[00:00:07] Speaker 01:
The final case for argument is 181981, Game Technology Company versus Activision.

[00:00:52] Speaker 03:
I think you're ready whenever you are.

[00:01:02] Speaker 03:
Appellant appeals from an IPR decision, the PTO found invalid appellant's U.S.

[00:01:08] Speaker 03:
patent number 8253743 and found all claims 1 through 11 invalid over prior art, and specifically one round of invalidation was over the Diablo II reference, and a second round of invalidation was over the Diablo II reference in view of a

[00:01:26] Speaker 02:
second reference named Rogers that was actually cited and applied on page 19 of the blue brief you say the claimed game avatar is I assume that's how it's pronounced is is not merely exclusive to a game but is concurrently available usable online and in game Isn't that the same as the Diablo 2 as it's played online?

[00:01:48] Speaker ?:
I

[00:01:48] Speaker 03:
The Diablo II character that's shown in figure one that's relied upon to show the claimed gambitar is a typical character representation or an avatar.

[00:02:02] Speaker 03:
It appears to be used only in the game.

[00:02:07] Speaker 03:
One line.

[00:02:08] Speaker 03:
Perhaps the game itself is connected online but not used outside of the game in, for example, an avatar shop or in some other online context outside of gameplay.

[00:02:22] Speaker 02:
Where are avatar shops discussed?

[00:02:26] Speaker 03:
Avatar shops are discussed in the briefs and in the claims and in the background of the specification.

[00:02:35] Speaker 03:
But the point is the

[00:02:37] Speaker 03:
The claims are directed to, and for example, claim one is directed to providing an avatar that has Gamvatar functionality.

[00:02:44] Speaker 03:
So it is a character representation specific to a game, but also usable outside of a game online in, for example, an online store such as an avatar shop, where you can purchase items that are usable in game play, equip those items even in the avatar shop,

[00:03:05] Speaker 03:
enter the game, have those items equipped and shown on the avatar as it's represented in game play, just as the avatar would have been represented in the avatar shop outside of game play.

[00:03:16] Speaker 03:
And the game items that are picked up in the avatar shop and then brought into the game are added and combined into layers of the game avatar.

[00:03:26] Speaker 03:
And the combining is a recited step of claim one, for example.

[00:03:34] Speaker 03:
the combining is done using multiple layers of the gambit.

[00:03:38] Speaker 02:
So your invention is essentially additional purchases required in game.

[00:03:44] Speaker 03:
The claims do not require a digital purchase.

[00:03:47] Speaker 03:
The claims require that there be an avatar that has multiple layers that you can use to associate.

[00:03:54] Speaker 03:
But that's Diablo II.

[00:03:56] Speaker 03:
Diablo II does not have a gambitard that has multiple layers.

[00:04:00] Speaker 03:
It's not shown to have multiple layers.

[00:04:02] Speaker 02:
OK.

[00:04:04] Speaker 02:
Let me ask you this.

[00:04:06] Speaker 02:
The way I read Diablo II, you have one layer is the body of the avatar, making air quotes.

[00:04:17] Speaker 02:
And then another layer is a piece of armor or clothing or magical clothing or something.

[00:04:24] Speaker 02:
And another layer is a glass bottle with a potion that's placed in the right-hand slot.

[00:04:34] Speaker 02:
And those are all different layers that combine to produce that figure at that point in time until something changes.

[00:04:44] Speaker 02:
Am I correct?

[00:04:46] Speaker 03:
General correct in so far as the character representation that's in the play screen.

[00:04:52] Speaker 03:
For example, a figure one of the Oblitu manual that's relied upon.

[00:04:55] Speaker 03:
It's in the play screen.

[00:04:57] Speaker 03:
It could have multiple layers to it, to the character itself.

[00:05:00] Speaker 03:
It's not clear whether it does.

[00:05:01] Speaker 03:
It might just be a single layer representation.

[00:05:04] Speaker 03:
But the board.

[00:05:05] Speaker 02:
Well, they seem to articulate that hand with the slot filled with the potion bottle

[00:05:15] Speaker 02:
is a different layer than the rest of the body.

[00:05:20] Speaker 02:
And I'm making air quotes again.

[00:05:22] Speaker 03:
It seems that the board found that by way of saying that if you add a game item to a slot that's in an inventory screen, then it will show up on the character.

[00:05:35] Speaker 03:
So the board found that the inventory slots are the multiple layers with which game items are associated.

[00:05:44] Speaker 03:
And the problem with that finding is that it ignores the express claim language.

[00:05:50] Speaker 03:
The claim one, for example, requires that the gamma tar comprise multiple layers, the gamma tar itself, not just a general display screen.

[00:05:58] Speaker 03:
So the gamma tar itself has to describe multiple layers, the multiple layers of the gamma tar, not other layers on the screen associated with it.

[00:06:05] Speaker 02:
Well, let's just say the other thing is an avatar.

[00:06:08] Speaker 02:
OK, that's your position, I think.

[00:06:10] Speaker 02:
That Diablo avatar has to comprise multiple layers, does it not?

[00:06:18] Speaker 02:
Because it's malleable.

[00:06:21] Speaker 03:
It's not clear that it has to require multiple layers.

[00:06:25] Speaker 02:
When it uses up its arrows, I think they said.

[00:06:29] Speaker 02:
The bow goes, or the quiver for the arrows goes away.

[00:06:40] Speaker 02:
Yes, sir.

[00:06:42] Speaker 02:
If so facto, it's changed.

[00:06:46] Speaker 02:
There's a different layer.

[00:06:49] Speaker 03:
That is not clear what's going on with the character that's in the play screen.

[00:06:55] Speaker 03:
The quiver may disappear, but there was no step of combining a layer with the avatar that's associated with a game item.

[00:07:06] Speaker 03:
The layers that the board is determined correspond to the layers in the claim are layers in the inventory screen that's in figure one.

[00:07:17] Speaker 03:
That's part of the game.

[00:07:19] Speaker 03:
But that's part of the game that's not part of the Avatar or Gametar, whichever way you read the Gametar or Avatar recitation.

[00:07:27] Speaker 03:
The claims require the Gametar to have multiple layers itself, not just be associated with multiple layers.

[00:07:34] Speaker 03:
And the board determined that the Gametar itself doesn't have to include the layers.

[00:07:42] Speaker 02:
So when the Diablo character advances to another skill level, at that point,

[00:07:50] Speaker 02:
Is it a different layer?

[00:07:53] Speaker 03:
That is not clear.

[00:07:53] Speaker 03:
I think it's important to look to what the board determined were layers and how they determined what were the layers in the Diablo II manual.

[00:08:07] Speaker 03:
They rested on the idea that Figure 5 of

[00:08:14] Speaker 03:
Appellant's 743 patent showed an example of an avatar with a game item attached to the avatar and a game item sort of separate from the avatar in a background layer.

[00:08:28] Speaker 03:
And Figure 5 does show a

[00:08:31] Speaker 03:
an Avatar or a Gamvatar having multiple layers, but those layers are of the Avatar or Gamvatar.

[00:08:37] Speaker 03:
They're not of a separate inventory screen.

[00:08:41] Speaker 03:
They're not of the game generally.

[00:08:43] Speaker 03:
The Gamvatar has to comprise the multiple layers.

[00:08:48] Speaker 02:
At a point, the Avatar finds a glass bottle lying on the ground.

[00:09:01] Speaker 02:
That's inventory screen, right?

[00:09:06] Speaker 03:
It appears that may be what's going on in the Diablo II manual.

[00:09:09] Speaker 02:
And then it picks up the glass, chooses to pick up the glass bottle or buy it or whatever.

[00:09:15] Speaker 02:
Correct.

[00:09:16] Speaker 02:
At that point, is that glass bottle part of the avatar screen?

[00:09:21] Speaker 03:
That is not clear.

[00:09:22] Speaker 03:
In figure one, for example, there are game items shown in an inventory screen on the right-hand side of the figure.

[00:09:31] Speaker 03:
And that inventory screen, let's assume they have layers.

[00:09:37] Speaker 03:
They are not layers of the avatar or gametar or alleged gametar that's in the play screen.

[00:09:42] Speaker 02:
They accompany the, whatever you want to call it, avatar or gametar

[00:09:48] Speaker 03:
Yes, Your Honor, they may accompany the avatar or gambitar, but they are separate from, in fact, the player character.

[00:09:56] Speaker 02:
Okay, so in your gambitar, when it goes into a shop online and purchases a potion, right, and it goes into a game and it uses, and it carries that potion around, is that potion accompanying it, or is it part of the gambitar?

[00:10:18] Speaker 03:
In the context of the claims, the claimed invention, that game item would be associated with the GammaTar itself and would show up on or right next to the GammaTar, and you would be able to bring it into gameplay.

[00:10:32] Speaker 03:
In the Diablo II manual, Figure 1, it doesn't appear that that is happening.

[00:10:38] Speaker 02:
But it says he can throw the potion at someone and cause them to weaken, I think was the phrase.

[00:10:46] Speaker 03:
He can throw a potion, but the game items are still shown and added to the inventory screen, or the layers of the inventory screen.

[00:10:56] Speaker 02:
It's not used up at that point?

[00:10:58] Speaker 03:
And I think that's a different issue.

[00:10:59] Speaker 03:
That goes to the exhaustion recitation of the claims and whether there were arguments about whether Diablo II manual discloses exhaustion of game items.

[00:11:12] Speaker 03:
And the board had found that, for example, it does not make sense to the board that running out of javelins would not cause the disappearance of javelins from the

[00:11:25] Speaker 03:
the game character, which I think is an improper determination because that may not make sense to the board, but there's no common sense finding in the prior art to that effect.

[00:11:38] Speaker 03:
It sure looks like the manual says that.

[00:11:41] Speaker 03:
The manual doesn't specifically say that the avatar or gametar shown in the play screen might show two or a plurality of game items, that each of which would disappear upon exhaustion.

[00:11:57] Speaker 03:
The Diaboli demand does not show that.

[00:12:04] Speaker 01:
Final word, you're into your rebuttal.

[00:12:05] Speaker 01:
Do you want to say that and hear from the other side?

[00:12:07] Speaker 03:
I will reserve for rebuttal.

[00:12:08] Speaker 03:
Thank you.

[00:12:19] Speaker 00:
Good morning, may it please the court.

[00:12:24] Speaker 00:
The board's determination that the claims are unpatentable as obvious is fully supported by substantial evidence, and GATT hasn't shown otherwise.

[00:12:39] Speaker 00:
Each of the findings of where the Diablo II manual include discloses or teaches the specific limitations of claim one is specifically supported by in detail by the board in the board's final written decision.

[00:12:58] Speaker 02:
What about this online shop idea that is what I take from your opposing counsel?

[00:13:05] Speaker 02:
I don't recall seeing this, actually.

[00:13:06] Speaker 02:
He says it's spread through the briefs.

[00:13:09] Speaker 02:
I don't recall seeing it, that you could have an avatar that strolls metaphorically into an online shop, purchases with real money a magic potion, and then decides to go into

[00:13:28] Speaker 02:
Diablo 2 or some other game and walks in with that purchase potion and that makes it different than in some fashion the ability to play online against different people in Diablo 2.

[00:13:47] Speaker 00:
So first, thank you Judge Wallach.

[00:13:51] Speaker 00:
I think that the

[00:13:54] Speaker 00:
This online requirement was not something that got raised before the board.

[00:13:59] Speaker 00:
So this is a new argument we are getting on appeal.

[00:14:03] Speaker 00:
OK, stop.

[00:14:04] Speaker 02:
I'm going to want to see that in the record then, Councilman.

[00:14:07] Speaker 02:
You're going to have to cite me.

[00:14:08] Speaker 02:
OK.

[00:14:11] Speaker 00:
But to the extent what GATT is trying to argue and assert is that the gambitar has to be or an avatar or a gambitar has to be available online or on both online and

[00:14:28] Speaker 00:
in the game and outside the game, that's something that was specifically addressed by the board.

[00:14:34] Speaker 00:
And what the board found is either under board's construction or under Gatt's construction requiring this outside the game, that Diablo II indeed does disclose that the... Can you move your Diablo avatars amongst Diablos I, II, III, however many there are?

[00:14:57] Speaker 00:
I don't know the specifics on that.

[00:14:59] Speaker 00:
I do know that what Diablo II does disclose is it talks about in its references the Diablo II manual.

[00:15:08] Speaker 00:
I can refer you to the appendix 43-74.

[00:15:12] Speaker 00:
where it discloses that the characters represent a user in the game and on battle.net, which is Blizzard's online gaming network, and would connect to a network to select and create characters.

[00:15:24] Speaker 00:
There's also disclosure about being able to use these same characters in an online chat room and set up other games.

[00:15:30] Speaker 00:
That is, it'd have to go further outside of that network?

[00:15:33] Speaker 00:
I believe that is a new argument that we're hearing on appeal.

[00:15:37] Speaker 00:
I mean, in terms of the question that you had... So this idea of setting up other games, is that a new game?

[00:15:44] Speaker 02:
Or is it another Diablo II game amongst new players?

[00:15:51] Speaker 02:
Or is it a different game than Diablo II that the players choose to set up and create their own universe or whatever?

[00:15:59] Speaker 00:
As what's disclosed in the Diablo II manual.

[00:16:05] Speaker 00:
It's on blizzard.net.

[00:16:06] Speaker 00:
I actually... I didn't look to see what blizzard.net was.

[00:16:12] Speaker 00:
I should have spent more time playing video games.

[00:16:17] Speaker 02:
I should have spent less.

[00:16:23] Speaker 00:
I believe as a...

[00:16:33] Speaker 00:
I know that Battle.net that's described at 4375 of the appendix has it once you're logged in and you select a character you placed onto one of Battle.net's Diablo II realm chat channels.

[00:16:49] Speaker 00:
So perhaps they're all within the same realm, but there could be multiple Diablo II games.

[00:16:59] Speaker 00:
Regardless, I think even under the narrowest construction here, there's substantial evidence in the record to show that the Diablo II manual does meet this feature, even under Gatt's more narrow construction requiring this in and out of the game.

[00:17:21] Speaker 02:
Frankly, if the patent described to me a methodology for

[00:17:27] Speaker 02:
creating a game avatar which could stroll the web and, despite the different coding of various games, enter into them.

[00:17:43] Speaker 02:
It might be interesting, but I couldn't see that in the patent.

[00:17:46] Speaker 00:
I did not see that in the patent either.

[00:17:57] Speaker 00:
Let's see.

[00:17:59] Speaker 00:
Just to address my friend's argument that the claims somehow require representing a user in an avatar shop.

[00:18:08] Speaker 00:
I don't believe that they do make that, that there is not that kind of requirement there.

[00:18:15] Speaker 00:
And again, I think that that is a new argument with respect to this avatar shop with a new argument that's being raised for the first time on appeal, and I believe in the reply brief.

[00:18:28] Speaker 00:
with respect to the issue of layers.

[00:18:33] Speaker 00:
Diablo 2, this is an issue, again, where the board's finding that layers are disclosed in Diablo 2 is supported by substantial evidence.

[00:18:44] Speaker 00:
Diablo 2 discloses that there's multiple graphic regions for displaying graphics objects.

[00:18:51] Speaker 00:
That's detailed in the board's final written decision.

[00:18:54] Speaker 00:
It pages 24 to 29, appendix A, 1023 to 28.

[00:19:00] Speaker 00:
And even under the narrowest construction to require a display, to require that an actual figure, character be holding an object,

[00:19:13] Speaker 00:
I can refer you to the picture that's shown, the display shot at page 4371 in Diablo II, which shows a character holding a javelin.

[00:19:27] Speaker 00:
And that's just representative and shows that there was substantial evidence to show that these layers are displayed on the actual characters.

[00:19:37] Speaker 02:
I imagine there would be other ways of writing the code

[00:19:42] Speaker 02:
other than in layers, but I'm not aware of such a thing, and I don't see anything that tells me that, either inside or outside Diablo or in the fact.

[00:19:57] Speaker 02:
That is, I'm simply speculating at this point.

[00:20:02] Speaker 02:
There might be other ways than layers to represent the hand holding the

[00:20:09] Speaker 02:
the potion as opposed to not holding the potion.

[00:20:13] Speaker 02:
But I'm not aware of that.

[00:20:15] Speaker 02:
I think it would be cumbersome.

[00:20:18] Speaker 00:
I would agree, although I'd be speculating as well.

[00:20:22] Speaker 00:
In addition to Diablo II actually disclosing the actual figure showing as an example the character holding a javelin, there's ample evidence in the record showing that Diablo II also shows layers that are associated with where you see the equipment in the slots and boxes that's associated with a specific character.

[00:20:47] Speaker 00:
And even if Diablo II doesn't disclose...

[00:20:52] Speaker 00:
found to disclose layers that there's not substantial evidence, which we would disagree.

[00:20:56] Speaker 00:
There is substantial evidence to record to show that it does.

[00:20:59] Speaker 00:
Then layers are also expressedly disclosed by Rogers and their substantial evidence to show the combination of, support the combination of Rogers with Diablo II as well, including a motivation to combine which

[00:21:18] Speaker 00:
Again, for the first time on appeal, we've heard an argument that there isn't a – wasn't a motivation to combine – but there is a – there's specific evidence in the record to support the motivation to combine Diablo II and Rogers, which expressly discloses layers.

[00:21:37] Speaker 01:
Thank you.

[00:21:41] Speaker 00:
I will ask that this court affirm and I'll yield the rest of my time.

[00:21:52] Speaker 02:
So do you have those references for me?

[00:21:53] Speaker 03:
I will address those citations.

[00:21:59] Speaker 03:
The background of the patent discusses purchasing the avatar in an avatar shop.

[00:22:04] Speaker 03:
And the claim one also recites providing an avatar by way of an avatar shop.

[00:22:10] Speaker 03:
And that is discussed at pages 2 through 3 of the brief.

[00:22:17] Speaker 02:
That's it?

[00:22:18] Speaker 03:
Appellant's brief.

[00:22:20] Speaker 02:
You said throughout the briefs.

[00:22:25] Speaker 02:
When was it raised first as an issue?

[00:22:29] Speaker 03:
As an issue?

[00:22:31] Speaker 03:
The issue about whether a gambitar or an avatar as claimed is disclosed in a prior art has been briefed.

[00:22:45] Speaker 02:
No.

[00:22:46] Speaker 02:
When was the issue of purchasing in an online shop

[00:22:50] Speaker 02:
raised?

[00:22:57] Speaker 03:
We discussed that here this morning, Your Honor, by way of just to explain the context of the claim.

[00:23:03] Speaker 02:
So it wasn't raised before any body before this?

[00:23:09] Speaker 02:
Your opposing counsel said it first came up in a reply break before the board.

[00:23:14] Speaker 03:
the issue that there would be a purchase in an avatar shop and that Diablo II does not disclose that.

[00:23:20] Speaker 03:
I don't see, I don't recognize the distinction between the arguments that we have in our appeal brief, our opening brief, which is the Diablo II reference does not disclose a gambitar and the reasoning why is because a gambitar is

[00:23:36] Speaker 03:
specific to a game.

[00:23:38] Speaker 03:
An avatar may not be specific to a game.

[00:23:40] Speaker 03:
The claims are directed to a combination of both.

[00:23:43] Speaker 03:
I think that's how we got to the avatar shot.

[00:23:45] Speaker 02:
If you don't see a distinction, I won't worry about it.

[00:23:50] Speaker 03:
Thank you, Your Honor.

[00:23:51] Speaker 03:
And I reiterate that... I wouldn't thank me for that.

[00:23:55] Speaker 03:
Diablo II, the focus of the argument is that Diablo II does not disclose a character, an avatar, or a game avatar having multiple layers.

[00:24:08] Speaker 03:
Multiple layers for adding game items and game item functions.

[00:24:13] Speaker 03:
And Rogers does disclose adding layers and forming avatars by adding layers.

[00:24:19] Speaker 03:
But Rogers doesn't disclose associating game items or game item functions with those layers.

[00:24:26] Speaker 03:
Diablo II's character or avatar

[00:24:30] Speaker 03:
may have a javelin, but it doesn't have multiple javelins, doesn't have multiple items.

[00:24:35] Speaker 03:
The items are shown in the inventory screen to the right of the player, which is different.

[00:24:40] Speaker 03:
And I believe I only raised the avatar shop or item shop to explain that the advantage is that the game items can be purchased and associated with an avatar before entering a game and gameplay.

[00:24:56] Speaker 03:
That's all I have.

[00:24:58] Speaker 01:
Thank you.