[00:00:00] Speaker 02:
We have four argued cases this morning.

[00:00:02] Speaker 02:
The first is number 23, 2365, IGT versus Zanga, Inc., Mr. Gannon.

[00:00:12] Speaker 00:
Good morning.

[00:00:13] Speaker 00:
May it please the court.

[00:00:15] Speaker 00:
The board made a critical error with respect to the Codero reference.

[00:00:20] Speaker 00:
The Codero reference discloses a tournament server that eliminates and ranks players.

[00:00:27] Speaker 00:
That is the only evidence the board relied on to show the claimed callback between a server and a client computer.

[00:00:35] Speaker 00:
And there's no evidence in Codero that that information is sent from the server to the client computer.

[00:00:42] Speaker 00:
So there are no callbacks as claimed.

[00:00:45] Speaker 01:
Can I just, maybe I'm misunderstanding something, but I'm looking at paragraph 44 of Cordero.

[00:00:52] Speaker 01:
It references the term and component 212, and then it says, quote,

[00:01:00] Speaker 01:
Each component provides functionality to facilitate communication between the client computer 200 and various functionality provided by the server 120.

[00:01:11] Speaker 01:
How is that not substantial evidence of communication from one device to another?

[00:01:17] Speaker 00:
So, Your Honor, could you reference what paragraph?

[00:01:20] Speaker 01:
Paragraph 44.

[00:01:21] Speaker 00:
44.

[00:01:23] Speaker 00:
Okay, so figure three of Codero.

[00:01:26] Speaker 00:
It does show a point-to-point communication between the server and the client.

[00:01:33] Speaker 00:
So for example, the chat server, a client computer can chat, send a chat to another player, and it'll go through the server to another player.

[00:01:47] Speaker 00:
That's a point-to-point communication.

[00:01:49] Speaker 00:
So that's an example of communications going back and forth between the client and the server.

[00:01:55] Speaker 00:
tournaments server and the tournament component in the client the tournament server is sort of taking care of the entire tournament it's keeping track of the tournament it's providing the tournament functionality but the paragraph that you referenced your honor doesn't say anything about the tournament server

[00:02:20] Speaker 00:
which is eliminating and ranking players, that that information is being returned to the client computer.

[00:02:27] Speaker 02:
What would be the point if it didn't?

[00:02:31] Speaker 02:
I mean, isn't it on its face pretty obvious that that's the purpose of this?

[00:02:36] Speaker 00:
So that would be an obviousness question, whether it would have been obvious to have the elimination.

[00:02:43] Speaker 02:
It's a question of the interpretation of the prior order.

[00:02:46] Speaker 00:
Well, okay, so the interpretation of the prior art, the proportion that was relied upon by the board was paragraph 53.

[00:02:57] Speaker 02:
And this is the only two sentences relied upon by... Yeah, those are the sentences that talk about this functionality, tournament functionality being performed.

[00:03:09] Speaker 00:
That's right.

[00:03:10] Speaker 02:
And so didn't the board infer that

[00:03:14] Speaker 02:
If the tournament functionality is being performed, that the information is being communicated to the client?

[00:03:20] Speaker 00:
I think the problem is the board relied on Zynga's expert.

[00:03:24] Speaker 00:
And of course, the expert just said, well, yeah, that functionality is returned to the client computer and relied on the expert.

[00:03:31] Speaker 00:
The problem is the expert was looking at Codero, but Codero does not say that.

[00:03:37] Speaker 00:
There's no disclosure of elimination and ranking being sent back to the client.

[00:03:44] Speaker 04:
You agree that the reference teaches callbacks, right?

[00:03:48] Speaker 04:
Your view is simply that it's not teaching it with expressly linking callback to the tournament app.

[00:03:57] Speaker 04:
Is that right?

[00:03:57] Speaker 00:
So it's actually, it's not just, we have to remember the claim term callback.

[00:04:02] Speaker 00:
It's not just any callback.

[00:04:05] Speaker 00:
It's a callback from the server that takes, the server basically gets updates from the game.

[00:04:12] Speaker 00:
and based on the updates there's a high-level function that gets executed and then the execution of that function gets returned.

[00:04:20] Speaker 04:
Sure.

[00:04:20] Speaker 04:
So could you answer my question?

[00:04:22] Speaker 00:
Sure.

[00:04:23] Speaker 00:
So the tournament server, although it is providing a function, it's eliminating and ranking players, there's no disclosure of that information being sent back to the client computer and therefore no callback period.

[00:04:38] Speaker 04:
Do you agree that the reference teaches

[00:04:41] Speaker 04:
the idea of callbacks, right?

[00:04:43] Speaker 04:
For just generally, for example, on page JA 1762 and paragraph 83.

[00:04:54] Speaker 04:
Yes, so I'll be, and I think- So what you're disputing is that the reference number links up the callbacks to the tournament server, right?

[00:05:02] Speaker 00:
That's right.

[00:05:02] Speaker 00:
So the callback that's referenced really in both references, it's a misnomer.

[00:05:07] Speaker 00:
It's not the claimed callback.

[00:05:10] Speaker 00:
The Cordero talks about callback functionality in a particular device, in a single device, different layers of a device having the so-called callback functionality.

[00:05:20] Speaker 01:
I'm sure I'm missing something, but I think Red makes this point.

[00:05:24] Speaker 01:
If the tournament functionality is running on a device and it ranks and eliminates players, how are the players on their devices to know that they've been ranked or eliminated if that information hasn't been sent to them?

[00:05:40] Speaker 00:
So again, there's no disclosure in Cordero.

[00:05:43] Speaker 00:
on the tournament functionality and the tournament component?

[00:05:46] Speaker 02:
You're not answering the question, which is pretty much the same question I asked earlier.

[00:05:50] Speaker 02:
I mean, what would be the point of collecting this information on the tournament server if it wasn't communicated to the client devices?

[00:05:57] Speaker 00:
So the point of the tournament server is to run the tournament.

[00:06:02] Speaker 02:
You're not answering the question.

[00:06:03] Speaker 02:
How can you run the tournament without providing information to the client devices?

[00:06:07] Speaker 00:
Because the reference doesn't say it.

[00:06:12] Speaker 02:
You're not really addressing the question.

[00:06:15] Speaker 04:
But about necessarily so.

[00:06:17] Speaker 04:
Whether it's necessarily so.

[00:06:20] Speaker 04:
Reference generally teaches callbacks.

[00:06:22] Speaker 04:
And then the idea of sending messages from an application back to the client devices.

[00:06:30] Speaker 04:
wouldn't that teaching be applicable to also the tournament server, which you agree is a high function server?

[00:06:38] Speaker 00:
It is a high function.

[00:06:40] Speaker 00:
It is eliminating and ranking.

[00:06:43] Speaker 00:
Again, the callback functionality in Cordero, it's talking about, again, a single device.

[00:06:48] Speaker 00:
It's not talking about between a server and a client.

[00:06:52] Speaker 00:
And so what Cordero is really talking about is you being able to be

[00:06:57] Speaker 00:
in a tournament.

[00:06:58] Speaker 00:
And I think the question, Judge Dyken, Judge Prost, that you're asking is, well, wouldn't it have been obvious for the users?

[00:07:04] Speaker 04:
No, I said necessarily so.

[00:07:06] Speaker 04:
OK, necessarily.

[00:07:08] Speaker 04:
Can you answer my question?

[00:07:08] Speaker 00:
Yeah, necessarily so.

[00:07:11] Speaker 00:
It is not necessarily so.

[00:07:12] Speaker 00:
It is not inherent in the reference that the ranking.

[00:07:16] Speaker 01:
Well, how does it work if a client doesn't know that he's been eliminated?

[00:07:21] Speaker 01:
The client doesn't make any sense.

[00:07:23] Speaker 00:
The client can play in a tournament.

[00:07:27] Speaker 00:
Again, the point of this limitation is you're getting an update during a game that's performing a function and sending it back.

[00:07:35] Speaker 00:
To your question, Judge Stoll, is it necessarily, is it inherent that it's sending that information back to the client?

[00:07:42] Speaker 00:
The answer is no, and that wasn't argued.

[00:07:46] Speaker 00:
at all.

[00:07:47] Speaker 00:
The board just said, I see a disclosure of elimination and ranking from the tournament server to the client.

[00:07:55] Speaker 00:
The problem is it's not in Cordero.

[00:07:58] Speaker 00:
It's just not there.

[00:08:00] Speaker 00:
So you could say, well, wouldn't it have been obvious?

[00:08:02] Speaker 00:
Nobody made that argument.

[00:08:04] Speaker 00:
That's the problem with respect to Cordero.

[00:08:08] Speaker 04:
And when we look at how the board read the reference, what standard review do we apply to that?

[00:08:13] Speaker 00:
It's a de novo standard of review for obviousness.

[00:08:17] Speaker 04:
No, no.

[00:08:18] Speaker 04:
This is scoped content prior to the grand fact.

[00:08:22] Speaker 04:
I think it's reviewed for substantial evidence.

[00:08:24] Speaker 00:
Correct.

[00:08:24] Speaker 00:
It's substantial evidence.

[00:08:25] Speaker 00:
It is a fact issue.

[00:08:26] Speaker 00:
Correct.

[00:08:28] Speaker 00:
But it's not a question of really, is there enough evidence with respect to the claim callback?

[00:08:34] Speaker 00:
The point is, there is no evidence.

[00:08:37] Speaker 02:
Well, that's what you said.

[00:08:40] Speaker 00:
Let's look, let's take a look at paragraph.

[00:08:43] Speaker 04:
Isn't the question whether a person with an ordinary skill, what a person with an ordinary skill yard would understand from the overall teachings of the reference?

[00:08:51] Speaker 00:
So the argument that was made to the board by Ziga and the position that the board took was that the callback limitation from with respect to the tournament server is there.

[00:09:03] Speaker 00:
That that information is flowing back to the client.

[00:09:06] Speaker 00:
That was the analysis but it's not in

[00:09:09] Speaker 00:
It's not in the Codero reference.

[00:09:12] Speaker 00:
And if you look at paragraph 53, which is appendix 1759, there's two sentences.

[00:09:18] Speaker 00:
The tournament server and the tournament component provide tournament functionality.

[00:09:23] Speaker 00:
And again, there's not a lot of information about what the tournament server is actually doing, other than providing the tournament functionality.

[00:09:32] Speaker 00:
And then it says, the tournament server provides a forum for registered clients to demonstrate their game skills

[00:09:38] Speaker 00:
participating in game tournaments which serve to eliminate and rank players according to their skill as demonstrated by their success over other players there's no so yeah the tournament server is doing that the question though is is the tournament server providing a callback as claimed an update to the game

[00:10:01] Speaker 00:
cranks out a function, it figures out the function, and then it has to send that back for every update sending a callback.

[00:10:10] Speaker 02:
And that's just... The paragraph 53 talks about, provides tournament functionality, facilitates tournament gameplay between and among plurality of client computers.

[00:10:23] Speaker 02:
How's it possible to do that without having callbacks?

[00:10:26] Speaker 02:
providing the information about ranking and so on and so forth.

[00:10:31] Speaker 00:
So I think very easily the tournament server and the tournament component in the client computer, it can provide tournament functionality.

[00:10:39] Speaker 00:
There's no dispute there, and I think that Cordero talks about that.

[00:10:43] Speaker 00:
But again, the question is, this claim is very limited in terms of what the callback is.

[00:10:49] Speaker 00:
There's an update to the game, the function gets executed, and then that response is sent back.

[00:10:56] Speaker 00:
For every update, there's a response.

[00:10:58] Speaker 00:
This paragraph that's talking about running a tournament and keeping track of players and ranking players and eliminating players, the question is, is that continuously being fed back to the client computers?

[00:11:13] Speaker 00:
And if the question was, well, would that have been obvious, I understand that question.

[00:11:19] Speaker 00:
But again, that question wasn't raised by Zynga or the board.

[00:11:24] Speaker 00:
And so it's a gap in the evidence.

[00:11:26] Speaker 00:
This is a problem with IPRs, quite frankly, where the board and where experts, challenging patents, parrot claim language.

[00:11:37] Speaker 00:
They parrot claim language.

[00:11:38] Speaker 00:
And then they just point to things in the reference and say, well, the thing is in the claim.

[00:11:43] Speaker 00:
There it is.

[00:11:43] Speaker 00:
But the problem is it's not there.

[00:11:46] Speaker 00:
It's not disclosed in Cordero.

[00:11:54] Speaker 00:
Similarly, the board then said, well, if it's not in Cordero, then we're going to combine Scheme, the Scheme reference.

[00:12:04] Speaker 00:
And the problem with the Scheme reference, although the Scheme, sorry, Your Honor.

[00:12:12] Speaker 00:
The problem with the Scheme reference, Your Honor, is that you subscribe to the server information, and you get a response back.

[00:12:23] Speaker 00:
linked to a a publication for example the Quotron data feed but the problem with skeen is that that's all that it discloses there's nothing after that there's no hey there's an update to a game and then there's a function that gets executed and then a callback getting sent back that's not in skeen at all and I will see I'm in to my rebuttal time

[00:13:01] Speaker 03:
Thank you and may it please the court, Elisa Carritas on behalf of Zynga.

[00:13:19] Speaker 03:
The board correctly found that Cordero disclosed callbacks and alternatively that the combination of Cordero and Skeen disclosed callbacks.

[00:13:28] Speaker 03:
Substantial evidence supports these findings.

[00:13:30] Speaker 03:
And we would ask the court to affirm.

[00:13:37] Speaker 03:
If your auditors have no other questions, I think the I'm not sure that I have anything else to add.

[00:13:42] Speaker 01:
Well, why don't you try to respond a bit to your friend's dominant stuff that he was arguing today, how the board made the sleeve that wasn't exactly expressly called out in Cordero.

[00:13:53] Speaker 03:
Sure.

[00:13:53] Speaker 03:
So I think the description of the final written decision by the board

[00:13:59] Speaker 03:
is inaccurate.

[00:14:01] Speaker 03:
The board went through each expert's opinions, and I'll focus just on the callback limitation for now, specifically credited Zynga's expert over IGT's expert, but then explained why.

[00:14:14] Speaker 03:
So we have to remember that the express purpose of Cordero is to allow for multiplayer game functionality across devices of different hardware and different operating systems.

[00:14:28] Speaker 03:
So the whole purpose of Cordero was to foster this communication between and amongst devices.

[00:14:37] Speaker 03:
Your honor pointed to the paragraph in Cordero talking about the server component and the client component communicating with each other.

[00:14:46] Speaker 03:
The prior sentence that your honor just had read out says that one of the components that is being talked about is the tournament component.

[00:14:55] Speaker 03:
There can be no doubt that the tournament and the client, that the tournament server and the client server, sorry, that the tournament server and the tournament client are communicating with each other.

[00:15:06] Speaker 04:
Can you identify which paragraph you think is something that we should be looking at in the reference itself?

[00:15:13] Speaker 03:
Sure.

[00:15:14] Speaker 03:
So I think there are several paragraphs, Your Honor.

[00:15:18] Speaker 04:
The one that has the communication language is the one we're relying on now.

[00:15:23] Speaker 03:
Sure.

[00:15:24] Speaker 03:
So at paragraph 44, the final statement says each component provides functionality to facilitate communication between the client computer and various functionalities provided by the server.

[00:15:38] Speaker 03:
If you look to the prior sentence, it is talking about the functionality that's provided by a plurality of components and the tournament server 212 is one of those components.

[00:15:51] Speaker 03:
So if we just look at those two sentences there, you see that there are communications occurring between the client and the server.

[00:15:58] Speaker 03:
Another thing, and in response to IGT's argument, is paragraphs 83 through 88 in general talk about this communication engine.

[00:16:12] Speaker 03:
And this is really the core or the heart of Cordero's invention.

[00:16:16] Speaker 03:
And it's the communication engine

[00:16:19] Speaker 03:
is a special purpose software that provides standardized functionality for communicating between hardware devices of different kinds.

[00:16:30] Speaker 03:
And these paragraphs here talk about how the message is sent between the client and the server between two different devices in Cordero can be either synchronous or asynchronous.

[00:16:41] Speaker 03:
And specifically,

[00:16:50] Speaker 03:
Excuse me.

[00:16:55] Speaker 03:
Here we go.

[00:16:56] Speaker 03:
Paragraph 85 says, in asynchronous mode, depicted generally in figure seven, the Comm Engine 600 runs threads and allows the programmer to be notified when an event occurs asynchronously.

[00:17:14] Speaker 03:
So this is talking about event-driven programming, a notification

[00:17:19] Speaker 03:
is being sent when an event happens.

[00:17:22] Speaker 03:
This parallels almost exactly how the 212 patent describes callbacks.

[00:17:29] Speaker 04:
Where is the Comm Engine 600?

[00:17:32] Speaker 03:
The Comm Engine 600 is in either device because the Comm Engine 600 kind of sits in every device in the system because it's facilitating communications between every other device.

[00:17:43] Speaker 03:
So the Comm Engine itself is in

[00:17:45] Speaker 03:
a device, but it is facilitating communications with other devices in the system.

[00:18:01] Speaker 03:
And if your orders were to turn to the board's decision at appendix 5, you can see the board included in its decision the paragraph in the 212 patent that discusses callbacks.

[00:18:16] Speaker 03:
And that paragraph includes the description that there is an asynchronous notification that is sent following an event being received.

[00:18:28] Speaker 03:
So again, the 212 patent is talking about asynchronous notifications based on event-driven programming.

[00:18:38] Speaker 03:
And it's using almost the same language as Cordero.

[00:18:41] Speaker 03:
Does it support at that point?

[00:18:45] Speaker 03:
There's not a lot of discussion on this particular paragraph of the board's decision.

[00:18:53] Speaker 03:
Zynga's expert did draw these parallels at paragraph 16, at appendix 1665.

[00:19:01] Speaker 03:
And the board did cite and adopt those positions, but did not expressly draw those parallels.

[00:19:13] Speaker 04:
Would you agree that the board's primary analysis of this and why Cordero teaches it is at page 847?

[00:19:28] Speaker 03:
For the single reference obviousness of just based on Cordero, absolutely yes.

[00:19:36] Speaker 02:
Anything further?

[00:19:38] Speaker 03:
No, Your Honor, we would ask that the court affirm the decision.

[00:19:40] Speaker 03:
Thank you.

[00:19:45] Speaker 00:
I want to start with paragraph 44 because that's the paragraph that was cited to as allegedly showing that the elimination and ranking is being sent back to the client.

[00:20:08] Speaker 00:
So paragraph 44 says, with continued reference to figure three, there's

[00:20:14] Speaker 00:
functionality provided on a client computer and then it goes on.

[00:20:19] Speaker 00:
And then the sentence prior to that was while figure 3 depicts a single client computer in relation to a single server, it should be noted that multiple client computers having the same or similar functionality may also map the functionality of the server as depicted in figure 3.

[00:20:40] Speaker 00:
The point is, in paragraph 43 and 44, in those paragraphs there's no discussion.

[00:20:49] Speaker 00:
of the result of that high-level function identified by the board.

[00:20:53] Speaker 02:
What you seem to be saying is that a prior R can't disclose something unless it says so explicitly.

[00:20:59] Speaker 02:
There's no room for interpretation by the board or expert witnesses as to the meaning or disclosures of a prior R reference.

[00:21:07] Speaker 00:
That can't be true, right?

[00:21:11] Speaker 00:
The board can interpret a reference, but the board has to find the claim element.

[00:21:15] Speaker 00:
If it says an element,

[00:21:16] Speaker 00:
is in a reference, it has to point to it.

[00:21:19] Speaker 02:
Explicitly?

[00:21:20] Speaker 02:
There has to be explicit disclosure?

[00:21:22] Speaker 02:
You can't, there's no room for interpretation?

[00:21:24] Speaker 00:
They didn't, the board didn't say that.

[00:21:26] Speaker 00:
The board's just said, hey... They relied on the experts.

[00:21:30] Speaker 00:
The experts said, and the experts always do this in IPRs, and that's the problem, the expert just parrots claim language.

[00:21:38] Speaker 04:
Don't we have to look at each case on its own facts?

[00:21:41] Speaker 04:
Like for example, here's what you've got, is you've got some general teachings that

[00:21:45] Speaker 04:
You want to have this communication back, right?

[00:21:49] Speaker 04:
And it tells you where the communication modules are and how that's occurring.

[00:21:54] Speaker 04:
And then with respect to a particular environment, it says that you're going to have this particular high-level functionality in this application, and it needs to facilitate communication.

[00:22:05] Speaker 04:
Why can't there be some inference, is the idea.

[00:22:11] Speaker 04:
And I agree, you know, of course experts shouldn't be having conclusory opinions.

[00:22:16] Speaker 04:
But on the other hand, we have to look at each one of these cases and see whether there's substantial evidence to support the inference and understanding that is being drawn by an expert and relied on by the board, right?

[00:22:29] Speaker 00:
Right.

[00:22:29] Speaker 00:
But experts have to be able to point to an element in a reference that meets the claim element.

[00:22:35] Speaker 04:
But they did point to it.

[00:22:36] Speaker 00:
They did not, they pointed to, this is the problem, the expert pointed to the tournament server, the tournament server says, eliminate and rank players, and the expert said, it's my conclusion that a callback, the ranking and elimination goes back to the client.

[00:22:54] Speaker 00:
That's the problem.

[00:22:55] Speaker 02:
The reference also talks about communication between the server and the client, right?

[00:23:00] Speaker 00:
Of course, for example, this is an issue that Zynga raised in their red brief.

[00:23:05] Speaker 00:
I think they understand they have an issue with the tournament server, so they started talking about the chat server and other functions.

[00:23:13] Speaker 00:
And yes, if you and I are in a tournament and we're chatting, I can chat with you.

[00:23:18] Speaker 00:
That's a communication between the server and the client, or the client and the server.

[00:23:23] Speaker 00:
That's not the issue, though.

[00:23:25] Speaker 00:
whether there's a communication between the two.

[00:23:27] Speaker 02:
The issue is whether... I think we're about out of time.

[00:23:32] Speaker 00:
I've got another minute, Your Honor.

[00:23:34] Speaker 00:
No, you don't.

[00:23:35] Speaker 00:
You're over your time.

[00:23:36] Speaker 00:
Oh, I'm over my time.

[00:23:36] Speaker 00:
I'm sorry.

[00:23:37] Speaker 02:
Thank you, Mr. Gaines.

[00:23:39] Speaker 02:
Thank you.

[00:23:39] Speaker 02:
Thank you.