NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CG TECHNOLOGY DEVELOPMENT, LLC,
Appellant
v.
FANDUEL, INC., DRAFTKINGS, INC., BWIN.PARTY
DIGITAL ENTERTAINMENT PLC,
Appellees
______________________
2019-1261
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2017-
00902.
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Decided: December 17, 2019
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ROBERT SHAFFER, Finnegan, Washington, DC, argued
for appellant. Also represented by SCOTT A. ALLEN, JOSHUA
GOLDBERG.
ERIC ALLAN BURESH, Erise IP, P.A., Overland Park,
KS, argued for appellees FanDuel, Inc., DraftKings, Inc.
Also represented by MEGAN JOANNA REDMOND. Appellee
DraftKings, Inc. also represented by JONATHAN
BERSCHADSKY, Merchant & Gould P.C., New York, NY;
2 CG TECHNOLOGY DEVELOPMENT, LLC v. FANDUEL, INC.
ERIC CHAD, Minneapolis, MN.
EVAN M. ROTHSTEIN, Arnold & Porter Kaye Scholer
LLP, Denver, CO, for appellee bwin.party Digital Enter-
tainment PLC.
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Before PROST, Chief Judge, CLEVENGER and MOORE,
Circuit Judges.
MOORE, Circuit Judge.
CG Technology Development, LLC (CG Tech) appeals
the Patent Trial and Appeal Board’s Final Written Deci-
sion holding claims 1, 16, 20, 21, 24, 25, 31, and 32 of U.S.
Patent RE39,818 would have been obvious. FanDuel, Inc.
v. CG Tech. Dev., LLC, No. IPR2017-00902,
2018 WL
5269266, at *1 (P.T.A.B. Oct. 4, 2018) (Board Opinion). Be-
cause substantial evidence supports the Board’s finding
that U.S. Patent No. 5,816,918 (Kelly) teaches the disputed
limitations even under the proper construction of the “au-
thorize play based on age” limitations, we affirm.
BACKGROUND
FanDuel, Inc., DraftKings, Inc., and bwin.party Digital
Entertainment, PLC (collectively, Appellees) petitioned for
inter partes review of the ’818 patent. The ’818 patent de-
scribes a video game system with personalized wireless
controllers that allow for custom operation of an interactive
video system based on a user’s personal data. See ’818 pat.
at 1:49–64. Although the specific language in each claim
varies, each of the challenged claims recites a limitation
authorizing or allowing a user to play a specific game based
on the age of the user. 1 For example, claim 1 reads:
1 The parties do not dispute the Board’s characteri-
zation of the following terms as the “authorize play based
CG TECHNOLOGY DEVELOPMENT, LLC v. FANDUEL, INC. 3
1. A video game system comprising:
a processor unit for executing game instructions
and displaying video images on a display screen,
the processor includes a receiver for receiving wire-
less identification and control signal transmis-
sions; and
a personalized portable control comprising:
a plurality of control switches for generat-
ing game control signals;
a non-volatile memory for storing personal-
ized identification information correspond-
ing to a user of the controller, the
personalized identification information
comprises a user age, and historical game
performance data; and
a transmitter for wireless transmitting of
the personalized identification and game
control signals to the processor unit,
wherein the processor unit authorizes game
on age” limitations: “wherein the processor unit authorizes
game execution based on the user age” (claim 1); “author-
izing operation of a video game based upon the user age”
(claim 16); “authorize game play based at least in part on
an age of a player” (claim 20); “authorizing play of the in-
teractive game based at least in part on the data and an
age of the player” (claim 21); “authorize game play based
on an age of a player” (claim 24); “wherein the CPU author-
izes game participation if a player’s age is within a defined
age group” (claim 25); “authorizing play of the game based
at least in part on the data and an age of a game player”
(claim 31); and “allowing play of the game based at least in
part on the age of the game player” (claim 32).
4 CG TECHNOLOGY DEVELOPMENT, LLC v. FANDUEL, INC.
execution based on the user age, further the
processor unit comprises a transmitting for
transmitting the historical game perfor-
mance data to the portable controller.
(emphasis added).
Appellees petitioned for inter partes review on the basis
that the challenged claims would have been obvious in view
of the asserted combinations of references. Each combina-
tion relied in part on the disclosure in Kelly. A player can
choose to play a non-tournament (i.e., prize credit) game or
to participate in a tournament. See J.A. 3454 at 22:14–29,
J.A. 3429 at Fig. 5. “[P]layers can also be required to meet
certain conditions before participating in certain games or
tournaments.” J.A. 3454 at 22:42–44. The operator may
“designate further characteristics of tournaments, such as
. . . participation based on predefined characteristics, age,
[or others].” J.A. 3464–65 at 42:64–43:5.
The Board construed the “authorize play based on age”
limitations to mean “a control that either prohibits or ad-
justs operation of a video game based on the user’s age” and
found that Kelly discloses the “authorize play based on age”
limitations. See Board Opinion at *11, 39. CG Tech ap-
peals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(4)(A).
DISCUSSION
We review the Board’s claim construction de novo.
Paice LLC v. Ford Motor Co.,
881 F.3d 894, 902 (Fed. Cir.
2018). Obviousness is a question of law we review de novo,
with underlying factual findings reviewed for substantial
evidence. In re NTP, Inc.,
654 F.3d 1279, 1297 (Fed. Cir.
2011). What a reference teaches is a question of fact we
review for substantial evidence.
Id.
The Board construed the “authorize play based on age”
limitations to mean “a control that either prohibits or ad-
justs operation of a video game based on the user’s age.”
CG TECHNOLOGY DEVELOPMENT, LLC v. FANDUEL, INC. 5
Board Opinion at *11. CG Tech argues the Board erred in
including “or adjusts” in its construction. Rather than
challenge CG Tech’s position as to the propriety of the lan-
guage “or adjusts” in the Board’s claim construction, Appel-
lees instead argue that the inclusion of “or adjusts” had no
impact on the Board’s analysis. Appellees argue the
Board’s finding that Kelly discloses the “authorize play
based on age” limitations was based on the unchallenged
part of the Board’s construction because it found Kelly
“prohibit[s] operation of a game” based on age. See Board
Opinion at *15.
We agree with CG Tech that the Board erred in con-
struing the “authorize play based on age” limitations. The
Board’s construction fails to distinguish the two embodi-
ments described in the claims and the specification: au-
thorizing and adjusting. “Authorize” indicates only
prohibiting (or not prohibiting) the player from playing the
game, a concept distinct from “adjusting” the game. The
claim language includes “adjusting the game” where in-
tending to encompass adjusting. See ’818 pat. at claim 19
(including a limitation requiring “adjusting the video game
based upon the user age”). The claims also distinguish be-
tween “authorizing” game execution based on user age and
“adjusting” the game. See ’818 pat. at claims 26 and 30
(including limitations requiring “either allowing participa-
tion in the game based at least in part on the age of the
player, or adjusting the game based at least in part on the
age of the player” (emphases added)).
The specification similarly distinguishes between au-
thorizing and adjusting game play. The specification de-
scribes a controller that ensures “amusement games
designed for a specific age group [are] not operated by an
inappropriate user” such that a “video game can be prohib-
ited based on the user age.” ’818 pat. at 3:42–46. But it
separately explains that “educational video ‘games’ can be
adjusted to the age of the user.”
Id. at 3:47–48. The intrin-
sic record thus supports our conclusion that the “authorize
6 CG TECHNOLOGY DEVELOPMENT, LLC v. FANDUEL, INC.
play based on age” limitations do not include adjustment
and therefore are properly construed as requiring “a con-
trol that prohibits operation of a video game based on the
user’s age.”
Although the Board incorrectly construed the “author-
ize play based on age” limitations, its findings regarding
Kelly were limited to Kelly’s disclosure of “prohibiting”
game play based on age. Board Opinion at *15. The incor-
rect claim construction is therefore harmless error if sub-
stantial evidence supports its finding. In re Watts,
354 F.3d
1362, 1369 (Fed. Cir. 2004) (noting “the harmless error rule
applies to appeals from the Board”).
The Board found Kelly discloses that “meeting a prede-
fined prerequisite is used in ‘some embodiments’ to pro-
hibit operation of a game for failure to meet the established
prerequisite” and further found it “discloses using the age
of the game player as a prerequisite to playing a particular
game.”
Id. at *15–16. The Board thus found Kelly discloses
“a control that prohibits operation of a video game based on
the user’s age.” This finding is supported by substantial
evidence.
Kelly discloses that in some embodiments of its system,
“players can . . . be required to meet certain conditions be-
fore participating in a credit game or tournament.” J.A.
3454 at 22:42–44. Thus, as the Board recognized, players
that do not meet the conditions may be prohibited from
playing in the only two game modes described by Kelly—a
credit game or tournament. See Board Opinion at *16.
Kelly discloses that one such “predefined characteristic” is
age. J.A. 3454 at 42:63–43:5. Though the disclosures in
Kelly are in separate portions of the specification, they
nonetheless support the Board’s finding that a person of
ordinary skill in the art would understand that Kelly dis-
closes prohibiting credit game and tournament play based
on age.
CG TECHNOLOGY DEVELOPMENT, LLC v. FANDUEL, INC. 7
CONCLUSION
The proper construction of the “authorize play based on
age” limitations is “a control that prohibits operation of a
video game based on the user’s age.” Because substantial
evidence supports the Board’s finding that Kelly teaches
these limitations even under the proper construction, we
affirm.
AFFIRMED
COSTS
No costs.
