corrected principal brief (final)

2016-2286

WHITE KNUCKLE GAMING, LLC, a Utah limited liability company,

Plaintiff – Appellant,

—v.—

ELECTRONIC ARTS, INC., a Delaware corporation,

Defendant – Appellee.

Appeal from the United Stated District Court for the Northern Division of Utah in No. 1:15-cv-00150

Judge Jill N. Parrish

PLAINTIFF-APPELLANT WHITE KNUCKLE GAMING, LLC’S CORRECTED PRINCIPAL BRIEF

ANDREW S. HANSEN HANSEN IP, LLC 282 Maxine Circle Bountiful, Utah, 84010 Telephone: (801) 671-3621 DAVID A. JONES ALPINE IP, PLLC 3450 N Triumph Blvd., Suite 102 Lehi, Utah 84043 Telephone: (801) 631-3496

Attorneys for Plaintiff-Appellant

i

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

WHITE KNUCKLE GAMING, LLC v. ELECTRONIC ARTS, INC.

Appeal No. 16-2286

CERTIFICATE OF INTEREST The undersigned counsel certifies the following:

1. The full name of every party represented by the undersigned is: White Knuckle Gaming, LLC

2. The real party in interest represented by the undersigned is:

N/A

3. All parent companies and any publicly held companies that own 10 percent or more of the stock of the party represented by me are:

Voodoo Gaming, LLC

4. The names of all law firms and the partners or associates that appeared for the party now represented by the undersigned in the trial court or are expected to appear in this court are:

DATED: August 31, 2016 Respectfully submitted, By: /s/Andrew S. Hansen

ANDREW S HANSEN Attorneys for Plaintiff-Appellant

ANDREW S. HANSEN HANSEN IP, LLC 282 Maxine Circle Bountiful, Utah 84010 Telephone: (801) 671-3621

DAVID A. JONES ALPINE IP, PLLC 3450 N Triumph Blvd., Suite 102 Lehi, Utah 84043 Telephone: (801) 631-3496

ii

TABLE OF CONTENTS Page(s)

I. STATEMENT OF RELATED CASES ................................................ vi

II. STATEMENT OF JURISDICTION ..................................................... 1

III. STATEMENT OF THE ISSUE ............................................................ 1

IV. STATEMENT OF THE CASE .............................................................. 1

V. STATEMENT OF THE FACTS ........................................................... 2

VI. SUMMARY OF THE ARGUMENT ................................................... 10

VII. ARGUMENT ..................................................................................... 13

A. Standard of review ....................................................................... 13

B. Legal standard for § 101 .............................................................. 14

1. Patent-eligible subject matter ............................................... 14

2. Legal Framework ................................................................... 14

3. Issued Patents are presumed valid under § 101 ................... 16

C. The district court incorrectly found the claims of the ‘575 patent to be patent-ineligible ................................................................... 17

1. The ‘575 claims are patent eligible at step 1 of Alice because they are an improvement to computer functionality ............ 17

2. The claims are not abstract merely because the video games are updated using a computer ............................................... 22

3. There is no risk of preemption ............................................... 24

4. The district court failed to provide a proper rationale for why “updating a sports video game” fits within “abstract ideas” 25

5. The district court erred by using evidence of a “long standing business practice” to find the claims abstract ...................... 29

6. At step 2, the claims of the ‘575 patent includes additional elements that transform “updating a sports video game” into patentable subject matter ...................................................... 31

iii

VIII. CONCLUSION ................................................................................ 35

iv

TABLE OF AUTHORITIES Page(s)

CASES Alice Corp. Pty. Ltd. v. CLS Bank Int’l,

134 S. Ct. 2347 (2014) .................................................................... passim buySAFE, Inc. v. Google, Inc.,

765 F.3d 1350 (Fed. Cir. 2014) .............................................................. 24 Dealertrack, Inc. v. Huber,

674 F.3d 1315 (Fed. Cir. 2012) .............................................................. 13 Diamond v. Diehr,

450 U.S. 175 (1981) ................................................................................ 27 Digitech Image Techs., LLC v. Electrs. For Imaging, Inc.,

758 F.3d 1344 (Fed. Cir. 2014) .............................................................. 25 Elec. Power Grp., LLC v. Alstom S.A.,

No. 2015-1778, slip. op. (Fed. Cir. August 1, 2016) ........................ 14, 24 Enfish, LLC v. Microsoft Corp.,

822 F.3d 1327 (Fed. Cir. 2016) ...................................................... passim Funk Bros. Seed Co. v. Kalo Inoculant Co.,

333 U.S. 127 (1948) ................................................................................ 21 Gottschalk v. Benson,

409 U.S. 63, 93 S. Ct. 253 (1972) .......................................................... 25 In re Bergy,

596 F.2d 952 (CCPA 1979) .................................................................... 27 In re Toma,

575 F.2d 872 (CCPA 1978) .................................................................... 27 Intellectual Ventures I LLC v. Capital One Bank (USA),

792 F.3d 1363 (Fed. Cir. 2015) .............................................................. 24 Internet Patents Corp. v. Active Network, Inc.,

790 F.3d 1343 (Fed. Cir. 2015) .............................................................. 14 Laser Dynamics, Inc. v Quanta Computer, Inc.,

694 F.3d 51 (Fed. Cir. 2012) .................................................................. 12 Mayo Collaborative Servs. v. Prometheus Labs., Inc.,

132 S. Ct. 1289 (2012) ............................................................................ 13 Mortgage Grader, Inc. v. First Choice Loan Servs. Inc.,

811 F.3d 1314 (Fed Cir. 2016) ............................................................... 24 OIP Techs., Inc. v. Amazon.com, Inc.,

788 F.3d 1359 (Fed.Cir.2015) ................................................................ 24

v

Parker v. Flook, 437 U.S. 584, 98 S. Ct. 2522 (1978) ...................................................... 25

Research Corp. Techs., Inc. v. Microsoft Corp., 627 F.3d 859 (Fed. Cir. 2010) .................................................................. 9

Ultramercial Inc. v. Hulu, LLC, 772 F.3d 1335 (Fed. Cir. 2013) .............................................................. 19

Versata Development Group v. SAP America, Inc., 793 F.3d 1306 (Fed. Cir. 2015) .............................................................. 23

STATUTES 35 U.S.C § 101…………………………………………………………….passim

OTHER AUTHORITIES F. R. Civ. P. 12(b)(6)…………………………….……..……………….……1, 11

vi

I. STATEMENT OF RELATED CASES

In accordance with Federal Circuit Rule 47.5, counsel for Plaintiff-

Appellant White Knuckle Gaming, LLC states:

1. There are no, nor have there been, any other appeals in or

from this same civil action or proceeding in the lower court before this or

any other appellate court.

2. The patent-in-suit is the subject of a pending inter partes

review in Case No. IPR2016-00634.

1

II. STATEMENT OF JURISDICTION

The district court had jurisdiction under 28 U.S.C. §§ 1331 and

1338. On July 1, 2016, White Knuckle appealed from the final judgment

entered on June 7, 2016. Appx1. This Court has jurisdiction under 28

U.S.C. § 1295.

III. STATEMENT OF THE ISSUE

A single issue is presented for review: Did the district court err by

granting Electronic Arts, Inc.’s Motion to Dismiss based on its finding

that the claims of the patent-in-suit are patent-ineligible under the

abstract-ideas exception to patentability under 35 U.S.C. § 101.

IV. STATEMENT OF THE CASE

Plaintiff-appellant White Knuckle Gaming, LLC (“White Knuckle”),

filed this action for patent infringement against Electronic Arts, Inc.

(“EA”) on November 25, 2015. Appx15, Appx132. On January 5, 2016, EA

moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6),

arguing that the patent-in-suit did not cover patent-eligible subject

matter under 35 U.S.C. § 101. Appx12, Appx137, Appx142. On April 8,

2016, the district court held a hearing on EA’s motion. Appx301. On June

2, 2016, the district court issued an order granting EA’s motion. Appx10,

2

Appx2. The district court entered judgement on June 7, 2016. Appx12,

Appx1. This appeal timely followed on July 1, 2016. Appx7.

V. STATEMENT OF THE FACTS

The patent-in-suit, U.S. Patent No. 8,540,575 (the ’575 patent),

issued from an application filed on October 8, 2002, and is titled “Method

and System For Increased Realism in Video Games.” Appx101. White

Knuckle Gaming, LLC, based in Utah, is the original assignee.

The ’575 patent deals with an improvement to the realism of video

game characters in sports video games—namely giving the video game

characters dynamic performance characteristics.

As described in the ’575 patent, conventional video games have

static video game player performance parameters that are based on an

average of the previous season’ real-life athletic performances. The ‘575

patent states:

Video game producers typically produce professional sports video games once per year. The performance parameters and visual aspects are typically specified based on the most recent year. For example, Barry Bonds of the San Francisco Giants baseball team had a homerun average of (73 homeruns)/(476 at bats):15.3 percent during the 2001 season. This average can be used to set a video game parameter so that the video

3

game character Barry Bonds has a similar tendency to hit homeruns. Appx117, col. 1, lines 23–26.

In contrast, the ‘575 patent describes the present invention as

providing dynamic video game character performance parameters that

are actively updated according to the ‘575 patent during an athletic sport

season using real-life performance data. As stated in the ‘575 patent,

“[i]nstead of playing with last season’s teams, video gamers get a

simulation of fresh new events of the week, day, or hour.” Appx117, col.

2, lines 24–26.

The ‘575 patent recognizes that performance characteristics of real

life sports players “change throughout the year”; “athletes’ performances

change over the course of a season, or even a day.” Id. at col. 1, lines 42–

44 and 63–64. The ‘575 patent teaches a sports video game that “matches

the professional sport performance characteristics.” The ‘575 patent

includes a system and method for “changing the parameters of the video

game.” Id. col. 2, lines 11–12. “As events occur in the real-world that may

influence a game attribute, a parameter is recorded on a server. A video

game player may connect to the server and download the parameter. The

4

parameter is stored by the video game and changes an attribute of the

video game.” Id. at 12–16.

Originally drafting and filing the patent application pro se, the

inventor of the ‘575 patent, Mr. Angelopoulos (“Tom”), recognized the

previous problems with programing the sports video game characters

using the previous year’s averages—namely video game characters

programed with prior season averages lack the dynamically

unpredictable nature of real life. Id. at col. 5, lines 14–18. Tom lamented

in the ‘575 patent that the “dichotomy between video game and real life

is frustrating to many video game players.” Id. Moreover, in real life,

teams and players frequently perform differently than their statistical

average. Indeed, athletic performances that differ from the previous

statistical averages create enormous excitement in sports. Athletes and

teams that defy the statistics are said to have caused “an upset,” be

“religiously” followed as an “underdog,” or even later referred to as a

“miracle.” The possibility and frequency with which upsets occur in real-

life sports based on the variations athletic performance is significant and

provides a deep-rooted reason for fans to follow and watch these ongoing

real-life athletic performances which was recognized by Tom as having

5

particular relevance to the ‘575 patent’s continuous updates to the sports

video game characters.

The description and claims of the ‘575 patent do more than simply

disclose the idea of a dynamic video game. The ‘575 patent also recites

software structures and hardware configurations that enable, for the first

time, dynamic video game characters. The patent describes recording

data on a server of a sports related “historical event.” Appx117, col. 1,

lines 64-64. Examples of events include “World Cup soccer game” or an

“American football game.” Id. at lines 58–60. The data represents

performance attributes of an athlete, such as “quarterback’s completion

percentage, a basketball player’s freethrow[sic] percentage, or any other

outcome of a realistic event.” Appx117-118, col. 2, line 66 – col. 3, line 3.

The data is recorded on a network server, the video game machine

downloads the data from the server, and the data is used in the video

game to “more accurately simulate[] the real world.” Id. “This makes the

video game more enjoyable to the user, adding increased realism. As real

life professional players’ performances change, users can still play with

statistically accurate players.” Id., col. 3, lines 8–14.

6

Figure 3 (reproduced below) is a block diagram that shows a video

game system configured to provide dynamic video game characters.

The data server 82 directly coordinates and stores “new statistical

results or parameters” for use in the video game. Appx118, col. 3, lines

US. Patent Sep. 24, 2013 Sheet 3 0f 14 US 8,540,575 B2

Fig. 3

Data 82

Sarver

85

Network

/ 107 Modem

I03

/ / 90 Game Medium Video Game

(c.g., CD, Machine User Interface DVD,

Cartridge)

87

99 - 95 Local

memory

APPX105

7

55–59. As Tom explained when he originally drafted and filed the patent

application in 2002, “[w]hen a real professional athlete changes a

performance rating, the changed performance rating can be stored on the

data server 82.” Id. “The changed statistic may be stored as the actual

number that the statistic represents…or may be stored on the data server

as a parameter of a video game.” “The parameter can then be used to

effect[sic] how the video game character interacts with the video game

environment.” Id. at col. 3, line 64 – col. 4, line 6.

Tom’s Patent describes playing the video game from the “game

medium 103” and an updated “parameter” downloaded from the network.

Appx118, col. 4, lines 7–29. Importantly, the “game medium” and the

“parameter” stored on the data server 82 are two different components of

the system. The flow diagrams shown in Figures 7–14 (Appx109–116)

and accompanying text further illustrate this innovation. Figure 8

(Appx110) shows a scenario where the video game allows the user to

manually, and easily, select whether to use (or not use) updated

parameters as a feature of the video game. In contrast, Figure 9

(Appx111) illustrates an embodiment where the video game

automatically requests the updated data. Either way, the video game

8

itself is originally configured to receive the updated parameters by

forming a direct connection with the data server, requesting the

parameter stored on the server, receiving the performance parameter

from the server, and using that parameter to change how a video game

character performs in the video game. Appx119, col. 5, line 40 – col. 6,

line 13.

The claims of the ‘575 patent are explicitly directed to the dynamic

video game character feature previously disclosed and claimed. Claim 1

is reproduced below.

1. A game medium configured to provide a sports video game in conjunction with a video game machine, the sports video game including video game rules and video game character parameters, the video game character parameters including video game character performance parameters associated with individual video game characters, the game medium being configured to cause the video game machine to perform a method comprising:

loading video game data stored by the game medium into a random access memory of the video game machine for playing the video game, the video game data including the video game rules and a particular video game character performance parameter associated with a particular individual video game character associated with a particular real-life sports athlete, wherein the particular video game

9

performance parameter is based at least in part on a real-life performance of the particular real-life sports athlete playing in one or more real-life sporting events, the particular video game character performance parameter affecting the manner in which the particular individual video game character performs in the sports video game; during a single sports season, receiving a series of updated video game character performance parameters from a data server via a network including the Internet, wherein each of the updated video game character performance parameters in the series is based at least in part on one or more different real-life performances of the particular real-life sports athlete in one or more sporting events performed during the single sports season; updating the sports video game with each of the updated video game character performance parameters received, wherein each update changes the manner in which the particular individual video game character performs in the sports video game such that the particular individual video game character more closely simulates real-life performance attributes of the particular real-life athlete in the sports video game; and enabling a user to control the particular individual video game character in the sports video game using a video game controller connected to the video game machine. Appx120.

10

The claims require a video game with instructions for “receiving a

series of updated video game character performance parameters” that are

“based at least in part on one or more different real-life performances”

and then “updating the sports video game” so that the character “more

closely simulates real-life performance attributes.” The video game is

stored on a game medium and executed on a video game machine with

simple and direct server coordination.

VI. SUMMARY OF THE ARGUMENT

The district court erred in ruling that the sports video games

claimed in the ‘575 patent are directed to a patent-ineligible abstract

idea. The Supreme Court and this Court recognize that patent claims

that “improve the functioning of the computer itself,” or “effect an

improvement in any other technology or technical field” rarely fall afoul

of § 101 for abstractness. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S.

Ct. 2347, 2359 (2014); Research Corp. Techs., Inc. v. Microsoft Corp., 627

F.3d 859, 869 (Fed. Cir. 2010) (“[I]nventions with specific applications or

improvements to technologies in the marketplace are not likely to be so

abstract that they override the statutory language and framework of the

Patent Act.”). The claims of the ‘575 patent are not abstract because they

11

“effect an improvement” in the particular technical field of sports video

games.

The ‘575 Patent claims cover a tangible computer-implemented

invention (a sports video game with dynamic video game characters).

This video game improves the “realism” of the video game characters by

specifically designed coordination using “a series of video game

performance parameters.” Appx117, col. 2, lines 11–26. The parameters

are based on current real-life performance data from real-life athletes.

Appx118, col. 3, lines 55–59. Consequently, the video game parameters

change unpredictably throughout a season just like real sports players

perform unpredictably throughout a sports season. See Appx117, col. 2,

lines 11–26.

In contrast, prior to the ‘575 patent conventional sports video games

were static. They had characters whose parameters were an “average” of

the previous season performances and whose parameters did not change

throughout the current season. Id. col. 1, lines 22-33. Tom recognized

that the inconsistency between player performance in conventional video

games and those of current real-life performances is “frustrating to many

12

video game players.” Appx119, col. 5, lines 17-18. The video games

described and claimed in the ‘575 patent solve this problem.

To overcome the static nature of conventional sports video games,

the claims of the ‘575 patent require a sports video game configured to

“receiv[e] a series of updated video game performance parameters” from

the “data server” and use the parameters to change “the manner in which

the particular individual video game character performs in the sports

video game”, and then “enabling a user to control the particular

individual video game character” with the new feature in it. Id. at lines

33–52. “Instead of playing with last season’s teams, video gamers get a

simulation of the fresh new events of the week, day, or hour.” Appx117,

col. 2, lines 24–26.

Because the claims of the ‘575 patent “effect an improvement” in

the technical field of sports video games, the claims are not abstract. As

such, the district court’s ruling should be reversed because the district

court failed to support a proper detailed rationale as to how “updating as

sports video game” fits within “abstract ideas” exclusion to patentable

subject matter in the first instance. “Updating sports video games” is not

13

generically abstract and is not categorically akin to any of the inventions

previously found abstract by this court.

Even if this Court accepts the district court’s characterization of the

invention (i.e., the concept of “updating sports video games”), reversal is

still warranted as the claimed sports video game innovations are an

inventive concept that amounts to “significantly more” than broadly

“updating the software of sports video games.” Thus, the district court

also erred by summarizing the invention claimed by the ‘575 patent too

broadly thereby failing to discuss the lack of preemption associated

therewith as the hallmark purpose for the exceptions to patentable

subject matter.

VII. ARGUMENT

A. Standard of review

This Court reviews determinations of patent eligibility under 35

U.S.C. § 101 de novo. Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1334

(Fed. Cir. 2016). For issues not unique to patent law, this Court applies

the law of the regional circuit where this appeal would otherwise lie, in

this case the Tenth Circuit. Laser Dynamics, Inc. v Quanta Computer,

Inc., 694 F.3d 51, 66 (Fed. Cir. 2012). A district court’s dismissal under

14

Fed. R. Civ. P. 12(b)(6) is reviewed de novo. Casanova v Ulibarri, 595

F.3d 1120, 1124 (10th Cir. 2010).

B. Legal standard for § 101

1. Patent-eligible subject matter

According to 35 U.S.C. § 101, “[w]hoever invents or discovers any

new and useful process, machine, manufacture, or composition of matter,

or any new and useful improvement thereof, may obtain a patent

therefor, subject to the conditions and requirements of this title.” (July

19, 1952, ch. 950, 66 Stat. 797). The judicially recognized exceptions from

this provision are for “[l]aws of nature, natural phenomena, and abstract

ideas.”Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2354

(2014).

2. Legal Framework

The rationale behind the exceptions to broad patentability under §

101 is “one of pre-emption,” namely a “concern that patent law not inhibit

further discovery by improperly tying up the future use of these building

blocks of human ingenuity.” Id. (quotation marks omitted). However,

courts must “tread carefully in construing this exclusionary principle less

it swallow all of patent law.” Id. Thus, “for abstractness to invalidate a

claim it must ‘exhibit itself so manifestly as to override the broad

15

statutory categories of eligible subject matter and the statutory context

that directs primary attention on the patentability criteria of the rest of

the Patent Act.’” Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333 (Fed.

Cir. 2012) (quoting Research Corp. Techs., Inc. v. Microsoft Corp., 627

F.3d 859, 868 (Fed. Cir. 2010) (emphasis added).

The Supreme Court has established a two-part test for determining

patent eligibility. Alice, 134 S. Ct. at 2355. Step one asks whether the

claim is “directed to one of [the] patent-ineligible concepts.” Id. If the

answer is no, the inquiry is over: the claim is patentable subject matter

within the ambit of § 101.

However, if the answer to the first question is yes—that the claim

is directed to one of the patent ineligible concepts—the inquiry again

moves to step two in favor of recognizing patentable subject matter. Step

two further asks whether “additional elements ‘transform the nature of

the claim’ into a patent-eligible application.” Id. (quoting Mayo

Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293,

1297 (2012).

The Supreme Court’s formulation makes clear that the first-stage

filter is a meaningful one. Alice, 134 S. Ct. at 2355; see Enfish, 822 F.3d

16

at 1335. This Court has described the first-stage inquiry as “looking at

the ‘focus’ of the claims, their ‘character as a whole,’ and the second-stage

inquiry (where reached) as looking more precisely at what the claim

elements add - specifically, whether, in the Supreme Court’s terms, they

identify an ‘inventive concept’ in the application of the ineligible matter

to which (by assumption at stage two) the claim is directed.” Elec. Power

Grp., LLC v. Alstom S.A., No. 2015-1778, slip. op. at 6 (Fed. Cir. August

1, 2016) (citing Enfish, 822 F.3d at 1335–36; Internet Patents Corp. v.

Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)); cf. Bascom

Global Internet Servs., Inc. v. AT&T Mobility LLC, No. 2015-1763, 2016

WL 3514158, at *5 (Fed. Cir. June 27, 2016) (“basic thrust”).

3. Issued Patents are presumed valid under § 101

An issued patent, such as the patent-in-suit, is entitled to a

presumption of validity that applies to § 101 challenges, placing a heavy

burden on the party alleging that claims are patent-ineligible. CLS Bank

Int’l v. Alice Corp. Pty. Ltd., 717 F.3d 1269, 1284 (Fed. Cir. 2013) (Lourie,

J., concurring, joined by Dyk, Prost, Reyna, Wallach, JJ.) (“[A]s with

obviousness and enablement, that presumption [of validity] applies when

§101 is raised as a basis for invalidity in district court proceedings.”); Id.

17

at 1304–05 (Rader, J., concurring-in-part and dissenting-in-part, joined

by Linn, Moore, O’Malley, JJ.) (“Because we believe the presumption of

validity applies to all challenges to patentability, including those under

Section 101 and the exceptions thereto, we find that any attack on an

issued patent based on a challenge to the eligibility of the subject matter

must be proven by clear and convincing evidence.”).

C. The district court incorrectly found the claims of the ‘575 patent to be patent-ineligible

1. The ‘575 claims are patent eligible at step 1 of Alice because they are an improvement to computer functionality

According to this court in Enfish, “[s]oftware can make non-abstract

improvements to computer technology.” Enfish, 822 F.3d 1327 at 1335.

When analyzing computer related technologies, the court must ask

“whether the focus of the claims is on the specific asserted improvement

in computer capabilities … or, instead, on a process that qualifies as an

“abstract idea” for which computers are invoked merely as a tool.” Id. at

1336. The claims in this case are directed to a particular improvement to

sports video game technology—namely a sports video game with dynamic

video game character performance parameters.

18

The essence of the claimed invention is a sports video game with

dynamic video game character performance parameters. Claim 1 begins

by reciting, “a game medium configured to provide a sports video game

in conjunction with a video game machine.” Appx120. The game medium

is “configured to cause the video game machine to perform a method

comprising” 1. “loading video game data…into [RAM]…,” 2. “during a

single sports season, receiv[e] a series of updated video game character

performance parameters from a data server…,” 3. “updat[e] the sports

video game with each of the updated video game character performance

parameters received…,” and 4. “enabl[e] a user to control … the video

game character...” Id.

The claimed sports video game is “dynamic” because from the time

it is created has instructions for “receiving a series of updated video game

character performance parameters” that are based on “different real-life

performances … performed during the single sports season.” Appx117,

col. 2, lines 11–26; Appx120, col. 8, lines 33–35. Importantly, the video

game itself is configured to obtain the updated performance parameters,

which allows the parameter to change dynamically (e.g., monthly,

weekly, or daily) during the season using data that was generated

19

“during the season.” Id. Instead of playing with the previous season

averages, the video game player can continuously control video game

characters that accurately reflect what the video game player recognizes

from rea-life competition. Appx117, col. 2, lines 22–26.

The specification unequivocally identifies the static aspect of video

games as the problem with conventional video games: “A problem with

this system is that the performance parameters and visual aspects of a

video game are fixed at the time the video game is produced.” The

background section concludes with, “[t]he problem remains that visual

aspects and performance characteristics of real-life sports players, teams

and environments change throughout the year.” The invention of the ‘575

patent solves that problem by configuring the video game itself to receive

a series of updated performance parameters.

To achieve the dynamic video game characters, the claims require

storing a specific data structure on the server, namely a “video game

character performance parameter” based on real-life athletic

performances. Appx120, col. 8, lines 33–39. In addition, the claims

require using the data structure in specific ways, such as having

instructions for “receiving a series of updated video game performance

20

parameters” from the “data server” and using the parameters to change

“the manner in which the particular individual video game character

performs in the sports video game”, and then “enabling a user to control

the particular individual video game character” with the new feature in

it. Id. at lines 33–52.

Similar to Enfish, the video game machine and the video game

software claimed by the ‘575 patent are not “invoked merely as a tool” to

accomplish an abstract idea of “updating software.” Enfish, 822 F.3d at

1336. Rather, the improvement to the sports video game exists in the

video game itself and requires the specific direct coordination with the

online sever. The server is used with the “series of updated video game

parameters” to create a new sports video game feature, namely dynamic

video game video characters, that increases the “realism” of the sports

video game,” and solves the problem in the art related to static video

games, which are out of sync with the real world. Appx117, col. 2, lines

22–26.

The “increased realism” created by the claimed invention does not

come from simply having a server do something that was previously done

manually. There is no customary practice of manually updating

21

simulated sports video game character performance parameters

throughout a sport season using real-life character performance

parameters. Quite the contrary, the evidence shows that sports video

games were updated yearly using “the previous season statistics” (i.e.,

the customary practice was a static sports video game). Consequently,

the use of the server is not merely an automation tool “at task” to

accomplish a previously manually performed activity. Rather, the server

is part of a unique computing system that provides a new feature—

namely video game characters that “simulat[e] the fresh new events of

the week, day, or hour.” Id. lines 25–26.

The claims of the ‘575 patent are not abstract since they are an

improvement to a computer-related technology (i.e., provide increased

realism and dynamic video game characters), they recite specific

structure that solves the problem with static video games, and the claims

do not use the computer as a “tool” to circumvent an otherwise abstract

idea. Enfish, 822 F.3d at 1336.

The district court’s characterization of the claim as merely

“updating sports video game software” improperly strips the claim of the

features that provide the solution to the technical problem (e.g., the series

22

of performance parameters) and is thus incorrect. The district court has

gone “hunting for abstractions by ignoring the concrete, palpable,

tangible limitations of the invention the patentee actually claims,” which

this Court has held cannot be done. Ultramercial Inc. v. Hulu, LLC, 772

F.3d 1335, 1344 (Fed. Cir. 2013).

2. The claims are not abstract merely because the video games are updated using a computer

In Enfish this court held, there is “no reason to conclude [from Alice]

that all claims directed to improvements in computer-related technology,

including those directed to software, are abstract and necessarily

analyzed at the second step of Alice.” Enfish, 822 F.3d at 1335.

Nevertheless, the district court concluded just that by using

nothing more than statements about conventional computers to find the

claims abstract. According to the district court, the patent claims are

abstract because they are directed toward “a simple internet based

method of updating the software of sports video game,” which “is

performed on a conventional computer, server, and network.” Appx6. In

making its determination, the district court cites Alice: “the prohibition

against patenting abstract ideas cannot be circumvented by attempting

23

to limit the use of the [abstract idea] to a particular technological

environment.” Appx7 citing Alice, 134 S. Ct. at 2358.

The district court clearly misapplied Alice by confusing the

rationale from the second step (prohibition on adding a computer to

circumvent an abstract idea) to support a finding of abstractness in the

first step. Relying on Alice, the district court found the claims “abstract”

at step 1 without actually identifying how the claims are categorically

abstract as based on a generic technological foundation. In short, the

district court skipped the first step. And, that rationale is contrary to

Enfish which held “[w]e do not read Alice to broadly hold that all

improvements in computer-related technology are inherently abstract.”

Enfish, 822 F.3d at 1335.

Without the correct interpretation of Alice, the district court’s

rationale for patent-ineligibility remains to be overturned. As discussed

above, the claims are not abstract because they “improve the functioning

of the computer itself,” or “improve an existing technological process”

which this court has found to render the claims patent eligible. Enfish,

822 F.3d at 1335, citing Alice 134 S. Ct. at 2358-59.

24

3. There is no risk of preemption

The justification for judicially created exceptions to § 101 is that

patent claims should not preempt the fundamental tools of discovery that

must remain “free to all … and reserved exclusively to none.” Funk Bros.

Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948). The ‘575 patent

poses no risk of preempting a cornerstone of software or computer-related

updates. The sports video games with dynamic video game character

performance parameters recited in the claims of the ‘575 patent require

specific data structures in the computer executable instructions,

including instructions for “receiving a series of video game character

performance parameters from a data server.” Appx120, col. 8, lines 33–

35. These data structures are specific to creating dynamic video game

characters using a server in coordination with a video game machine. Id.

There are many software components that may be updated as

generalized by the district court. For instance, software is often updated

to fix bugs, improve stability, or add new features to the video game.

Indeed, the defendant, EA, continues to provide the traditional annual

updates to its NBA Live sports video games despite including the

allegedly infringing dynamic video game character parameters. Appx134

25

(defendant has sold NBA live 14, 15, and 16, all of which include “Live

Seasons” technology which patent owner White Knuckle has accused of

infringing the ‘575 patent). Defendant’s continued use of yearly updates

in combination with “Live Seasons” is evidence that the yearly updates

of conventional computers serve a different purpose than the updated

performance parameters of the claimed invention. Rather, the claimed

invention does not preempt “updating sports video game software” using

periodic re-releases of the video games that EA Sports has always

produced. The ‘575 patent merely obligates EA Sports to recognize Tom’s

particular contribution to sports video game technology. Because there is

no risk of preemption, the district court erred by finding “updating sports

video games” to be abstract.

4. The district court failed to provide a proper rationale for why “updating a sports video game” fits within “abstract ideas”

As the Federal Circuit summarized in its en banc plurality decision

in CLS Bank, the “preliminary question in applying the exceptions to [§

101] is whether the claim raises § 101 abstractness concerns at all. Does

the claim pose any risk of preempting an abstract idea? In most cases,

the answer plainly will be no.” CLS Bank Int’l v. Alice Corp. Pty. Ltd.,

26

717 F.3d 1269, 1282 (Fed. Cir. 2013 (en banc), aff’d 134 S. Ct. 2347 (2014).

However, the ‘575 patent is not an example of where the claims are

simply directed to “updating a sports video game” or “re-writing software”

as the district court found.

As explained in Enfish, “The Supreme Court has not established a

definitive rule to determine what constitutes an ‘abstract idea’ sufficient

to satisfy the first step of the May/Alice inquiry. Enfish, 822 F.3d at 1334

citing Alice, 134 S. Ct. at 2355 (2014). “Rather, both this court [the

Federal Circuit] and the Supreme Court have found it sufficient to

compare claims at issue to those claims already found to be directed to

an abstract idea in previous cases.” Id.

The concepts of “updating a sports video game” and “re-writing

software” are nothing like the abstract ideas that courts have found

patent-ineligible. See Alice, 134 S. Ct. at 2358–60; Versata Development

Group v. SAP America, Inc., 793 F.3d 1306, 1333-34 (Fed. Cir. 2015)

(abstract idea of determining a price using organization and product

group hierarchies”); see also Mortgage Grader, Inc. v. First Choice Loan

Servs. Inc., 811 F.3d 1314, 1324–25 (Fed Cir. 2016) (claims attaching

generic computer components to perform “anonymous loan shopping” not

27

patent eligible); Intellectual Ventures I LLC v. Capital One Bank (USA),

792 F.3d 1363, 1367–69 (Fed. Cir. 2015) (claims adding generic computer

components to financial budgeting); OIP Techs., Inc. v. Amazon.com, Inc.,

788 F.3d 1359, 1362–64 (Fed.Cir.2015), (claims implementing offer-based

price optimization using conventional computer activities);

Ultramericial, Inc. v. Hulu, LLC, 772 F.3d 709, 714–17 (Fed. Cir. 2014)

(claims applying an exchange of advertising for copyrighted content to

the Internet); buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1354–55 (Fed.

Cir. 2014) (claims adding generic computer functionality to the formation

of guaranteed contractual relationships); Elec. Power Grp., LLC v. Alstom

S.A., No. 2015-1778, slip. op. at 5 (Fed. Cir. August 1, 2016) (claims

adding generic computer to “monitoring and analyzing”). And unlike the

claims here that are directed to specific improvement to computer

functionality, the patent-ineligible claims at issue in other cases recited

use of abstract mathematical formula on any general purpose computer,

see Gottschalk v. Benson, 409 U.S. 63, 93 S. Ct. 253 (1972), see also Alice,

134 S. Ct. at 2357–58, or recited purely conventional computer

implementation of a mathematical formula, see Parker v. Flook, 437 U.S.

584, 594, 98 S. Ct. 2522, 57 L.Ed.2d 451 (1978); see also Alice,134 S. Ct.

28

at 2358, or recited generalized steps to be performed on a computer using

conventional computer activity, see Internet Patents, 790 F.3d at 1348–

49 (claims directed to abstract idea of maintaining computer state

without recitation of specific activity used to generate that result),

Digitech Image Techs., LLC v. Electrs. For Imaging, Inc., 758 F.3d 1344,

1351 (Fed. Cir. 2014) (claims directed to abstract idea of “organizing

information through mathematical correlations” with recitation of only

generic gathering and processing activities).

The present claims do not involve, nor does the district court find

the claims to involve, anything similar to the abstract ideas previously

identified by the courts. The court has erred in finding a new category of

abstract ideas, “updating sports video game software.” The sports video

games that form the subject matter of the ‘575 patent do not present “a

situation where general-purpose computer components are added post-

hoc to a fundamental economic practice or mathematical equation.”

Enfish, 822 F.3d at 1339. Accordingly, “updating video game software” is

not generically abstract as found by the district court.

29

5. The district court erred by using evidence of a “long standing business practice” to find the claims abstract

The district court finds the claims abstract because the patent

claims are directed to “a longstanding business practice” and “do nothing

more than recite the performance of a long-established business

practice.” Appx6. The district court’s use of a “long-established business

practice” is clear error because the business practices are not economic in

nature and therefore lack the “abstraction” that forms the basis of the

abstract ideas exclusion. Rather, the district court’s reliance on “long-

established business practice” is erroneous founded on a lack of novelty.

Questions of novelty, usefulness, and customary business practices

are not relevant to the fundamental question of abstractness. As held by

the Supreme Court in Diamond v. Diehr, “[t]he question … of whether a

particular invention is novel is ‘wholly apart from whether the invention

falls into a category of statutory subject matter.’” 450 U.S. 175 (1981)

quoting In re Bergy, 596 F.2d 952, 961 (CCPA 1979). “Section 101 states

three requirements: novelty, utility, and statutory subject matter. The

understanding that these three requirements are separate and distinct

is long-standing and has been universally accepted.” In re Bergy, 596 F.2d

30

at 956 (emphasis in original). “The text writers are all in accord and treat

these requirements under separate chapters and headings.” Id. (citations

omitted). Similarly, this Court in In re Toma held that the inquiry under

§ 101 is not focused on “whether the claimed subject matter is presently

perceived to be an improvement over the prior art.” 575 F.2d 872 (CCPA

1978).

Importantly, Diehr (and thus In re Bergy) and Toma are still good

law. There is nothing in Alice that is inconsistent with these cases. The

issue in Alice and its progeny relates to determining the scope of the

claimed concept. However, once a court determines the claimed concept,

the court must still answer the fundamental question: Is the claimed

concept abstract? And that question, unlike determining the scope of the

claimed concept, is not answered by looking at whether the claimed

concept is “an improvement over the prior art.” The case law has long

prohibited taking such an approach.

Indeed, given the liberty the courts now have to ignore certain claim

elements in a § 101 analysis, it is even more important, post-Alice, to

safeguard the bedrock legal principles that limit the law of abstract ideas

to only those categories of ideas that are truly abstract, such as

31

inventions directed to fundamental economic practices or organizing

relationships between people. Discarding cases such as In re Bergy and

In re Toma would only bring more uncertainty to an unsettled area of the

law and undermine the patent system and its benefits. Given the

Supreme Court’s mandate to “tread carefully in construing th[e]

exclusionary principle [of § 101] lest it swallow all of patent law,” this

court should not expand the fundamental abstraction inquiry to consider

mere “known business practices.” Alice, 134 S. Ct. at 2354.

6. At step 2, the claims of the ‘575 patent includes additional elements that transform “updating a sports video game” into patentable subject matter

As explained above, the claims of the ‘575 patent are not directed to

an abstract idea, and the district court’s judgment may be reversed on

that basis alone. Furthermore, at step two of the patent-eligibility

framework, the claims recite inventive concepts, providing another

independent ground for reversal.

In evaluating whether there is an “inventive concept” in a claim,

courts must “consider the elements of each claim … to determine whether

the additional elements ‘transform the nature of the claim’ into a patent-

eligible application.’” Alice, 134 S. Ct. at 2355 quoting Mayo Collaborative

32

Servs., 132 S. Ct. 1289, 1293, 1297 (2012). The inquiry looks to the

presence of “an element or combination of elements that is ‘sufficient to

ensure that the patent in practice amounts to significantly more than a

patent upon [ineligible concept] itself.’” (modification in original). An

element or combination of elements is not an inventive concept if it

“amounts to a mere instruction to ‘implement’ an abstract idea ‘on a

computer’” or simply to “apply it.” Id. at 2538.

The district court should be reversed on the grounds that the claims

include substantially more than “updating a sports video game” and are

therefore patent eligible. The issues discussed above, with regard to

“improvements to computer functionality” and the lack of “preemption”

apply here for determining whether the claims include something

substantially more than “updating video game software.”

As discussed, the claims of the ‘575 patent solve an important

specific technical problem with regard to sports video games which is that

the player performance parameters of conventional video games are

designed to be statically at rest as opposed to moving dynamically. See

Appx117, col. 1, lines 22–44. With conventional games, yearly releases of

sports video games use the average performance of the real life athletes

33

from the previous season, which results in video game players that do not

perform same as the current real life players, which “frustrates video

game players.” Appx117, col. 1, lines 23–44; Appx119, col. 4, line 64 – col.

5, line 18.

The claims “add substantially more” than “updating sports video

games” because the claims require a video game configured to “receiv[e]

a series of video game character performance parameters from a data

server” “based … [on] different real-life performances of the particular

real-life sports athlete in one or more sporting events performed during

the single sports season” Appx120, col. 8, lines 33–40. These data

structures are specific to creating dynamic video game characters and

result in a video game with “increased realism.”

There is no evidence of any sports video games updated with “a

series of updated player performance parameters” based on “different”

real-life player performances from a “single sports season.” These

claimed features are not conventional nor are they “well known” like the

“general purpose computers” so often recited in claims invalidated by this

Court. See above, Section VII.C.4.

34

The evidence taken under judicial notice by the district court shows

conventional video games and other software that was long ago

downloaded over the internet. See Appx199–242. However, the district

court points to nothing in the evidence that even teaches a simulated

sports video game, much less the claimed elements being scrutinized.

The only evidence regarding conventional sports video games that

simulate real-life players is found in the background section of the ‘575

patent, which the district court cites. Appx6 (“Indeed, the patent

concedes that ‘video game producers typically produce professional sports

video games’ distributed on such video game media, and the

corresponding video game parameters, ‘once per year.’” quoting the ‘575

patent).

Importantly, the patent provides the only evidence of whether the

claimed features add substantially more than the conventional sports

video games identified in ‘575 patent and based on the teachings in the

patent, the evidence is clear that the “increased realism” provided by the

claimed “series of updated performance parameters” is a substantial

improvement to conventional sports video games. Appx117, col. 2, lines

11-26.

35

VIII. CONCLUSION

For the foregoing reasons, the judgment of the district court should

be reversed and the case remanded for trial.

DATED: August 31, 2016 Respectfully submitted, By: /s/Andrew S Hansen

ANDREW S HANSEN Attorney for Plaintiff-Appellant

ADDENDUM

Appendix Range Document

Appx1 DKT. #38 Final Judgement (Entered: 06/07/2016)

Appx2–8 DKT. #37 Order and Memorandum Granting Defendant’s Motion To Dismiss (Entered: 06/02/2016)

Appx101–123 US Patent 8,540,575

AO 450 (Rev.5/85) Judgment in a Civil Case

United States District Court Northern Division for the District of Utah

WHITE KNUCKLE GAMING, LLC, A Utah limited liability company,

Plaintiff, JUDGMENT IN A CIVIL CASE v.

ELECTRONIC ARTS INC., a Delaware corporation, Defendants.

Case Number: 1:15CV150 JNP

IT IS ORDERED AND ADJUDGED

that Defendant’s Motion to Dismiss Based on Unpatentability Under 35 U.S.C. § 101 is granted.

June 6, 2016 D. Mark Jones Date Clerk of Court

(By) Deputy Clerk

Case 1:15-cv-00150-JNP Document 38 Filed 06/07/16 Page 1 of 1

Appx1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

WHITE KNUCKLE GAMING, LLC, a Utah limited liability company,

Plaintiff, v. ELECTRONIC ARTS INC., a Delaware corporation.

Defendant.

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

Case No. 1:15-cv-150-JNP-PMW

District Judge Jill N. Parrish

Before the court are two motions filed by defendant Electronic Arts Inc. (“EA”). First, is

a Motion to Dismiss Based on Unpatentability Under 35 U.S.C. § 101 (the “Motion to Dismiss”).

(Docket 16). Second, is a Motion to Strike, or in the Alternative Dismiss, Plaintiff’s Willfulness

and Agency Allegations (the “Motion to Strike”). (Docket 18). The court held oral argument on

the motions on April 8, 2016. At the conclusion of the hearing, the court took the motions under

advisement. After considering the written submissions1 and the arguments presented at the

hearing, the court issues this Memorandum Decision and Order GRANTING Defendant’s

Motion to Dismiss. Given this ruling, the Motion to Strike is moot.

INTRODUCTION

White Knuckle Gaming, LLC (“White Knuckle”) brought this action alleging that EA

had infringed on its Patent No. 8,545,575 (the “Patent”). The process Patent at issue allows a

gaming company to update the software parameters of sports video games to reflect recent real-

life occurrences. These parameters would include things like performance statistics, athletes’

appearances, and uniform appearances. The parameters are updated by the gaming company on a

1 The court also notes that it reviewed the supplemental authority and responses thereto. (Dockets 32–36).

Case 1:15-cv-00150-JNP-PMW Document 37 Filed 06/02/16 Page 1 of 7

Appx2

regular basis and are incorporated into the video game’s software via a network. The actual

game-play of the sports video game would therefore reflect recent real-world developments. The

game would, for example, reflect any recent changes in a sports team’s uniforms.

EA brings this motion to dismiss, arguing that the Patent is invalid because it is aimed at

an unpatentable abstract idea. Specifically, it argues that the Patent is directed towards the

abstract idea of updating software. White Knuckle argues that the Patent is not aimed at an

abstract idea, but rather the Patent allows “updates to the machine-implemented video games

[that] change the performance of the machine-implemented video game itself and improve how

the video game itself performs.”

LEGAL STANDARDS

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must “state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). The Federal Circuit has explained that while

Federal Circuit law governs the substance of the patent claims, regional circuit law governs the

general procedural standards for Rule 12(b)(6) motions. OIP Techs., Inc. v. Amazon.com, Inc.,

788 F.3d 1359, 1362 (Fed. Cir. 2015). And under Tenth Circuit law, a plaintiff must plead both a

viable legal theory and enough factual matter that, taken as true, makes the claim for relief

plausible on its face. Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008). The court must

accept the “well-pleaded allegations of the complaint as true and must construe them in the light

most favorable to the plaintiff.” David v. City & County of Denver, 101 F.3d 1344, 1352 (10th

Cir. 1996). But the “tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).


Appx3

The issue of invalidity under 35 U.S.C. section 101, which is the basis of this motion,

presents a question of law.2 Accenture Global Servs. GmbH v. Guidewire Software, Inc., 728 F.3d

1336, 1340–41 (Fed. Cir. 2013). Although every issued patent is presumed to have been issued

validly, a district court may consider patent validity under Section 101 at the pleadings stage. See

buySAFE, Inc. v. Google, Inc., 765 F.3d 1350 (Fed. Cir. 2014) (affirming a district court’s finding

of invalidity under Section 101 at the pleading stage).

It is not always necessary to construe the patent claims before determining subject matter

eligibility. See Bancorp Services, L.L.C. v. Sun Life Assurance Co. of Canada, 687 F.3d 1266,

1273–74 (Fed. Cir. 2012). In this case, neither party has sought the construction of any of the

terms in the Patent. And both parties agree that claim 1 is a representative claim. This lack of

dispute regarding construction demonstrates that it is appropriate to address validity under

Section 101 at this stage of the proceedings.

ANALYSIS

EA argues that the Patent is invalid because the Patent’s claims are directed to an

unpatentable abstract idea. Because all of White Knuckle’s causes of action are based on the

allegedly invalid patent, EA argues that the Complaint should be dismissed with prejudice.

The categories of patent-eligible subject matter are set forth in 35 U.S.C. section 101,

which provides:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of any matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

35 U.S.C. § 101. “Section 100(b) of the Patent Act defines the ‘process’ category tautologically,

stating that: ‘the term process means process, art or method, and includes a new use of a known

2 The court notes that it found the analysis in Open Text S.A. v. Alfresco Software Ltd., to be persuasive and helpful in evaluating this case. 2014 WL 4684429 (N.D. Cal. September 19, 2014).


Appx4

process, machine, manufacture, composition of matter, or material.’” CyberSource Corp. v.

Retail Decisions, Inc., 654 F.3d 1366 (Fed. Cir. 2011) (quoting 35 U.S.C. § 100(b)).

“The Supreme Court has ‘long held that this provision contains an implicit exception:

Laws of nature, natural phenomena, and abstract ideas are not patentable’” OIP Techs., 788 F.3d

at 1363 (quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2116

(2013)). The Supreme Court detailed a two-part test for evaluating claims of patent eligibility in

Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2355 (2014). First, the court must

“determine whether the claims at issue are directed to a patent-ineligible concept” such as an

abstract idea. Id. If so, the court must then “consider the elements of each claim both individually

and ‘as an ordered combination’ to determine whether the additional elements ‘transform the

nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo Collaborative Services

v. Prometheus Laboratories, Inc., 132 S. Ct. 1289, 1298 (2012)).

I. The Patent claims are directed to a patent-ineligible concept.

The court must first determine whether the Patent claims are directed to a

patent-ineligible concept. The Supreme Court has repeatedly held that “[t]he ‘abstract ideas’

category embodies ‘the longstanding rule that ‘[a]n idea of itself is not patentable’” Id. at 2355

(quoting Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). And “[a]n abstract idea does not become

nonabstract by limiting the invention to a particular field of use or technological environment,

such as the Internet.” Intellectual Ventures, LLC v. Capital One Bank, 792 F.3d 1363, 1366 (Fed.

Cir. 2015). The Supreme Court has invalidated multiple patents on this basis. See, e.g., Bilski,

561 U.S. 593 (2010) (holding that risk hedging was an abstract idea); Alice, 134 S. Ct. 2356

(holding that patents drawn to computerize the use of a third-party intermediary was an attempt

to patent an idea).


Appx5

The Patent claims in this case fall within the category of abstract ideas. The claims recite

a simple internet-based method of updating the software of sports video games. This is an

abstract idea—updating software in sports video games—and it is performed on a conventional

computer, server, and network. Indeed, the claims do not explain or limit how the computer or

server would be programmed, or how the network would be configured. Rather, the claims

include diagrams and descriptions of generic computers and networks. The claims simply recite

these conventional components performing basic, intended functions, in a routine, conventional

manner.

It is a longstanding business practice in the video game industry to update sports video

games parameters to reflect real-world developments. Indeed, the patent concedes that “video

game producers typically produce professional sports video games” distributed on such video

game media, and the corresponding video game parameters, “once per year.” The Patent also

states that sports video games have long included “parameters[] stored on the video game

medium” to simulate “actual leagues with correct teams, hometowns[,]” “realistic stadiums,”

“specific athletes” and “uniforms.” The Patent purports to improve this practice by storing the

updated software on a “network server,” and coupling a game machine to the network server that

downloads the data. Thus, the Patent claims do nothing more than recite the performance of a

long-established business practice—re-writing software to produce an updated version—using a

general purpose computer and the internet. But as the Federal Circuit has explained, general uses

of the internet “to perform an abstract business practice (with insignificant added activity)” does

not pass muster under § 101. DDR Holdings, LLC v. Hotels.Com, LP, 773 F.3d 1245, 1258 (Fed.

Cir. 2014).


Appx6

The fact that the Patent is limited to the specific field of use of sports video games, or that

it is performed over the internet, makes no difference. The Supreme Court has explained that

“the prohibition against patenting abstract ideas cannot be circumvented by attempting to limit

the use of the [abstract idea] to a particular technological environment.” Alice, 134 S. Ct. at

2358. Accordingly, the court holds that the Patent is directed to a patent-ineligible abstract idea.

II. There are no additional elements that transform the nature of the claims into patent-eligible material.

Having determined that the Patent claims are directed to an abstract idea, the court must

“consider the elements of each claim both individually and ‘as an ordered combination’ to

determine whether the additional elements ‘transform the nature of the claim’ into a patent-

eligible application.” Id. (quoting Mayo, 132 S. Ct. at 1298). In both Alice Corp. and Mayo, the

Supreme Court described this second step as “a search for an ‘inventive concept’—i.e., an

element or combination of elements that is sufficient to ensure the patent in practice amounts to

significantly more than a patent upon the [abstract idea] itself.’” Id. at 2355 (quoting Mayo, 132

S. Ct. at 1294).

The Supreme Court expressly held that a claim directed to an abstract idea does not

become patent eligible under Section 101 by “merely require[ing] generic computer

implementation.” The Supreme Court explained that the claims in Alice lacked such an inventive

concept because they did “not, for example, purport to improve the functioning of the computer

itself” or “effect an improvement in any other technology or technical field.” Instead, the claims

only applied the abstract idea “using some unspecified, generic computer.”

The Patent claims in this case suffer from the same defect. The Patent claims are directed

to the abstract idea of updating software parameters. They do not become patent-eligible by

merely requiring “generic computer implementation” via a network. As explained above, the


Appx7

gaming industry has a longstanding practice of updating sports video games’ parameters to

reflect real life. The Patent’s only improvement is that the software updates are able to happen

more frequently and quickly because they are done via the internet. But that is accomplished

using a network in the normal manner.

This is exactly the type of “wholly generic computer implementation [that] is not

generally the sort of ‘additional featur[e]’ that provides any ‘practical assurance that the process

is more than a drafting effort designed to monopolize the [abstract idea] itself.’” Alice, 134 S. Ct.

at 2358 (quoting Mayo, 132 S. Ct. at 1297). Indeed, the Federal Circuit has recently explained

that “claiming the improved speed or efficiency inherent with applying the abstract idea on a

computer” does not provide a sufficient inventive concept.” Intellectual Ventures I, LLC v.

Capital One Bank, 792 F.3d 1363, 1367 (Fed. Cir. 2015). Accordingly, the court holds that the

Patent has no additional elements that transform the nature of the claims into patent-eligible

material.

CONCLUSION

The court holds that the Patent is drawn to a patent-ineligible abstract idea, and merely

requiring generic computer implementation fails to transform that idea into a patent-eligible

invention. Accordingly, EA’s Motion to Dismiss is GRANTED, and the Motion to Strike is

moot.

Signed June 2, 2016.

BY THE COURT

______________________________ Jill N. Parrish United States District Court Judge


Appx8

US008540575B2

(12) United States Patent (10) Patent N0.2 US 8,540,575 B2 Angelopoulos (45) Date of Patent: Sep. 24, 2013

(54) METHOD AND SYSTEM FOR INCREASED 6,261,179 B1 7/2001 Miyamoto et al. REALISM IN VIDEO GAMES 6,292,706 B1 * 9/2001 Birch et al. ................... .. 700/91

6,306,033 B1 10/2001 Niwa et al. 6,347,993 B1 2/2002 Kondo et al.

(75) Inventor: Athanasios Angelopoulos, San Diego, 6,368,210 B1 4/2002 Toyoham et a1‘ CA (US) 6,412,780 B1* 7/2002 Busch ......................... .. 273/292

6,783,460 B2 * 8/2004 Galyean et al. ............... .. 463/40

(73) Assignee: White Knuckle Gaming, LLC, 2002/0010026 A1 l/2002 York

Boumlful’ UT (Us) OTHER PUBLICATIONS

( * ) NOIiCeZ Subject 10 any disclaimer, the term Ofthis http://www.answers.com/topic/microsoft-baseball-2001.* patent iS eXIended 01‘ adjusted under 35 Newton’s Telecom Dictionary by Harry Newton. Printed Mar. 1998 U.S.C. 154(b) by 2275 days. by Flatiron Publishing. ISBN 1-57820-023-7. p. 460.*

NFL 2K1 GameFAQsiDreamcastihttp://www.gamefaqs.com/ (21) Appl. No.: 10/266,795 console/dreamcast/?le/914206/10283iFeb. 8, 2001.*

Madden NFL 2003iPlaystation2 ManualihttpM/www. (22) Filed; Oct, 8, 2002 replacementdocs.comirelease date: Aug. 12, 2002.*

NBA 2K1 Manual, Sega Dreamcast video game system, Nov. 1,

(65) Prior Publication Data 2000* _ NFL 2K1 Review, http://www.gamespot.com/dreamcast/sports/

US 2004/0067788 A1 Apr. 8, 2004 n?2k1/review.html, 9/08/200.* US 2010/0137045 A2 Jun, 3, 2010 Nintendo Entertainment SystemiTecmo Super Bowli1991.*

(51) Int CL (Continued)

(52) ‘I4J6s3FCi3/12 (200601) Primary Examiner * Damon Pierce USPC ............................................. .. 463/42; 463/30 (74) “We” Age“ "r Fm” T Workman Nydegger

(58) Field of Classi?cation Search (57) ABSTRACT USPC .... .. 463/li4, 648, 40413, 30433; 700/90i93 See application ?le for Complete Search history A system and method for updating parameters of a video

game is provided. As events occur in the real world that may (56) References Cited in?uence a game attribute, a parameter is recorded on a server.

A video game player may connect to the server and download U_S, PATENT DOCUMENTS the parameter. The parameter is stored by the video game and

5,411,259 A 4 5 / 1995 Pearson et a1‘ ““““““““ " 463/36 changes an attribute of the video game. Thus, for example, the 5,526,035 A 6/ 1996 Lappington et 31, new performance characteristics of the rising star may be 5,694,546 A * 12/ 1997 Reisman ....................... .. 705/26 recorded on the server as improved performance parameters. 5,810,680 A 9/1998 L°bb_ et a1~ When these parameters are downloaded by the video game

2:353:22? 2 ,,. 151333 ttttttttttttttttttttt " 463/42 player, the video game incorporates the star-like qualities of 6,080,063 A 6/2000 Khosla the nslng Star 6,135,881 A 10/2000 Abbott et al. 6,200,216 B1 * 3/2001 Peppel ............................ .. 463/1 35 Claims, 14 Drawing Sheets

Appx101

US 8,540,575 B2 Page 2

(56) References Cited

OTHER PUBLICATIONS

Weters, NFL 2K1.‘ FAQ by Weters, Hosted by GameFAQs, Version 3.1, http://www.gamefaqs.com/console/dreamcast/?le/914206/ 8841, last accessed Jul. 2, 2009. Sycho Bubba Crusty, NFL 2K1.‘ FAQ by Tazzmission, Hosted by GameFAQs, Version 2.0, http://www.gamefaqs.com/console/ dreamcast/?le/9 14206/8814, last accessed Jul. 2, 2009. Madden 2002 Manual, EA Sports, 209 Redwood shores Parkway, Redwood City, CA 94065, available at http://wwwreplacementdocs. com, © 2001 Electronic Arts, Inc., last accessed Oct. 7, 2009. NBA Showtime, NBA on NBC, Operation Manual for 4-Player, 25“ Dedicated Video Game, Gold Edition, Mar. 2000, © 2000 Midway Amusement Games, LLC, 3401 North California Avenue, Chicago, Illinois 60618-5899, available at http://www.midway.com, last accessed Oct. 7, 2009. NFL Fever 2002 Manual, XboX, Microsoft Corporation, One Microsoft Way, Redmond, WA 98052-9953, available at http://www. XboX.com, © 1997-2001 by RAD Game Tools, Inc., last accessed Oct. 7, 2009. NFL Fever 2003 Manual, XboX, Microsoft Corporation, One Microsoft Way, Redmond, WA 98052-9953, available at http://www. XboX.com, © 1997-2002 by RAD Games Tools, Inc., last accessed Oct. 7, 2009. NHL 97 Instruction Booklet, Black Pearl Software, c/o T-HQ, Inc, 5016 No. Parkway, Calabasas, CA 91302, available at http://www. replacementdocs.com, © 1996 Electronic Arts, last accessed Oct. 7, 2009.

Todd, Brett, T heHistory ofFootball Games, available at http://www. gamespot.com, © 2009 CBS Interactive, Inc., last accessed Oct. 7, 2009. 4’h & Inches Manual, © 1988 Accolade, available at www. lemonamiga.com, last accessed Oct. 7, 2009. T SR Manuals, Tecmo Bowl®, © 1998, [email protected], avail able at http://www.atarihq.com/tsr/manuals/tecmobwl.tXt, last accessed Oct. 7, 2009. Smith, James dated Aug. 30, 2000, NFL Gameday 2001 (PSX) Review, Sports Gaming Network, available at http://www.sports gaming.com/football/n?igamedayi200l/reviewipsxshtml, last accessed Oct. 7, 2009. Riot, Sydney, GameVorteX Communications, NFL GameDay 2002, video game release date: Aug. 7, 2001, available at http://www. psillustrated.com/psillustrated/softirevphp/17/n?-gameday-2002 ps2.html, last accessed Oct. 7, 2009. Legends Football '98 Review, available at http://www.uk. videogames.games.yahoo.com/pc/reviews/legends-football--98 be22be.html, © 2009 Yahoo!, last accessed Oct. 7, 2009. Catch T heFever, Your Football Gaming Complex, ©2000 Catch The NFL Fever, available at http://www.sportplanet.com/catchthefever/ dhfevershtml, last accessed Sep. 29, 2009. RIP2001 Rosters, Apr. 14, 2001, available at http://www.sportplanet. com/catchthefever/index.shtrnl, last accessed Oct. 9, 2009. RIP2002 Rosters, Sep. 6, 2001, availble at http://www.sportplanet. com/catchthefever/index.shtrnl, last accessed Oct. 9, 2009. Welcome to the VPNFL.‘ The Vaguely Plausible National Football League, available by early Dec. 1998 on the FBPro Dark Side at http:///www.geocities.com/colosseum/stadium/8273, last accessed Oct. 9, 2009.

* cited by examiner

Appx102


Appx103


Fig. 2

Controller

Controller

Game Machine

MOQUMCCOU 20M EEBxQ Controller S62E00

Controller

Controller Bus Control Circuit

21

Appx104


Fig. 3

Data 82 Sarver

85

Network

/ 107 Modem

I03

/ / 90 Game Medium Video Game

(c.g., CD, Machine User Interface DVD,

Cartridge)

87

99 - 95 Local

memory

Appx105


Fig. 4

ROM Rules 1 11 Rule 1

Rule 2 / Rule 3

Etc.

Stadiums l 13 109 Stadium 1

Stadium 2 / S£adium 3 ‘

Etc.

Referees Referee 1 1 15 Referee 2

Referee 3

Etc,

Teams City

Owners

Trainers

Coaches

Players Etc.

Other Game Parameter Other Game Parameter

Etc.

Appx106


Fig. 5

Players Player 1 Statistic l

Statistic 2

Statistic 3

Etc.

Player 2 Statistic l

Statistic 2

Statistic 3

Etc.

Player 3 Statistic l

Statistic 2

Statistic 3

Etc.

Other Player Other Player Other Player Other Player

Etc.

Appx107

US. Patent Sep. 24, 2013 Sheet 6 or 14

Fig. 6

US 8,540,575 B2

RAM Rules Rule 1

Rule 2

Rule 3

Etc.

Stadium Stadium Parameter l

Stadium Parameter 2

Stadium Parameter 3

Etc.

Referees Referee Parameter l

Referee Parameter 2

Referee Parameter 3

Etc.

Team 1 City

Owners

Trainers

Coaches

Players Etc.

Team 2 City

Owners

Trainers

Coaches

Players Etc.

Other Parameters Needed for Current Game Play

Etc .

138

135

Appx108


Fig. '7

System 221

Startup /

Is Auto Update Enabled?

230 CPU Main Displays / Menu Main Menu

232 User starts game or

requests update

236 238

Did user

request update?

G0 to Fig. 8

G0 to

Fig. 9

Appx109


Fig. 8

CPU 24 l initializes / modem

4 Modsm

establishes network

connection

+ 245 CPU sends / request for data to the data server

243

CPU recsi vcs

requested data and stores it in 249

local memory

l CPU / disconnects

254 modern from network

l User is /

prompted that data transfer is complate

. l / Mam menu

is displayed G0 to Fig, 9

Requested Data

Local memory

253

255

Appx110


Fig. 9

/ 265 User selects to /

280 start game

Game Medium

7

CPU loads 270 gammg

engine from 3mg “a Game

medlum to Enginc RAM

‘ 290 RAM

CPU loads 4/ “

Requested ______.,., daicirsm , Requested Data Data

memory to

RAM, if requested or

Local auto

memory updating

l 305 300 Game is /

played with 4 requested

data

Game Play

Appx111


CPU initializes 334 modem

T Modem connects 337

to network

l GM displays log- 340 in/sign—up screen

User makas selection

354

Does \ CPU U ‘

auto-send 'scr 611mm

AC? AC.

CPU compares ussr input

with GM AC

CPU sends

360 ° CPU

displays cnnr msg.

Appx112

US. Patent Sep. 24, 2013 Sheet 11 0f 14

Fig 11

Server attempts to authenticate

login data

US 8,540,575 B2

Server sends Server sends . 372 .

menu of avallable fallure message

data to GM / to GM 380

menu 388 message

CPU displays \ CPU displays menu failure message

Appx113

US. Patent Sep. 24, 2013 Sheet 12 0f 14

Fig 12

User enters

necessary info

Is AC required?

CPU sends Sign-up data

CPU displays Sign-up screen

Does CPU

auto-send AC?

444

to server

US 8,540,575 B2

390

440

User enters A.C.

CPU compares user input

with GM AC

448

CPU displays account options

MIL!» User selects

404 N CPU 412 displays

408 416 error msg.

Server sends A t account ——> C<t3-0un

options to GM 0P 1on8

CPU sends users choice "

to server

Server vertftes 428 mfo, creates Dr P account and -——> ‘1 <1

sends menu of mm“

game data to GM 436

/ ' CPU displays Fig 13

432

account type

424

menu to user

Appx114

US. Patent

Does game require AC‘?

456

Sep. 24, 2013

Data Server request

!

Sheet 13 0f 14 US 8,540,575 B2

Fig 13

WW User selects / 450 desired data

& CPU sends 453 data request /

459 to server /

Server sends requested data

Server attaches AC

[0 data 462

+ CPU stores data in local memory

Server sends requested

data

Local T CPL compares Memory

GM AC with received AC

CPU displays error message

/ 482

479

CPU stores . Data

data m local requested memory

Appx115


Fig 14

CPU displays 490 game menu

‘l User selects to load saved data

505

495

CPU reads data / 510 Data

from local requested m?mory

500 CPU compares 515 data AC with /

GM AC

@mé CPU displays 520 CPU loads data error message / in to RAM

/ Data requested 535

Appx116

US 8,540,575 B2 1

METHOD AND SYSTEM FOR INCREASED REALISM IN VIDEO GAMES

BACKGROUND

Many video games attempt to recreate realistic situations. For example, video games simulating sports games and matches are popular. They commonly even shoW actual leagues With correct teams. hometoWns may be shoWn, With realistic stadiums. Athletes’ uniforms represent professional athletes’ actual uniforms. Speci?c athletes are represented. For example, an image of Shaquile O’Neil may be used as one of the players on the Los Angeles Lakers basketball team. Kobe Bryant and all of Shaquile’s actual teammates may be on the team With him.

But the realism goes far beyond just images. The video game characters have characteristics approximating their real life counterparts. For example, the video game Shaquile may be very good at dunking the basketball, but horrible at shoot ing freethroWs. Parameters are stored on the video game medium that cause the different characters to replicate their real life counterparts’ performance.

Video game producers typically produce professional sports video games once per year. The performance param eters and visual aspects are typically speci?ed based on the most recent year. For example, Barry Bonds of the San Fran cisco Giants baseball team had a homerun average of (73 homeruns)/ (476 at bats):15.3 percent during the 2001 sea son. This average can be used to set a video game parameter so that the video game character Barry Bonds has a similar tendency to hit homeruns. A problem With this system is that the performance parameters and visual aspects of a video game are ?xed at the time the video game is produced.

The players of this type of game continually demand increased realism in such games. For example, more and more parameters are added to distinguish one character from another and to more accurately simulate the performance of real life athletes. Also, the realism of the visual aspects of players, teams and stadiums is continually increased. For example, the ivy on the out?eld Wall of Wrigley Field in Chicago may be shoWn in a baseball video game.

The problem remains that visual aspects and performance characteristics of real life sports players, teams and environ ments change throughout the year.

SUMMARY

Sports video games attempt to achieve realism. Particu larly, sports video games frequently attempt to emulate pro fessional sport details. Actual professional athletes are shoWn, frequently including such details as jersey numbers, physical stature and even facial features. Performance char acteristics are emulated. For example, in a baseball video game, an individual professional athlete’s batting average may be used to in?uence a video game character’s batting performance. Frequently, actual professional teams are pro vided for video game play. For example, in a basketball video game, players can play the Los Angeles Lakers versus the Chicago Bulls, complete With rosters, players and even a stadium. Video game players are demanding more and more realism like this. A major problem With this system is that professional

sports change in many Ways. Athletes’ performances change over the course of a season, or even a day. Additionally, athletes may be traded from team to team, or become injured. Stadia may change. Sports announcers may change. This leaves a video game behind, in an unrealistic state. For

20

25

30

35

40

45

50

55

60

65

2 example, if a neW star rises on the professional sports scene, during the middle of a season, that neW star’s incredible performance Will not be duplicated by the video game. Video game players are stuck playing the game With the star having his pre-star characteristics. They must Wait for the video game producers to produce a neW video game incorporating the neW star-like performance of the rising star. This is unsatis fying for video game players. They Want to play a video game that matches the professional sport performance characteris tics, look and feel.

Accordingly, a system and method for updating parameters of a video game is provided. As events occur in the real World that may in?uence a game attribute, a parameter is recorded on a server. A video game player may connect to the server and doWnload the parameter. The parameter is stored by the video game and changes an attribute of the video game. Thus, for example, the neW performance characteristics of the rising star may be recorded on the server as improved performance parameters. When these parameters are doWnloaded by the video game player, the video game incorporates the star-like qualities of the rising star.

This quanti?ably increases realism. Video game players can doWnload up-to-the-minute statistics and visual aspects for incorporation into their video games. Instead of playing With last season’ s teams, video garners get a simulation of the fresh neW events of the Week, day, or hour.

BRIEF DESCRIPTION OF THE DRAWINGS

FIG. 1 is an external vieW shoWing a structure of a video game system and a historical event.

FIG. 2 is a high level block diagram of a video game system.

FIG. 3 is a block diagram ofa video game system. FIG. 4 is a block diagram ofa game medium. FIG. 5 is a block diagram of the players stored in ROM. FIG. 6 is a block diagram ofa RAM. FIG. 7 is a How chart for choosing Whether to update a

video game. FIG. 8 is a How chart for updating a video game. FIG. 9 is a How chart for loading data into RAM and

playing a video game. FIG. 10 is a block diagram shoWing a portion of a How

diagram for authenticating a user of a video game. FIG. 11 shoWs a portion of a process for authenticating a

video game user, continued from FIG. 10. FIG. 12 is a How diagram shoWing a process for signing up

a neW user of a video game With doWnloadable statistics.

FIG. 13 is a How diagram shoWing a doWnload process of a neW game parameter.

FIG. 14 is a How diagram shoWing game play in a case in Which an AC is required.

DETAILED DESCRIPTION OF SEVERAL EMBODIMENTS

FIG. 1 is an is an external vieW of a video game system and a historical event. An historical event 11 takes place. For example, the event may be a World Cup soccer game, or an American football game. In a more speci?c example, the event may be the occurrence of a neW yearly completion percentage, or other performance statistic, of a speci?c quar terback in a speci?c professional American football game. A datum 17 relating to the historical event 1 1 is recorded on

a computer readable medium knoWn as a netWork server 14. A game machine 20 is coupled to the netWork server 14. The game machine 20 doWnloads the datum 17, Which may, for

Appx117

US 8,540,575 B2 3

example, represent a quarterback’s completion percentage, a basketball player’s freethroW percentage, or any other out come of a realistic event. The datum 17 is then used to play a video game, Which is displayed on a monitor 24. A user 28 plays the video game using controller 30. In this Way, the user gets to play a video game the more accurately simulates a the real World.

For example, a datum representing a quarterback’s neW completion percentage is loaded into memory (not shoWn) in the game machine 20. Then, the user 28 can play anAmerican football video game With current statistics. This makes the video game more enjoyable to the user, adding increased realism. As real life professional players’ performances change, users can still play With statistically accurate players.

FIG. 2 is a block diagram of a video game system. The video game machine 20 incorporates a central processing unit (CPU) 32 and coprocessor (CP) 34. The CP 34 includes a bus control circuit 38 for controlling buses, a signal processing unit (SPU) 40 for performing polygon coordinate transfor mation, shading treatment, etc., a display processing unit (DPU) 45 for rasteriZing polygon data into an image to be displayed and converting the data into a data from (dot data) stored on a Frame memory. The CP 34 is coupled to a car tridge connector 50 for detachably mounting With a ROM cartridge 52, a disc drive connector 54 for detachably mount ing With a disc drive 56, and a RAM 58. Also, the CP 34 is connected With an audio signal generating circuit 61 for out putting a sound signal to an audio output device 62, processed by the CPU 32, and an image signal generating circuit 64 for outputting an image signal to a display 65. Further, the CP 34 is coupled With a controller control circuit 67 for serially transferring operational data for one or a plurality of control lers 70A-70D and data for a RAM cartridge 73 for extension. A modem 72 is coupled to the bus control circuit 38. The

modem 72 is also preferably coupled to the internet (not shoWn). As discussed With reference to FIG. 1, a server coupled to the internet stores performance, visual image and audio parameters. The modem 72 couples to the server and doWnloads a parameter for play in the video game. The CPU 32 sends a signal through the bus control circuit to initialiZe the modem 72 and control the modem 72 to doWnload the parameter. Preferably, the parameter is stored in RAM 58 for play of the video game, as discussed below. It Will be under stood by those of skill in the art that other con?gurations of video game machines are possible. For example, the CPU 32 and the CP 34, or portions of the CP 34, may be incorporated as one component. Also, for example, RAM 58, may be divided into more than one memory element, or other types of memory elements may be included.

Referring noW to FIG. 3, a block diagram of a video game system is shoWn. A data server 82 is coupled to a netWork 85. The netWork may be, for example, What is commonly referred to as the internet, or, alternatively, the netWork 85 may be another type of netWork, such as a local area netWork (LAN). The data server 82 stores information for use in video games. Advantageously, neW statistical results or parameters can be stored on the data server 82. For example, When a real pro fessional athlete changes a performance rating, the changed performance rating can be stored on the data server 82. For example, When a professional baseball player changes his batting average, the changed batting average can be stored on the data server 82. Or, as a second example, if a professional American football quarterback changes his completion per centage the changed completion percentage can be stored on the data server 82. This alloWs a video game player to play a video game With the neW statistics. The changed statistic may be stored as the actual number that the statistic represents. For

20

25

30

35

40

45

50

55

60

65

4 example, if a batting average goes from 0.275 to 0.278, then the number 0.278 may be stored on the data server. Or the neW statistic may be stored on the data server as a parameter of a video game. The parameter can then be used to effect hoW the video game character interacts With the video game environ ment.

Referring again to FIG. 3, the user (not shoWn) plays the video game by entering inputs through a user interface 87. The user interface 87 may be, for example, a video game controller (not shoWn). The user interface 87 is coupled to a video game machine 90, Which may be a video game machine 20, as shoWn With reference to FIG. 2. The video game machine 90, is coupled to a RAM 95 and a local memory 99, preferably a read only memory (ROM). The RAM 95 is used for storing data and rules (described later With reference to FIG. 4) from the game medium 103. Advantageously, the parameter is also stored on the RAM. Thus, the video game is played With the changed statistic. Advantageously, a video game character, such as, for example, an American football quarterback, Will play more realistically based on the video game character’ s real life performance, such as, for example, a completion percentage. The video game machine is coupled to a modem 107 for

coupling to the netWork 85. The parameter is doWnloaded by the video game machine 90 from the data server 82 by means of the modem 107 and the netWork 85. As Will be understood by those of skill in the art, the modem 107 may be incorpo rated as part of the video game machine 90, or a separate component.

FIG. 4 is a block diagram of a game medium, preferably a ROM 1 09. The game medium may be, for example, a compact disc (CD), a digital video disc (DVD), or a cartridge. The ROM 109 includes many rules and parameters for the video game. Rules 111 are stored on the ROM 109. The rules 111 are shoWn as Rule 1, Rule 2, Rule 3, etc. The rules govern hoW the game is played and displayed on the user interface. Advantageously, the rules can be updated to match the rules of the real World.

There are also other parameters stored on the ROM 109. For example, stadium parameters 113 may be stored. For example, the game may display Wrigley Field for play by the Chicago Cubs and FenWay Park for play by the Boston Red Socks. For example, the ivy on the homerun Wall of Wrigley Field is green and ?ourishing during certain parts of the year, such as from May to July. During April, August and Septem ber, the ivy is broWner. The color of the ivy shoWn in a baseball video game shoWing Wrigley Field can change based on the time of the year that the video game is played. As another example of hoW realism can be increased, neW

memorials to great players can be implemented in the video game stadiums. For example, in 2002, Ted Williams’ number, “9”, Was displayed in the left?eld grass of FenWay Park after the start of the season. Baseball video games Were already produced. So the video game ?elds did not have the number on the ?eld, failing to duplicate real life. NoW, the ?eld can be changed to match real life after the game is produced, sold and played in the user’s home.

Referring again to FIG. 4, referees 115 may be stored. Referees’ appearances and performance may be stored. For example, some referees in basketball call technical fouls fre quently. Some referees rarely call technical fouls. Parameters can be stored regarding the individual referees that simulate these real life differences. Team statistics and other parameters can also be stored,

such as, for example, the city, oWners, trainers, coaches, play ers, etc. For example, Mike Bibby of the Sacramento Kings, during the 2001-2002 regular season averaged 13.7 points

Appx118

US 8,540,575 B2 5

and 12.3 shots attemptedper game. In the playoffs of the same season, he averaged 20.2 points and 16.1 shot attempted per game. These improved playoff statistics can noW be doWn loaded. A video game player can play a basketball video game With a Mike Bibby character incorporating the better per forming real World Mike Bibby. As another example, the 2000-2001 Chicago Bears’ oppo

nents scored an average of 22.2 points per game With an average of 114.2 rushing yards per game. The 2001 -2002 Chicago Bears’ opponents scored an average of 12.7 points per game With an average of 82.1 rushing yards per game. This change Was not re?ected in video games played during the 2001-2002 season. At that time, the neWest video games re?ected the statistics from the 2000-2001 season. Thus, the Chicago Bears on the video games playedpoorly, Whereas the Chicago Bears on the real football ?eld played very Well. This dichotomy betWeen video game and real life is frustrating to many video game players.

FIG. 5 is a block diagram of the players stored in ROM. Player 1, Player 2, Player 3 and several other players are shoWn. Under each player, several statistics are shoWn. For example, if the video game is basketball, Statistic 1 may be a player’s ?eld goal percentage. Statistic 2 may be a free throW percentage. Statistic 3 may be blocks per game. One skilled in the art Will appreciate that the number and type of statistics stored Will vary With the game and With the Way the video game designer choses to design the game.

FIG. 6 is a block diagram ofa RAM 135 used to store game parameters for play of a video game. RAM 135 may be used to store game parameters as are RAM 58 (FIG. 2) and RAM 95 (FIG. 3). Preferably, items are loaded from ROM 109 (FIG. 4) into RAM 135. Preferably, all of the rules 111 (FIG. 4) are loaded into RAM at 138. HoWever, only one stadium is loaded from ROM to RAM. Also, only tWo teams, shoWn as Team 1 and Team 2 are loaded. As discussed With reference to FIGS. 1-3, above, a neW parameter is doWnloaded from the server and stored in RAM 135. Preferably, the neW parameter is stored in RAM in addition to the parameter as loaded from ROM.

Referring noW to FIG. 7, a ?owchart is shoWn. In step 221, the method starts. In step 224, it is determined Whether autoupdate is enabled. If autoupdate is enabled, the method continues by going to FIG. 8, as shoWn at step 227. If autoup date is not enabled, the main menu is displayed at step 230. In step 232, a user chooses to start a game or request an update.

In step 234, it is determined Whether the user requested an update. In step 236, the method continues by going to FIG. 9, if the user did not choose to update the video game. If the user did choose to update the video game, the method continues by going to FIG. 8, at step 238.

Referring noW to FIG. 8, in step 241, the CPU initialiZes the modem. In step 243, the modem establishes a netWork con nection. Next, in step 245, the CPU sends a request for data to the data server. At 247 and 249, the data server sends the requested data to the CPU. Advantageously, the requested data may be updated, or changed, statistics for playing a more realistic video game. For example, as mentioned above, the user may be requesting updated batting averages for game characters in a profession baseball video game. Or, to con tinue the example from above, the video game player may be requesting a neWly established completion percentage for an American football quarterback. Preferably, the request is for all the neW statistics resulting from a real game that has already been played, or from a plurality of games.

Referring again to FIG. 8, at step 250, the CPU receives the requested data and stores it in local memory 254. In step 251, the CPU disconnects the modem from the netWork. Next, at

20

25

30

35

40

45

50

55

60

65

6 step 253, the user is prompted that the data transfer is com plete. The main menu is displayed at step 255, and the method continues to FIG. 9 for play of the game.

In FIG. 9, a ?oWchart is shoWn for the play of the video game. At step 265, the game starts. Next, at step 270, the CPU loads the game engine 275 from the game medium 280 into RAM 285. Next, at step 290, the CPU loads the requested data from local memory 300 into RAM 285. The requested data 295 is preferably the changed statistics requested by the user and stored in local memory as shoWn in FIG. 8. This Way, updated statistics, such as neW player performance param eters resulting from current, real professional games can be used to play a more realistic video game, as shoWn at step 305.

FIG. 10 is a block diagram shoWing a portion of a ?oW diagram for authenticating a user of a video game. At step 334, a CPU initializes a modem. The modem connects to a netWork at step 337. The game machine displays a login/sign up screen at step 340. The user selects either to sign up or login in at step 342. If the user selects to login, the next step depends upon Whether an authentication code (AC) is required, as shoWn at step 344. If no AC is required, the CPU sends the login data to the server at step 346. The ?oW then continues at FIG. 11.

Alternatively, an AC may be required by the netWork, as shoWn at step 348. This alloWs the netWork to verify that the user has a proper authentication code. For example, the authentication code may be provided at sign-up (described With respect to FIG. 12) by the netWork to the user. This Way, the netWork administrator can verify that the user is a paying user. As another example, a neW authentication code may be provided on a periodic basis, such as, for example, monthly. Thus, if a user is paying on a monthly basis, correct authen tication is only available if the user’s dues are current. As yet another example, the AC may be associated With a speci?c game machine by either the netWork or the CPU. This alloWs for security for preventing portability of AC’ s from one game machine to another.

Referring again to FIG. 10, if authentication is required, it depends Whether the AC is auto-sent or not, as shoWn at step 351. If the AC is auto-sent, the process continues at step 346. If the AC is not auto-sent, the user enters a user veri?cation code, at step 354. At step 357, the CPU compares the user veri?cation code to a game machine authentication code. If the user veri?cation code matches the game machine authen tication code, at step 360, the process continues at step 346. As stated in step 346, the login data 363 is stored at a netWork server 366. Next, the process continues at FIG. 11.

FIG. 11 shoWs a portion of a process for authenticating a video game user, continued from FIG. 10. At step 369, the server attempts to authenticate the login data and any AC present. The AC may include a user veri?cation code, to verify that the user is authorized to receive updated game parameters. Also, the AC may include a code identifying a speci?c game machine. This identifying code may, for example, be a serial number from the game machine. Alter natively, the identifying code may be a code assigned by the netWork administrator to the game machine at sign-up (de scribed With respect to FIG. 12). Further, the netWork admin istrator may verify that the identifying code, the veri?cation code, and the user login data all match. The veri?cation code may be a passWord.

At step 372, the netWork checks Whether the login data and any AC is authenticated. If the login data and any AC are authenticated, at step 376, the server sends a menu of avail able data to the game machine. Then, at step 384, the CPU displays the menu to the user and continues to FIG. 13. If the login data and any AC are not authenticated at step 372, the

Appx119

US 8,540,575 B2 7

server sends a failure message to the CPU, at step 380. The CPU displays the failure message to the user, at step 388. Preferably, the CPU next displays the lo gin/ sign-up screen to the user again. The process returns to the beginning of FIG. 10, at step 334.

FIG. 12 is a How diagram showing a process for signing up a neW user of a video game With doWnloadable statistics. In

step 390, the CPU displays, a sign-up screen. In step 393, the user enters the user’s name and chosen passWord, and possi bly other identifying information, such as a birthdate, address, etc. In step 396, the process depends upon Whether the AC is autosent. If the AC is autosent, the CPU sends the sign-up data 404 to the server 408 in step 400. In step 412, the server sends account options 416 to the game machine.

In step 420, the CPU displays the account options to the user. In step 424, the user selects What type of account the user chooses. In step 428, the CPU sends the users choice of account type to the server 408. For example, the user may choose to pay for doWnloads of neW game parameters on a monthly basis. As another example, the user may choose to pay for doWnloads of neW game parameters for an entire sports season. Or, as yet another example, the user may choose to pay for doWnloads of neW game parameters on a pay per use basis. Other business models Will be apparent to those of skill in the art.

In step 432, the server veri?es the information, creates an account and sends a menu of game data to the game machine. In step 436, the CPU displays the menu to the user. Next, the process continues as shoWn in FIG. 13.

Alternatively, if in step 396, the AC is not auto sent, the user enters an AC, in step 440. In step 444, the CPU compares the user input AC With the game machine authentication code. In step 446, the CPU determines Whether the user input AC matches the game machine AC. If not, the process continues at step 448 and the CPU displays an error message to the user. If the user input AC matches the game machine AC, the process continues at step 400.

FIG. 13 is a How diagram shoWing a doWnload process of a neW game parameter. In step 450, the user selects a set of desired game parameters. For example, the desired param eters may comprise a complete set of neW parameters for all teams in the game. As another example, the desired param eters may comprise the results of a single sports game for a single team. In step 453, the CPU sends the request to the server.

In step 456, the process depends on Whether the game machine requires an authentication code. In step 459, the server sends the requested parameters to the CPU if the game machine does not require an authentication code. In step 462, the CPU stores the neW game parameters in local memory 465.

Alternatively, if in step 456, the game machine requires an AC, the process continues to step 468. In step 468, the server attaches account information and the AC to the parameter. In step 471, the server sends the parameter to the CPU. In step 474, the CPU compares the AC With the game machine AC. In step 476, the game machine determines Whether the AC sent by the server matches the AC stored on the game machine. If there is no match, the CPU displays an error message in step 482. If there is a match, the CPU stores the data at step 479 in local memory 465. The data, or neW game parameters, can then be used for play in a game With quanti?ably increased realism.

FIG. 14 is a How diagram shoWing game play in a case in Which anAC is required. In step 490, the CPU displays a game menu. In step 495, the user selects to load saved data 500, Which has been stored in local memory 505. In step 510, the

20

25

30

35

40

45

50

55

60

65

8 CPU reads data from local memory. In step 515, the CPU compares anAC associated With the data to the game machine AC. In step 520, the process determines Whether the AC associated With the data is the same as the game machine AC. If they don’t match, the CPU displays an error message in step 535. If they match, the CPU loads the parameter data into RAM 525 in step 530. Then, the neW game parameters are used for play in a game With quanti?ably increased realism.

What is claimed is: 1. A game medium con?gured to provide a sports video

game in conjunction With a video game machine, the sports video game including video game rules and video game char acter parameters, the video game character parameters including video game character performance parameters associated With individual video game characters, the game medium being con?gured to cause the video game machine to perform a method comprising:

loading video game data stored by the game medium into a random access memory of the video game machine for playing the video game, the video game data including the video game rules and a particular video game char acter performance parameter associated With a particu lar individual video game character associated With a particular real-life sports athlete, Wherein the particular video game performance parameter is based at least in part on a real-life performance of the particular real-life sports athlete playing in one or more real-life sporting events, the particular video game character performance parameter affecting the manner in Which the particular individual video game character performs in the sports video game;

during a single sports season, receiving a series of updated video game character performance parameters from a data server via a network including the Internet, Wherein each of the updated video game character performance parameters in the series is based at least in part on one or more different real-life performances of the particular real-life sports athlete in one or more sporting events performed during the single sports season;

updating the sports video game With each of the updated video game character performance parameters received, Wherein each update changes the manner in Which the particular individual video game character performs in the sports video game such that the particular individual video game character more closely simulates real-life performance attributes of the particular real-life athlete in the sports video game; and

enabling a user to control the particular individual video game character in the sports video game using a video game controller connected to the video game machine.

2. A game medium as in claim 1, Wherein receipt of the updated video game performance parameters in the series occurs at least Weekly during at least a portion of the single sports season, such that the particular video game character simulates current real-life performance attributes of the par ticular real-life athlete on an at least Weekly basis.

3. A game medium as in claim 1, Wherein receipt of an the updated video game performance parameters in the series occurs at least daily during at least a portion of the single sports season, such that the particular video game character simulates current real-life performance attributes of the par ticular real-life athlete on an at least daily basis.

4. A game medium according to claim 1, the game medium being further con?gured to cause the video game machine to update visual aspects of the video game during a single sports season, Wherein the updated visual aspects are based on a

Appx120

Appx121

Appx122

Appx123

CERTIFICATE OF SERVICE

I hereby certify that on August 31, 2016, a copy of the following

document:

• White Knuckle Gaming, LLC’s Corrected Principal Brief

Was filed electronically with the Clerk of Court using the CM/ECF

system. Notice of this filling will be sent by operation of the ECF system

to all counsel of record. Parties may access this filing through the Court’s

ECF system.



CERTIFICATE OF COMPLIANCE

Pursuant to Fed.R.App.P. 32(a)(7)(C), I certify that according to the

word-processing system used in preparing it, the foregoing CORRECTED

PRINCIPAL BRIEF is 6,589 words in length, excluding those portions

exempted by Fed.R.App.P. 32(a)(7)(B)(iii) and Fed.Cir.R. 32(b) and

therefore complies with the type-volume limitation set forth in

Fed.R.App.P. 28.1(e)(2)(C).



corrected principal brief (final)

Documents