[00:00:27] Speaker 03:
We will hear argument next in case number 16-2286, White Knuckle Gaming versus Electronic Arts.

[00:00:36] Speaker 03:
Mr. Hanson, whenever you're ready.

[00:00:52] Speaker 00:
May it please the court?

[00:00:54] Speaker 00:
My name is Andrew Hanson and representing

[00:00:57] Speaker 00:
White Knuckle Gaming.

[00:00:58] Speaker 00:
The sole issue before the court today is whether the district court erred in finding the claims of the 575 patent to be ineligible subject matter.

[00:01:07] Speaker 00:
The district court erred at full steps one and two.

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And so either of these errors would be grounds for reversal.

[00:01:15] Speaker 00:
Your Honors, the appealed claims of the 575 patent are directed to an improvement in the simulation of sports video game characters.

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The patent describes a problem.

[00:01:26] Speaker 00:
with the realism of these sports video game characters.

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And video gamers were frustrated that their video game characters didn't represent what was happening in real life.

[00:01:36] Speaker 00:
The patent seeks to solve this problem at Column 2, Lines 23 through 26, that's Appendix 117.

[00:01:45] Speaker 00:
It says, instead of playing with last season's teams, video gamers get a simulation of the fresh new events of the week, day, or hour.

[00:01:55] Speaker 00:
The claims also, the appealed claims, recite specific structure for accomplishing that improvement of improved simulation of video game characters.

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In fact, reading from the claims, column 8, lines 36 through 40, each of the updated video game character performance parameters in the series is based at least in part on one or more different

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real-life performances of the particular real-life sports athlete in one or more sporting events performed during the single-sport season.

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Your Honor, this limitation is a meaningful limitation that it takes information, how players perform in real life, and it changes its character into a parameter, and then that parameter is used

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from the video game simulation to create a new video game, one that has the benefits of simulating what's happening in real life.

[00:03:01] Speaker 00:
I think the best example of a case where the facts are similar is probably McRoe and possibly Enfish.

[00:03:12] Speaker 00:
They were the case related to creating realistic facial features in a simulation of a 3D facial expression.

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And the court there found that because the morph weightings, which are rules, had an effect on how the facial features were created, that that was a problem rooted in the software itself.

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And that's the case here.

[00:03:41] Speaker 00:
the claims are directed to this performance parameter that improves the video game characters and the fact that the parameters are during the season and they're based on real life or different performances of real life athletes creates a different video game with benefits that users found enjoyable and overcame their frustrations.

[00:04:05] Speaker 00:
The district court oversimplified the claims and held that

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Claims are directed to nothing more than updating software in a sports video game.

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This fails to consider the claims as a whole.

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For instance, the court didn't address the performance parameter aspects of the claim.

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And we think that that's a clear error for reversing.

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The court also, or Electronic Arts, cites several cases to support the idea that updating sports video games is abstract, many of them which are this organizing, gathering, and displaying information.

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Your Honors, this patent is not similar to those cases because the information that's in these parameters

[00:05:04] Speaker 00:
is used to cause a transformation or create a different video game that has a different kind of simulation.

[00:05:11] Speaker 02:
Is there a technological difficulty associated with updating this information for a given video game character?

[00:05:26] Speaker 00:
Yes, Your Honor.

[00:05:27] Speaker 00:
I think that there is a technological difficulty in configuring the video game

[00:05:34] Speaker 00:
in a different way so that it can be updated.

[00:05:37] Speaker 00:
The way the background describes the prior art is not that video games were updated, it's that video games were produced.

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The way it worked was that every year a video game company would produce a new video game, and when they're making that video game, they have to select the parameters.

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that video game cannot, can't be updated so to speak.

[00:06:05] Speaker 02:
So this, the improvement here I understand is the updating, is it of a database or a table in order to update a particular character's statistics and or make that character to be a rising star, become more of a rising star in the video game, right?

[00:06:26] Speaker 00:
So it is difficult once the video game's been created and mailed and shipped out to the end user.

[00:06:34] Speaker 00:
It can't be updated.

[00:06:36] Speaker 00:
I mean, it's not that it's difficult.

[00:06:38] Speaker 00:
It's that it can't be done.

[00:06:39] Speaker 00:
Those video games, once they were shipped, they... You're saying in the prior art, it was not done.

[00:06:44] Speaker 00:
The prior art video games were not... There's no evidence on the record, at least, that those prior art video games were capable of... Where in your claim is the problem

[00:06:53] Speaker 02:
So where does it get into the technical discussion of how the problem of, you know, before games could not be updated, now you've come up with a solution so that games could be updated.

[00:07:04] Speaker 02:
Where is that in your claim other than more generally stating that it's going to be updated?

[00:07:11] Speaker 00:
Yeah, so the, I think you're referring, the general statement I think you're referring to is in the updating step in like lines 44 through 47-ish.

[00:07:23] Speaker 00:
So that is a desire for an end result.

[00:07:26] Speaker 04:
But where's this switch point?

[00:07:29] Speaker 00:
I'm referring the end.

[00:07:31] Speaker 00:
The result-oriented language in the claim is found in column 8, lines approximately 44 through 47 or 48.

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We would agree that that's an end result.

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In other words, you're saying that it says such that the particular video game character more closely simulate real-life performance attributes.

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But it's all the language that comes.

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There's approximately 30 lines or so above that.

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And there's meaningful elements of this claim, where you have, for instance, in the loading step, you have individual video game characters that are associated with the performance parameters.

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So when you use a series of parameters that change those characters,

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It's that combination of elements that creates the real life simulation.

[00:08:27] Speaker 02:
But the prior art had video game characters associated with particular real life sports athletes.

[00:08:35] Speaker 02:
Correct.

[00:08:35] Speaker 02:
That's in prior art.

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The point of novelty is updating those.

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It's the updating step.

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That's the point of novelty, as I understand it.

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And I'm wondering, please help me to understand what the technological improvement here is.

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more than just the general idea of updating the information about particular video game characters.

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So no, Your Honor.

[00:09:01] Speaker 00:
Respectfully, I would disagree that it's in the updating step that the improvement happens.

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It's claimed indirectly in the receiving step.

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But the receiving step is what defines what the parameter is.

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And so it says that the- Right.

[00:09:18] Speaker 03:
Let me just focus in the background.

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in column one.

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Correct.

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It says, this is all part of the prior arc.

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The video game characters have characteristics approximating their real life counterparts.

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The video game Shaquille may be very good at dunking the basketball, but horrible at shooting free throws.

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Parameters are stored on the video game medium that cause the different characters to replicate their real life counterparts performance.

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So even that seems to me to be saying

[00:09:51] Speaker 03:
that the internal organization of the video game is one that at least includes a set of parameters stored that say, Shaq does this, and LeBron does this other thing, and so on.

[00:10:08] Speaker 03:
So now, what is it that this claim is doing other than saying, update those parameters?

[00:10:14] Speaker 03:
So we get today's Shaq.

[00:10:17] Speaker 03:
Today's, probably not today's Shaq, but today's LeBron.

[00:10:20] Speaker 00:
So, Your Honor, if you look in column one, in lines, let's see, it's pro.

[00:10:35] Speaker 00:
It's line 26, Barry Bonds of the San Francisco baseball team had a home run average of 73 home runs during the 2001 season.

[00:10:46] Speaker 00:
And they're saying, this average can be used to set a video game parameter.

[00:10:49] Speaker 00:
So it's the season average.

[00:10:51] Speaker 00:
This language shows that it's the season average that shows what you used in those previous video games.

[00:11:00] Speaker 03:
And so our position is that- I thought I heard you suggesting earlier that it wasn't just that there is a database of parameters in the prior art

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and they're getting updated that this does more than that.

[00:11:18] Speaker 03:
This is actually somehow configuring the video game so that suddenly the parameters are structurally separate in the video game and therefore able to be changed without changing the rest.

[00:11:34] Speaker 03:
You don't need to redesign the whole video game.

[00:11:37] Speaker 03:
That's what it seems to me column one is running counter to.

[00:11:41] Speaker 00:
So, Your Honor, I see that I'm almost out of... I'd like to reserve some rebuttal time, but I really want to answer this question succinctly.

[00:11:50] Speaker 00:
An average statistic is not the same thing as a series of parameters.

[00:11:54] Speaker 00:
If you take a season average, which is what it says to do here in the background section, and you put that into a video game, you are stuck in the last season.

[00:12:04] Speaker 00:
The claims require

[00:12:06] Speaker 00:
a series of parameters for each character, a series of parameters that are based on different performances.

[00:12:13] Speaker 00:
And if you use a parameter like that, that's a very different parameter than a season average.

[00:12:18] Speaker 00:
And it produces a different result, one that solves the problem that was found in the prior article.

[00:12:24] Speaker 03:
Thank you.

[00:12:26] Speaker 03:
We have three and a half minutes left.

[00:12:33] Speaker 01:
Mr. Markford.

[00:12:34] Speaker 01:
James Markford, good morning.

[00:12:36] Speaker 01:
The problem with the patent here, looking at claim one, the representative claim and beyond, is that it lacks any detail showing a technological innovation, a change to the computer, computer itself, computer technology, software technology.

[00:12:56] Speaker 01:
It is simply a temporal patent that addresses providing updates that had been provided previously

[00:13:05] Speaker 01:
more frequently.

[00:13:07] Speaker 01:
If you go through the claims, there are no details whatsoever on the how, the thing that this court has identified as leading to abstract ideas in step one and the lack

[00:13:19] Speaker 01:
of inventive concept in step two.

[00:13:22] Speaker 02:
Can I interrupt you for one minute?

[00:13:23] Speaker 02:
I think this is a bit of an aside, but you had said that this had been done previously, though not as often as you think this patent might contemplate.

[00:13:34] Speaker 02:
That's not in the record before us on 12-26.

[00:13:37] Speaker 01:
Well, Your Honor, it is in the sense that the patent provides that annual updates of current performance statistics

[00:13:48] Speaker 01:
had been provided year over year in the prior art.

[00:13:53] Speaker 01:
So.

[00:13:53] Speaker 02:
Wasn't that by buying a new game?

[00:13:55] Speaker 02:
Or was it by downloading?

[00:13:56] Speaker 01:
It was.

[00:13:57] Speaker 01:
But in other words, the concept of updating using performance statistics.

[00:14:02] Speaker 02:
I had an or question.

[00:14:03] Speaker 02:
I said, is it by buying a new game or updating?

[00:14:06] Speaker 02:
And you said it was.

[00:14:07] Speaker 02:
Which one was it?

[00:14:07] Speaker 01:
Oh, OK.

[00:14:08] Speaker 01:
It was by buying a new game, yes.

[00:14:10] Speaker 01:
OK.

[00:14:10] Speaker 01:
But the concept was there.

[00:14:12] Speaker 01:
All we are saying now with the 575 patent is do that same

[00:14:18] Speaker 01:
function or do that same statistical change more frequently.

[00:14:24] Speaker 03:
But without... And deliver it differently?

[00:14:28] Speaker 01:
No, that's what's not in this patent.

[00:14:30] Speaker 01:
That's the problem here.

[00:14:31] Speaker 01:
There is no how.

[00:14:33] Speaker 01:
There's loading, receiving, transmitting.

[00:14:37] Speaker 01:
The parameters are not dynamic.

[00:14:39] Speaker 01:
They are described as data.

[00:14:42] Speaker 01:
So it is simply a data transferring mechanism

[00:14:46] Speaker 01:
with a direction to use a computer and the internet and provide it faster.

[00:14:52] Speaker 01:
But it is, in that sense, without the how, we don't have the advancement in the technology or the change in technology which is required to get this beyond the abstract and into an inventive concept.

[00:15:08] Speaker 04:
So presumably what you're saying is one of the ways this works is you have a baseball game, you have a particular player,

[00:15:15] Speaker 04:
Based on the previous season that player has a batting average for game purposes of 320 That's what you start with in April then the end of June the players not playing as well his current average is down now to 260 Something gets sent.

[00:15:36] Speaker 04:
Is that the idea?

[00:15:37] Speaker 01:
Well, apparently something gets sent.

[00:15:40] Speaker 04:
You know, it's not how you're saying the problem that

[00:15:42] Speaker 04:
That's the concept, but you're saying there's no indication here of how it's implemented.

[00:15:48] Speaker 01:
Right.

[00:15:48] Speaker 01:
The representative claim describes loading video game data, which includes rules and parameters, receiving updated parameters, and then updating the video game with updated parameters.

[00:16:01] Speaker 01:
The new parameters are recorded on a server, and a video game player can connect to the server.

[00:16:07] Speaker 01:
The video game machine itself is described as an ordinary computer.

[00:16:12] Speaker 01:
Now, there is nothing about configuration in this patent despite what counsel has argued.

[00:16:17] Speaker 01:
The claims say that the game medium is configured to cause the game machine to perform a method, including receiving updates.

[00:16:26] Speaker 01:
All of this is purely functional language with no indication of an improvement in computer-related

[00:16:34] Speaker 01:
technology and you're saying the claim it's purely functional and the specification doesn't provide the specification doesn't provide any additional detail it still talks about data uh... in fact in the district court council was invited to point to where in the specification there was a technological concept changing the computer itself or changing something about the software itself it's not there uh... the plant patent in fact

[00:17:04] Speaker 01:
doesn't claim anything dynamic.

[00:17:06] Speaker 01:
It claims parameters.

[00:17:08] Speaker 01:
And parameters in the patent are data.

[00:17:11] Speaker 01:
So there's nothing novel also about an updating process.

[00:17:16] Speaker 01:
Books get updated all the time.

[00:17:17] Speaker 01:
Treatises get updated all the time.

[00:17:20] Speaker 01:
The federal rules get updated all the time.

[00:17:22] Speaker 01:
And sometimes supplements come mid-year.

[00:17:25] Speaker 01:
So there is nothing novel about an updating process itself.

[00:17:30] Speaker 01:
What would be needed here is

[00:17:33] Speaker 01:
the change in computer technology that would push this information on an updated basis to the game user.

[00:17:41] Speaker 01:
That's what we're looking for and that's what's missing.

[00:17:44] Speaker 01:
That's the difference with the McRoe case where there was a specially defined set of rules that produced the change.

[00:17:52] Speaker 01:
You will search this patent in vain for any special rules that relate to computer, the computer itself or computer technology.

[00:18:01] Speaker 01:
What we end up with?

[00:18:04] Speaker 01:
is an abstract concept of sending, transmitting data more frequently using a computer, routine components, and no inventive concept attached to it, because there is no how on how all this is done using technology.

[00:18:26] Speaker 01:
Unless the court has further questions, we'll submit.

[00:18:30] Speaker 03:
Thank you very much.

[00:18:36] Speaker 03:
Mr. Hansen.

[00:18:44] Speaker 00:
So if my time is short, I'll be brief.

[00:18:46] Speaker 00:
The patent does, I just want to address the issue of whether the patent describes technical features that solve the problem.

[00:18:53] Speaker 00:
Figure 9 on appendix 111 describes the game engine, and there's text related to that.

[00:18:59] Speaker 00:
And figure 6, I believe it is, that has

[00:19:05] Speaker 00:
RAM with the parameters, shows the configuration of the parameters.

[00:19:10] Speaker 00:
These are elements of the patent that describe the features that they say are missing from the patent.

[00:19:20] Speaker 00:
I would like to, I think it's helpful to give somewhat of a hypothetical.

[00:19:27] Speaker 00:
If you were to take the background section, what it describes is the prior art being video games.

[00:19:32] Speaker 00:
and you were to add the internet to it.

[00:19:35] Speaker 00:
All you would get is a video game that had the previous season's average, and it would be accelerated.

[00:19:42] Speaker 00:
The game wouldn't function any differently.

[00:19:44] Speaker 00:
It would still be stuck in the past, and it would still lack the excitement of having a video game that represents real life.

[00:19:52] Speaker 00:
And I think even here today, EA, again, fails to address the performance parameter limitations.

[00:20:03] Speaker 00:
The claims actually recite specific features of those parameters, and those parameters are a rule, if you will, right?

[00:20:13] Speaker 00:
It's saying that the parameters are received during the season, that they're based on different performances of an athlete, and those features are taught nowhere in the background section of the patent.

[00:20:24] Speaker 02:
The concern is that, look, it might be a fantastic idea.

[00:20:29] Speaker 02:
the idea of updating these automatically instead of having to buy a new game every year.

[00:20:34] Speaker 02:
I think that's a fantastic idea.

[00:20:36] Speaker 02:
But what is the technological improvement that occurs?

[00:20:42] Speaker 02:
How is it more than just an idea?

[00:20:44] Speaker 02:
I'm going to now send downloads to make sure that the character is more current with what's happening in real time.

[00:20:53] Speaker 02:
How is that a technological advantage as opposed to just an abstract idea?

[00:20:58] Speaker 00:
Your Honor, you can even take out the downloading step or switch it to be a person doing it.

[00:21:04] Speaker 00:
That's not the solution to the problem.

[00:21:07] Speaker 00:
The solution is the parameters.

[00:21:09] Speaker 00:
And those parameters are particularly configured.

[00:21:12] Speaker 00:
The parameter is a component of the video game.

[00:21:16] Speaker 00:
It dictates how the video game works.

[00:21:19] Speaker 00:
And those are unique and novel and different in this case.

[00:21:27] Speaker 00:
I'd also like to just briefly cover the idea that updating a sports video game, that that's what the court held was an abstract idea, and that that isn't similar to any of the cases that this court has previously determined to be abstract or the Supreme Court.

[00:21:44] Speaker 00:
It's not related to information gathering or organizing behavior.

[00:21:52] Speaker 00:
And at the second step, I think the court

[00:21:56] Speaker 00:
erred in not addressing the performance parameter step just like they failed to do so in the first step with regard to abstract ideas.

[00:22:07] Speaker 00:
I see I'm out of time.

[00:22:08] Speaker 00:
Thank you.