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Game and Technology Co., Ltd. v. Wargaming Group Ltd.

United States Court of Appeals, Federal Circuit

November 19, 2019

GAME AND TECHNOLOGY CO., LTD., Appellant
v.
WARGAMING GROUP LIMITED, ACTIVISION BLIZZARD INC., Appellees

          Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2017-01082.

          Joseph J. Zito, DNL ZITO, Washington, DC, argued for appellant. Also represented by Richard Arthur Castellano.

          Harper Batts, Sheppard Mullin Richter & Hampton LLP, Palo Alto, CA, argued for all appellees. Appellee War-gaming Group Limited also represented by Christopher Scott Ponder, Jeffrey Liang.

          Sharon A. Israel, Shook, Hardy & Bacon, LLP, Houston, TX, for appellee Activision Blizzard Inc. Also represented by Tanya L. Chaney, David Morehan; John D. Garretson, Kansas City, MO.

          Before Dyk, Plager, and Stoll, Circuit Judges.

          Stoll, Circuit Judge.

         Game and Technology Co. (GAT) appeals the final written decision of the Patent Trial and Appeal Board, ruling that institution of inter partes review was not barred under 35 U.S.C. § 315(b) and that claims 1-7 of U.S. Patent No. 7, 682, 243 would have been obvious over the asserted prior art. Under the facts of this case, and as argued by the parties, the Board did not err in holding that petitioner Wargaming Group Ltd. was not properly "served with a complaint alleging infringement of the ['243] patent" more than one year before it filed its IPR petition. Accordingly, the IPR was not barred under § 315(b). Because substantial evidence supports the Board's determination that claims 1-7 of the '243 patent would have been obvious over the asserted prior art, we affirm.

         Background

         I

         The '243 patent discloses a "method and system for providing an online game, in which ability information of a unit associated with a pilot is enabled to change as ability information of the pilot changes." '243 patent col. 1 ll. 20- 25. The '243 patent admits that in the prior art, a gamer could control both a player character and a unit, but asserts that the player character and the unit would operate independently of one another. Id. at col. 1 ll. 37-48. Because they were independent, any increase in the ability of the player character would not translate to the unit, and vice versa. Id. at col. 1 ll. 48-55. The lack of a direct connection between the player character and its associated unit would decrease gamer convenience and interest in the game. Id. at col. 1 ll. 54-60.

         The '243 patent proposes to solve this problem by creating a system in which "a pilot and unit information associated with the pilot interoperate." Id. at col. 2 ll. 6-9. In one embodiment, a "sync point" of 0.8 represents the ratio by which a unit's "attack power" increases in response to a corresponding increase in the pilot's "brave points." Id. at col. 7 l. 63-col. 8 l. 1. Thus, if a pilot's brave points increase by ten, the attack power of its associated unit would increase by eight. Id. at col. 8 ll. 1-19.

         The specification expressly defines both "pilot" and "unit":

1) Pilot. A pilot used in the present specification is a player character representing a gamer who imports his/her feelings in a game to continue the game. The gamer may control motions of a unit through the pilot.
2) Unit. A unit used in the present specification is an object operated by a control of a gamer, and the unit may be an object for continuing a game substantially, for example, a robot character. The unit may be a target for the gamer to import his/her feelings. Also, a concept of item belonging to the gamer may be applied to the unit.

Id. at col. 3 ll. 6-17. The specification also states that "the present invention may further include . . . a pet unit that accompanies a robot unit as another unit of the pilot, and helps a game progress." Id. at col. 7 ll. 14-16. The ability information of the pet unit "may also interoperate with change of ability information of the pilot and change." Id. at col. 7 ll. 17-20.

         Claims 1-7 are at issue on appeal. Claim 1 is illustrative of the independent claims, including independent claims 6 and 7, and recites:

1. An online game providing [a] method for providing a pilot and a unit associated with the pilot at an online game, the method comprising the steps of:
controlling an online game such that a player can manipulate a pilot and a unit associated with said pilot, said pilot being a game character operated by a player, said pilot representing the player, said unit being a virtual object controlled by the player;
maintaining a unit information database, the unit information database recording unit information on said unit, in which the unit information includes ability of said unit and sync point information;
maintaining a pilot information database, the pilot information database recording pilot information on said pilot, in which the pilot information includes a unit identifier indicating said unit associated with said pilot, ability of said ...

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