Activision Blizzard scores gaming patent win at Fed Circuit
Activision Blizzard and a Ukrainian gaming company have won a victory at the US Court of Appeals for the Federal Circuit, which affirmed the Patent Trial and Appeal Board’s (PTAB) invalidation of a rival’s patent.
In its judgment, issued yesterday, November 19 the Federal Circuit held that, despite some errors in its reasoning, the PTAB was correct to invalidate Game and Technology Co’s (GAT) patent.
Activision Blizzard and Ukrainian game developer Wargaming successfully petitioned the PTAB to invalidate the patent via an inter partes review (IPR) in 2018.
The petitioners argued that key claims of GAT’s patent were already disclosed by the Dungeons and Dragons (D&D) Handbook, as well as a 2003 US patent application (Levine).
The PTAB sided with Activision Blizzard and Wargaming, finding that claim 1 of the patent would have been obvious to a person of ordinary skill in the art based on the combination of the D&D Handbook and the Levine application.
A key issue in the case was whether the IPR should have been instituted in the first place.
The IPR petition was filed in March 2017, more than a year after GAT sued Wargaming for infringing the patent.
Ordinarily, the IPR would, therefore, have been time-barred, but the court summons delivered to Wargaming was missing the court clerk’s signature and the court’s official seal.
Wargaming argued that its IPR petition was not time-barred as no court summons relating to its alleged infringement of the patent had been served in the first place.
GAT criticised the PTAB for finding that it had “no authority to overlook defects in service of a complaint in district court litigation and deem service to have occurred”.
The PTAB had found that only the district court was authorised to make such determinations.
The Federal Circuit in fact agreed with GAT’s argument, ruling that the PTAB “cannot strictly rely on a district court’s determination of proper service because district courts rarely make such determinations”.
But GAT was still unsuccessful in arguing that the IPR petition was time-barred, as it devoted just “one paragraph to its substantive argument” as to why notice had been properly served more than a year before the filing of the IPR petition.
On the merits, the Federal Circuit agreed with the PTAB’s assessment that claim 1 of the patent would have been obvious to a person of ordinary skill in the art.
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