[00:00:08] Speaker 02:
I'd like to first discuss the board's inconsistency with respect to ground two and then alternative vice authorization In ground two the board found the broad independent claim not obvious, but when it turned to the dependent claim

[00:00:30] Speaker 02:
that has additional limitations, it then found that those claims are obvious.

[00:00:36] Speaker 02:
This is entirely illogical, and it is self-contradictory.

[00:00:40] Speaker 02:
Specifically, claim one, which is incorporated into claim eight and the other dependent claims, has the limitation determining a period of time relative to the determination of the claim.

[00:00:52] Speaker 01:
So can you tell us exactly, can you point us in the board's decision what you're saying were the inconsistencies?

[00:00:58] Speaker 02:
Sure.

[00:00:59] Speaker 02:
On page A62.

[00:01:00] Speaker 02:
This is on ground two.

[00:01:08] Speaker 02:
I'm going to start at the bottom paragraph of A62.

[00:01:11] Speaker 02:
It says, specifically, as discussed above, petitioner's obviousness analysis for this grounds begins by assuming Wynn does not disclose a processor or a gaming service that determines a period of time to elapse until the next location retardation.

[00:01:27] Speaker 02:
Then on the next page, A63, the board continues.

[00:01:32] Speaker 02:
But then, when discussing why it would have been obvious to modify when to include such a determination, petitioner expressly relies on when disclosing a determining a frequency.

[00:01:44] Speaker 02:
The board then goes on to say, as a result, at the end of that paragraph, as a result, it is not clear exactly what petitioner cites when it's disclosing or not disclosing in relation to the pros obvious in this case.

[00:01:56] Speaker 02:
So that was free for the independent claim.

[00:01:59] Speaker 02:
Now it turns to claim eight, which is dependent claim off of claim one.

[00:02:03] Speaker 02:
And I'll turn you to page A65.

[00:02:05] Speaker 01:
Wait, but was this in connection with the claims that were found to be unpatentable?

[00:02:14] Speaker 02:
So the board was presented with two different grounds.

[00:02:18] Speaker 01:
Right.

[00:02:18] Speaker 01:
And was this about the Lewin Wen ground?

[00:02:22] Speaker 02:
This was the Lewin Wen for Weed ground.

[00:02:25] Speaker 01:
OK.

[00:02:26] Speaker 01:
Yes.

[00:02:26] Speaker 01:
OK.

[00:02:27] Speaker 01:
Let me tell you how the briefing was very effective on this.

[00:02:32] Speaker 01:
And maybe that's why it's so hard for me.

[00:02:35] Speaker 01:
But what I understand, and the other side can tell me if I'm misstating their defense to what you're saying, is that

[00:02:42] Speaker 01:
The first round was Lewin and Wen, and so they were making an argument that Wen does all of this stuff.

[00:02:49] Speaker 01:
But then in the second round, as people often do, they often plead alternatives, and they often plead alternatives that may in fact be mutually exclusive.

[00:02:58] Speaker 01:
But I understood what was going on in the second round was that they were saying,

[00:03:02] Speaker 01:
let's assume the board they didn't know that how the board was going to come up so let's assume the board doesn't accept our argument with respect to ground one so we're going to take a different tact about what when says amiss that's what i understand is what you're saying is the inconsistency and i don't see why that's an inconsistency no i'm not suggesting that's the inconsistency what i'm suggesting to is

[00:03:27] Speaker 02:
That is the whole premise of ground two, was that premise, that logical assumption that Wynn doesn't include this processing step.

[00:03:36] Speaker 02:
That's the assumption.

[00:03:37] Speaker 02:
But when it turns around and says, well, what's the motivation to combine?

[00:03:41] Speaker 02:
The problem is that the petition assumed that Wynn had that processing step.

[00:03:46] Speaker 02:
And the board said that's illogical.

[00:03:49] Speaker 02:
And that's the reason it found for ground two,

[00:03:52] Speaker 02:
on page A63 that these claims are not.

[00:03:56] Speaker 01:
But they were dealing with the arguments that they were making on ground one, on ground two, I'm sorry.

[00:04:02] Speaker 01:
And they were making different arguments.

[00:04:05] Speaker 02:
So what I'm saying is for.

[00:04:07] Speaker 01:
I mean, they lost on ground two, right?

[00:04:09] Speaker 02:
No, that's the problem.

[00:04:11] Speaker 02:
They lost partly on ground two and partly won on ground two in a way that doesn't make any sense.

[00:04:17] Speaker 02:
They won on ground.

[00:04:18] Speaker 02:
So they lost on ground two.

[00:04:21] Speaker 02:
with respect to some claims.

[00:04:23] Speaker 01:
But the same step they had won on ground one.

[00:04:24] Speaker 02:
Yes.

[00:04:25] Speaker 02:
And then, right, correct.

[00:04:27] Speaker 02:
And then the board bifurcated ground two on its own.

[00:04:32] Speaker 04:
No, no, no.

[00:04:33] Speaker 04:
Let's just assume you're wrong.

[00:04:34] Speaker 04:
They presented it separately in their petitions.

[00:04:37] Speaker 02:
The board then started treating the dependent claims.

[00:04:40] Speaker 02:
And when it started treating the dependent claims.

[00:04:43] Speaker 04:
It looked at the three references instead of the two.

[00:04:44] Speaker 02:
It looked at the three references.

[00:04:45] Speaker 02:
And it said, in direct contradiction, it said on page 865,

[00:04:50] Speaker 02:
Now we're going to determine that the petition clearly explains Bertwee is cited in this ground two in case the first ground fails on the basis the wind does not disclose a processor.

[00:05:01] Speaker 02:
The problem with that is the entire motivation to combine for all of these claims in ground two

[00:05:06] Speaker 02:
is the same.

[00:05:07] Speaker 02:
There is only one motivation combined that was presented in the petition and is the same motivation to combine that the board said doesn't make any sense when you assume, right, because the motivation to combine was that it would be obvious to modify win to include such a determination because the win expressly relies on win is disclosing determining that frequency and that's on page A63.

[00:05:34] Speaker 02:
So you have

[00:05:35] Speaker 02:
an assumption that Wynn doesn't have this thing.

[00:05:39] Speaker 02:
And then when you're motivating to combine and the motivation to combine the petition for all the claims, you're assuming that it does.

[00:05:46] Speaker 02:
And it can't possibly be both cases.

[00:05:49] Speaker 02:
So when it found that independently.

[00:05:51] Speaker 04:
But when they were arguing this, I don't know how to cleanly talk about this.

[00:05:56] Speaker 04:
Can we talk about the ones I think we're disputing as the second subgroup?

[00:05:59] Speaker 04:
Does that make sense?

[00:06:01] Speaker 04:
When the board looks at the second subgroup,

[00:06:04] Speaker 04:
they determine, what do they determine on, why do they need that third reference, and what does it disclose that Nguyen doesn't disclose?

[00:06:13] Speaker 02:
So what they've said in page 65 is they said, we're going to go into second ground.

[00:06:20] Speaker 02:
In the case that the first round doesn't have the right stuff, it doesn't have the processor, we're going to say that Vertwee has it.

[00:06:27] Speaker 02:
The problem with that statement, that statement that's on paragraph 2 of page 865,

[00:06:32] Speaker 02:
is it directly contradicts what they say about the motivation combined, which is that Nguyen has that processor.

[00:06:39] Speaker 04:
So the problem is that board is too- I mean, this to me sounds like sloppy petition writing and sloppy board reasoning, but really just a different argument that we got rid of all the claim one and whatever that first group is just on the two references, Nguyen and whatever the other one was.

[00:07:01] Speaker 04:
for the second ground, they preserved in the position saying, well, if we weren't going to win on that, we'll win on all three.

[00:07:08] Speaker 04:
But they wrote a really bad petition for the first subgroup.

[00:07:12] Speaker 04:
But on the second subgroup, they argued why that third reference showed the stuff that they needed for the second subgroup.

[00:07:19] Speaker 02:
And the board found that it did, right?

[00:07:21] Speaker 02:
The board said that the dependent claim stuff was found in Vertwee.

[00:07:26] Speaker 04:
Sorry, I'm being imprecise.

[00:07:27] Speaker 02:
Yeah.

[00:07:27] Speaker 04:
I can't keep all those numbers in my head.

[00:07:29] Speaker 02:
I appreciate it.

[00:07:30] Speaker 02:
But they said the stuff that's only in the dependent claim, that's in Vertwee.

[00:07:35] Speaker 02:
But the motivation to combine, as the traffickers admit, that's the same motivation to combine they use for claims 1, 2, 3, 8.

[00:07:41] Speaker 02:
It's the same argument.

[00:07:42] Speaker 02:
And the problem is, is if that argument.

[00:07:45] Speaker 02:
Let me ask you this.

[00:07:46] Speaker 04:
Because they already found independent claim 1 invalid.

[00:07:49] Speaker 04:
In ground one in ground one and let's assume we agree with that.

[00:07:53] Speaker 04:
So now we're if we're just looking at the set of dependent claims and they're saying well claim one is invalid so we need to go to virtually.

[00:08:04] Speaker 04:
Thank you for pronouncing that for me for all this other stuff.

[00:08:08] Speaker 04:
Is your problem that they didn't make a specific finding of why you would add in between to these other two references?

[00:08:15] Speaker 04:
Or is it just this inconsistency about whether Nguyen does or doesn't need to be relied on for disclosing this point?

[00:08:24] Speaker 04:
Because they found Nguyen discloses this in the first set.

[00:08:30] Speaker 04:
And so there's stuff about the first subgroup of the second set is kind of irrelevant, because it's already all covered, right?

[00:08:38] Speaker 04:
So why isn't it that what we should be looking at is whether there's a motivation to combine Vertwee with the first two references, which they've already found there's a motivation to combine?

[00:08:49] Speaker 02:
Right.

[00:08:50] Speaker 02:
No, and I agree with you.

[00:08:51] Speaker 02:
So there's two problems.

[00:08:54] Speaker 02:
The first would be the SAS problem, right?

[00:08:55] Speaker 02:
To the extent the rewriting of addition, that's problematic.

[00:08:59] Speaker 02:
You can, you can see what they wrote in the petition and you can see whether it's different or not.

[00:09:03] Speaker 02:
But the bigger problem is that the motivations combined, combined for tweet.

[00:09:08] Speaker 02:
And this is the, you can see it in their petition is at page place as they admit it's one, it's one single motivation combined.

[00:09:20] Speaker 02:
If we go to page two, Oh nine.

[00:09:24] Speaker 02:
and page 210.

[00:09:26] Speaker 02:
We're talking about the motivation combined in the petition.

[00:09:28] Speaker 02:
And this is the motivation combined for all the claims, not just the dependent ones, but all of them.

[00:09:34] Speaker 02:
And they say, and this is on page 210, end of the full first paragraph, both references describe determining a frequency of location determinations based on a distance to a boundary of an area of interest.

[00:09:48] Speaker 02:
So that motivation combined that's in that petition

[00:09:52] Speaker 02:
to combine virtually and everything else is the exact opposite of what was assumed for the whole ground in the first instance, namely that wind doesn't have the very thing that's in that sense.

[00:10:03] Speaker 02:
So the problem with the petition is it both assumes it doesn't.

[00:10:07] Speaker 04:
Let me see.

[00:10:08] Speaker 04:
Are you arguing that the board went on and found that for the second subgroup, which it found invalid, that it relied on the wind for?

[00:10:18] Speaker 04:
the disclosure that they were disavowing this ground or that it relied on Bertwee for that disclosure.

[00:10:23] Speaker 02:
They rely on both, and you can see that on page 865.

[00:10:28] Speaker 02:
So my problem is... As long as they relied on Bertwee, what's the error?

[00:10:32] Speaker 04:
The error is that you have to find a reason to combine Bertwee with Nguyen, and the reason... Well, if you go on, it talks about a procedure that would have been motivated to combine Bertwee with Nguyen, and it talks about

[00:10:45] Speaker 04:
win and for tweeting analogous art and stuff like that.

[00:10:48] Speaker 04:
Why isn't that enough?

[00:10:49] Speaker 02:
Because the reason they find it's analogous art is because they say the petition says both references disclose a frequency of subsequent location.

[00:11:00] Speaker 02:
But the whole premise of the ground is to assume that that's not true.

[00:11:06] Speaker 04:
right so the remote the reason i get what you're saying that all of this seems to me like very ineligently drafted petitions because the board they didn't know what the board was going to find and the board did find the wind discloses this and all they're saying is if you don't find the wind then we get this on this point too but the board i mean the board's rationale on the first round seems unclear to me too but if we're looking at the second subgroup is there anything

[00:11:32] Speaker 04:
Like, let's assume the board's correct that Nguyen discloses the disputed element and that there's, you know, no other objections.

[00:11:42] Speaker 04:
Nguyen, Vertwee, and whatever the other one disclose all the elements, right?

[00:11:48] Speaker 02:
Well, I'm struggling, Your Honor, because the ground two was presented as you have to combine these three things.

[00:11:55] Speaker 02:
You have to combine Vertwee.

[00:11:57] Speaker 02:
So I'm

[00:11:58] Speaker 02:
The problem is, is that the way that you're suggesting would rewrite the petition.

[00:12:02] Speaker 02:
They didn't say, well, let's just take round one and let's just add stuff.

[00:12:06] Speaker 02:
They didn't do that.

[00:12:06] Speaker 02:
They said, here's round two.

[00:12:08] Speaker 02:
We should add win with, with, with Vertweed.

[00:12:12] Speaker 02:
And what's the reason to add win with Vertweed?

[00:12:15] Speaker 02:
There has to be motivation.

[00:12:16] Speaker 02:
The reason they gave for their motivation to combine the two.

[00:12:19] Speaker 02:
directly contradicts the assumption of ground two, which is that wind doesn't have the very thing.

[00:12:25] Speaker 03:
I don't see how that directly contradicts anything.

[00:12:27] Speaker 02:
I think it's just an alternative argument because you need to have a, you need to have your motivation combined and make sense.

[00:12:34] Speaker 02:
And it doesn't make sense anymore because you've just assumed the opposite of the conclusion.

[00:12:42] Speaker 00:
Yes, I reserve the time.

[00:12:44] Speaker 00:
Good morning, Your Honors.

[00:12:46] Speaker 00:
Hopkins Guy for the Appellee Draft Kings.

[00:12:51] Speaker 00:
With respect to the last argument we did in ground two, make an alternative argument.

[00:12:58] Speaker 00:
Thank you, Judge Hughes, for pointing out the sloppy petition drafting.

[00:13:02] Speaker 00:
That is what it was, and it was never a finding that there was not a motivation to combine.

[00:13:09] Speaker 00:
Instead, what they said was, because we had made an assumption about when, that it did not teach this determining step at the time period, and we were relying on vertuile for the first group of planes in ground two to rely on vertuile for that.

[00:13:27] Speaker 00:
And later in the motivation, we actually made a reference to the determination.

[00:13:32] Speaker 00:
And the board basically said, that's confusing.

[00:13:37] Speaker 00:
We are therefore unable to reconcile petitioners' basis for presenting the second ground with petitioners' obviousness analysis of these claims, referring to that first subgroup.

[00:13:46] Speaker 00:
I'm referring to appendix 63.

[00:13:49] Speaker 04:
I mean, honestly, I think the board just misread the petition, but partially because it's confusing.

[00:13:55] Speaker 04:
because you probably cut and pasted language that shouldn't have been cut and pasted about what Nguyen disclosed.

[00:14:03] Speaker 00:
We did not make a full and robust argument regarding an assumption that Nguyen did not teach something when it clearly did, and then relying entirely upon Vertweal to do that.

[00:14:14] Speaker 00:
And so we did not meet our burden with respect to only- To the first subgroup.

[00:14:19] Speaker 00:
The first subgroup, okay.

[00:14:21] Speaker 04:
So let's focus on the second subgroup.

[00:14:23] Speaker 04:
Can you tell me

[00:14:24] Speaker 00:
for the second and third subgroups.

[00:14:26] Speaker 04:
Did the board analyze the motivation to combine for the second subgroup without the assumption?

[00:14:34] Speaker 00:
Yeah.

[00:14:35] Speaker 00:
Absolutely.

[00:14:35] Speaker 04:
And where is that in the decision?

[00:14:37] Speaker 00:
Well, it goes on with respect to at the top of 64 when it talks about claims 8, 11, 13, 15.

[00:14:44] Speaker 00:
And it talks about these as defendant claims.

[00:14:47] Speaker 00:
And it already had done the analysis with respect to ground one in which

[00:14:52] Speaker 00:
I mean, Wynn and Lewin were shown to have a combination.

[00:14:59] Speaker 00:
So when you go through that, that is the basis for that.

[00:15:05] Speaker 00:
And if you go and look at the claims with respect to that, it had to do with the very specific way in which the time period was calculated, and that's what Virtuil came in and added.

[00:15:17] Speaker 00:
So there was no assumption

[00:15:20] Speaker 00:
with respect to any of the prior art of those three references at that point.

[00:15:26] Speaker 00:
But to make a very clear point, the failure to meet a burden, the first thing he said when he got up here was, the board found it was not obvious.

[00:15:39] Speaker 00:
A failure to meet a burden is not an affirmative finding that it is not obvious.

[00:15:46] Speaker 00:
It simply says you didn't meet your burden.

[00:15:48] Speaker 00:
And then we went on and relied upon other grounds that we did meet our burden on.

[00:15:54] Speaker 00:
With respect to the substance of Lewin and the ability to say that it teaches this idea of an authorized device

[00:16:09] Speaker 00:
There's simply no doubt whatsoever that it does.

[00:16:12] Speaker 00:
It is literally in the reference almost the same way that it was in the reading from Appendix 1435.

[00:16:24] Speaker 00:
This is Lewin.

[00:16:26] Speaker 00:
It clearly says,

[00:16:28] Speaker 00:
The system also checks to see if the player is utilizing an authorized device for accessing the system.

[00:16:36] Speaker 00:
Authorized devices may vary from jurisdiction to jurisdiction.

[00:16:40] Speaker 00:
It gives examples, including a cell phone.

[00:16:43] Speaker 00:
It also goes on to describe

[00:16:45] Speaker 00:
the ID of the player as being a hardware, a portion of limitation, and then referring to the MAC address.

[00:16:52] Speaker 00:
The MAC address was what the patent itself also referred to.

[00:16:57] Speaker 00:
So substantial evidence supports this.

[00:17:00] Speaker 00:
It is not the missing element as referenced in the cases that they cite.

[00:17:06] Speaker 00:
Your Honor, I see you've got 10 minutes, but that's it.

[00:17:09] Speaker 00:
Thank you, Your Honor.

[00:17:10] Speaker 02:
Just two quick points, Your Honor.

[00:17:12] Speaker 02:
The first is, they said, well, this is a sloppy petition, maybe.

[00:17:17] Speaker 02:
But this was noted in the institutional decision, this problem.

[00:17:20] Speaker 02:
This whole thing was there.

[00:17:22] Speaker 02:
They chose to remain silent.

[00:17:24] Speaker 02:
They could have fixed it.

[00:17:25] Speaker 02:
They could have said something more.

[00:17:26] Speaker 02:
They didn't.

[00:17:27] Speaker 02:
They were told institution, and they strategically said nothing.

[00:17:31] Speaker 02:
So having done that and having come to this error, it's all on their part.

[00:17:36] Speaker 02:
It is entirely their fault.

[00:17:38] Speaker 01:
When should they have then fixed it?

[00:17:40] Speaker 01:
Or said something about it?

[00:17:41] Speaker 02:
They could have said, well, we see that there was a problem, that the institution decision points out that there's an inconsistency, but there's not an inconsistency.

[00:17:50] Speaker 02:
Actually, the motivation to combine works or is different.

[00:17:54] Speaker 02:
They could have said something during trial, but they didn't.

[00:17:57] Speaker 01:
They asked by any of the board members during the trial, during the hearing.

[00:18:01] Speaker 02:
Not that I know of.

[00:18:02] Speaker 02:
It was set in the institution decision that there was a problem, and it was never fixed after that.

[00:18:08] Speaker 02:
Second thing is, he says, well, the motivations in mind were different, or the assumptions were different.

[00:18:15] Speaker 02:
If we look at page A65, at the second paragraph, the board thinks that's just not true.

[00:18:23] Speaker 02:
If we look at the second sentence, it says, we determined the petition clearly explains Bertwee is cited in this second ground, quote, in case the first round fails on the basis that Wynn does not disclose a processor.

[00:18:37] Speaker 02:
The whole basis for the inconsistency that was two pages earlier was that they assumed Wynn didn't disclose a processor, but the motivation combined did.

[00:18:49] Speaker 02:
Same problem is found two pages later.

[00:18:52] Speaker 02:
yet they then go on and find that dependent narrower claims are obvious.