[00:00:00] Speaker 01: to three interactive games versus vandals. [00:00:04] Speaker 01: Mr. Goldberg, whenever you're ready. [00:00:21] Speaker 02: May it please the court? [00:00:22] Speaker 02: We're here today because the board failed to give proper meaning to the update the user profile in response to the event language of claim nine. [00:00:29] Speaker 03: On page seven of the red read, Vanduul says, quote, never argued any claim construction whatsoever during the IPR. [00:00:38] Speaker 03: Did you raise a claim construction argument during the IPR? [00:00:42] Speaker 02: Yes. [00:00:43] Speaker 03: Where is it in the record, please? [00:00:46] Speaker 02: So one place that we can see it in the record is if you look at [00:00:50] Speaker 02: Appendix page 15, which is the board's final written decision. [00:00:55] Speaker 02: They recognize toward the bottom that we are giving particular meaning to the claims. [00:01:05] Speaker 02: They say, according to the patent owner, those claim limitations pertinently specify two requirements, storing the user's particular location in response to a recognized claim. [00:01:15] Speaker 03: How is that a claim construction argument? [00:01:16] Speaker 03: Where's your claim construction argument? [00:01:18] Speaker 02: Well, the board additionally [00:01:20] Speaker 02: recognized actually during the oral hearing that there was a dispute. [00:01:27] Speaker 02: This is at appendix page 1041. [00:01:37] Speaker 02: The board asking about what actually needs to be required here. [00:01:43] Speaker 02: The petitioner had been arguing that our position was that [00:01:50] Speaker 02: The storing needed to happen immediately after the event. [00:01:54] Speaker 02: And I was being questioned about that. [00:01:57] Speaker 02: And we can see it lines 4 to 14 here, us giving the view that causation is what's required by the claim. [00:02:07] Speaker 02: And the board, in its final written decision, if we go to [00:02:18] Speaker 02: page, appendix page 20, we can see here again the board starting to talk about the positions between the parties. [00:02:27] Speaker 02: The petitioner taking this immediately. [00:02:29] Speaker 03: So the core of your argument seems to be articulated on page three of the grade brief, in which you say that your claim construction arguments aren't waived because your, quote, claim construction positions on appeal [00:02:45] Speaker 03: are consistent with your positions about obviousness before the board. [00:02:49] Speaker 03: Am I correct? [00:02:51] Speaker 02: Yes, before the board, there was not... No, am I correct that that's sort of the core of what you're saying? [00:02:57] Speaker 02: Yes. [00:02:58] Speaker 03: You say, well, neither party presented express definitions to the board, quote, right? [00:03:04] Speaker 03: Which is what claim construction is about, as far as I know. [00:03:06] Speaker 03: Correct. [00:03:07] Speaker 03: What legal authority supports that assertion? [00:03:14] Speaker 02: In the entertainer versus who case, this is cited in our gray brief at page four, that case actually addressed a similar situation where there was not any explicit claim construction below. [00:03:29] Speaker 02: Instead, what had been happening was the party was making arguments about what the prior art disclosed and didn't disclose, but there was kind of an assumed [00:03:42] Speaker 02: this is what we're arguing the plain meaning is. [00:03:44] Speaker 02: And then in that case, because it was effectively the same argument that was still occurring, even though it had changed into a claim construction argument, that was [00:03:56] Speaker 02: deemed not waived. [00:03:57] Speaker 02: And that's the same situation. [00:03:59] Speaker 01: And that's a non-prec, non-precedential opinion, correct? [00:04:02] Speaker 02: Yes. [00:04:04] Speaker 01: That is correct. [00:04:05] Speaker 01: So there's not binding authority on subsequent panels. [00:04:08] Speaker 02: That is correct. [00:04:10] Speaker 02: I would also point the court to the interactive gift versus compuServe case. [00:04:17] Speaker 02: That did not get into this exact situation, but it did recognize that it was acceptable to be providing [00:04:25] Speaker 02: additional citations and new explanations? [00:04:28] Speaker 03: Well, the CAFC there said that while a party may not change the scope of its claim construction on appeal, it can clarify or defend claim construction. [00:04:38] Speaker 03: But you don't have a claim construction offered. [00:04:41] Speaker 02: Well, I think, Your Honors, that the- I mean, you can see that. [00:04:46] Speaker 02: Yes, we did not formally propose a claim construction below. [00:04:50] Speaker 02: But there was clearly a dispute between the parties [00:04:53] Speaker 02: about the meaning of this in response to language and whether it was something that needed to be immediately happening. [00:05:00] Speaker 03: So if you say something's plain meaning, right? [00:05:02] Speaker 03: Yes. [00:05:03] Speaker 03: And the other side says plain meaning. [00:05:05] Speaker 03: And you don't ask for a plain construction. [00:05:06] Speaker 03: All you're saying is, this is the plain meaning. [00:05:09] Speaker 03: You're not asking for a plain construction, are you? [00:05:12] Speaker 02: Correct. [00:05:14] Speaker 02: So our position here, though, is that although we were arguing for plain meaning, they were arguing for plain meaning as well, when we got to the final written decision, [00:05:23] Speaker 02: And the board wrote the decision down as to how the prior art map to the claims. [00:05:32] Speaker 02: In doing so, it became apparent that what the board was doing was not the plain meaning, any reasonable meaning anyway. [00:05:40] Speaker 02: It, in effect, had kind of gone off the rails and ignored the language in the claims. [00:05:45] Speaker 02: And we can see this in the board's decision [00:06:01] Speaker 03: What page are you on? [00:06:04] Speaker 02: Yes, one second, Your Honor. [00:06:11] Speaker 02: Appendix page 19. [00:06:13] Speaker 02: The board toward the top of the page here is talking about the storage that is happening. [00:06:26] Speaker 02: And it says, and this is about one, two, [00:06:31] Speaker 02: I guess eight lines down or so, that stores the updated data as part of the remote player's log file, while the player plays games. [00:06:43] Speaker 02: And again, this shows up on Apponix page 21 toward the top, the board pointing out that Vong also updates, logs this information while the player plays the game. [00:06:56] Speaker 02: And the problem with this is that [00:07:01] Speaker 02: The player in Vuong does not play the game in response to the event that was identified by petitioners and the board, the access and reaccess. [00:07:15] Speaker 02: We know this because if you look at figure five of the Vuong reference, and this is a figure [00:07:29] Speaker 02: that was identified, I believe, in that red brief by the petitioners. [00:07:35] Speaker 02: You can see a step 508 that says, open player log file for game server wager amount players take an average wager. [00:07:49] Speaker 02: This is the step that petitioners had identified where the storage actually happens, but if we [00:07:56] Speaker 02: Look toward the top of this figure at step 502. [00:08:00] Speaker 02: And this is at appendix page 2762. [00:08:04] Speaker 03: The first step 502 is the- I'm sorry, I'm at a loss how this helps you as to the core argument that you say that the PTAB is wrong in its determination that Vuong [00:08:24] Speaker 03: discloses updating the user profile in response to the event. [00:08:28] Speaker 03: I mean, claim nine of 518 recites an apparatus comprising at least one processor with memory and software that will establish a user profile for a given user on a data storage device and update that user profile in response to an event. [00:08:55] Speaker 03: An event may be any suitable event, which can serve as a trigger to change the profile information. [00:09:04] Speaker 03: So long teaches storing a user's location in a user profile. [00:09:10] Speaker 03: It specifically discloses its apparatus collects statistical information regarding the location of a player as part of a log file for each player. [00:09:20] Speaker 03: It teaches updating that user profile by storing the user's location in response to an event. [00:09:26] Speaker 03: It specifically discloses that its apparatus may interrogate the location of the remote gaming machine. [00:09:33] Speaker 03: It further provides that its apparatus may update a user's information when the user terminates play, or at selected intervals throughout the day, or when the player subsequently returns. [00:09:46] Speaker 03: So it teaches both storing and updating in response to an event. [00:09:50] Speaker 03: I mean, those are events, are they not? [00:09:55] Speaker 02: They may be events, but they are not the event in the claim. [00:09:59] Speaker 02: The event in the claim, and this is at column 28 of the patent around line 18, specifies that we're to recognize the occurrence of the event comprises to determine, based on the location data, an existence of the user in a particular location, so the event [00:10:24] Speaker 02: here in the claim is an event where the particular location is determined. [00:10:32] Speaker 02: And in the Wong reference, the only place that that is alleged to have happened, as the board found, is when it is checking to determine whether there is jurisdictional allowability to be able to do the gaming event. [00:10:52] Speaker 02: That's the location that the board identifies. [00:10:58] Speaker 03: Where does claim nine of the 518 patent require a location-based event? [00:11:06] Speaker 03: In column 28. [00:11:09] Speaker 03: It says it requires determining, based on reading from column 28, the location data that a user is in a particular location when an event occurs. [00:11:22] Speaker 03: An event's any suitable event that can trigger a change to the profile information, such as the occurrence of a particular day or week, so on. [00:11:34] Speaker 03: Claim 9 doesn't require a location-based event, necessarily. [00:11:39] Speaker 03: A day or week change is not a location-based event, is it? [00:11:55] Speaker 02: The change of day or change of week may be an event. [00:12:00] Speaker 02: But in claim nine, the event, in addition to that, would also need to include the determination of the user being in a particular location, because that is what is required in column 28 around line 20 there. [00:12:17] Speaker 04: Mr. Goldberg, before your opening session closes, I wanted to ask you one question, please. [00:12:23] Speaker 04: The last clause, well it's not the last clause of the claim, but the last clause that seems to be in focus here is that you were discussing somewhat with Judge Wallach says, we're in to update the user profile in response to the event, okay? [00:12:39] Speaker 04: Yes. [00:12:40] Speaker 04: Are you saying that there is any kind of a, to get a little better fix on that from my standpoint, are you saying there's a time requirement in there in terms of immediacy? [00:12:52] Speaker 04: Or are you saying that the update cannot happen more than one or two or three steps down the road, so to speak? [00:13:02] Speaker 04: What do you really mean when you say, in your view, the in response? [00:13:06] Speaker 04: Does it have to be right away? [00:13:07] Speaker 04: Or can it be a little ways off? [00:13:09] Speaker 04: Or can there be intervening events? [00:13:11] Speaker 04: How do you define it? [00:13:12] Speaker 02: You understand what I'm saying? [00:13:13] Speaker 02: Yes. [00:13:13] Speaker 02: In our view, it is not a timing issue. [00:13:17] Speaker 02: It is not whether other events [00:13:21] Speaker 02: may occur in between, it is a causation issue. [00:13:25] Speaker 02: It is an issue of, is this something that, when it happens, when an event happens, will it necessarily cause the storage to happen? [00:13:37] Speaker 02: And the reason that we are saying that is the specification differentiates between different types of triggers. [00:13:45] Speaker 02: This is at appendix 71, column 5, line 29 to 32. [00:13:52] Speaker 02: And some of the things that it specifies as possible triggers are events, on the one hand, or happening at different periods of time, so intervals is what the petitioners were referring to, or the occurrence of some other user activity. [00:14:08] Speaker 02: So it's differentiating in the specification time-based things versus you have an event. [00:14:14] Speaker 02: that triggers something else to happen. [00:14:16] Speaker 02: So you're saying it has to be a trigger. [00:14:18] Speaker 02: In your view, causation is the key factor. [00:14:22] Speaker 02: Yes, causation is the key factor. [00:14:23] Speaker 02: And that goes back to the exact same thing that I told the board when asked this similar type of question. [00:14:30] Speaker 02: You said timing isn't a factor. [00:14:32] Speaker 02: Yeah, timing isn't an issue. [00:14:33] Speaker 02: It's just cause. [00:14:35] Speaker 02: So again, the reason that all of this matters is that [00:14:43] Speaker 02: If you look at the reacts of excess events that were relied upon by the board, these are not things that cause any storage to happen. [00:14:55] Speaker 02: Instead, in going back to that figure five again in Vuong, you need to be first playing the game. [00:15:03] Speaker 02: In order for any of these profile updates to occur, in order for any storage to occur, you have to actually be playing the game. [00:15:11] Speaker 02: And this is kind of like the, [00:15:13] Speaker 02: door example that we gave in our gray brief, you can walk up to a casino, the door can be open. [00:15:20] Speaker 02: That means you have access. [00:15:23] Speaker 02: You are able to walk in, but that doesn't necessarily mean that you would ever walk in or that you would ever play the game. [00:15:30] Speaker 02: And that's the situation that we have here. [00:15:33] Speaker 02: The prior art never gets to the you actually would do the storage because it's possible that somebody shows up in a location, it's [00:15:43] Speaker 02: deem that they're legally in that location, but then it stops. [00:15:47] Speaker 02: They never actually play the game. [00:15:49] Speaker 02: They do something else. [00:15:50] Speaker 02: You've exhausted your rebuttal, so we'll waste a couple of minutes at the end. [00:16:08] Speaker 00: Good morning, Your Honor. [00:16:09] Speaker 00: May it please the court? [00:16:10] Speaker 03: I want you to talk about whether the claim construction arguments are preserved. [00:16:16] Speaker 00: Your Honor, the starting point for my argument is going to be exactly that, which is if you look at the gray brief from appellants, they are asking for a very specific construction. [00:16:27] Speaker 00: And this is on page 13 of the gray brief, they say, [00:16:31] Speaker 00: Claim 9 requires a location-based triggering event in which a user is recognized as arriving at a particular location and not another trigger. [00:16:42] Speaker 00: So we have this user arriving at a location, and it's a location-based trigger. [00:16:47] Speaker 00: That construction was never advocated at all below. [00:16:51] Speaker 03: It appears from the concession at page 3 in the great brief, no construction was advocated. [00:16:56] Speaker 00: Indeed, it wasn't. [00:16:58] Speaker 00: The concept of what is an event was not raised. [00:17:03] Speaker 00: There were a lot of arguments around whether the storage of the location information was in response to, and the patent owner below referred to it as the alleged event. [00:17:16] Speaker 00: But that was the framing of the argument. [00:17:18] Speaker 00: Is the location data stored in response to the alleged event? [00:17:24] Speaker 00: the nature of the event was never challenged by the patent owner, much less with a specific construction before the board. [00:17:30] Speaker 00: And here we have the appellant coming to this court and asking for a very specific construction. [00:17:36] Speaker 00: And in fact, a specific construction that [00:17:41] Speaker 00: reads out a number of the embodiments out of the 518 patent. [00:17:45] Speaker 00: So not only are they asking for a construction that I believe they've waived, but it's a construction that is not correct. [00:17:52] Speaker 00: It is presumptively not correct, because it reads out, as I said, a number of the disclosures of what an event can be in the 518 patent. [00:18:01] Speaker 00: And I'd like to just go there. [00:18:02] Speaker 00: Your honor has already read from it. [00:18:04] Speaker 00: But in the 518 patent at column 8, [00:18:11] Speaker 00: And lines 63, following on to column 9, and this is the discussion of the event in the 518 patent, the event at step 1014 may be any suitable event which can serve as a trigger. [00:18:29] Speaker 00: I'm not going to read the whole thing, but Your Honor saw days of the week, hours of the day. [00:18:34] Speaker 00: I mean, these are things that aren't even related to the user. [00:18:37] Speaker 00: They're just passage of time. [00:18:39] Speaker 00: If we go on, and I'll highlight on down in column nine at lines 22 to 23, we see that an event may be the start of a tournament or a sporting event. [00:18:49] Speaker 00: If we look contemporaneously with our current time, it could be the start of a Super Bowl would be the event. [00:18:56] Speaker 00: And that event is a suitable event because [00:18:59] Speaker 00: It is something that can trigger the remainder of the requirements of claim nine. [00:19:04] Speaker 00: So if we look at claim nine and just take the Super Bowl as an example of an event, I'm not going to go through all of claim nine, but focusing on the limitations that are in dispute, the system could recognize an occurrence of the Super Bowl wherein [00:19:26] Speaker 00: part of recognizing the occurrence of the Super Bowl comprises and I think that comprises is very important because it's just saying the recognizing of that event can include or will include based on location data determining the existence of a user at a particular location. [00:19:44] Speaker 00: Now we jump down to the next limitation and based on that determination of the existence of the user in a particular location initiate a gaming session. [00:19:53] Speaker 00: So the Super Bowl has started. [00:19:56] Speaker 00: We're going to inquire from the mobile device what the location of the user is and determine that location. [00:20:02] Speaker 00: And if they are in a legal jurisdiction where betting is permitted, that user can then bet on in-game activities at the Super Bowl and initiate a gaming session. [00:20:13] Speaker 00: As part of that, the claim also specifies that the location is stored. [00:20:16] Speaker 00: So you have a trigger being the Super Bowl [00:20:19] Speaker 00: You have a sequence of events that flows from that, including location determination, storage of the location, and then, if appropriate, in that jurisdiction where the user is located, initiate the gaming session. [00:20:31] Speaker 00: That's the way Claim9 works. [00:20:33] Speaker 00: And what the appellant is asking you to do is to read out those viable embodiments. [00:20:41] Speaker 00: And that's wholly inappropriate for reasons of waiver. [00:20:44] Speaker 00: It's wholly inappropriate for reasons of claim construction. [00:20:47] Speaker 00: And it is really the appellant's only challenge to the teachings of law is this waived argument. [00:20:59] Speaker 04: On the in response to. [00:21:00] Speaker 04: There's one question. [00:21:01] Speaker 04: How exactly does the Super Bowl information get updated? [00:21:05] Speaker 04: The computer there knows that the Super Bowl is going on, and it just [00:21:12] Speaker 04: How does that work exactly? [00:21:14] Speaker 04: In response, you use the example of the Super Bowl as the event. [00:21:19] Speaker 04: Correct. [00:21:20] Speaker 04: We know the Super Bowl started at 6.30. [00:21:24] Speaker 04: What does the computer do? [00:21:25] Speaker 04: How does it know that? [00:21:27] Speaker 00: It's not different than the days of the week example. [00:21:29] Speaker 00: Your server would be monitoring the passage of time vis-a-vis events. [00:21:33] Speaker 00: Have we reached Tuesday? [00:21:35] Speaker 00: Have we reached the Super Bowl? [00:21:36] Speaker 00: The server would recognize that as an event that has occurred and then interrogate the mobile device. [00:21:43] Speaker 00: Give me your location. [00:21:45] Speaker 00: At that point, the location is sent to the server. [00:21:47] Speaker 00: The server can determine, based upon that location information, is gaming permitted in this jurisdiction? [00:21:53] Speaker 00: Are we in New Jersey, for example? [00:21:56] Speaker 00: So in that circumstance, the server monitors for events [00:22:01] Speaker 04: How does it monitor for events? [00:22:16] Speaker 04: can somehow determine, all right, the World Series starts today, or the Kentucky Derby starts today, or whatever. [00:22:23] Speaker 04: Correct. [00:22:23] Speaker 03: OK. [00:22:25] Speaker 03: Sort of a Ladbrokes, the English betting parlor kind of approached anything that's bettable as long as it's morally acceptable. [00:22:34] Speaker 00: And legal. [00:22:37] Speaker 00: Yeah. [00:22:37] Speaker 00: Sure. [00:22:39] Speaker 00: I digress, but the betting on the Super Bowl is quite bad. [00:22:42] Speaker 00: interesting. [00:22:42] Speaker 00: I mean, you can have play by play, you know, is the runner going to go 15 yards? [00:22:46] Speaker 00: It's amazing what they're doing now, but I digress from my argument. [00:22:52] Speaker 00: On the in response to argument, again, what Voin teaches is really the same thing as the 518 patent. [00:23:00] Speaker 00: It was an access restriction device. [00:23:02] Speaker 00: And fundamentally, what claim 9 is, is also an access restriction [00:23:07] Speaker 00: system. [00:23:08] Speaker 00: It is checking the jurisdiction to make sure that gaming is legal and then permitting or initiating that session in response to a determination that it is legal. [00:23:17] Speaker 00: That is exactly what the disclosure of Wong says. [00:23:20] Speaker 00: And again, in response to, it's not, you've heard, it's not a timing restriction. [00:23:26] Speaker 00: It is, is there a trigger? [00:23:28] Speaker 00: And that trigger leads to a series of occurrences that result in the player being allowed to participate in a gaming activity. [00:23:36] Speaker 00: Vuong, as fully noted, and I would just refer the court to the final written decision, and it really spans from pages 18 through 21 of the final written decision. [00:23:50] Speaker 00: address this issue just head on. [00:23:53] Speaker 00: I mean, it asked the specific question of whether it was in response to. [00:23:56] Speaker 00: It walked through paragraphs 33, paragraph 49, paragraph 50 of Wong and made its factual findings that that series of events was occurring, including the storage of the location data, was occurring in response to the event of a user trying to access the system to initiate a gaming session. [00:24:18] Speaker 00: And that is, that disclosure in Vuong just aligns almost one-to-one with the 518 specifications. [00:24:27] Speaker 00: So to say that that disclosure is not consistent with Claim 9, again, you're reading out the fundamental nature of the 518 patent in so doing. [00:24:40] Speaker 00: Your Honors, do you have any other questions for me? [00:24:43] Speaker 00: Thank you. [00:24:44] Speaker 00: Thank you, Your Honors. [00:24:57] Speaker 03: Mr. Goldberg. [00:24:59] Speaker 03: Bet you can't do it in two minutes. [00:25:03] Speaker 02: I'll just make quick points, Your Honor. [00:25:08] Speaker 02: That was a joke. [00:25:09] Speaker 02: Yes. [00:25:09] Speaker 02: Thank you. [00:25:11] Speaker 02: First, I wanted to, going back to the waiver issue, Judge Wallach and Judge Press, in terms of case law support that we have, we can also point to the Harris Court versus Erickson case. [00:25:27] Speaker 02: That's a case where the claim construction changed slightly between the two proceedings as it went up. [00:25:37] Speaker 02: And because the same general concept was there, it was deemed not waived. [00:25:42] Speaker 02: Now here, yes, we did not expressly say this is claim construction, but we were arguing about the cause being causation. [00:25:50] Speaker 02: And that is the same argument that we are still making today. [00:25:57] Speaker 02: this Super Bowl-type example where you're looking at an event that is not actually the location. [00:26:04] Speaker 02: I want to point your honors to one portion of the specification that I think provides a good example of the type of event that we can be talking about in Claim 9. [00:26:14] Speaker 02: In column 11, lines about 48 through 55, there is an example of an event here. [00:26:26] Speaker 02: that is actually tied to two things. [00:26:29] Speaker 02: It is tied to both location and also tied to something else, like predetermined or random time. [00:26:36] Speaker 02: And this is an event where, depending on the time, depending on the location, the profile can be set up and the gaming can be customized such that the house will do a matching bet. [00:26:50] Speaker 02: So that is the type of event that we're dealing with in Claim 9. [00:26:55] Speaker 02: Yes, can include other things. [00:26:58] Speaker 02: But at a minimum, it needs to include the location determination. [00:27:03] Speaker 02: And as we discussed before, because the events that they've identified. [00:27:07] Speaker 02: The location determination isn't the only kind of event. [00:27:12] Speaker 02: Correct. [00:27:13] Speaker 02: It is not the only type of event. [00:27:15] Speaker 02: But in Claim 9, it is one of the requirements of the event. [00:27:19] Speaker 02: And because the identified events by petitioner do not ever cause [00:27:25] Speaker 02: the gameplay to start and thus the storage to happen, they do not meet the claim limitations. [00:27:33] Speaker 02: And for those reasons, we believe the court should reverse or at least remand the case. [00:27:37] Speaker 02: Thank you. [00:27:38] Speaker 02: Thank you. [00:27:38] Speaker 02: I thank both sides of the cases.