of the board's findings is simply that the board's findings were entirely and totally that Kelly prohibits gameplay. [00:19:14] Speaker 00: How did they end up with this or adjust language? [00:19:16] Speaker 00: Nobody argued that to them below. [00:19:18] Speaker 00: Is it just a mistake on their part? [00:19:20] Speaker 01: I would be hypothesizing, but I imagine what happened is they saw the embodiments in the specification but didn't read through the remainder of the claims to see that there's a separately claimed embodiment. [00:19:31] Speaker 01: That would be my guess. [00:19:32] Speaker 02: Get a word search of the spec for age and it only came up once. [00:19:37] Speaker 02: And it looked at that. [00:19:38] Speaker 01: And to the point of this appeal in the discussions here, it is fine. [00:19:44] Speaker 01: It's not the best case scenario, but it is fine for the board to make an error if the error does not affect the decision. [00:19:50] Speaker 02: So the question is whether or not Kelly teaches prohibiting, right? [00:19:54] Speaker 01: That's the question. [00:19:55] Speaker 02: Oh, you want to just run through Kelly real quick, column by column, and point out where Kelly shows prohibiting? [00:20:02] Speaker 01: Sure. [00:20:02] Speaker 01: I started with the board's finding. [00:20:04] Speaker 01: And where I would go in Kelly, there are two columns in Kelly that the board relied upon. [00:20:09] Speaker 01: So I'm not going to go column by column, but I'll go with what was argued in the record. [00:20:15] Speaker 02: It helps if you tell me the column. [00:20:17] Speaker 01: Absolutely, Your Honor. [00:20:18] Speaker 01: In column 22 of Kelly, this is at appendix 3454. [00:20:26] Speaker 01: Starting at line 43, we have what the board referred to as the required conditions disclosure. [00:20:32] Speaker 01: It states, in some embodiments, players can also be required to meet certain conditions before participating in a credit game or a tournament. [00:20:42] Speaker 01: That's what the board referred to as the required conditions disclosure. [00:20:46] Speaker 01: And I would highlight here that it's a required condition before participating. [00:20:51] Speaker 01: So if you can't participate, you are prohibited from participating. [00:20:56] Speaker 01: So that is the first disclosure that the board relied upon. [00:21:01] Speaker 00: But I think that the record supports what Mr. Schaeffer argued that a tournament is not a game and that one wouldn't refer to it as a game. [00:21:09] Speaker 00: So if, like for example, if I had a video game and it allowed for lots of different modes of play and one particular mode was excluded because someone was under a particular age, they would still be allowed to play the game. [00:21:25] Speaker 00: They just wouldn't be able to play one mode of the game. [00:21:28] Speaker 00: To the extent that this specification in Kelly focuses on tournaments, I think that Mr. Shafer has the better of the argument that that's not a game. [00:21:36] Speaker 01: I think that's not the better of the arguments on the record. [00:21:40] Speaker 01: And I'm slightly jumping back and forth here. [00:21:43] Speaker 01: Did you want me to go through the rest of this? [00:21:45] Speaker 02: It's a credit game as well as a tournament. [00:21:47] Speaker 01: It's a credit game as well as a tournament. [00:21:49] Speaker 01: And I think the point that the board found, and I can take you to this as well, [00:21:52] Speaker 01: Another finding on the record, looking at all the testimony of the experts that were presented in this case, is that a game is played within the context of a tournament. [00:22:03] Speaker 01: Or it can be played outside the context of a tournament. [00:22:06] Speaker 01: But where you have, and this was the point of the finding by the board, where you have a game in a tournament that has an age restriction, in other words, it's an over 18 game, and a person that is playing or attempting to play [00:22:19] Speaker 01: That is, 15 is not allowed to participate in that game, then you have an age restriction on that game. [00:22:27] Speaker 00: With all due respect, I feel like that's what the adjusting limitation speaks to. [00:22:31] Speaker 00: The adjusting limitation allows for access to certain aspects of the game. [00:22:38] Speaker 00: relevant to age and not other aspects depending on age. [00:22:42] Speaker 00: I feel like you now are morphing in exactly what I think adjusting is into your construction of authorizing, and that causes me pause. [00:22:51] Speaker 01: It is two separate games. [00:22:54] Speaker 01: If there is a poker game going on that is for people over 18 years old, that game of poker is being played by people over 18 years old. [00:23:03] Speaker 01: If a person that is 15 attempts to play in that game, [00:23:07] Speaker 01: They are not allowed to participate. [00:23:09] Speaker 01: They are prohibited. [00:23:10] Speaker 01: Now there can be another game of poker that is being played by any age groups. [00:23:15] Speaker 01: That is a different game. [00:23:17] Speaker 01: That person that is 15 playing in that different game is not participating. [00:23:20] Speaker 00: But that's exactly what the spec describes as adjusting when it said within a video game you can have some educational games adjusted based on the user's age. [00:23:33] Speaker 00: Exactly the column three specs adjusting language. [00:23:37] Speaker 01: Let me try to help you out on this, because it's not. [00:23:40] Speaker 01: If you have a game such as an educational game, and the user comes into that game and says, I'm six years old, I need an easier version of the game, there is no question about participation. [00:23:56] Speaker 01: that user is going to be able to play the game and the game is decreased in difficulty from some higher level of difficulty to a lower level. [00:24:05] Speaker 01: But bear with me, there is not any question as to whether that player could participate. [00:24:13] Speaker 00: I don't agree with you because it says [00:24:16] Speaker 00: Thus, operation of video game can be prohibited based on user age. [00:24:20] Speaker 00: Therefore, the controller provides a minimum level supervision. [00:24:24] Speaker 00: Further, educational video games can be adjusted to the age of the user. [00:24:28] Speaker 00: That's exactly the scenario where they're allowed to play, but only age-appropriate versions for them. [00:24:36] Speaker 00: That's what the spec defines as adjustment. [00:24:40] Speaker 01: it would be a different game. [00:24:41] Speaker 01: If you have changed the game in order to, if you have a different game that a person can play, that they're not prohibited from playing. [00:24:49] Speaker 01: Let me take you again to the findings of the board, okay? [00:24:55] Speaker 01: Because I think that it's a helpful frame of reference. [00:25:20] Speaker 01: This is at the bottom of page 39 of the board's final written decision. [00:25:30] Speaker 01: Here the board has considered this exact argument, whether playing a different game is in fact a prohibition. [00:25:38] Speaker 01: If you're allowed to play a different game, they are prohibited from one. [00:25:41] Speaker 01: And the board states, [00:25:43] Speaker 01: citing the two disclosures from Kelly, that where you are meeting established conditions as a prerequisite to participation in a game or a tournament, if a player satisfies the prerequisite, the player is authorized to play. [00:25:56] Speaker 01: If a player does not satisfy the prerequisite, the player is not authorized to play. [00:26:01] Speaker 01: The fact that a person may qualify for a different game, such as a different age group or a different experience level, is irrelevant to the claimed invention. [00:26:10] Speaker 01: And it goes on to describe the age-based restriction we've been talking about. [00:26:13] Speaker 00: But that's because the board is operating under its own construction. [00:26:17] Speaker 00: When it uses the word authorized, it means prohibits or adjusts. [00:26:22] Speaker 00: So this is a very circular argument by you that I can't see how that could prevail. [00:26:26] Speaker 00: The board's operating under its construction, which includes both of these things. [00:26:31] Speaker 01: It's not. [00:26:31] Speaker 01: If you go on with the board's analysis on the top of page 40. [00:26:34] Speaker 00: I mean, the board construed the words authorized as being prohibited or adjusting. [00:26:40] Speaker 01: But continue with the board's analysis, Your Honor. [00:26:44] Speaker 01: At the top of page 40, allowing a player to play a game or tournament in one category, for example, players under 18 years old, is, in fact, restricting or prohibiting that player from other categories, e.g., players over 18 years old. [00:26:58] Speaker 01: The under 18-year-old player is excluded entirely from the over 18-year-old games. [00:27:04] Speaker 01: It is an exclusion. [00:27:06] Speaker 01: It is a prohibition. [00:27:10] Speaker 01: I understand where you're going with this, but when you have two games, it is not the same thing as having one game that has been adjusted. [00:27:19] Speaker 01: If a 15-year-old is prohibited from playing an 18-year-old game, they can't play in it. [00:27:25] Speaker 01: That's a prohibition. [00:27:28] Speaker 00: I guess I don't see how that can be reconciled with my understanding of what adjustment is, because the spec clearly contemplates a 15-year-old [00:27:38] Speaker 00: being able to do certain kinds of educational games, not being able to do others, and a 12-year-old being able to do certain kinds of educational games and not others. [00:27:46] Speaker 00: And the spec calls that adjusting. [00:27:48] Speaker 00: So I feel like I have to be true to the spec. [00:27:51] Speaker 01: What you're saying in the specification is it doesn't say adjustment. [00:27:56] Speaker 01: It prohibits you from one and allows another. [00:27:58] Speaker 01: It doesn't say that. [00:28:00] Speaker 01: It says the game that the user wants to participate in is adjusted. [00:28:04] Speaker 01: There is nothing about where it describes adjusting. [00:28:07] Speaker 01: There is no discussion of participation. [00:28:09] Speaker 01: Those are separate concepts. [00:28:12] Speaker 01: You can either put a block on participation or you allow participation, but you adjust the game. [00:28:18] Speaker 01: Those are two completely different concepts. [00:28:21] Speaker 00: You know, it's so funny. [00:28:22] Speaker 00: You are fighting me so hard on what is your much harder argument to convince me of. [00:28:29] Speaker 00: But you have not at all embraced, and I don't understand why you're not saying to me, even if you think that Judge Moore, you still can't get around the words credit game and column 22 of Kelly. [00:28:41] Speaker 00: You are fighting me on an argument that I don't know if you can win with me. [00:28:46] Speaker 00: Maybe you can win it with my colleagues. [00:28:48] Speaker 00: But I don't know that you have to. [00:28:52] Speaker 00: You're fighting the harder argument, and I don't know why. [00:28:54] Speaker 00: What does credit game mean? [00:28:56] Speaker 00: Is there something about this disclosure in Kelly that doesn't let you win such that you have to fight this harder argument and not rely on this? [00:29:03] Speaker 00: I'm not sure why you're not retracting to the position that even if I have a problem, which I clearly have and have demonstrated, [00:29:12] Speaker 00: that you should still prevail under column 22. [00:29:14] Speaker 00: So tell me about column 22. [00:29:16] Speaker 00: When it says credit game, doesn't that take care of the distinction I have in my mind between tournament play and versions within a game? [00:29:26] Speaker 01: And, Your Honor, I think it is not just a point of stubbornness. [00:29:30] Speaker 01: I believe in my heart of hearts that the board got the decision correct and the final written decision. [00:29:36] Speaker 00: Except for the claim construction, which you agree the board got wrong. [00:29:39] Speaker 00: So in your heart of hearts, you believe the board got the decision partially correct. [00:29:43] Speaker 01: I believe the board's analysis under the correct claim construction, which this prohibits, is correct. [00:29:48] Speaker 00: It's a four chamber heart. [00:29:49] Speaker 00: Got at least one with a problem. [00:29:50] Speaker 00: We all have four chamber hearts. [00:29:52] Speaker 01: All right, go ahead. [00:29:54] Speaker 01: In Kelly, Your Honor, column 22 is the first disclosure that we talked about. [00:30:01] Speaker 01: And again, I would highlight it's a question of participation. [00:30:04] Speaker 01: I think that's a key thing to understand. [00:30:06] Speaker 01: Are we talking about participating, or are we talking about how there will be participation? [00:30:11] Speaker 01: And then in column 42, [00:30:13] Speaker 01: where there is the mention of age as a predefined characteristic. [00:30:17] Speaker 01: And this is appendix 3464, column 42. [00:30:22] Speaker 01: The paragraph is beginning at line 63, but it goes through the end. [00:30:30] Speaker 01: And once again, there you see a disclosure of a participation limitation in Kelly. [00:30:36] Speaker 01: There is a limit on participation based upon age. [00:30:40] Speaker 01: And I'm going to finish, Your Honor, with the boards. [00:30:44] Speaker 00: discussion of those disclosures and how they directly... Just to be clear, I want to make sure I understand this sentence in page 42. [00:30:51] Speaker 00: It says additional fields can be provided in the tournament table to allow the operator to designate further characteristics of tournaments. [00:31:04] Speaker 00: Is this only related to tournaments or are these characteristics, I should assume, relate to game play as a whole? [00:31:11] Speaker 00: I want you to start the assumption with the idea that I don't think tournaments satisfies it. [00:31:18] Speaker 01: OK. [00:31:18] Speaker 01: This disclosure specifically is talking about tournaments, but it's preceded by a discussion of games within a tournament. [00:31:23] Speaker 01: So Scud Attack, you'll see up higher in the column 42, lines 15, the Scud Attack tournament. [00:31:31] Speaker 01: The problem with the assumption, Your Honor, is that Kelly uses the games. [00:31:35] Speaker 01: There are games within a tournament. [00:31:38] Speaker 01: Kelly uses games and tournaments in the same exact context. [00:31:41] Speaker 01: a poker game, you have a scud attack game within a tournament. [00:31:46] Speaker 01: So then when it places constraints on the tournament, it's saying I'm placing constraints on the tournament of scud attack. [00:31:52] Speaker 02: Playing games. [00:31:53] Speaker 01: Yeah. [00:31:54] Speaker 01: And so tournament and game are used synonymously in Kelly because they are one and the same thing. [00:32:00] Speaker 00: Well gosh, that would be awfully bad for you because that would mean the one place where you may have had me, which is column 22, you no longer have me because you just told me [00:32:07] Speaker 00: tournaments and games are exactly the same, so when it says credit game, I shouldn't interpret that to mean barring your access to the video game as a whole, that could just be one game within a tournament? [00:32:17] Speaker 01: There is the concept of a game. [00:32:20] Speaker 01: The game can be played as a credit game, which would be like a one-player game or a two-player game, or that game can be played within a tournament. [00:32:28] Speaker 01: That's the disclosure of Kelly. [00:32:30] Speaker 00: And the finding of the board... You know, when you want to get [00:32:35] Speaker 00: Gmail account you have to be over 18 I don't know if you know that my daughter figured that out She put a birthday in last weekend and suddenly was not permitted to have a gmail account even though her older brother who by the way is 18 has one That's prohibited I'm not sure If you're just prohibited from certain aspects of the gmail account whether or not you're actually prohibited from the gmail account and [00:33:02] Speaker 01: The disclosure in Kelly, where you have these condition requirements, the required conditions disclosure, and the age disclosure, it's a prerequisite to participation. [00:33:12] Speaker 01: So it is akin to your daughter not being allowed to have a Gmail account. [00:33:16] Speaker 01: She was prohibited. [00:33:19] Speaker 01: I'm going to finish, Your Honor, because my time is up. [00:33:25] Speaker 01: If I could point you to two things. [00:33:28] Speaker 01: First of all, in the final written decision, [00:33:30] Speaker 01: this question of tournament versus game that your honor is concerned about. [00:33:35] Speaker 01: Page 40, three quarters of the way down, there is a sentence where the board says, there is no persuasive evidence that a skilled artisan would ignore the clear disclosure in Kelly to use age to authorize or prohibit game play merely because it is disclosed in the context of games played in a tournament. [00:33:57] Speaker 01: So the issue that you're raising was considered fully by the board, and a finding was made upon that based upon the evidentiary record. [00:34:05] Speaker 00: What page are you on? [00:34:06] Speaker 01: Page 40. [00:34:08] Speaker 01: And three quarters of the way down through that paragraph, there's the sentence, there is no persuasive evidence. [00:34:18] Speaker 01: And finally, on page 36 of the final written decision, and I promise, Chief Judge, that this is the last one. [00:34:26] Speaker 01: On page 36 of the final written decision, the second full paragraph. [00:34:33] Speaker 01: This is key because it goes to your question of the very differences you've been talking about, Judge Moore. [00:34:41] Speaker 01: Kelly's required conditions disclosure discloses that players can be required to meet certain conditions before participating. [00:34:48] Speaker 01: Participating is the words used in Kelly. [00:34:51] Speaker 01: This is not a disclosure of how to play a game. [00:34:55] Speaker 01: or a disclosure of the group to which a player will be assigned. [00:34:59] Speaker 01: It is a disclosure of imposing conditions or requirements on whether a player will be allowed to play the game or participate in the tournament. [00:35:08] Speaker 01: The board made the correct findings under the prohibits claim construction. [00:35:13] Speaker 04: Thank you, Your Honors. [00:35:16] Speaker 05: Hopefully I can cut through this. [00:35:25] Speaker 05: For your honor, column 22, which is the prerequisite disclosures that my friend on the other side seems to rely on, it doesn't mean prohibit. [00:35:34] Speaker 05: This is exactly what we're talking about in Kelly when we're talking about adjusting. [00:35:39] Speaker 05: It does not preclude operation of a video game in the first instance. [00:35:45] Speaker 05: If we look at 3454 at line 59, I think this example, this embodiment, [00:35:54] Speaker 05: is telling. [00:35:55] Speaker 05: It says, an example of a selection screen allowing the player to choose the type of redemption game is shown in 5B. [00:36:02] Speaker 05: The main window displays information about the selected game, which in this example is quiz show. [00:36:08] Speaker 05: The game is quiz show. [00:36:10] Speaker 05: When he talks about participation, that's all about term and play, that is later adjusting once you're playing the game quiz show. [00:36:19] Speaker 05: If we look at figure 5B, which is an appendix 3431, [00:36:24] Speaker 05: This becomes abundantly clear. [00:36:28] Speaker 05: So 5B shows the video game system, the game is quiz show. [00:36:33] Speaker 05: You have other games that are listed on the right, such as Scud Attack, Solitaire, 21 for fun. [00:36:41] Speaker 05: The user can always play the one player or two player credit game. [00:36:45] Speaker 05: There's no disclosure anywhere in Kelly that says that a user is prohibited from playing those games, and counsel couldn't point one out. [00:36:54] Speaker 05: The question becomes is whether or not when you go to select one player, two player, or tournament mode, that's what we're talking about. [00:37:02] Speaker 05: We're talking about modes. [00:37:03] Speaker 05: Can you participate based on Kelly in a tournament? [00:37:07] Speaker 05: Well, you have to have a certain number of histories behind it to participate in a tournament. [00:37:13] Speaker 05: But nowhere does it say that [00:37:16] Speaker 05: You can't participate or you can't play the game quiz show based on a user's age. [00:37:23] Speaker 05: And it kind of goes back to my original analogy. [00:37:25] Speaker 05: If my 12-year-old daughter came to me and said, [00:37:29] Speaker 05: I put in the game Mortal Kombat, it's restricted for age 15 down, and said, yeah, I was able to play a game. [00:37:35] Speaker 05: I could play a one player game, but that I couldn't play the tournament game. [00:37:40] Speaker 05: Well, I wouldn't be happy about that. [00:37:42] Speaker 05: That's adjusting the game. [00:37:43] Speaker 05: That's what Kelly teaches. [00:37:44] Speaker 05: That's all that Kelly teaches. [00:37:46] Speaker 05: It doesn't teach prohibiting [00:37:49] Speaker 05: credit game or any game in the first instance or as a threshold matter. [00:37:53] Speaker 05: That's a separate embodiment that's given separate meeting in these challenged claims as compared to that in the unchallenged claims. [00:38:01] Speaker 04: Thank you. [00:38:02] Speaker 04: We thank both sides. [00:38:03] Speaker 04: The case is supported and concludes our proceeding.