Obviousness in a Single Prior Art Instance: Game and Technology Co., LTD., v. Activision Blizzard INC., Riot Games, INC.

Published 06/27/2019 by CIONCA Team Member

Introduction

On June 21, 2019, the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) made a decision in Game and Technology Co., LTD., v. Activision Blizzard INC., Riot Games, INC. Game and Technology Co. (“GAT”) is the owner of U.S. Patent No. 8,253,743 (“the ‘743 patent”), titled “Method and System for Providing Character Having Game Item Functions.” The ‘743 patent “relates to the field of customizing Internet game characters in online games by combining game items with layers of an avatar in the game.” According to the ‘743 patent’s specifications, users would generate a gamvatar, which is an avatar consisting of layers that incorporates game functions or item functions. Thus, the ‘743 patent allows for customization of in-game avatars, along with the ability to perform game item-related actions. “Appellees Activision Blizzard Inc. and Riot Games, Inc. (collectively, “Activision”) sought inter partes review (“IPR”) of claims 1–11 (“the Challenged Claims”) of Appellant Game and Technology Co.’s (“GAT”) the ’743 patent.” The U.S. Patent and Trademark Office’s (“USPTO”) Patent Trial and Appeal Board (“PTAB”) issued that the Challenged Claims were “obvious based on the combined teachings” of the prior art. GAT appealed and the Federal Circuit has jurisdiction.

Decision

Per the standard of review, “the PTAB’s factual findings for substantial evidence and its legal conclusions de novo” were reviewed, and “‘substantial evidence is something less than the weight of the evidence but more than a mere scintilla of evidence,’ meaning that ‘[i]t is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” If it is found that “two inconsistent conclusions may reasonably be drawn from the evidence in record, the PTAB’s decision to favor one conclusion over the other is the epitome of a decision that must be sustained upon review for substantial evidence.” This evidence is determined based on the definition of a claim according to PTAB at the time, which is “[a] claim . . . its broadest reasonable construction in light of the specification of the patent in which it appears.”

First, GAT disputed the PTAB’s interpretation of their term gamvatar meaning avatar. GAT argues under the broadest reasonable interpretation (“BRI”) that their claim regarding the gamvatar is narrower than the PTAB’s construction. The Federal Circuit disagrees with GAT’s statements. The Challenged Claims describe the gamvatar as “an avatar combined with game item functions having characteristic,” which coincides with PTAB’s construction of the term.

Second, GAT argues the PTAB’s interpretation of their term layers. PTAB construed the term as “‘layers’ encompasses ‘graphics regions for displaying graphical objects’ and ‘constructs for holding graphics.’” However, GAT construes the meaning to be “graphics regions for displaying graphical objects” because “‘layers’ means ‘constructs’ for displaying graphical objects.” The Federal Circuit disagrees with GAT’s statements because of the “claim’s use of the term “comprising,” combined with the use of the disjunctive conjunction “or” supports the construction that “displaying” and “performing game functions” are two alternatives for layers.”

For the reasons above, the Federal Circuit affirms the USPTO and PTAB’s decision.

Conclusion

This decision determines that a single instance of obviousness based on prior art would be sufficient evidence for a patent to be invalidated if knowledge of said prior art could be led to obvious changes for obtaining the new claimed invention.

Full Game and Technology Co., LTD., v. Activision Blizzard INC., Riot Games, INC., decision can be read here: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1981.Opinion.6-21-2019.pdf

Disclaimer: The views and opinions expressed throughout this blog are the views and opinions of the individual author(s) and/or contributor(s) and do not necessarily reflect the views and opinions of our firm, CIONCA IP Law. P.C.

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