[00:00:31] Speaker 01:
The council come forward please for the game ticket.

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

[00:01:02] Speaker 02:
The next argued case is number 14, 1620, Game Tech LLC, and Zynga, Incorporated.

[00:01:10] Speaker 02:
Mr. Edmonds.

[00:01:14] Speaker 00:
May it please the court?

[00:01:17] Speaker 00:
John Edmonds for the appellant, Game Tech.

[00:01:20] Speaker 00:
The 445 patented issue in this case is not directed to abstract ideas.

[00:01:28] Speaker 00:
It's directed to concrete and specific

[00:01:31] Speaker 00:
applications that comprise a program computer that affects many different steps.

[00:01:38] Speaker 00:
One is managing the operation of a computerized game.

[00:01:42] Speaker 00:
Another is controlling a user's gaming action.

[00:01:45] Speaker 00:
Another is presenting an offer to purchase a game object dependent upon parameters comprising the tracked activity of the user.

[00:01:52] Speaker 00:
That's specific.

[00:01:52] Speaker 00:
That's in claim one.

[00:01:53] Speaker 00:
That's also specific in claims 15 and 17.

[00:01:58] Speaker 00:
Affecting a purchase

[00:02:00] Speaker 00:
which is not just acquiring an object in the game.

[00:02:03] Speaker 00:
It's an actual purchase having a monetary nexus, as the claims work is due by the court, without interrupting the gaming action.

[00:02:11] Speaker 00:
In other words, the purchase is done in real time and then supplying the game objects without interrupting the gaming action.

[00:02:18] Speaker 00:
And I think something for the court to look to to try to have a good understanding of an embodiment of this invention is Figure 4A.

[00:02:26] Speaker 00:
And Figure 4A,

[00:02:29] Speaker 00:
What it shows is someone is playing an action game.

[00:02:31] Speaker 00:
And while they're playing that game, that game is like a shoot-em-up game.

[00:02:36] Speaker 00:
While they're in the gaming action, they can hit Alt-A to replenish ammunition.

[00:02:41] Speaker 00:
They can hit Alt-R to get a rocket launcher.

[00:02:44] Speaker 00:
And in that case, the gaming action is uninterrupted for that purchase transaction.

[00:02:49] Speaker 00:
And those game objects are supplied again without interrupting the gaming action.

[00:02:54] Speaker 02:
Because you emphasize in your argument the fact that this is done without interruption.

[00:03:00] Speaker 02:
Is this the focus in your view of the, let's call it the inventive concept that, as the Supreme Court likes to call these things, that it's done without interrupting the game?

[00:03:13] Speaker 00:
I don't believe so.

[00:03:14] Speaker 00:
And I think the Supreme Court has not been entirely clear on how you define an abstract idea.

[00:03:18] Speaker 00:
In most cases, the cases they've heard, they've said, well,

[00:03:21] Speaker 00:
It's economic relations, so it's an abstract idea.

[00:03:23] Speaker 00:
But I think that the things for the court to primarily focus upon would be that, and we laid out 12 steps for the court that we told the district court, you have to take all those steps into account when you're defining an abstract idea.

[00:03:35] Speaker 00:
I'd say the primary steps, if you want to try to reduce those to something less, would be you're managing the operation of a game.

[00:03:42] Speaker 00:
You're controlling the user's gaming action.

[00:03:45] Speaker 00:
You present the offer based upon tracked activity.

[00:03:49] Speaker 00:
That's a significant limitation that needs to be

[00:03:51] Speaker 00:
would need to be included with any statement of any abstract idea if the court determined the claim was directed to an abstract idea.

[00:03:59] Speaker 00:
And then having a purchase and supplying the game object without interrupting gaming action.

[00:04:06] Speaker 00:
So I don't think you can ignore the controlling of the user's gaming action.

[00:04:11] Speaker 03:
Where is the controlling step in claim one that you're referring to?

[00:04:15] Speaker 00:
The controlling step would be

[00:04:20] Speaker 03:
I see a tracking activity of a user's step.

[00:04:23] Speaker 03:
I don't see a controlling the user's game play.

[00:04:26] Speaker 00:
It's in the preamble.

[00:04:27] Speaker 00:
It says the program to control a gaming action of at least one of the plurality of users.

[00:04:33] Speaker 03:
Well, it says a method of managing the operation of a game, which includes a game environment and is programmed to control a gaming action for at least one of the plurality of users, said managing method with the following steps.

[00:04:47] Speaker 03:
So isn't the gaming action that's being referred to in the preamble the purchase of some sort of object?

[00:04:56] Speaker 00:
Isn't that the game?

[00:04:56] Speaker 00:
No, it's the user's gaming action.

[00:04:58] Speaker 00:
As you look down in the steps of the claim, especially without interrupting, it's without interrupting the gaming action of the at least one user.

[00:05:06] Speaker 03:
But, I'm sorry, where your?

[00:05:11] Speaker 00:
Steps, if you're looking at claim one, step G, step H,

[00:05:15] Speaker 00:
It's without interrupting the gaming action of the user.

[00:05:20] Speaker 00:
Oh, I'm sorry.

[00:05:21] Speaker 00:
I'm looking at plane 15.

[00:05:22] Speaker 00:
I apologize.

[00:05:23] Speaker 00:
So, right.

[00:05:24] Speaker 00:
So, steps F and G, same steps.

[00:05:27] Speaker 03:
Permitting the least one user to purchase the least one game object without interrupting the gaming action.

[00:05:33] Speaker 03:
Right.

[00:05:34] Speaker 03:
It doesn't seem to me to be controlling the gaming action or programming the great gaming action.

[00:05:38] Speaker 03:
It is creating an environment in which a purchase can be made that won't disturb what's otherwise going on over here.

[00:05:45] Speaker 00:
We don't read it that way.

[00:05:46] Speaker 00:
I mean, it's the gaming action of the at least one user here.

[00:05:49] Speaker 03:
Without interrupting, not controlling it.

[00:05:52] Speaker 03:
You want to effectuate a transaction without interrupting it.

[00:05:56] Speaker 03:
How is that controlling it, modifying it, affecting it?

[00:06:00] Speaker 03:
It seems to me you're simply not affecting it.

[00:06:02] Speaker 03:
That's exactly the precise language of the claim, right?

[00:06:05] Speaker 03:
Don't interrupt it.

[00:06:06] Speaker 03:
Don't get involved in that gaming action.

[00:06:08] Speaker 03:
Let it continue.

[00:06:10] Speaker 00:
Do the transaction.

[00:06:12] Speaker 00:
The computer controls the entire game, and that's one thing that's different.

[00:06:17] Speaker 03:
That's not what you claimed.

[00:06:18] Speaker 03:
You didn't claim a computer controlling the whole game.

[00:06:21] Speaker 03:
You claimed a specific series of method steps, which begins with tracking activity.

[00:06:27] Speaker 03:
Not starting a game, but rather coming in in the middle of a game, quite frankly, because your first step is to track activity of a user in the course of the game, which is what your first step says.

[00:06:38] Speaker 03:
So you're not providing or claiming software running a game.

[00:06:42] Speaker 03:
Your step, number one, presupposes that the person's already in the middle of a game, and what you're claiming is selling them an object during that time.

[00:06:52] Speaker 00:
Well, we respectfully disagree.

[00:06:53] Speaker 00:
It says program to control a gaming action for at least one of the rowdy users.

[00:06:58] Speaker 00:
We think that language is clear, and we think it's limiting.

[00:07:01] Speaker 03:
And why do you think that preamble language isn't just a statement of purpose?

[00:07:06] Speaker 00:
Well, because the gaming action is referred to and the claim is later on, that's the antecedent basis for it, and that's what's being controlled.

[00:07:17] Speaker 00:
I mean, it's a method of managing the game.

[00:07:18] Speaker 05:
Is there any claim specifically to provide for the non-interruption?

[00:07:25] Speaker 00:
Correct, right.

[00:07:26] Speaker 00:
So the computer is managing the game.

[00:07:30] Speaker 00:
The computer controls the game.

[00:07:31] Speaker 05:
The purchase is made without interruption.

[00:07:33] Speaker 05:
You could be controlling the gaming action by allowing a change without interruption, but without otherwise affecting the play of the game.

[00:07:41] Speaker 00:
Well, in a computerized game, Your Honor, in a video game, in a computerized game, the computer ultimately controls everything that takes place.

[00:07:50] Speaker 00:
That's something different about computerized games and video games than games in the prior art.

[00:07:55] Speaker 00:
And to get this into the DDR,

[00:07:57] Speaker 00:
Holdings case, which came out after this, but which is highly relevant.

[00:08:02] Speaker 05:
But your claim wasn't limited to computer applications, also included other things.

[00:08:08] Speaker 00:
We strongly disagree with that.

[00:08:09] Speaker 00:
The preamble talks about non-computer applications.

[00:08:13] Speaker 00:
These claims went through seven office actions over years, eight different iterations, and the claims are clearly limited to using a program computer to effectuate the steps.

[00:08:26] Speaker 00:
So the contention that non-computerized gains for one of these claims is just simply incorrect.

[00:08:32] Speaker 00:
And that's focusing on unclaimed embodiments and specification that were discarded long ago in the back and forth with the patent office and what resulted in these issued claims.

[00:08:42] Speaker 00:
And again, it gets us into the DDR case.

[00:08:45] Speaker 00:
And in the DDR case, the court talked about something that was necessarily rooted in computer technology to overcome a problem specifically arising with computers.

[00:08:55] Speaker 00:
Here you have a computerized game.

[00:08:57] Speaker 00:
In a computerized game, the computer controls the action of the game.

[00:09:01] Speaker 00:
The game automatically continues.

[00:09:03] Speaker 00:
In a game that you and I play in the prior art, in a real life, a non-computer game, the players control the action.

[00:09:11] Speaker 00:
The players can pause if they want.

[00:09:13] Speaker 00:
In this game, if I decide to get a rocket launcher, the game continues.

[00:09:18] Speaker 00:
My player might get killed.

[00:09:20] Speaker 00:
So if you look at figure four, as you can see, they can hit Alt-R to obtain a rocket launcher without any interruption.

[00:09:27] Speaker 00:
They're qualified for this because they have it in their account.

[00:09:32] Speaker 00:
The tracked activity matches up.

[00:09:34] Speaker 00:
And this purchase transaction with real consideration, with real money, takes place without any interruption in real time.

[00:09:41] Speaker 00:
And that's just something – that's something that came along with computerized gains where a computer is running everything.

[00:09:48] Speaker 00:
Even if a player decides to make a purchase, the game keeps going unless something happens here.

[00:09:54] Speaker 00:
In the prior art, the solution was we'll just pause the game, and you leave the game.

[00:09:58] Speaker 00:
That's the Ryszkowski prior art.

[00:10:00] Speaker 00:
That was the closest prior art.

[00:10:02] Speaker 00:
This game solves that problem of now we have computerized games.

[00:10:07] Speaker 00:
The game always goes.

[00:10:09] Speaker 00:
It's always continuing.

[00:10:10] Speaker 00:
It's being controlled by the computer.

[00:10:11] Speaker 00:
And it solves it by coming up with all these steps where you have

[00:10:18] Speaker 00:
attract activity limitation where you have these accounts set up.

[00:10:21] Speaker 00:
And this is a seamless transaction where the game object is not only purchased for real money consideration, but it's also supplied in real time without interrupting the players, the gaming action of the player.

[00:10:35] Speaker 00:
That's something that came about with computerized games.

[00:10:38] Speaker 00:
It wasn't a problem before then.

[00:10:40] Speaker 00:
So it fits very well with the DDR case.

[00:10:44] Speaker 00:
It's rooted in computer technology.

[00:10:46] Speaker 00:
It came about with computerized games.

[00:10:48] Speaker 00:
Also, it's a problem unique to computerized gaming, just like it was in the DDR Holdings case.

[00:10:59] Speaker 00:
It's certainly a computer-specific problem and not an economic problem, which certainly, if we were addressing an economic problem, if this were economic relations, that would be somewhat of a different matter.

[00:11:13] Speaker 05:
But here, yes, there's approaches.

[00:11:16] Speaker 05:
applications?

[00:11:17] Speaker 00:
Well, I don't think that every claim that involves some kind of financial transaction is itself an abstract idea.

[00:11:27] Speaker 05:
You could have a computerized trading program of some sort where, as you say, the computer is designed to make the trades and then you could interrupt that while it's going on if you change your mind going in and it seems to me to be a pretty

[00:11:43] Speaker 05:
clear application in computer trading of stocks and bonds.

[00:11:47] Speaker 00:
It may be the stocks and bonds, but again, this is a game.

[00:11:51] Speaker 00:
Stocks and bonds, I'm trading, you're trading, and the game, the computer's running the game.

[00:11:57] Speaker 00:
We don't want to interrupt the game because I could get killed while I'm trying to make the transaction.

[00:12:04] Speaker 05:
Or you could have a computerized program for purchasing power to run subways and utilities and that sort of thing.

[00:12:12] Speaker 05:
And then you can have a program to allow the changes in the running of that program without interruption.

[00:12:19] Speaker 05:
Just thinking about the range of applications that could apply here.

[00:12:23] Speaker 00:
That's not the abstract idea that was identified by the district court, which we claim was there.

[00:12:27] Speaker 00:
That's not, even if you try to reduce this claim to an abstract idea.

[00:12:33] Speaker 05:
I wasn't trying to formulate an abstract idea.

[00:12:36] Speaker 05:
I'm trying to get a grasp on the reach of the patent.

[00:12:40] Speaker 05:
Well, the reach of the patent is... Where what you're talking about is gaining an advantage by being able to make a change while something is going on.

[00:12:48] Speaker 00:
Well, no.

[00:12:49] Speaker 05:
Something driven by a computer.

[00:12:51] Speaker 00:
Well, those are some aspects, but you've not mentioned that you're controlling the user's gaming action.

[00:12:58] Speaker 00:
You've not mentioned that you present the offer based upon parameters, including the tracked activity of the user.

[00:13:04] Speaker 00:
That's a significant limitation of this claim that just can't be ignored

[00:13:08] Speaker 00:
in trying to reduce it to some abstract idea.

[00:13:11] Speaker 05:
Or instance of having a pre-solution or post-solution activity, depending on how you look at it.

[00:13:16] Speaker 00:
We don't see it that way.

[00:13:17] Speaker 00:
It depends.

[00:13:17] Speaker 00:
No, you don't.

[00:13:19] Speaker 00:
But also, even when you say effectuating a purchase in real time, you're supplying a good within the game in real time, too.

[00:13:28] Speaker 00:
That's something new and different.

[00:13:30] Speaker 00:
All those things need to be accounted for if you're going to try to steal some abstract idea from this.

[00:13:35] Speaker 00:
One problem with the district courts

[00:13:38] Speaker 00:
decision was it distilled, it said the abstract idea was the offer and sale of items to players in the course of gaming.

[00:13:47] Speaker 00:
That ignores the tracked activity limitation.

[00:13:50] Speaker 00:
It ignores that the purchase is done with real consideration without interrupting the gaming action of the user.

[00:14:01] Speaker 00:
It ignores that the game object is supplied without interrupting the gaming action of the user.

[00:14:08] Speaker 00:
And when the district court distilled the claim down too far, then it made this erroneous conclusion.

[00:14:15] Speaker 00:
And that's really the primary basis of it.

[00:14:17] Speaker 00:
Also, the district court applied the wrong test.

[00:14:20] Speaker 00:
I mean, the test, instead of talking about preemption, the court talked about meaningful space.

[00:14:25] Speaker 00:
And the test is not meaningful space.

[00:14:29] Speaker 00:
The test is preemption.

[00:14:32] Speaker 00:
The district court also, we say, neglected to give adequate weight to these other

[00:14:38] Speaker 00:
Whatever, if you must define an abstract idea, then you have to look at these other steps and say, do they provide some inventive concept?

[00:14:47] Speaker 00:
This patent had a long prosecution history.

[00:14:50] Speaker 00:
It was novel over the prior art, the Rostovsky prior art, and that inventiveness shouldn't be ignored in throwing this out as an abstract idea.

[00:15:01] Speaker 00:
At a minimum, even if you define it, there would be inventive steps.

[00:15:06] Speaker 00:
save the rest of my time for a bottle.

[00:15:08] Speaker 02:
Thank you, Your Honor.

[00:15:08] Speaker 02:
Okay.

[00:15:09] Speaker 02:
Thank you, Mr. Edmonds.

[00:15:14] Speaker 06:
Mr. Barsky.

[00:15:15] Speaker 06:
Good morning.

[00:15:16] Speaker 06:
May it please the Court.

[00:15:17] Speaker 06:
Your Honors, this is not a boundary case.

[00:15:21] Speaker 06:
This doesn't test or even approach the limits of the Supreme Court Section 101 jurisprudence in Alice and Mayo where this Court's precedent in ultramural content extraction

[00:15:35] Speaker 06:
and the cases that have followed this decision in ALICE.

[00:15:40] Speaker 06:
At its core, the claims here are directed to a teased out version of a buy-sell relationship.

[00:15:49] Speaker 02:
A game happens to be in the context of the playing of a game, but as... What's abstract about playing a game under these conditions with the automatic

[00:16:02] Speaker 02:
movement of money by selling whatever in the game context.

[00:16:06] Speaker 02:
Where is the abstraction?

[00:16:08] Speaker 06:
The abstraction here, Your Honor, is that the claims are directed to the formation of an economic relationship at its heart.

[00:16:16] Speaker 06:
It is, and if we look at the steps, it is the creation of an account.

[00:16:21] Speaker 06:
It's a determination of the eligibility of a player to purchase a game object.

[00:16:26] Speaker 06:
It's setting the price of the game object.

[00:16:28] Speaker 06:
It is offering the object to the player

[00:16:31] Speaker 06:
It is providing the object to the player during the course.

[00:16:38] Speaker 02:
Sounds pretty specific to me abstract about it.

[00:16:41] Speaker 02:
You could say that these steps are known.

[00:16:43] Speaker 02:
You could say a lot of other things other than that they're abstractions.

[00:16:48] Speaker 06:
Well, it is not unlike the, the 12 steps here are not unlike the 11 steps in the Ultramershal case, which was also found to have set have at its core.

[00:17:00] Speaker 06:
An abstract idea there, it was this notion of supplying copyrighted media in exchange for the display of advertisements.

[00:17:10] Speaker 06:
Here, as the District Court found, and as we believe, the core abstract idea here is permitting game players to purchase game objects during a game.

[00:17:23] Speaker 02:
There are... We know, and the Supreme Court has told us that just about every

[00:17:28] Speaker 02:
advance starts with a concept, an abstract concept.

[00:17:31] Speaker 02:
Yes, Your Honor.

[00:17:32] Speaker 06:
It's been evolved.

[00:17:34] Speaker 06:
Yes, Your Honor.

[00:17:35] Speaker 06:
And so there's no question that there are these additional limitations that need to be tested as part of the second part of the Mayo framework under section 101 when the court inquires as to what else is here.

[00:17:52] Speaker 06:
Is there something more?

[00:17:54] Speaker 06:
Is there some inventive concept that would transform

[00:17:58] Speaker 06:
these claims into patentable subject matter.

[00:18:03] Speaker 06:
And so here, the additional steps that we've heard about, such as the tracking of user activity and the supplying of a game object without interruption, certainly come into play in that second part of the Mayo analysis.

[00:18:21] Speaker 06:
And so I can turn to that, Your Honor, and address my comments to

[00:18:27] Speaker 06:
what I heard my friend say earlier about the significance of those two limitations in particular.

[00:18:38] Speaker 05:
First is... Do you put any weight on the name of the patent and in the abstract for purposes of deciding whether there's an abstract idea here?

[00:18:47] Speaker 05:
It's a method for obtaining advantages.

[00:18:54] Speaker 06:
Your Honor,

[00:18:55] Speaker 06:
There's no question that the specification here is very broad.

[00:18:58] Speaker 05:
And that the... If you said, well, my claim is a method for gaining advantages in playing games, and that's your whole claim, then wouldn't one think that that's an abstract notion?

[00:19:13] Speaker 06:
So here, yes.

[00:19:15] Speaker 06:
I mean, clearly the summary of the invention, the abstract, the entire body of the specification are all directed

[00:19:23] Speaker 06:
to this very broad notion of the transaction of advantages in both a computing and a non-computing environment.

[00:19:32] Speaker 06:
The claims are directed to a... A computing environment?

[00:19:37] Speaker 05:
Well, the claims in... I guess I heard your adversary saying the claims are oriented to a computing environment relying on the preamble language, right?

[00:19:47] Speaker 06:
Yes, your honor, and... But the answer to that, are they correct?

[00:19:53] Speaker 06:
I'll give a very lawyerly yes and no because the district judge assumed for purposes of the court's decision below that the claims were limited to electronic games, to video games.

[00:20:07] Speaker 06:
We don't think the claims can be fairly read that way, but we're obviously here to defend the district court.

[00:20:13] Speaker 02:
It's hard to program these days when it says something is programmed to do something or other.

[00:20:20] Speaker 02:
Isn't that reasonable?

[00:20:22] Speaker 02:
to think that they're thinking about computers?

[00:20:25] Speaker 06:
Yes, absolutely, Your Honor.

[00:20:26] Speaker 05:
I'm distinguishing... It's like using a program computer.

[00:20:29] Speaker 05:
What do I do with that language in the pram?

[00:20:32] Speaker 06:
I'm distinguishing, Your Honors, between the computer being used to effect the steps that are recited in the claim, on the one hand, and the question of whether or not the game being played is a video game.

[00:20:51] Speaker 06:
Claim one does not specify that the game being played is any form of video or electronic game.

[00:20:58] Speaker 06:
And in fact, claim two, which depends from claim one, recites that the gaming environment is a video game.

[00:21:06] Speaker 06:
So by definition.

[00:21:07] Speaker 05:
Oh, right.

[00:21:08] Speaker 05:
But I mean, so the claim limitations could refer to financial transactions, which wouldn't be a video game.

[00:21:14] Speaker 05:
Clearly.

[00:21:15] Speaker 05:
But it would be driven through a general purpose computer.

[00:21:18] Speaker 06:
Yes.

[00:21:19] Speaker 06:
If the steps are effected by

[00:21:21] Speaker 06:
By a program computer.

[00:21:23] Speaker 05:
So you give meaning to the words program computer in the preamble.

[00:21:29] Speaker 06:
Yes.

[00:21:30] Speaker 05:
Assuming that the court decides that the reference to... You know, I didn't understand your adversary to argue that the claim wouldn't reach the steps applying to something other than playing a video game with rockets.

[00:21:45] Speaker 05:
It could apply to stock market transactions or other things as well.

[00:21:48] Speaker 05:
Yes, or any, any type of game.

[00:21:51] Speaker 05:
Yes, Your Honor.

[00:21:54] Speaker 03:
I don't think the average person thinks of stock market transactions as a game.

[00:21:58] Speaker 06:
Do you?

[00:22:00] Speaker 03:
Is that what you would call gaming action when you're trading on the stock market?

[00:22:04] Speaker 06:
No, and that's why I qualified my answer, Your Honor, that to the extent that a transaction like that is considered a game.

[00:22:12] Speaker 06:
Um, but there's no question that, uh, the claims here are directed to any form of off, at least the representative claim one is directed to any form of offline game without limitation, uh, provided that it is, uh, the steps that are recited here are affected.

[00:22:31] Speaker 03:
So you and I are playing.

[00:22:33] Speaker 03:
poker, and how am I going to use the programmed computer to track our activity of the game while I'm simultaneously purchasing on the computer an object?

[00:22:42] Speaker 03:
Am I buying an ace?

[00:22:43] Speaker 03:
What am I buying?

[00:22:44] Speaker 03:
Because it's got to be an object related to the game.

[00:22:47] Speaker 03:
So if you and I are playing a board game, how am I performing these steps on a programmed computer in any sensible or logical way?

[00:22:55] Speaker 03:
I think your argument doesn't make any sense to me.

[00:22:58] Speaker 03:
don't know why you're spending your time arguing it because you've got a lot of other good arguments, but if you want, if this is where you want to focus your effort, you've got me all in at this point.

[00:23:06] Speaker 03:
So you tell me, how is this actually going to work while you and I are playing poker or a board game of Monopoly or anything else?

[00:23:13] Speaker 03:
Am I buying boardwalk on the computer?

[00:23:15] Speaker 03:
Tell me, how does it work?

[00:23:17] Speaker 06:
Your honor, I'm simply directing my comments to what the

[00:23:20] Speaker 06:
what is recited in the claim.

[00:23:23] Speaker 03:
No, you are claiming that this claim reads on a non-computer-played game, but your distinction is that you acknowledge that a computer has to be used to perform these steps.

[00:23:33] Speaker 03:
Yes.

[00:23:34] Speaker 03:
And I'm saying nonsense.

[00:23:35] Speaker 03:
That makes no sense, and I can't imagine.

[00:23:37] Speaker 03:
I would like you to tell me how it could read on anything ever, how it could be operable to work while these steps are performed on a computer, and you and I are playing whatever game of your choice you would like to articulate as an example for me.

[00:23:50] Speaker 06:
It may not be a good example, but the way I read these claims, it could apply, for example.

[00:23:55] Speaker 03:
But you want to read the claims in a way in which you can come up with no example in which a scenario could ever give rise or implicate these claims.

[00:24:03] Speaker 06:
Your Honor, I'll give two examples if I could, but I agree with Your Honor that this is not the pivot point of our argument.

[00:24:14] Speaker 06:
And one is that we're now in the 80th year of the Parker Brothers board game monopoly.

[00:24:20] Speaker 06:
And presumably there is, someone could think of some clever way whereby players move around the board game and their activity is tracked on a- You could play it online.

[00:24:33] Speaker 03:
On an iPad or- No, he's saying the game, that's the whole premise of his claim construction argument.

[00:24:38] Speaker 03:
The game's not going to be played online.

[00:24:40] Speaker 06:
Similarly, your honor, the specification gives examples of the sale of extra golf strokes during a charity

[00:24:50] Speaker 06:
golf turn and there are certainly, in my mind at least, the possibility that you could have a game referee tracking the activity of the players with an iPad on the fairway and when the player hits a bad shot into the trees or into a water trap, that is entered into an iPad or some type of smartphone and the computer, namely the

[00:25:19] Speaker 06:
phone or the tablet.

[00:25:20] Speaker 03:
Buy a mulligan.

[00:25:22] Speaker 06:
I'm sorry?

[00:25:22] Speaker 06:
It suggests offer a mulligan to the player.

[00:25:27] Speaker 06:
Charge the player $3.

[00:25:28] Speaker 03:
Well, I have to say I'm impressed that you even came up with an example.

[00:25:32] Speaker 03:
So you did your research and you thought it through and that's great.

[00:25:34] Speaker 03:
But that's code analysis patent is about and that sort of example, even though the spec is extremely broad, has no place in this spec.

[00:25:42] Speaker 03:
I mean, this is

[00:25:44] Speaker 03:
They limited this claim to a computer program.

[00:25:47] Speaker 06:
I don't know then, Your Honor, what to do with depending claim two, which specifically is directed to a video game.

[00:25:53] Speaker 03:
No, no, it's not limited to a video game.

[00:25:55] Speaker 03:
It's limited to a video game with certain background images and certain users and images.

[00:26:00] Speaker 03:
So it's not simply, you would be more correct, obviously, if it just said comprises a video game.

[00:26:06] Speaker 03:
Correct.

[00:26:07] Speaker 03:
It has other limitations.

[00:26:08] Speaker 06:
Yes, Your Honor, but it does say that the game environment is a video game.

[00:26:13] Speaker 06:
And if the game environment of claim one was limited to video games, it would have been superfluous to specify that in claim two.

[00:26:20] Speaker 06:
But let me move on, if I might, because this case is not... How is this different from DDR?

[00:26:28] Speaker 03:
The one thing you haven't said anything about is DDR, and your opponent was very happy when that decision came out and wanted to talk with us about it, which I think makes total sense.

[00:26:38] Speaker 03:
Does this case separate itself in a meaningful way from DDR?

[00:26:44] Speaker 06:
In DDR, the applicant solved a problem that was specific to the Internet, namely the problem of a website luring away traffic when the user goes through the very normal function of clicking a hyperlink and the user is then transported from a host website to a third-party website.

[00:27:07] Speaker 06:
And what the Federal Circuit said in DDR and made so clear was that the solution in that case involved overriding the normal functioning of, in effect, the Internet, or at least the normal functioning of the sequence of events that occurs when a user presses a mouse click or otherwise selects a hyperlink.

[00:27:33] Speaker 06:
And so the solution there was rooted in a technological

[00:27:37] Speaker 06:
change to the way that the Internet normally works.

[00:27:42] Speaker 06:
Here, there is no such solution, no technological solution to any technological problem.

[00:27:48] Speaker 03:
Why isn't the technological solution here allowing the game to continue playing while breaking off a new screen, much like DDR created a new website.

[00:27:59] Speaker 03:
A new window opens up that allows you to make this purchase.

[00:28:03] Speaker 03:
that why isn't the case that prior to this patent, those sorts of purchases can't be made without interrupting and stopping game play, which is part of what the prior art and prosecution was about.

[00:28:13] Speaker 03:
So why isn't this actually a technological solution in the form of we have programmed this in a manner that allows for opening up a new window while simultaneously continuing game play?

[00:28:26] Speaker 06:
If in fact, Your Honor, there was some disclosure of a technological

[00:28:32] Speaker 06:
solution that permitted that kind of activity, then this case would be closer to DDR.

[00:28:39] Speaker 06:
But in fact, the only reason that limitation is in the claims at all is because it was cited by the examiner as prior art, Raskovsky, prior art.

[00:28:49] Speaker 03:
So all that- I guess I don't understand.

[00:28:51] Speaker 03:
What is it that you think should be disclosed?

[00:28:53] Speaker 03:
Is it code?

[00:28:55] Speaker 03:
I mean, what is it that's missing?

[00:28:57] Speaker 03:
Because you said if this

[00:28:59] Speaker 03:
has disclosed that technological solution you think would be a harder case for you.

[00:29:02] Speaker 03:
So what is it precisely?

[00:29:04] Speaker 03:
It's code that you would have, because there's no code in the DDR patent.

[00:29:06] Speaker 03:
Go back and look at it.

[00:29:08] Speaker 03:
There's no code disclosed in that patent.

[00:29:10] Speaker 03:
Yet the court went ahead and found that articulating a program that would create and open up a separate web page was enough without articulating the code.

[00:29:20] Speaker 03:
And isn't that kind of parallel to what they have here?

[00:29:24] Speaker 06:
No, Your Honor, respectfully.

[00:29:26] Speaker 06:
And the reason why is this.

[00:29:28] Speaker 06:
First, it was not the case that until Mr. Cartwright came along, it was impossible for a game player to acquire a, technologically impossible for a game player to acquire a game object without interrupting the game.

[00:29:44] Speaker 06:
Mr. Cartwright did not invent technology that permitted that to happen the same way the inventor in DDR came up with an actual way of overriding the normal functioning of a mouse click.

[00:29:58] Speaker 06:
and included technology in this patent to do so.

[00:30:02] Speaker 03:
I'm trying to make sure I understand.

[00:30:04] Speaker 03:
Yes.

[00:30:04] Speaker 03:
Is your argument that this patent doesn't tell you how to let game play continue while you make this purchase?

[00:30:10] Speaker 03:
It just has the lofty goal of that happening.

[00:30:14] Speaker 03:
But it's not like it articulates for you the mechanics of how a computer game will continue to play in the background without interrupting.

[00:30:23] Speaker 06:
That's part of it, Your Honor.

[00:30:26] Speaker 06:
It is more that there was never any technological problem before Mr. Cartwright came along that prevented a game object from being provided without interruption.

[00:30:37] Speaker 06:
And there was no technological solution and is no technological solution in the 445 patent that overcomes that in the way that an obstacle was actually overcome in DDR.

[00:30:51] Speaker 06:
And my recollection, Your Honor, because I did look at the DVR patent, is that there is actually code in there.

[00:30:56] Speaker 06:
I'm not certain whether it is code that relates to this specific aspect.

[00:31:01] Speaker 03:
I've got to go back and look.

[00:31:02] Speaker 03:
That's actually something I didn't know.

[00:31:04] Speaker 03:
I thought it only had algorithm type stuff.

[00:31:07] Speaker 03:
I didn't know it had actually code.

[00:31:08] Speaker 06:
I seem to recall remembering just a short passage of code in a right-hand column.

[00:31:14] Speaker 06:
But I could be wrong about that.

[00:31:15] Speaker 06:
In any event, Your Honor, what is so clearly missing here

[00:31:21] Speaker 06:
is any contribution to the technological arts or to technology that permitted the players here to do something.

[00:31:31] Speaker 03:
With the luxury, I hope, of the presiding judge, because I know I've made you go over your time by a lot, but sum up for me, because what I'm struggling with, and I have a lot of 101 cases on my docket right now, and in every one of them, I've got the patent day teasing, DDR, DDR, DDR, synthesize for me what you think is the defining

[00:31:50] Speaker 03:
line or characteristic or principle of DDR, tell me, I mean, that's just why it doesn't apply in this case.

[00:31:57] Speaker 03:
I guess what I'm looking for is help to try to read through lots and lots of cases where people are saying, but look, here's one that came out in favor of us.

[00:32:06] Speaker 03:
So how would you say that I ought to think of DDR in terms of what it stands for?

[00:32:11] Speaker 06:
Thank you, Your Honor.

[00:32:12] Speaker 06:
I'm happy to do that.

[00:32:13] Speaker 06:
I think what DDR stands for is that where there is some technological problem,

[00:32:19] Speaker 06:
that requires a technological innovation or advance to overcome that problem and to thereby enable the claimed invention to be practiced, that is one of the lines that I see DVR as drawing.

[00:32:37] Speaker 06:
The claims here, by contrast, did not overcome some technological problem.

[00:32:42] Speaker 06:
It was an exercise in draftsmanship that resulted in the tracking limitation, which, by the way, this court has seen before.

[00:32:49] Speaker 06:
in the Alice case, in the Planet Bingo case, in Bancor, and the limitation directed to without interruption.

[00:32:59] Speaker 06:
The only reason those claim terms are in this patent is because it was added to overcome a prior art rejection.

[00:33:07] Speaker 06:
And we know from Mayo and Ultramershal that novelty is not enough to satisfy the Section 101 standard.

[00:33:17] Speaker 06:
So I know I'm over my time.

[00:33:19] Speaker 02:
Okay, any other questions?

[00:33:21] Speaker 02:
Thank you.

[00:33:22] Speaker 02:
Okay, thank you, Mr. Baskin.

[00:33:25] Speaker 02:
And let's see, Mr. Hayden, it's really larger rebuttal time since we've run over.

[00:33:30] Speaker 00:
Thank you, Your Honor.

[00:33:32] Speaker 00:
So I think the first issue that was raised during the argument was defining the abstract idea.

[00:33:41] Speaker 00:
And I think that, Your Honor, you raised it correctly if you

[00:33:48] Speaker 00:
He said the abstract data is obtaining an advantage.

[00:33:50] Speaker 00:
That's one thing.

[00:33:50] Speaker 00:
But that's not what these claims are about.

[00:33:54] Speaker 00:
These claims are much more specific than that.

[00:33:56] Speaker 00:
And I think that's where the district court in the first instance just simply erred in defining an abstract idea that failed to look at the claim as a whole, as Mayo requires, and that failed to take into account real limitations in the claim that would have to be incorporated into a statement of any

[00:34:14] Speaker 00:
any abstract idea.

[00:34:16] Speaker 00:
I know that Ultramershal 1 is no longer a good law, but I still think that the statement in Ultramershal 1 that you could take any claim and overgeneralize it, and if you go hunting for an abstract idea, you might find one, illustrates what happened here.

[00:34:31] Speaker 00:
By any estimation, the abstract idea that was identified by the district court is way overly broad, and that led him down an incorrect path here.

[00:34:43] Speaker 00:
As far as there was a question about stock transactions, I think Judge Moore got it right.

[00:34:47] Speaker 00:
I just don't think, I mean, this is about games, it's about gaming.

[00:34:53] Speaker 00:
It's just, it's not about trading stock.

[00:34:56] Speaker 00:
And I think it goes way too far to try to compare a gaming patent to something else that's in the financial services industry.

[00:35:07] Speaker 00:
This is about games, and I think- All games, all games.

[00:35:12] Speaker 00:
No, it's – no, because the claims I – we would submit are unambiguously limited to having a program computer affect those steps.

[00:35:24] Speaker 00:
And that doesn't happen with golf or hockey.

[00:35:27] Speaker 00:
No.

[00:35:27] Speaker 00:
So it wouldn't apply.

[00:35:28] Speaker 00:
I mean if you – you could maybe use hindsight and come up with an electronic golf game that you could try to fit within the claims.

[00:35:35] Speaker 00:
But as far as if you're talking about golf as it exists in the prior art, no, that doesn't thaw into these claims at all.

[00:35:41] Speaker 00:
It wouldn't.

[00:35:43] Speaker 00:
It's not performed by a computer.

[00:35:45] Speaker 00:
None of the steps here would be applicable.

[00:35:47] Speaker 03:
I'm pretty sure computerized golf games predate your patent.

[00:35:52] Speaker 03:
Don't you think so?

[00:35:54] Speaker 00:
Very well they may.

[00:35:55] Speaker 00:
But the thing is though, if the computerized golf game involved attract activity limitation, if it involved purchases without interrupting gaming action, if it involved supplying game objects without interrupting the gaming action,

[00:36:09] Speaker 00:
then that would be a different matter.

[00:36:11] Speaker 00:
And they could raise that as a 102 or 103.

[00:36:13] Speaker 00:
But that hasn't been, that's not the issue here before the court.

[00:36:16] Speaker 00:
Again, I think it takes hindsight to try to pigeonhole prior art games.

[00:36:22] Speaker 00:
There's really no evidence in the record.

[00:36:23] Speaker 00:
I mean, even with the mulligan that was mentioned, a golf swing is not a game object.

[00:36:28] Speaker 00:
Even the mulligan that was described would evolve erupting the game.

[00:36:31] Speaker 03:
But why don't we sort of full circle back to, I think what was the very first question that you were asked is, isn't the inventive concept here

[00:36:39] Speaker 03:
making a sale of an object without interruption of the game.

[00:36:44] Speaker 03:
How would you describe the inventive concept?

[00:36:47] Speaker 03:
Because that's what got you over the prior art during prosecution, was the without interruption language.

[00:36:53] Speaker 00:
Well, I'd say the totality of the claim is what got over the prior art.

[00:36:56] Speaker 03:
So you added that language, it was rejected.

[00:36:58] Speaker 03:
So no, the totality of the claim didn't get you over prior art.

[00:37:01] Speaker 03:
The totality of the claim with the

[00:37:03] Speaker 03:
without interruption language.

[00:37:04] Speaker 00:
So it's out of the claim with the interruption language, I would agree.

[00:37:07] Speaker 00:
I think I've already said this.

[00:37:09] Speaker 00:
If you're going to try to reduce it, you could say that it is managing the operation of a game, controlling the user's gaming action.

[00:37:19] Speaker 03:
OK, but see, I don't agree with you that any of those are limitations in this claim.

[00:37:23] Speaker 03:
So what else you got?

[00:37:24] Speaker 00:
OK, presenting offers to purchase a game object dependent upon parameters comprising the tracked activity to users.

[00:37:30] Speaker 03:
But there was nothing novel about offering users the ability to purchase objects.

[00:37:35] Speaker 03:
That's why all of that language was there before when the claim was rejected during prosecution.

[00:37:40] Speaker 03:
There's nothing inventive about allowing people to purchase something during a game.

[00:37:44] Speaker 03:
Heck, that goes back to the days of monopoly, right?

[00:37:46] Speaker 03:
You purchased boardwalks, you purchased park place, whatever.

[00:37:49] Speaker 03:
So the novelty, at least through prosecution, didn't seem to exhibit itself in the form of purchasing something during a game.

[00:37:56] Speaker 00:
No, I subtract activity limitation was

[00:37:59] Speaker 00:
added during prosecution to get over priority.

[00:38:02] Speaker 00:
I don't see how you can just say that the last claim amendment is all we can look at in terms of defining an abstraction.

[00:38:10] Speaker 00:
I think you have to look at the meaningful limitations of the claim.

[00:38:12] Speaker 03:
I'm trying to understand what the inventive concept or the inventive concepts, plural, are in this claim.

[00:38:18] Speaker 03:
And until you added the without interruption language, this claim was consistently rejected.

[00:38:24] Speaker 03:
You didn't overcome those rejections.

[00:38:27] Speaker 00:
Well, until we added it, I mean, you can overcome an objection whether you agree with the examiner or not.

[00:38:32] Speaker 00:
But what I would say is you have to look at the talented claim.

[00:38:35] Speaker 00:
You'd have to include the tracked activity limitation.

[00:38:38] Speaker 00:
You'd have to include the control of the gaming action by the computer.

[00:38:42] Speaker 00:
You'd have to include the purchase, a real purchase, not just acquiring something, but a purchase takes place without interrupting, and that the game object is supplied without interrupting gaming action.

[00:38:52] Speaker 00:
If you try to reduce it to any abstract idea with less than those core elements,

[00:38:56] Speaker 00:
then we submit that would be error.

[00:39:00] Speaker 00:
And again, I would circle back to figure four because there was a statement that there's nothing in Venice here.

[00:39:06] Speaker 00:
You look at figure four, there's nothing like it in the prior art.

[00:39:09] Speaker 00:
There's nothing like it in conventional game play.

[00:39:11] Speaker 00:
That just didn't exist.

[00:39:14] Speaker 00:
Figure four came about because of a problem that was presented by electronic games.

[00:39:19] Speaker 00:
What is it that figure four specifically shows?

[00:39:22] Speaker 00:
Well, figure four is an embodiment that shows that

[00:39:26] Speaker 00:
I'm the user's in the midst of an action game.

[00:39:30] Speaker 00:
So it's a shoot-em-up game.

[00:39:31] Speaker 00:
In other words, I'm shooting at them, they're shooting at me.

[00:39:35] Speaker 00:
To reload, I can hit Alt-A to get ammunition.

[00:39:40] Speaker 00:
It doesn't interrupt my shooting because I can use my other hand to do the Alt-A.

[00:39:44] Speaker 00:
Or if I want to get a rocket launcher because I'm against a really tough opponent, then I can hit Alt-R and arm myself with a rocket launcher again without any interruption in the gameplay.

[00:39:54] Speaker 00:
As you can see at the bottom of the screen, it shows the account.

[00:39:56] Speaker 00:
which means that there's a determination here that I have enough money to purchase the rocket launcher and I can make that purchase seamless without interrupting the gaming action.

[00:40:04] Speaker 00:
The rocket launcher is supplied, it's one of these games with your weapons out in front of you, is supplied without interrupting the gaming action.

[00:40:11] Speaker 00:
That just simply did not exist.

[00:40:13] Speaker 05:
It's basically the purchase of the advantage without interruption of the game.

[00:40:17] Speaker 00:
That is, well, it was based upon track activity or it wouldn't have been offered.

[00:40:22] Speaker 00:
And the purchase without interrupting and the supplying of the game object was without interrupting.

[00:40:31] Speaker 00:
You know, all those things have to be considered.

[00:40:32] Speaker 00:
All those things contribute to the novelty of the claim.

[00:40:35] Speaker 02:
Okay.

[00:40:35] Speaker 02:
I think we need to move on.

[00:40:36] Speaker 02:
Are there any more questions?

[00:40:38] Speaker 02:
Are there any more questions?

[00:40:41] Speaker 02:
Okay.

[00:40:41] Speaker 02:
Thank you, honey.

[00:40:43] Speaker 02:
Thank you for your advice and your submission.

[00:40:44] Speaker 02:
Thank you both.