1. 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
2. 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
3. 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
5. 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
6. 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
7. 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.
8. 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,
9. 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
10. 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
11. 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
12. 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.
13. 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
14. 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
15. 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
16. 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.
17. 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
18. 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
19. 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
20. 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
21. 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
22. 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
23. 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.
24. 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.
25. 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
26. 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
27. 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
28. 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
29. 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
30. 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.
31. 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
32. 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.,
33. 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
34. 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.
35. 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.
36. 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
37. 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
38. 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
39. 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
40. 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.
41. 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.
42. 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
44. 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
45. 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
46. 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
47. 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).
Case 1:15-cv-00150-JNP-PMW Document 37 Filed 06/02/16 Page 2 of 7
Appx3
48. 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).
Case 1:15-cv-00150-JNP-PMW Document 37 Filed 06/02/16 Page 3 of 7
Appx4
49. 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).
Case 1:15-cv-00150-JNP-PMW Document 37 Filed 06/02/16 Page 4 of 7
Appx5
50. 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).
Case 1:15-cv-00150-JNP-PMW Document 37 Filed 06/02/16 Page 5 of 7
Appx6
51. 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
Case 1:15-cv-00150-JNP-PMW Document 37 Filed 06/02/16 Page 6 of 7
Appx7
52. 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
Case 1:15-cv-00150-JNP-PMW Document 37 Filed 06/02/16 Page 7 of 7
Appx8
53. 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 ofthe 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
56. US. Patent Sep. 24, 2013 Sheet 2 0f 14 US 8,540,575 B2
Fig. 2
Controller
Controller
Game Machine
MOQUMCCOU
20MEEBxQ ControllerS62E00
Controller
ControllerBus Control Circuit
21
Appx104
57. 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
58. US. Patent Sep. 24, 2013 Sheet 4 0f 14 US 8,540,575 B2
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
59. US. Patent Sep. 24, 2013 Sheet 5 0f 14 US 8,540,575 B2
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
60. 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
61. US. Patent Sep. 24, 2013 Sheet 7 0f 14 US 8,540,575 B2
Fig. '7
System 221
Startup /
Is Auto
Update
Enabled?
230CPU
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
62. US. Patent Sep. 24, 2013 Sheet 8 0f 14 US 8,540,575 B2
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
63. US. Patent Sep. 24, 2013 Sheet 9 0f 14 US 8,540,575 B2
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
64. US. Patent Sep. 24, 2013 Sheet 10 0f 14 US 8,540,575 B2
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
65. 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
66. 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
67. 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
LocalT
CPL compares Memory
GM AC with
received AC
CPU displays
error message
/482
479
CPU stores
. Data
data m local
requested
memory
Appx115
68. US. Patent Sep. 24, 2013 Sheet 14 0f 14 US 8,540,575 B2
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
@méCPU displays 520 CPU loads data
error message / in to RAM
/ Data
requested535
Appx116
69. 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 ofShaquile 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 ofthe 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 abasketball 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
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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 forthe 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 forupdating parameters
ofa 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 ofthe video game. Thus,
for example, the neW performance characteristics ofthe 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 ofthe 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 ofthe
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 ofa 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 11 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
70. 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
puttinga 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 ofcontrol
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 ofthe 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.
ThenetWorkmay be, forexample, What is commonly referred
to as the internet, or, alternatively, the netWork 85 may be
anothertype ofnetWork, 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
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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
ofthe 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 109. The game mediummay 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
ofthe 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 ofWrigley
Field is green and ?ourishing during certain parts ofthe year,
such as from May to July. During April, Augustand 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 ofhoW 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 ofFenWay 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
changedto matchreal life afterthe 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
71. US 8,540,575 B2
5
and 12.3 shots attemptedper game. Inthe playoffs ofthe same
season, he averaged 20.2 points and 16.1 shot attemptedper
game. These improved playoff statistics can noW be doWn
loaded. A video game player can play abasketball 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 onthe 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, ifthe 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 blocksper 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 ofthe 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. Ifautoup
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,
ifthe user didnot choose to update the video game. Ifthe 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
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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
usedto 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. Ifno 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 ifthe 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 ofAC’ s from one game
machine to another.
Referring again to FIG. 10, ifauthentication is required, it
depends Whether the AC is auto-sent or not, as shoWn at step
351. Ifthe 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
