[00:00:00] Speaker 02:
1380, GameCaster versus DreamWorks.

[00:00:26] Speaker 02:
Mr. Bright, one... Good morning, that's Mr. Quote.

[00:00:29] Speaker 03:
My name is Pat Wright.

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I represent the appellant in this appeal from the patent from the PTAB in a so-called inter-parties re-examination.

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In such re-examination, as the court may know, there are usually three parties, the patentee, the petitioner, their lawyers we heard today, and the Patent Office itself.

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And while the Patent Office did participate in the proceedings up to the

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and including the briefing at the PTAB, the patent office is not participating in this appeal directly, but has rather left that task to the petitioner.

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So that's why there are just two of us and not three.

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The decision of the board rendered nearly a year after we had an argument is limited to a single obviousness finding.

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That obviousness finding is predicated on two

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references, one of which we've called the Vincent patent, and the other is an article by an individual named Paley.

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The Vincent patent was fully considered in the original proceedings before the patent office, and the patent office issued in allowing the claims of the patent to issue, including those that are on appeal here unamended from the original text.

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The patent office wrote, this is at 1233, 1234 of the appendix, and I think it's worth reading because it has a bearing here.

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The prior art teaches the use of camera controlled devices in which cameras controlled by receiving information from sensors such as horizontal rate sensors, vertical rate sensors, pan and tilt sensors.

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Further, the PriorArt teaches the use of camera systems that enable a virtual environment to be generated that has a virtual camera generated using a software application wherein the view in the virtual environment can be changed based on information received from motion sensors.

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However, the PriorArt systems teach the use of generating the virtual environment in part from image data captured from cameras having image sensors and does not teach that the virtual environment can be generated entirely

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entirely without images from cameras having image sensors.

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Further, there's no motivation to eliminate the use of cameras in the camera control system of the prior art, meaning Vinson.

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Since doing so would destroy the invention of the prior art camera control systems.

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Further, the prior art camera control systems teaches a way from not using cameras with image sensors and indicates the use of image data from cameras

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within image sensors is advantageous to improve the realistic and accurate generation of the virtual environment.

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Therefore, the prior art doesn't teach or fairly suggest the claim invention.

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The claims are allowed over the prior art.

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It is rare, in my experience, and I've been doing this work for more than 40 years, for the patent office to say that the prior art teaches away, expressly says the prior art teaches away.

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This is one of the so-called secondary considerations of unobviousness.

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Yet in the Patent Office board gives this no credit at all.

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They treat Vincent as if it does, it teaches toward the invention, not away from it.

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Now I submit that on this appeal, the teachers away finding of the Patent Office in the original proceedings should be given controlling weight.

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And if so, then combining Vincent with Haley or anything else

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it runs contrary to such a finding.

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Why do you think it should be given controlling weight?

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Because the claims that we have on this appeal were predicated upon this finding.

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The claims that are on appeal here are predicated upon this finding.

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They were never amended in the reexamination proceeding.

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I submit to you that it is rare, very rare in my experience at least, for the patent office to find that a reference not only has been distinguished patentably, but that it actually teaches away from the invention.

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So I submit that the patent office board made a clear error in finding that it would be obvious to combine this teaching, any teaching from Vincent, with Paley.

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Even if Paley taught what the board says it did and Paley doesn't because Paley teaches

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a device which uses real-world images.

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Therefore, Paley does not have a virtual environment generated entirely without images from cameras.

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I have the declaration of Mr. Gusson, unopposed by any declaration from my opponent, saying that in Vincent, the purpose of the angular rate sensor and angular acceleration sensor is tracking.

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Whereas the potentiometers that Paley says he used were used for motion sensing, not for tracking.

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And that's why the substitution wouldn't be obvious.

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There's two different purposes.

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If you look at the appendix, you will find a declaration from Mr. Paley produced by my opponents who brought him to join hands with them.

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And Paley's declaration is important to my way of thinking, not only for what it says,

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He says, I knew about angular rate sensors, and I knew about acceleration sensors.

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I just chose not to put them in my devices.

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I chose not to put them in.

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What he means is, I chose not to put them in to complete the plot, because they don't serve the purpose that I'm interested in, which is motion, not tracking.

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Now, if he had intended that they'd be used for the same purpose of the incident, he could easily have said so.

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And my opponents were in a position to get his declaration saying so if it were true, but it isn't true.

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So they didn't get in to say it.

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But I think we all know the principle that if one party is in control of evidence that could be telling in their, for their case or cut against them and they don't produce it, that their opponent me is entitled to an inference that that evidence would be against them.

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So look at Taylor's declaration and see what he doesn't say.

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He doesn't say that why he left out angular rate sensors or acceleration sensors.

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And he did.

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He says, I knew about them and I deliberately omitted them from the devices I was making.

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Why?

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Different purpose.

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No reason to use them.

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The patent notice itself says that the angular rate sensors and acceleration sensors are used for tracking.

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This isn't something I had to make up.

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The patent office made that finding in this instance.

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So those two things, the fact that the Paley article, if you look at our opening brief, pages six and seven, you'll see what we quote from Paley.

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Paley's not exactly a model of clarity, but Paley does indicate that he was imaging a doll, a monkey, with his sackcloth system, whatever that was.

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Now, my opponents also invite you to say that, to find that Cyclops had memory and that it could record things.

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But here again, they were in control of Paley and they could have had Paley tell you that that was so.

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See, the Paley article doesn't say what was in Cyclops.

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It doesn't tell you what mechanisms there were in the device.

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But they could have told us in a declaration if they wanted to, presumably.

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But again, they elected not to.

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Instead, they're brief invite you to infer that such things are present.

[00:08:35] Speaker 02:
No.

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Not if it's just a view.

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Not if it's just something looking at something like a camera looking at a baseball game.

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Absolutely not.

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No.

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That's the point.

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I think the device was nothing.

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If it was anything, and it was a failed experiment, frankly, and I make this point in my reply brief, that failed experiments teach away.

[00:08:55] Speaker 01:
That's what you mean by captured.

[00:08:59] Speaker 03:
If you mean recorded, no.

[00:09:01] Speaker 01:
Remember the board found... I mean captures.

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Captured, they looked at it, just like a camera looks at a baseball game.

[00:09:07] Speaker 01:
Just like, but it's in a virtual environment, is it not?

[00:09:11] Speaker 03:
No, partly, and partly in the real world, because he says he was imaging the monkey.

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If it's imaging the monkey and it's in a partly virtual environment, then it has to capture it.

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If you mean the board, I disagree with you.

[00:09:25] Speaker 03:
It doesn't have to.

[00:09:27] Speaker 01:
Okay.

[00:09:27] Speaker 01:
And if it did have to... So if it doesn't, you can't see it.

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Is that not correct?

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That's not correct.

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You can see anything through a viewfinder.

[00:09:34] Speaker 01:
So it's simply a viewfinder.

[00:09:36] Speaker 03:
As far as we can tell from the write-up, remember the article is pretty thin.

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It's not a technical article.

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It's just a review of some things that he did in his shop.

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In any event, he certainly doesn't say in his declaration that the device was used in a virtual environment generated entirely without images from cameras using image sensors.

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Again, he could have said that if it were true.

[00:10:01] Speaker 03:
And my opponents were in control of his declaration.

[00:10:05] Speaker 03:
So why didn't they have him say it?

[00:10:09] Speaker 03:
It's an easy inference.

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It wasn't the case.

[00:10:12] Speaker 03:
But even if it were the case, his device still didn't use angular rate sensors or angular acceleration sensors.

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He used potentiometers.

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And he knew about the other devices.

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He said so in his declaration.

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He elected not to use them.

[00:10:27] Speaker 01:
That's an interesting concept.

[00:10:30] Speaker 01:
Wigmore says evidence willfully suppressed will be viewed as adverse, but he doesn't say things not said will necessarily be viewed as adverse.

[00:10:52] Speaker 01:
There's a distinction.

[00:10:54] Speaker 03:
I agree with Your Honor, but I think here it isn't a willful suppression issue.

[00:10:59] Speaker 03:
The issue is whether

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Whether they had control of him, they did.

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Whether they brought forth his declaration in this case, they did.

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Whether they could have had him say something that would be favorable to their cause, they could have done.

[00:11:13] Speaker 01:
Did you have the opportunity to do any discovery?

[00:11:17] Speaker 03:
No, we were in reexamine.

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And as you know, in reexamine, you're not allowed to take discovery.

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There's a Fed Circuit case from 1994 that says, sorry, in reexamination, you don't get the protection of the federal rules.

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You can't depose anybody.

[00:11:31] Speaker 03:
So we're left with what could they have said?

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They could have said anything that was favorable to their cause, if truthful.

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The fact that they don't say these things, I think permits the inference that these things are not so.

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Silence isn't suppression.

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It's simply the absence of saying something.

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Suppression sounds like an action of hiding the ball or telling a lie.

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That's different than simply not saying what the fact was.

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I don't blame them for their reticence.

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If I didn't have something to say that helps them, why say anything?

[00:12:06] Speaker 03:
That makes sense to me.

[00:12:07] Speaker 03:
So what do we have here on obviousness?

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We have the patent office's original allowance of the case, this is a 123334 of the appendix, based on the limitation about no images from cameras having image sensors.

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We have the same Vincent patent

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brought to bear in an obviousness rejection, not withstanding the fact that the patent office had already found that it teaches away from what's claimed.

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And we have Haley's article about something which is altogether murky, but which certainly produces some images from the real world and so therefore doesn't meet the limitation of the claim.

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And we have the fact, I mentioned this in my reply brief, one of the

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linchpins of secondary considerations is, was the device brought to bear as prior art a success in the real world?

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Answer, no.

[00:13:04] Speaker 03:
This product never got off the ground.

[00:13:07] Speaker 03:
Otherwise, we would have certainly heard about it from our opponents.

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He said it was an interesting experiment.

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They tried it on for size.

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Nothing came of it.

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That's a failure in the commercial world, no matter how you'd find it.

[00:13:18] Speaker 03:
Let me reserve the rest of my time, if I may, for rebuttal.

[00:13:27] Speaker 02:
Mr. Barquist.

[00:13:29] Speaker 00:
Good morning.

[00:13:30] Speaker 00:
May I please support Charles Barquist for DreamWorks Animation.

[00:13:37] Speaker 00:
The board's finding that the combination of Paley and Vincent rendered the appeal claims obvious is supported by potential evidence and should be affirmed.

[00:13:47] Speaker 00:
Let me address the points made by GameCaster this morning.

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First of all, the finding that

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Vincent teaches away, is not finding.

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And indeed, of course, Paley was not before the examiner at the time he made that finding.

[00:14:05] Speaker 00:
So he was not aware of Paley, not aware of what Paley did in fact teach.

[00:14:10] Speaker 00:
And Paley in fact teaches combining real world camera control, well known camera control techniques with the virtual world.

[00:14:20] Speaker 00:
And after all, GameCaster in its reply brief explicitly acknowledges this.

[00:14:26] Speaker 00:
GameCaster says, quote, and this is on page six of their reply brief, Cyclops uses potentiometers to control the motion of a virtual camera in a wholly virtual environment.

[00:14:37] Speaker 00:
That's the invention of the 220 patent, and that's what Cyclops was.

[00:14:44] Speaker 00:
Now, Mr. Bright says that Paley actually used real world images.

[00:14:48] Speaker 00:
There's nothing to support that.

[00:14:50] Speaker 00:
Paley did not have a camera with an image sensor.

[00:14:54] Speaker 00:
Paley only talks about a computer animation.

[00:14:58] Speaker 00:
Animation implies something, cartoons basically, applies something other than a real world image.

[00:15:04] Speaker 00:
A computer animation implies an animation that's created by a computer, not by real world images.

[00:15:10] Speaker 00:
So that's all that Paley talks about, and it only talks about a virtual environment.

[00:15:16] Speaker 00:
The monkey is misunderstood, I believe, by GameCaster.

[00:15:21] Speaker 00:
The monkey

[00:15:22] Speaker 00:
was a device that had sensors placed at all the joints of the monkey.

[00:15:29] Speaker 00:
If you look closely at that little picture in the Paley article, you'll see little white dots at the joints.

[00:15:36] Speaker 00:
What the monkey did was use those dots, those sensors, to input the particular motion or posture of the monkey into the animation program.

[00:15:50] Speaker 00:
And again, Paley talks about this.

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Paley says that the monkey was a digital input device and there was digital mapping of the joints.

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So it's not, it didn't take a picture, a visual image of a monkey.

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It took information from the sensors and used those to create an animation.

[00:16:07] Speaker 00:
So GameCast misunderstands monkey.

[00:16:09] Speaker 00:
It's not a question of images.

[00:16:17] Speaker 00:
Paley

[00:16:18] Speaker 00:
Paley's declaration is actually not part of the record below because the Patent Office found that both the Paley and the Gusson declarations did not meet the requirements of an oath.

[00:16:29] Speaker 00:
But the Paley declaration does not support any of Mr. Bright's comments.

[00:16:37] Speaker 00:
First of all, Paley's article talks about taking the

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angle information from the movement of the camera and putting it into the animation program.

[00:16:49] Speaker 00:
That is, in effect, rate information.

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All rate information is movement over time.

[00:16:54] Speaker 00:
It talks about taking the movement, the different angles of the camera, and obviously there's a time factor in there in any computer situation.

[00:17:02] Speaker 00:
The computer keeps track of time.

[00:17:04] Speaker 00:
That's all it is.

[00:17:04] Speaker 00:
That's all a sensor can do.

[00:17:06] Speaker 00:
All a sensor can do is measure movement over time.

[00:17:09] Speaker 00:
It's exactly what Haley was talking about

[00:17:12] Speaker 00:
when the Paley article itself only talked about instrumenting a tripod and taking the angle information and putting it into a computer animation program.

[00:17:22] Speaker 00:
So whether Paley actually used potentiometers or accelerometers or gyroscopes or any other kind of sensor, which is after all what the patent says is permissible, any type of sensor that will measure displacement or movement is acceptable.

[00:17:35] Speaker 00:
That's what the patent itself says.

[00:17:37] Speaker 00:
So that's what Paley did.

[00:17:38] Speaker 00:
That's all that Paley's article says he did.

[00:17:41] Speaker 00:
He instrumented a tripod

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take the angle information and put it into a computer animation program.

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And Paley, by the way, was not a flop in Mr. Bright's words.

[00:17:54] Speaker 00:
Paley actually describes having built the device, successfully using it and selling it to the man who commissioned its creation.

[00:18:05] Speaker 00:
What Paley's declaration says is that he also intended to promote it at a trade show.

[00:18:11] Speaker 00:
It doesn't say anything about what happened after that.

[00:18:13] Speaker 00:
It certainly doesn't say it was a flop.

[00:18:15] Speaker 00:
It didn't say that it was a commercial disaster of any kind.

[00:18:20] Speaker 00:
That's Mr. Bright's speculation.

[00:18:25] Speaker 01:
Well, I suppose if you're commissioned for something and you sell it for the price for which you're commissioned, it's a commercial success.

[00:18:34] Speaker 00:
I would think so, Your Honor.

[00:18:35] Speaker 00:
And that's all that the article itself indicates.

[00:18:38] Speaker 00:
So the idea that the declaration, which of course is not prior art in any event, teaches away, makes no sense.

[00:18:46] Speaker 00:
Prior art wouldn't have been available to want to skill in the art at the time.

[00:18:51] Speaker 00:
The Guffin Declaration, as I mentioned, was excluded by the examiner below as not meeting the, during the re-examination procedure, as not meeting the requirements of the oath or the declaration.

[00:19:05] Speaker 00:
That decision was not appealed by GameCaster.

[00:19:09] Speaker 00:
It was not appealed to the board, and it was not appealed to this court.

[00:19:13] Speaker 00:
So any argument that he might be making implicitly that the Gusson Declaration should have been considered has been waived because he did not challenge the decision of the examiner to find that it was not sufficient under the Patten Office rules.

[00:19:35] Speaker 00:
As to whether Paley and Vincent should be combined, Paley is explicit about using real world camera control devices and methods in a virtual world.

[00:19:53] Speaker 00:
I mean, it's almost a classic example of a reference actually having a motivation to combine in it.

[00:20:00] Speaker 00:
He says, this is exactly what you should be doing if you're working in a virtual world

[00:20:05] Speaker 00:
let's go back and use the same techniques, the same methods that are known in the real world.

[00:20:11] Speaker 00:
So I think this is a classic case where there's a motivation to combine right in the reference and that the idea that you couldn't combine them, I think, is completely unsupported.

[00:20:26] Speaker 00:
Let me address the construction of capturing, which has also been an issue.

[00:20:31] Speaker 00:
Of course, the board found that

[00:20:33] Speaker 00:
It didn't need to reach that issue, because it found that under either construction of capturing, Paley met that requirement.

[00:20:40] Speaker 00:
And it did it at least on the notion that there was capturing on a short-term basis by simply having the display on a flat panel display, that there's an inherent storage of the information that's necessary to hold that image in the pixels on the display.

[00:21:01] Speaker 00:
Now, GameCaster says,

[00:21:02] Speaker 00:
It challenges that conclusion, but GameCaster doesn't wrestle with the fact that that's how flat panel displays actually work.

[00:21:10] Speaker 00:
It doesn't challenge that actual fact.

[00:21:13] Speaker 00:
In addition, Paley clearly implies that there's long-term storage, because he talks about using the information that's put into the animation program for editing.

[00:21:23] Speaker 00:
And this, again, is explicit in Paley, and it's common sense that information you would take

[00:21:31] Speaker 00:
to edit would be held for later storage and recording.

[00:21:37] Speaker 00:
In addition, under the alternate construction of capture, which I think is the correct one by the way, clearly Paley captures in terms of actually just obtaining a view.

[00:21:56] Speaker 00:
And I think that that's the correct construction because the

[00:22:01] Speaker 00:
A real camera, a real camera with an image sensor doesn't necessarily record.

[00:22:05] Speaker 00:
If you think about a live sporting event, it's certainly viewed, it's captured, it's captured on the image, on the screen of the camera, and of course it's captured on the broadcast if that's what's being done.

[00:22:18] Speaker 00:
But it's not necessarily recorded.

[00:22:19] Speaker 00:
It's often recorded, but not necessarily so.

[00:22:22] Speaker 00:
You capture that image.

[00:22:24] Speaker 00:
And indeed, the patent talks about live sporting events.

[00:22:27] Speaker 00:
And the patent itself says that they may be recorded, but of course not necessarily recorded.

[00:22:32] Speaker 00:
So I think the construction of capturing as not requiring long-term storage is the correct one.

[00:22:41] Speaker 00:
And indeed the provisional application, if you go back and look at the provisional application, which is I think the last two pages of the appendix, talks about filming or showing.

[00:22:54] Speaker 00:
And again,

[00:22:55] Speaker 00:
Filming may imply recording, but showing certainly doesn't.

[00:22:59] Speaker 00:
So the patent itself or the prison application itself indicates that capturing the sense of recording was not required.

[00:23:12] Speaker 00:
Unless the court has any other questions, I have nothing further.

[00:23:17] Speaker 00:
Thank you.

[00:23:39] Speaker 03:
My opponent does not deny in his argument that his client procured the help of Mr. Paley and procured the Paley Declaration.

[00:23:52] Speaker 03:
He does not deny that he could have had Paley tell the Patent Office what the device contained, how it operated.

[00:24:01] Speaker 01:
What he said was that the Patent Office declined to permit the use of it.

[00:24:07] Speaker 03:
The Pat Novos refused to entertain the parts of the declaration favorable to his cause, but the Pat Novos was not in a position to decline to consider admissions against his client.

[00:24:20] Speaker 03:
That's different.

[00:24:21] Speaker 03:
The Pat Novos didn't.

[00:24:22] Speaker 03:
The Pat Novos just said, I wasn't going to give the Paley Declaration any weight.

[00:24:29] Speaker 03:
But the fact is he admitted he didn't use angular rate devices, either accelerators

[00:24:37] Speaker 03:
either accelerometers or angular rate sensors.

[00:24:41] Speaker 01:
He didn't use the sensors.

[00:24:43] Speaker 01:
I beg your pardon?

[00:24:45] Speaker 01:
I said, now I'll finish my sentence.

[00:24:47] Speaker 01:
I'm sorry.

[00:24:49] Speaker 01:
Require response.

[00:24:53] Speaker 03:
I beg your pardon.

[00:24:54] Speaker 03:
I mean, if you've asked me a question, I've missed the point.

[00:24:56] Speaker 01:
No, it was a statement.

[00:24:57] Speaker 01:
I said, it was so speculative it didn't end at that point you interrupted me.

[00:25:02] Speaker 01:
I apologize.

[00:25:06] Speaker 03:
I think there is no argument that our claims are limited to angular rate sensors, angular acceleration sensors, or both, and not the potentiometers.

[00:25:18] Speaker 03:
I think there is no argument even presented here today, let alone in the briefs, that the purpose of the potentiometer in the Paley devices was different from the purpose of these devices in either the Vincent patent or in our claims.

[00:25:33] Speaker 03:
And that's why it isn't obvious to substitute one for the other.

[00:25:36] Speaker 03:
That's why Mr. Paley himself didn't substitute one for the other.

[00:25:39] Speaker 03:
He had a different purpose in mind.

[00:25:41] Speaker 03:
It would have been contrary to his purposes to put in either an angular rate sensor or an angular acceleration sensor.

[00:25:50] Speaker 03:
Now, I mentioned in my opening remarks that the Paley article, and I asked the panel to read at least the first six pages of the rest of the article that's irrelevant.

[00:26:01] Speaker 03:
But if you read the article, you'll see, among other things, the board made the finding, there's a device mentioned, which is a device used to scroll through recorded material.

[00:26:12] Speaker 03:
And the board made a finding, based on the Paley article, that you could take the output of the Paley, of the Cyclops device and run it through this scrolling device.

[00:26:21] Speaker 03:
But that's not what Paley says at all.

[00:26:24] Speaker 03:
Doesn't say it at all.

[00:26:25] Speaker 03:
I mention it because it shows how obscure the article is.

[00:26:29] Speaker 03:
How unclear it is.

[00:26:31] Speaker 03:
and how improper it would be to sustain a rejection based on the Vinson patent which we clearly defined over and the patent was found to teach away only to have the board find in this case that it teaches toward the idea of substituting the angular rate sensors or angular acceleration sensors for potentiometers when the purposes are completely different.

[00:26:58] Speaker 02:
We thank both counsels.

[00:27:00] Speaker 02:
The case is submitted.

[00:27:01] Speaker 02:
That concludes our proceedings.