Game and Technology Co., Ltd. v. Wargaming Group Ltd., Activision Blizzard Inc.
Docket Nos. 2019-1171 (IPR2017-01082)
DYK, PLAGER, STOLL
November 19, 2019
Brief Summary: IPR decision affirmed since GAT did not preserve proper service argument for appeal and GAT’s obviousness arguments did not address particular claim elements or the motivation to combine.
Summary: Gaming and Technology (GAT) appealed PTAB final written decision (FWD) finding that claims 1-17 of US 7,682,243 relating to online game systems would have been obvious in view of a US patent application (“Levine”) and the Dungeon & Dragons Player’s handbook (“D&D Handbook”). The FC panel first considered whether WG “was properly served with a complaint alleging infringement of the [‘243] patent’ more than one year before it filed is IPR petition” and was therefore “not barred under 315(b).” “The date one year prior to the filing date of WG’s IPR petition is March 13, 2016” and Wargamer.net was served on December 10, 2015; however, the summons “was not signed by the clerk of the court and did not bear the court’s seal.” WG’s attorney agreed to waive service but “[n]o formal waiver was filed with the district court”, and in April 2016 WG “filed a motion to dismiss for improper venue or alternatively for failure to state a claim.” WG filed its IPR petition on March 13, 2017, stating it was not barred or estopped from filing because it had not been served. GAT argued the missing signature/seal was a “procedural printing error” but the PTAB disagreed service had occurred (e.g., it has “no authority to overlook defects”, “no district court has deemed service to have occurred”, GAT counsel “sent the summons [to WG] and did not include a signed receipt”). The FC panel disagreed with the PTAB that it had “no authority to overlook defects” since it “must necessarily determine whether service…was properly effectuated” and “Section 315(b) does not define what it means to be ‘served with a complaint’”. However, the FC panel also found that GAT did not preserve “its specific arguments for why service was proper” for appeal because, e.g., it “did not develop these arguments in its opening brief” (Fresenius, FC 2009).
Regarding obviousness, the FC panel opinion explains that the ‘243 patent “proposes to solve [the] problem” that while “in the prior art, a gamer could control both a player character and a unit…the player character and the unit would not operate independently of one another” (“any increase in the ability of the player character would not translate to the unit, and vice versa”). The ‘243 patent defines the “unit” as “an object operated by control of a gamer” (e.g., “a robot character”) to which an “item” may belong. In its FWD, the PTAB concluded, e.g., that that the unit did not need to be any specific unit (e.g., “a robot or vehicle ‘on which a pilot rides’”) and the claims would have been obvious. GAT argued the cited art “cannot disclose all of the claim elements because the ‘claimed invention is directed to computer processes, not game rules or story lines” but the FC panel noted GAT did not argue the art lacked “a particular claim element or that there would be no motivation to combine” (Cohesive Techs., FC 2008) (“GAT’s argument misses the mark.”) The PTAB decision was therefore affirmed.