Fed. Cir. Spots Weak Claim Construction Arguments

Game and Tech. Co. v. Activision Blizzard (Fed. Cir. 2019)

Activision won its inter partes review (IPR) challenge that ended with the Patent Trial & Appeal Board (PTAB) finding obvious claims 1-11 of GAT’s U.S. Patent 8,253,743.

The patent here covers a method for customizing game characters. The method begins with shopping for an avatar – via an “avatar shop”; then, a set of “game item functions” are combined with the avatar (via layers).  A game item function might be “a function for attacking or defending other gamers” or perhaps “a function for charging cyber money.”  Once these “game functions” are added to the avatar, it becomes a “GAMVATAR.” Figure 5 of the patent (below) explains the equation: Avatar + Item (function) = Gamvatar.  The infringement lawsuit involving the ‘743 was administrative closed after the PTAB decision here.

In the appeal, GAT provided an oddball claim construction argument — arguing that the “avatar” must represent the user in cyberspace outside of game play and even game-related functions.  That narrowing definition of the term would be helpful in avoiding some of the prior art.  The narrowness has some limited support in the specification, but is really rejected by the claim language which simply calls for choosing an avatar from a store.

GAT also suggested an oddball definition for the “layer” used to combine the game-function with the avatar.  In the drawing above, the layer is visible and GAT argued that Layer should be construed as a visible element of the display. The key problem here as noted above is that examples of the layer include functions not displayed on the character (such as the ability to charge money).

So, obviousness affirmed. Everyone keep making your characters (I mean gamvatars).

= = = =

I have not spent a lot of time researching the details of this case, but the patentee’s claim construction arguments here appear pretty weak — we’re talking thin slices of bologna. My sense is that claim construction has moved into a more-predictable process under Phillips – a process that that will be further enhanced by the PTAB’s application of that approach in AIA trials.

= = = =


1. A method for generating a character associated with a character generating system comprising a gamvatar provider, a gamvatar controller, and a game server, the method comprising:

providing an avatar to a user accessing an avatar shop via a network, the avatar comprising multiple layers for displaying avatar functions or performing game item functions by using the respective layers; and

combining each of a plurality of game item functions with the avatar by adding the respective layers to the avatar to create a gamvatar associated with the plurality of the game item functions,

wherein the gamvatar is configured to be used to perform the plurality of the game item functions and each of the plurality of game item functions being combined with the respective layers is exhausted in response to detection of each time of using the each of the plurality of game item functions associated with playing a game provided by the game server.


34 thoughts on “Fed. Cir. Spots Weak Claim Construction Arguments

      1. 6.1.1

        Your condescension and officious judgment are noted.

        Maybe we should just outlaw all games, sports, heck even music and all else until first a level of equal outcome is achieved for everyone in the commune.

        Would you then be “happy?”


          Bildo the Patent Maximalist suffers from that brain illness where he can’t distinguish a junk patent claim from the benign concepts falling within the scope of the claim.

          This is a not uncommon affliction among the worlds worst attorneys. But Bildo has an exceptionally bad case of it. Probably caught it from Big Jeans one night in that sweaty echo chamber.


            Your post is – as usual – nothing but fallacy.

            My comment has NOTHING at all to do with any “defend a patent claim.”

            It has everything to do with YOUR apparent self-anointing as to what is or what is not “important” or a “great” use of resources.

            Your feelings on these matters simply ARE NOT IMPORTANT, and you act as if you are Trump.

            As to your continuing 0bsess10n with Quinn, and you number one meme of accusing others, your posts in this manner merely belie what occupies your thoughts.


              nothing but fallacy

              A zillion instances of you and your bff Night Wiper confusing patent claims with objects that might fall within the scope of those claims says otherwise, Bildo.

              And it’s all very well-documented.



                LOL – I simply cannot wait to read that chapter in your “book.” Will that chapter be entitled [shrugs]?

                Maybe in the meantime, you might actually address the topic that I DID present….


                Actually, MM, what is clear is that there is structure defined by the claims. That the structure is enabled and satisfies the WD requirement. Your argument is that Alappat is bad law. The EE/CS academic community has 1,000’s of papers that describe the structure of solutions and discusses the structure of software. Your position is not supported by science. Additionally, just taking anyone skilled in the art, they could build this invention and it would have structure.


                1. Your opinions on the claim are irrelevant. The issue is the structural scope of the claim. 102, 103, and 112 are all that are needed and all that should be used to evaluate claims like this.


                confusing patent claims with objects that might fall within the scope

                I think (but cannot tell for certain, as Malcolm does not provide anywhere near a cogent explanation) that this statement may be linked to his other stated views of “in a prior art context” AS IF the Grand Hall experiment does not simply, effectively and fully eradicate Malcolm’s views of “software.”

                And it’s all very well-documented.

                Absolutely – just NOT how Malcolm would attempt to spin it.

  1. 5

    Where’s Bildo to explain to us all how “character generation” is not one of the “Fine Arts”?

    I can hardly wait.

  2. 4

    Related to this topic of how hard it is to defend expensive patent lawsuits with creative claim interpretation without paying to escape, or an IPR where you usually get cheaper and earlier claim interpretation, what happened to our old friend Erich Spangenberg, [once considered the “ubertroll”] since he moved from his Texas mansion to France? One rumor is that his former business plan has fallen on hard times? Here is a 7/14/13 report from The New York Times:
    “Has Patent, Will Sue: An Alert to Corporate America” “The number of patent-infringement lawsuits has soared, partly because of Erich Spangenberg. His firm has sued 1,638 companies in the last five years.”
    link to nytimes.com

    1. 4.1

      Its hard to tell who is behind the many shell companies in the patent arbitrage business, but this article seems to suggest that Erich Spangenberg is alive and well and making more smart creative moves to make money from patents.

      1. 4.1.2

        I’m really shocked to discover that he’s still a t0 0l and a con artist.

        I note that the truth did leak out: “At the end of the day, we’re still capitalists.”

        So he’s a capitalist who wants to “improve” the patent system (again) by making it all about him, to the extent that’s possible.

        The idea that there are patents out there that aren’t being “monetized” to their maximum potential, and that this somehow is an “inefficiency” (?!) that needs to be “fixed” is nonsensical. But it’s the driving principle here and it was the driving principle before.

        Worst result for Spangenberg: expunging logic patents from the system. That’s the point of greatest (and, inevitably, perpetual) chaos in the system and therefore where the greatest opportunities for game playing lie.

        If Congress passes that b0ne head statute, Spangenberg will be back on the scene in no time.


          If Congress passes that b0ne head statute,


          You are on record as emphatically stating that the Supreme Court decisions would NEVER be abrogated.

          Or was that merely more of the “hyperbole” of your internet tough guy schtick? Maybe this is covered in your fifteen years in the making “book.” How do I get a signed copy of this “book?”


            Passing a statute that will be immediately overturned isn’t really “abrogating”, you s t 0op it dripshirt.


              Actually, passing a statute that abrogates IS abrogating.

              Whether or not that statute is later overturned (with your “immediately” already been noted as exaggeration with you moving “within 18 months” to out to three years) has NOTHING to do with the legal meaning of abrogation.

              Face it Malcolm, your vainglorious boasts of “NEVER” may very well bite the dust WELL within the your sense of “immediate.”


          I have a long and quite detailed reply caught in a “George Carlin” filter – hopefully it will be released.


              There is an unpublished list of “bad words” that will trip the “will not post” filter.

              The editorial controls at one time retained your post, but notified that it did not publish. The current editorial controls merely does not publish the post.

              Most times on questionable cases I will copy the post before hitting the enter key.

              This time I did not.

    2. 4.2


      Your NY Times link resulted in a “not found” message.

      But I have to wonder if there is a bit of exaggeration in the claim for “The number of patent-infringement lawsuits has soared” or perhaps some incorrect attribution of the cause of that “soaring” (remembering that any such “soaring” may well in fact be due to the [captured] Congressional changes in the AIA that required patent suits to multiply greatly by breaking apart single suits to the multitude of named parties.

      It seems (again) more than a bit disingenuous to only paint “half a story.”

      As for Spangenberg, meh – a single actor being a “bad actor” is NOT an indictment against patents in toto (no matter how much spin and propaganda may wish to be used to the contrary).

      But I did find this in your CNBC link to be interesting:

      He teamed with hedge fund manager Kyle Bass to challenge the patents of pharmaceutical companies with high drug prices while shorting their stocks.

      That’s your pet IPR mechanism that is a discussion point — and not in a good way.

      I also found this statement to be very interesting:
      I played in arbitrage and the troll business, and inefficiency permitted me to make a fortune. We should eliminate that and now make money another way.

      This sounds in EXACTLY the same “I made it up the ladder, so now let’s pull that ladder away” Efficient Infringement mantra used by some who fear disruptive innovation now that they have become the established party.

      As for Spangenberg himself, he appears to be a (very successful) one-trick pony, and his “fascination” is simply MORE of the ability to “leverage.”

      This can be gleaned from this statement:

      the end goal of IPwe is to turn the opaque and fragmented world of patents and patent transactions into a broad asset class that can attract much more interest from the world’s top institutional investors, as an example, insurance companies looking for pools of non-traditional investments that can generate significant returns.

      The article though is DEEP in the weeds with this statement:

      That’s an arbitrage opportunity that Spangenberg thinks will disrupt the intermediaries who today benefit the most from the opaque way the patent economy is run: primarily, patent lawyers.

      This is a classic “blame the lawyers” tactic – which dates back well before Shakespeare (Henry VI, anyone?).

      And here, is a fallacy (where the sucker comes in):

      Artificial intelligence algorithms can identify what is left in the world of intellectual property worth patenting. “We can tell you that, and that will make patents better,” Spangenberg said.

      This will not – and cannot tell you the actual item worth patenting, but will and can tell you where people will be willing to put THEIR worth in investments of patenting. There is a HUGE difference here.

      The following is more than a little self-serving (considering the source and the aim of that source):

      Karipas said the underlying technology to evaluate patents has been validated at IP Navigation Group over the last four to five years but only on a case-by-case basis for clients.

      IF ANYTHING, the “sell” points being sounded out should ALARM the Liberal Left folk who have been quietly sitting on the side as the True Onepercenters at the top of the food chain (the Google and other established tech players that feed their lemming hordes a constant stream of “patents are bad” propaganda) play with the idea of Full and Complete capture of “who owns what.”

      This take-away easily flows from this part of the CNBC piece (emphasis added):

      IPwe’s research on the ownership side of patent records shows it to be no better at being accurate. As much as 30 to 40 percent of patent ownership records are currently not identifiable or misidentified. Putting licensing and acquisition transactions into a private [sure, but THEY will have access] blockchain registry — an effort that Spangenberg said will require chief financial officers to see the value in sharing deals details and as a result may take time to be embraced — will ultimately provide all buyers and sellers in the IP market with a better infrastructure for dealmaking [classic ripple-down some benefit for you, but let’s not talk about the benefit at top for me].”

      and continues:

      Once the registry is complete, IPwe will consider giving it away to governments[because, what possibly could go wrong with the government knowing everything about everybody, eh?], among others, to get economies of scale.

      Buyer beware.


          Anon, yes, since you are seeking a response to your 4.2 digesting of Spangenburg’s quotes from the article I had found, it was unusually useful and informative and did not inspire more mere 3d grade playground level exchanges of insults. Thank you. Especially Spangenburg’s quote that “I played in arbitrage and the troll business, and inefficiency permitted me to make a fortune. ” That is in useful contrast to insistences here and on Gene’s blog that there was never any such thing as patent troll or a patent troll problem,


            Thanks Paul, as I also noted, the “boogeyman” of Tr011 was extensively overhyped – regardless of even an admitted bad apple
            (Interestingly enough, a bad apple that just as much “used” the ipr system — funny your not getting all up in arms about the “IPR-Tr011” angle but are more than willing to beat the drum of the canard of the patent Tr011).


              The alleged IPR-troll business got a lot of initial PR but never amounted to anything after the few initial attempts mostly failed. Also it is not a great business plan as there is not much incentive for a patent owner to pay a lot to make the troll IPR petitioner go away [settle] because the prior art cited by the petitioner is still publicly available for anyone else to use, and an IPR defense is nothing like the defense costs [and thus settlement payments] of a patent suit.

  3. 3

    That is some phenomenally ineligible junk right there. My gamvatar is activated only when I’m driving in a tunnel in a state that ends with a vowel. Can I haz patent now? This is not “progress” in anything.

  4. 2

    What is needed is stiff sanctions. Which courts are very reluctant to do.

    I had an appeal to the Fed.Cir. Other side lost on summary judgment. His arguments below were not crazy. But he abandoned every single one of them, and made a totally new argument (for infringement by the doctrine of equivalents) to the Fed.Cir. that he had never made below. He lost, but the CAFC refused to sanction him.

    1. 2.1

      That raises an interesting question. How often are motions for sanctions even filed at the CAFC these days, no mater how frivolous the argument?
      [I do remember some being granted back when CAFC founder [and former general] Judge Markey was in charge.]

  5. 1

    I have been amazed on several occasions to see the hutzpah claim interpretations argued by patent owner attorneys to keep the litigation and billings going to avoid what should have been a prompt DJ. These kind of cases need prompt Markmans if not stayed by IPRs.

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