[00:00:06] Speaker 00: Okay. [00:00:08] Speaker 00: We don't hear that very often. [00:00:10] Speaker 00: I pray. [00:00:11] Speaker 00: Yeah. [00:00:12] Speaker 00: Yeah. [00:00:12] Speaker 00: You don't hear it from me very often. [00:00:15] Speaker 01: That's true. [00:00:17] Speaker 01: All right. [00:00:17] Speaker 01: The next case before the court is Stevenson versus Game Show Network LLC case number 151359. [00:00:23] Speaker 01: That is a case on appeal from the Patent Trial and Appeal Board [00:00:36] Speaker 01: Mr. McDonald, you want to reserve four minutes for rebuttal? [00:00:41] Speaker 02: Yes, sure, thank you. [00:00:43] Speaker 01: And I won't favor you solely because that was my maiden name. [00:00:48] Speaker 02: May it please the court, and good morning. [00:00:54] Speaker 02: The dispositive issue here is whether these claims of the Stevenson patent that are all directed to a tournament involving two rounds of play, with claims specifically calling out playing [00:01:06] Speaker 02: a game of skill. [00:01:07] Speaker 00: I thought the dispositive issue was whether it was under any turn of events, it could be a cooperative relationship between the player and the computer, or whether it had to always be a competitive relationship. [00:01:23] Speaker 00: Do I misunderstand the case, which is very likely? [00:01:26] Speaker 02: Well, Your Honor, I think that's a partial understanding. [00:01:30] Speaker 02: The board didn't so much put it in those terms as putting it in terms of including at least administer with playing. [00:01:36] Speaker 02: Gameshell Network, GSN here, has kind of reformulated it and talked a lot about that issue, but I'm certainly prepared to talk about it in terms of cooperative versus competitive gaming. [00:01:46] Speaker 01: What I was going to say about the issue... I thought that was the heart of the issue. [00:01:49] Speaker 01: I think that's important. [00:01:50] Speaker 01: Judge Plager's question is important. [00:01:52] Speaker 01: Are you saying there's some other issue that we should be focusing on? [00:01:57] Speaker 02: Well, the board's actual construction doesn't talk about cooperative versus competitive. [00:02:01] Speaker 02: They use that phrase [00:02:02] Speaker 02: wherein the playing is at least administering. [00:02:04] Speaker 02: And so we are saying, at least that's part of the issue here, that that is wrong. [00:02:08] Speaker 02: That's something, in addition to playing, it's overbroad. [00:02:12] Speaker 02: That certainly brings in this cooperative issue into it. [00:02:14] Speaker 02: That's the construction of between. [00:02:17] Speaker 02: Well, of the whole phrase, Your Honor. [00:02:18] Speaker 02: The playing game of skill includes that at least administering. [00:02:21] Speaker 00: Doesn't it turn on whether that whole phrase sets up a possible cooperative relationship? [00:02:29] Speaker 02: Well, I guess I'll look at it in terms of Walker, which is the prior art that there's an anticipation. [00:02:34] Speaker 02: That's the only issue here as to most of the claims. [00:02:37] Speaker 02: There's a couple dependent with obviousness, but the core issue is whether Walker actually anticipates that limitation. [00:02:43] Speaker 02: That finding of anticipation was based on Walker having the computer ask the questions to the human player. [00:02:50] Speaker 02: So if you really want to get down to it, I would say that's really the issue is whether this playing a game of skill between the single player and the computer in these two rounds [00:02:58] Speaker 02: Does that specifically include just the computer asking questions to the human player? [00:03:03] Speaker 02: If I really want to get it down to what it is, that's what it is. [00:03:06] Speaker 02: Because if it's yes, then Walker anticipates. [00:03:09] Speaker 02: And if it's no, Walker doesn't. [00:03:11] Speaker 02: And it should be reversed. [00:03:14] Speaker 03: All right. [00:03:14] Speaker 03: Go ahead. [00:03:14] Speaker 03: On page 36 in the heading, you say the parties agree that playing between, quote, playing between close quarter and, quote, playing against close quarter are used interchangeably in the specification. [00:03:27] Speaker 03: It seems to me that that is in direct conflict with the PTEP's decision, where they expressly declined to treat the two as synonymous. [00:03:40] Speaker 03: At JA9, claim one recites between, not against. [00:03:45] Speaker 03: And they say Mr. Stevens has not shown that he defined the term between in the specification with reasonable clarity, deliberateness, and precision to mean against. [00:03:58] Speaker 03: How is it that the parties both agree to that? [00:04:00] Speaker 02: Well, the parties did, but the board didn't. [00:04:02] Speaker 02: That's what happened. [00:04:03] Speaker 02: The experts did agree on that. [00:04:05] Speaker 02: Now, they would say, well, their expert agreed more that playing against is like between. [00:04:11] Speaker 02: And we argued that between includes against. [00:04:13] Speaker 02: But the board basically kind of disregarded both experts saying that they thought those terms were interchangeable. [00:04:18] Speaker 02: That's what happened there, Your Honor, I think. [00:04:21] Speaker 01: But if we could talk about the... If the board's claim construction of between, [00:04:26] Speaker 01: is correct. [00:04:27] Speaker 01: Do you concede the anticipation? [00:04:30] Speaker 02: Yes. [00:04:33] Speaker 01: So one of the ones that sort of jumped out at me, I know you had your debate about whether Solitaire could be only a Solitaire version with two people, even though that's not what it says, but how do you play trivia against a computer? [00:04:50] Speaker 01: You can't possibly win. [00:04:52] Speaker 02: Well, it would be like a Jeopardy sort of game, and you can control the level that the computer plays at. [00:04:57] Speaker 02: That's very common in various computer games where you can play against the computer. [00:05:01] Speaker 02: The computer could cream you, I suppose, if you had the highest speed computer. [00:05:04] Speaker 02: Well, how are you testing your own? [00:05:07] Speaker 01: How do you test your own level if you dumb down the computer? [00:05:10] Speaker 02: Well, you dumb down the computer to the same level for every human player. [00:05:14] Speaker 02: The computer answers questions within a certain amount of time. [00:05:18] Speaker 02: Maybe it gets a certain percentage wrong. [00:05:19] Speaker 02: in the same way when it's playing each individual person. [00:05:22] Speaker 02: That's how you get that reliable gauge. [00:05:24] Speaker 01: And where does it say in the specification that that's how that happened? [00:05:27] Speaker 02: Well, I would say, Your Honor, the key places for that would be found at the end of the background of the invention at the bottom of column one, where it talks about the prior art and what it doesn't have. [00:05:37] Speaker 02: And this is the last paragraph then going into what the invention is. [00:05:41] Speaker 02: So it's really teeing up what the invention is. [00:05:43] Speaker 02: The prior art [00:05:45] Speaker 02: does not allow a player to gauge his level of performance by allowing the player to test his skill and ability against the tournament sponsor, which is the host computer, and other players during the same tournament. [00:05:58] Speaker 02: So there you have test against both. [00:06:00] Speaker 02: And that's the key thing that goes on to talk about that reliable index in the next sentence there, as it tees up the description of the invention when you go to that next section. [00:06:10] Speaker 02: And moreover, you have the fact that we have only one figure in the patent, figure one, [00:06:14] Speaker 02: that sets forth the process for all games, including trivia. [00:06:18] Speaker 02: And it starts off with the player plays game of skill versus host computer, versus. [00:06:23] Speaker 02: That's again, so that's made clear when column three talks about that exact same square at line 26. [00:06:30] Speaker 02: And that's referring to that same paragraph there in column three beginning at 26. [00:06:33] Speaker 02: When it talks about games of skill, listen. [00:06:36] Speaker 02: At least example ones, when it says it includes the trivia games, it includes guard games, it even includes solitaire. [00:06:42] Speaker 02: All of those games involve [00:06:44] Speaker 02: the player playing versus or against the host computer. [00:06:48] Speaker 02: So that's pretty unequivocal here in terms of the specification. [00:06:52] Speaker 02: It talks about play against about 12 times, I believe, throughout the patent here. [00:06:57] Speaker 02: The only part of the spec that GSN and the board really try to say goes to the contrary is count two beginning at about line 15 or 17, where we have that paragraph where it talks about [00:07:10] Speaker 02: The qualifying round is played between a single player through a computer terminal and a host computer. [00:07:16] Speaker 02: The host computer has the ability to act as a game sponsor by keeping score, operating the game, monitoring the player's progress, and distributing awards. [00:07:26] Speaker 02: So they're saying that means sponsoring is within play. [00:07:29] Speaker 02: I think it's very clear from the spec that, as well as the claims themselves, that those sponsoring activities are a separate thing or a separate bucket from playing. [00:07:39] Speaker 02: You look at claim one, it's got two playing steps to it, and it's also got evaluating two, evaluating three evaluating steps, and then distributing award steps. [00:07:49] Speaker 02: All of those other steps that aren't playing are the ones that column two there list as sponsorship sort of activities. [00:07:55] Speaker 02: Those are the keeping score, monitoring progress, and distributing awards. [00:08:00] Speaker 02: So we're clearly putting those in two different buckets. [00:08:03] Speaker 02: Playing is one thing. [00:08:04] Speaker 02: Those acts of sponsorship are different. [00:08:07] Speaker 02: And then we have one other one in here, [00:08:09] Speaker 02: in that list of acts of sponsorship operating the game. [00:08:12] Speaker 02: I would say that's exactly what you would say the computer's doing when it poses the questions to the human claim. [00:08:19] Speaker 01: So what you're saying is that the claim really should have used the word against, and that's something that you tried in your re-exam to amend, to say against. [00:08:30] Speaker 01: Did you file a motion to amend in this proceeding? [00:08:33] Speaker 02: We did not file a motion to amend in this proceeding, Your Honor. [00:08:35] Speaker 02: At the time we had that opportunity, the board had never granted one. [00:08:39] Speaker 02: And the board specifically said in their order giving us leave that we did have the option of bringing either a re-exam or a re-issue, and that's what we do, appending as a re-issue at this point. [00:08:49] Speaker 01: So you're saying because the board had never granted a motion to amend in other IPRs you didn't ask in this one? [00:08:54] Speaker 02: Well, we think it was a reasonable decision that the board actually embraced as one of the options that you have. [00:09:01] Speaker 02: They told us you could seek amendment here, but you can also seek amendment through those other means. [00:09:07] Speaker 02: waiting of one over the other here necessarily. [00:09:10] Speaker 03: Go ahead, sir. [00:09:14] Speaker 03: You said in the request for the reexamination that the proposed amendment represents a significant change from the original claims of the 237 [00:09:30] Speaker 02: Well, that was in the context, Your Honor, we're immediately adjacent to that, as we pointed out in our brief. [00:09:35] Speaker 02: We were saying, if you assume the construction of the claim and the claim between language specifically, as the board has stated, which we disagree with. [00:09:45] Speaker 02: So that's what happened there. [00:09:46] Speaker 02: By the way, the reexamination was rejected by, was dismissed, but then we did file a reissue, and that's what's currently pending. [00:09:53] Speaker 02: This patent, it does go until, it was filed in 1999, so it doesn't have [00:09:58] Speaker 02: that many years left. [00:09:59] Speaker 02: So we do think it's important that the original claims be construed appropriately so we don't lose any opportunity to get past damages. [00:10:07] Speaker 00: Mr. McDonald, this case illustrates in your argument, illustrates the basic nature of many of our claim construction cases. [00:10:20] Speaker 00: You cherry picked all the material in the specification and written description. [00:10:26] Speaker 00: That supports your viewpoint. [00:10:28] Speaker 00: My guess is that Mr. Babcock is going to come up here and cherry pick all the provisions in the written description that go the other way. [00:10:38] Speaker 00: And when we get all done, we're still left with total ambiguity as to what is the right answer and whether that right answer should have fallen to your applicant [00:10:56] Speaker 00: and your patentee to have made clear in his application and in the patent process as to exactly what he's talking about. [00:11:12] Speaker 00: Judge O'Malley highlights the exact problem. [00:11:16] Speaker 00: Did you mean between or did you mean against? [00:11:21] Speaker 00: And the answer to that is you say against. [00:11:24] Speaker 00: He's going to say between, and between means this. [00:11:27] Speaker 00: And what are we supposed to do with that other than perhaps to say to you patentees, you guys got to make these things clearer or you stand a substantial chance of losing as you did before the PTAB? [00:11:43] Speaker 02: I would say to that, Your Honor, the board's construction or playing is including administering. [00:11:47] Speaker 02: There is nothing in the specification here or any of the prosecution history that really supports that idea. [00:11:53] Speaker 02: I don't think the patent [00:11:54] Speaker 02: You'll listen to Mr. Babcock when he gets up. [00:11:57] Speaker 02: Well, we'll see how much he defends administer. [00:11:59] Speaker 01: Before he does, let me point you to something, the key portion I think that the PTAB relied on, and that's column two at lines 15 through 21. [00:12:11] Speaker 01: It says, the host computer has the ability to act as game sponsor by keeping score, operating the game, monitoring the player's progress, and to distribute awards when appropriate. [00:12:20] Speaker 01: Also, the host computer has the ability to act as another player if the game requires more than a single player. [00:12:26] Speaker 01: So if that's the case, how do you continue to assert that all of these games have to have more than one player? [00:12:36] Speaker 02: Well, the immediate before line talks about the qualifying round played between a single player through a terminal and a host computer. [00:12:43] Speaker 02: So it sets up a single player. [00:12:45] Speaker 02: It talks about the sponsoring activities separately. [00:12:48] Speaker 02: And that third category, [00:12:50] Speaker 02: As they mentioned, our expert explained that that would be things like bridge, which is specifically called out in the spec and claim 10, where you have multiple players and I have to have a partner. [00:12:59] Speaker 02: You can read those as three different things. [00:13:02] Speaker 01: If the game requires more than a single player. [00:13:05] Speaker 01: So if you've got a single player, how are you playing against the computer? [00:13:08] Speaker 02: Well, with single player in that context, Your Honor, I would submit that that's a single player playing by themselves versus do they have a partner. [00:13:16] Speaker 02: That's what our expert showed would be the distinction there. [00:13:19] Speaker 02: But clearly, you have to have competition here for these claims. [00:13:23] Speaker 02: It's a tournament with a qualifying round, a playoff round where you have a winner determined. [00:13:29] Speaker 01: Is there anything in the specification that describes a process by which the computer, through some algorithm or otherwise, is set at a particular level of human play? [00:13:43] Speaker 02: It doesn't go into detail on that, but you clearly have games like Bridge and Gin Rummy and things like that, your honor, where you're playing between the player and the human and the computer at that point. [00:13:54] Speaker 02: You've got to have the computer engaging and play clearly in games like that. [00:13:57] Speaker 02: There's no doubt about it. [00:13:59] Speaker 02: And that's really the same thing that's being described throughout. [00:14:02] Speaker 02: This figure one applies to all those games, whether it's Bridge and Gin Rummy or these other games. [00:14:07] Speaker 02: And it talks about all of those games as being against the computer. [00:14:10] Speaker 02: And every one of those games can be played against the computer. [00:14:13] Speaker 00: And solitaire? [00:14:15] Speaker 02: Absolutely, Your Honor. [00:14:16] Speaker 02: Also, that's a multiplayer game. [00:14:18] Speaker 02: Both sides and the board acknowledge that. [00:14:20] Speaker 02: But I played solitaire all by myself. [00:14:22] Speaker 02: Sure. [00:14:23] Speaker 02: So have you. [00:14:24] Speaker 02: But that's not enough to undermine the meaning of claim one here. [00:14:27] Speaker 02: And the North American vaccine case is a good example of that, where the independent claim included, I'll call it A. And the Federal Circuit limited it to A. The parties said, well, wait a minute, a dependent claim actually would be limited to B. [00:14:41] Speaker 02: And that's so that you have to include B here, too. [00:14:44] Speaker 02: And the Federal Circuit said no for two reasons. [00:14:46] Speaker 02: One, the dependent claim tail does not wag the independent claim dot. [00:14:50] Speaker 02: And two, particularly relevant here, they said, moreover, that dependent claim, there was evidence that said, well, that claim could include B, but it could also include A. There are variants. [00:15:01] Speaker 02: In that case, it was molecules. [00:15:03] Speaker 02: But as long as that dependent claim could include version A, [00:15:07] Speaker 02: That was consistent, wouldn't give us a reason to not limit the independent claim to that version 8. [00:15:12] Speaker 02: Very analogous to what we have here. [00:15:14] Speaker 02: Please don't ask me what an analogy is after that last argument. [00:15:18] Speaker 02: But you have both kinds of solitaire. [00:15:20] Speaker 02: You can reconcile that. [00:15:21] Speaker 02: That's what North American vaccines say. [00:15:23] Speaker 02: As long as I can reconcile that there are some variants of solitaire that are consistent with playing against in claim 1, I don't broaden out claim 1 just to grab those other variants of solitaire. [00:15:34] Speaker 01: Okay, you've used up your rebuttal time, but we'll give you two minutes. [00:15:37] Speaker 01: Thank you. [00:15:44] Speaker 03: Good morning, Your Honors, and may it please the Court. [00:15:46] Speaker 03: Mr. Babcock, are you both in agreement that playing between and playing against are used interchangeably in the specific case? [00:15:54] Speaker 03: We're not, Your Honor. [00:15:55] Speaker 03: I didn't think so. [00:15:56] Speaker 03: No, we're not. [00:15:59] Speaker 04: That whole argument is based upon a gotcha where [00:16:03] Speaker 04: in a deposition of our expert, they asked that question at the end, and he said, yeah. [00:16:08] Speaker 04: And they go, ah, ah, ah, ah, now. [00:16:09] Speaker 04: Everything he said prior to that. [00:16:10] Speaker 01: Wait, wait, wait. [00:16:11] Speaker 01: How is that a gotcha? [00:16:12] Speaker 01: They ask him a question under oath, and he says yes. [00:16:14] Speaker 04: Because they didn't say. [00:16:15] Speaker 01: I mean, isn't that how it's supposed to work? [00:16:17] Speaker 04: His entire testimony. [00:16:18] Speaker 04: No, no, no. [00:16:19] Speaker 04: I'm saying it's out of context. [00:16:20] Speaker 04: A gotcha means it's a statement that doesn't have context and didn't allow him to explain his answer. [00:16:26] Speaker 04: His entire testimony in his deposition throughout his declaration was that the claims require [00:16:34] Speaker 04: cooperative play or competitive play. [00:16:36] Speaker 04: They allow for both. [00:16:38] Speaker 04: And he was his testimony is that even against can mean cooperative. [00:16:43] Speaker 04: If you say I'm playing against the house or I'm playing against, running against the clock, that's still not necessarily, you're not competing with the clock, you're not competing with the house. [00:16:54] Speaker 04: So his view was even against could be cooperative. [00:16:58] Speaker 04: It doesn't have to be competitive head to head. [00:17:00] Speaker 04: And so they never asked him to explain that. [00:17:01] Speaker 01: Playing against the house. [00:17:02] Speaker 01: The house isn't a computer. [00:17:04] Speaker 01: I mean, I don't really understand that. [00:17:06] Speaker 01: A house is playing with the same cards. [00:17:08] Speaker 04: Correct. [00:17:09] Speaker 01: I mean, they may be cheating, but that's, you know. [00:17:14] Speaker 04: So his view, the testimony throughout this case was that the claims are broad enough to encompass cooperative gameplay. [00:17:24] Speaker 04: And the fact that at the end of a deposition, he says interchangeable, yeah, you could, against, could be used as cooperative as well. [00:17:32] Speaker 04: And that was the extent of that gotcha, and that's something that escalates into, oh my gosh, Game Show Network has conceded that this line is limited. [00:17:43] Speaker 04: That's not the facts here. [00:17:46] Speaker 01: Let's look at the background of the event at the bottom of column one. [00:17:50] Speaker 01: It says, the prior games of skill or tournaments have not been successful. [00:17:54] Speaker 01: These references do not allow a player to gauge his level of performance by allowing the player to test his skill and ability against the tournament sponsor. [00:18:02] Speaker 01: And then the next paragraph talks about the need for a tournament which allows a player to compete and obtain a reliable index as to his skill as compared to other competitors competing under the same game conditions. [00:18:15] Speaker 01: I mean, that's sort of just defining exactly what your friend on the other side says this invention is supposed to be. [00:18:22] Speaker 04: Well, no question preferred embodiment is a head-to-head competition. [00:18:26] Speaker 04: But I think Judge Plager's query was the right query. [00:18:29] Speaker 04: except I want to refocus it a little bit because if this were an appeal from the district court where you're looking at a Phillips construction, maybe this notion of ambiguity is a little harder to resolve. [00:18:39] Speaker 04: Here, you're not dealing with a Phillips construction. [00:18:41] Speaker 04: You're dealing with the broadest reasonable interpretation and view of the spec from the board. [00:18:46] Speaker 04: And that's still the state of the law as we know here. [00:18:49] Speaker 04: And so the question isn't, well, if it could be one or the other, which one should we choose? [00:18:54] Speaker 04: It could be both. [00:18:55] Speaker 04: And the passage that you pointed to, Judge Amali, [00:18:58] Speaker 04: isn't just some, we point to column two and the lines that you pointed to earlier, which is lines starting at line 14, 15, 16. [00:19:11] Speaker 04: That isn't some obscure passage that we picked and cherry picked out of the specification. [00:19:17] Speaker 04: This is at the beginning of the description of the invention. [00:19:20] Speaker 04: And this is the only place where it describes the role of the player and the computer. [00:19:25] Speaker 04: So it's not some place that we found online [00:19:27] Speaker 04: on column 64 buried somewhere or some strange embodiment. [00:19:31] Speaker 00: This is the key discussion. [00:19:33] Speaker 00: Would your position survive if we applied Phillips construction? [00:19:39] Speaker 04: It would, Your Honor. [00:19:39] Speaker 04: It still would. [00:19:41] Speaker 04: But you don't have to do that. [00:19:42] Speaker 04: I'm just giving you, you suggested that it was maybe a difficult issue to try to decide if it's ambiguous. [00:19:49] Speaker 04: I'm saying here, if it's ambiguous, we get the benefit. [00:19:52] Speaker 04: We get the benefit because it's broadest reasonable. [00:19:53] Speaker 04: And the board here said, look, it's got to at least include what's disclosed reasonably. [00:20:01] Speaker 04: And under broadest reasonable, this- I interrupted you. [00:20:05] Speaker 00: Finish your point from before. [00:20:07] Speaker 04: So the point is this passage that we point to is the defining passage about the role of the player and the computer. [00:20:15] Speaker 04: And it says very clearly, we're talking about the qualifying round. [00:20:20] Speaker 04: And it says very clearly, the qualifying round is played between the word that the patentee chose. [00:20:28] Speaker 04: The patentee does use the word against. [00:20:30] Speaker 04: It does use the word versus in the spec. [00:20:32] Speaker 04: But the patentee claimed between. [00:20:34] Speaker 04: So here's the word. [00:20:35] Speaker 04: The qualifying round is played between a single player through a computer terminal and a host computer. [00:20:41] Speaker 04: Now it describes further how that action takes place. [00:20:44] Speaker 04: The host computer has the ability to act as a game sponsor, keeping score, operating the game, [00:20:50] Speaker 04: monitoring the player's progress. [00:20:52] Speaker 04: So that's clearly not being a competitive head-to-head player. [00:20:56] Speaker 01: Right, but that also still has to occur regardless of whether you're playing against the computer or simply using the computer, right? [00:21:09] Speaker 01: Even in the against scenario, you need to have the [00:21:15] Speaker 01: somebody monitoring how you're doing and keeping score. [00:21:18] Speaker 04: True, but I wasn't quite finished with the passage because the next sentence says also the host computer has the ability to act as another player if the game requires more than a single player. [00:21:31] Speaker 01: But can't you go back and say that that phrase to a single player relates back to the reference to a single player earlier in that same paragraph? [00:21:45] Speaker 01: In other words, the single player is the person that's interacting with the computer. [00:21:51] Speaker 01: And that reference, the second reference to single player, it means if you need more than the one human being. [00:22:00] Speaker 04: You're reading words into what this says. [00:22:03] Speaker 04: It says if the game requires more than a single player. [00:22:08] Speaker 04: If you further read through the specification and the claims, we have [00:22:15] Speaker 04: Examples of games, the patent owner here says that we cherry picked trivia. [00:22:22] Speaker 04: We picked one game out of 40. [00:22:24] Speaker 04: If you look at that same place just above where we're looking at column two, they define six types of games. [00:22:32] Speaker 04: Not 50, six. [00:22:33] Speaker 04: Chess, poker, bridge, hearts, blackjack, and question and answer trivia games. [00:22:40] Speaker 04: That last one is at least typically considered a single player game. [00:22:44] Speaker 04: The computer asks the question, the user answers the question. [00:22:50] Speaker 04: On the next column, in column three, we have listed trivia again. [00:22:53] Speaker 04: We have solitaire. [00:22:55] Speaker 04: We have crosswords. [00:22:57] Speaker 01: With solitaire, you've got the problem that those things are listed in dependent claim 10. [00:23:05] Speaker 04: That's not a problem for us. [00:23:06] Speaker 01: Well, shouldn't we interpret that claim consistent with the reference to a game of skill? [00:23:14] Speaker 01: identified in independent claim one? [00:23:17] Speaker 04: Sure. [00:23:17] Speaker 04: Scholar care is a game of skill. [00:23:21] Speaker 04: Scholar care is not a game of chance. [00:23:23] Speaker 00: Why is not his point valid that it's a dependent claim that we don't need to read into the independent claim? [00:23:30] Speaker 04: So the doctrine of claim differentiation is not a requirement that it must happen when our position isn't that you must construe these claims in light of the dependent claims. [00:23:39] Speaker 04: But the axiom is that when you construe claims, you should look at not only the claim meaning and the specification, but you can look at the other claims as well. [00:23:47] Speaker 04: Those provide guidance. [00:23:49] Speaker 04: Those provide input into the claim construction process. [00:23:52] Speaker 04: And if you've got dependent claims, which we have here, which are all traditionally [00:23:57] Speaker 04: single-player games. [00:23:59] Speaker 04: And we're not just talking about trivia. [00:24:00] Speaker 04: The dependent claims say solitaire, they say crosswords, they say word search, they say word scramble, they say word match, they have maze games at pinball. [00:24:10] Speaker 04: Those are all dependent claims which are dependent upon claim one. [00:24:14] Speaker 04: So, broadest reasonable. [00:24:17] Speaker 04: Is it reasonable then to construe claim one to allow for single-player games? [00:24:21] Speaker 04: Certainly, particularly in light of the spec which says, hey, the computer [00:24:25] Speaker 04: can act as a sponsor or it can be a participant, either way. [00:24:29] Speaker 00: Like you keep going back to the broadest reasonable and I keep coming back, wouldn't you lose under Phillips? [00:24:37] Speaker 04: Would I lose under Phillips? [00:24:40] Speaker 04: Yeah. [00:24:40] Speaker 04: I don't think so, your honor. [00:24:42] Speaker 04: Because I think the construction, that the proper construction, even under Phillips, is that both cooperate, because we're looking at the word between. [00:24:50] Speaker 04: Between is acknowledged by the parties to mean jointly engaging. [00:24:55] Speaker 04: jointly engaging. [00:24:56] Speaker 04: They provided that definition. [00:24:58] Speaker 04: The board adopted it. [00:25:00] Speaker 04: They also provided the definition of against, which means competitive. [00:25:03] Speaker 04: Now, if they had claimed competitive, we'd lose. [00:25:06] Speaker 04: If they had claimed against, yes, under Phillips, we'd lose. [00:25:09] Speaker 04: But even under Phillips, you're still looking at the construction in light of the ordinary meeting and the specification, intrinsic record, and all of the spec [00:25:19] Speaker 04: suggest that it could be both. [00:25:21] Speaker 04: And I think the best part we're looking at is column two, where it says it can be either. [00:25:25] Speaker 04: It can be a host, or it can also be a player if the game requires more than one player. [00:25:32] Speaker 04: The ordinary understanding of that is if you have a game that requires more than one player, say if Solitaire is one player, Word Search is one player, Cross is one player, if you have a game that requires more than one player, then the computer can step up and be a contestant itself. [00:25:48] Speaker 04: Single player, not one player. [00:25:50] Speaker 04: Single player. [00:25:51] Speaker 04: Sorry. [00:25:51] Speaker 04: Be true to the claim. [00:25:55] Speaker 04: So I think in this case, the answer is fairly straightforward. [00:25:58] Speaker 04: Broadest, reasonable. [00:25:59] Speaker 04: There's only really one issue here. [00:26:01] Speaker 04: Can it be competitive? [00:26:02] Speaker 04: Or is it required to be combative or head-to-head? [00:26:05] Speaker 01: How do you gauge your talent, your performance level, if you are playing solitaire and all the computer is doing is keeping track of the fact that you're playing solitaire? [00:26:18] Speaker 04: solitaire is a game of skill and you can improve right so if you depending on how good you are and how fast that you are and getting to completing the deck getting all the cards locked up you can get a score so you can a beginner player maybe will take more time and maybe not never be able to eliminate all the cards right so what the computer there is going is just [00:26:40] Speaker 04: evaluating how good you are as an individual, as a single player, playing solitaire. [00:26:47] Speaker 04: And that ranks you in this tournament. [00:26:49] Speaker 04: And if you're really good, you'll finish all the deck quickly, and you'll get a good score. [00:26:53] Speaker 04: And as you improve, I think we've all played solitaire, you learn how to play, you get better, and you can do it more quickly, you can see the combination more quickly, and you can play more quickly. [00:27:02] Speaker 04: So that kind of game, it's very simple. [00:27:04] Speaker 04: That's how you would be scored. [00:27:06] Speaker 04: It's like any crossword or any kind of word search, [00:27:09] Speaker 04: They're skill games, and the more you play, the more you learn, the faster you are, and the computer can score you on those. [00:27:18] Speaker 04: And I do want to point out one more final thing, and I think besides the intrinsic record, which I think is dispositive here, if you look at the re-exam, which Judge Wallach pointed to, I think that's quite telling, because in this scenario, this wasn't a situation where, pardon, [00:27:39] Speaker 03: to tell whether your compatriot's argument about that is correct or not, since the record doesn't include the prior page? [00:27:52] Speaker 04: Yeah, it may not. [00:27:54] Speaker 04: It may not. [00:27:56] Speaker 04: It's not. [00:28:00] Speaker 04: But I think the part that we cited, and I guess we should have been more liberal in our joint appendix to provide context. [00:28:06] Speaker 04: I know the court's rules are [00:28:09] Speaker 04: you know, don't throw in stuff that you're not citing to. [00:28:12] Speaker 04: And sometimes when we put those together, you know, we put those fairly literally. [00:28:17] Speaker 04: We should have done a few extra pages, plus or minus. [00:28:20] Speaker 04: But if you do look at even that page that's in the record, you'll see that the caveated sentence, we didn't cite. [00:28:26] Speaker 04: The caveated sentence is toward the top of that statement. [00:28:28] Speaker 04: You look at the sentence we cited, there is no caveat. [00:28:31] Speaker 04: They don't say, oh, in light of the current construction. [00:28:34] Speaker 04: They just say, [00:28:35] Speaker 04: this new claim which requires head-to-head competition is different than the current claim. [00:28:41] Speaker 04: And I think this is telling because what happened, and I think that this is in the record, is that under the board rules, you have to seek authorization to seek a motion to amend. [00:28:50] Speaker 04: They sought a motion to amend. [00:28:52] Speaker 04: During that conference call, the judge said, hey, are you going to put head-to-head in the claim? [00:28:57] Speaker 04: Is that what you're going to do in your amendment? [00:28:58] Speaker 04: And they said, yeah, that's what we're planning to do. [00:29:01] Speaker 04: The board said, OK, go ahead and do that. [00:29:03] Speaker 04: That's what the IPIR process is for, is you've got little amendments, throw them in now. [00:29:07] Speaker 04: They chose not to do that. [00:29:09] Speaker 04: They said, you know what, let's not do a motion to amend, which is an inter-parties process where we can attack that. [00:29:15] Speaker 04: They said, let's do an ex-party. [00:29:18] Speaker 04: And therefore, we have a fallback. [00:29:19] Speaker 04: In case this claim goes down, we're going to have another claim that can survive. [00:29:25] Speaker 04: So I think here it's quite telling that they knew how to claim it with head to head. [00:29:31] Speaker 04: And they just chose not to. [00:29:33] Speaker 04: And they shouldn't get the benefit of that decision in this case. [00:29:38] Speaker 04: Thank you, Your Honor. [00:29:45] Speaker 01: Before you get to your substance, and I won't eat up your time for this, but there's a lot of games in here I'd never heard of, and so I tried to figure out just because I was curious. [00:29:55] Speaker 01: But what is foosball trivia? [00:29:58] Speaker 02: My guess is the S should have been a T. The answer is I don't know, Your Honor. [00:30:03] Speaker 02: I just can't imagine what trivia would exist about a game of foosball. [00:30:07] Speaker 01: Me either. [00:30:07] Speaker 01: Okay. [00:30:08] Speaker 02: I was wondering about Bible trivia, but I'm not going to go there. [00:30:12] Speaker 02: Okay, go ahead. [00:30:12] Speaker 02: Thank you. [00:30:13] Speaker 02: I know I don't get the benefit of Phillips because this is an IPR, but I do get the benefit of Proxy, Con, and Straight Path and these other cases that have been coming up in the IPR context. [00:30:22] Speaker 02: They all say we begin with the claims. [00:30:24] Speaker 02: The claims here separately call out the step of playing [00:30:27] Speaker 02: from administrative steps like evaluating and distributing awards. [00:30:31] Speaker 02: The very same steps that are in that sponsor sentence, that is the only sentence you heard, you understand, you know, both hear a lot of stuff. [00:30:38] Speaker 02: They only have that one sentence to try to support their position. [00:30:42] Speaker 02: And that sentence, actually, when you read it in view of claim one, which is the starting point, clearly puts sponsorship in a different bucket from playing. [00:30:50] Speaker 02: And sponsorship is evaluating, it's distributing awards, and it's operating the game, which would be [00:30:55] Speaker 02: asking questions in trivia. [00:30:56] Speaker 02: So in the IPR context, we'll follow that real carefully here. [00:31:01] Speaker 02: Start with the claims and really end with the claims and say that playing a game of skill in a qualifying round between a single player and a host computer is certainly competitive. [00:31:11] Speaker 02: If you have a game of football in a playoff round between Washington and Dallas, that is competitive. [00:31:17] Speaker 02: There's no way anybody would say a play meeting of that would include cooperation between Dallas and Washington in the game. [00:31:24] Speaker 02: That's the context. [00:31:25] Speaker 02: They say, oh, football is a new group. [00:31:26] Speaker 00: They all shook hands at the end. [00:31:27] Speaker 00: Pardon? [00:31:27] Speaker 00: They all shook hands at the end. [00:31:29] Speaker 02: Well, that's nice. [00:31:30] Speaker 02: After the game. [00:31:32] Speaker 02: But they say, that's not a good example. [00:31:34] Speaker 02: Well, there are examples in column three, including sporting events and things like that. [00:31:37] Speaker 02: That's certainly a good picture. [00:31:38] Speaker 00: Is it your view that they would lose under a Phillips interpretation? [00:31:44] Speaker 02: Oh, absolutely. [00:31:45] Speaker 02: That's the easier bar. [00:31:46] Speaker 02: But I think when you see proxy con and street bat, [00:31:49] Speaker 02: They don't really have a dramatically, they're not saying just ignore Phillips and go off and come up with your own things. [00:31:55] Speaker 02: They still are adopting cannons of claim construction and those decisions for IPRs. [00:31:59] Speaker 00: Roxy Khan says that a broadest reasonable interpretation cannot be unreasonable, which it seems to me is a very obvious statement. [00:32:12] Speaker 00: A broadest reasonable interpretation cannot be unreasonable. [00:32:16] Speaker 00: But it certainly can be broader. [00:32:19] Speaker 00: than what we think of as a Phillips interpretation, can't it? [00:32:23] Speaker 02: I think in the abstract, Your Honor, that that's right. [00:32:26] Speaker 02: It's a case by case thing. [00:32:27] Speaker 02: I kind of know it when I see it because I think a lot of cases, they wouldn't be different because you'd hope that you do when you start with the claims and go through those canons of construction, you'd have a relatively clear answer. [00:32:38] Speaker 02: I think you do have one here when you clearly have claims separately claimed from evaluating and distributing those things that are put in that sponsorship bucket. [00:32:46] Speaker 02: In the only sentence, column two, they're about line 20. [00:32:49] Speaker 02: that they really cited to the court here to support their construction, the claim would include at least. [00:32:53] Speaker 00: Ultimately, your argument is that their broadest reasonable interpretation is unreasonable in light of the total written description. [00:33:05] Speaker 02: In view of the claims and the specifications, right. [00:33:11] Speaker 02: I would just point out that Jeopardy is a trivia game. [00:33:13] Speaker 02: It definitely is competitive, but it's answering questions about trivia. [00:33:16] Speaker 02: All these games can be, and you heard them explain that, [00:33:19] Speaker 02: Even Solitaire can have these scores. [00:33:21] Speaker 02: They're basically admitting, whenever you got a score, my score can be higher than your score. [00:33:25] Speaker 02: And no, it can be in a competitive situation. [00:33:27] Speaker 02: They really have trouble decoupling any of these games from a competitive context here when you have to read them and view a claim. [00:33:34] Speaker 02: Thank you. [00:33:35] Speaker 02: OK. [00:33:35] Speaker 02: Thank you.