Game and Technology Co., Ltd. v. Wargaming Group Limited

  United States Court of Appeals
      for the Federal Circuit
                 ______________________

       GAME AND TECHNOLOGY CO., LTD.,
                  Appellant

                            v.

   WARGAMING GROUP LIMITED, ACTIVISION
             BLIZZARD INC.,
                  Appellees
           ______________________

                       2019-1171
                 ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2017-
01082.
                 ______________________

               Decided: November 19, 2019
                 ______________________

    JOSEPH J. ZITO, DNL ZITO, Washington, DC, argued
for appellant. Also represented by RICHARD ARTHUR
CASTELLANO.

   HARPER BATTS, Sheppard Mullin Richter & Hampton
LLP, Palo Alto, CA, argued for all appellees. Appellee War-
gaming Group Limited also represented by CHRISTOPHER
SCOTT PONDER, JEFFREY LIANG.

    SHARON A. ISRAEL, Shook, Hardy & Bacon, LLP, Hou-
ston, TX, for appellee Activision Blizzard Inc. Also
2                 GAME AND TECH. CO. v. WARGAMING GRP. LTD.




represented by TANYA L. CHANEY, DAVID MOREHAN; JOHN
D. GARRETSON, Kansas City, MO.
                ______________________

     Before DYK, PLAGER, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
    Game and Technology Co. (GAT) appeals the final writ-
ten decision of the Patent Trial and Appeal Board, ruling
that institution of inter partes review was not barred under

(b) and that claims 1–7 of 

 would have been obvious over the asserted
prior art. Under the facts of this case, and as argued by the
parties, the Board did not err in holding that petitioner
Wargaming Group Ltd. was not properly “served with a
complaint alleging infringement of the [’243] patent” more
than one year before it filed its IPR petition. Accordingly,
the IPR was not barred under § 315(b). Because substan-
tial evidence supports the Board’s determination that
claims 1–7 of the ’243 patent would have been obvious over
the asserted prior art, we affirm.
                        BACKGROUND
                              I
    The ’243 patent discloses a “method and system for
providing an online game, in which ability information of a
unit associated with a pilot is enabled to change as ability
information of the pilot changes.” ’243 patent col. 1 ll. 20–
25. The ’243 patent admits that in the prior art, a gamer
could control both a player character and a unit, but asserts
that the player character and the unit would operate inde-
pendently of one another. Id. at col. 1 ll. 37–48. Because
they were independent, any increase in the ability of the
player character would not translate to the unit, and vice
versa. Id. at col. 1 ll. 48–55. The lack of a direct connection
between the player character and its associated unit would
GAME AND TECH. CO. v. WARGAMING GRP. LTD.                     3



decrease gamer convenience and interest in the game. Id.
at col. 1 ll. 54–60.
    The ’243 patent proposes to solve this problem by cre-
ating a system in which “a pilot and unit information asso-
ciated with the pilot interoperate.” Id. at col. 2 ll. 6–9. In
one embodiment, a “sync point” of 0.8 represents the ratio
by which a unit’s “attack power” increases in response to a
corresponding increase in the pilot’s “brave points.” Id.
at col. 7 l. 63–col. 8 l. 1. Thus, if a pilot’s brave points in-
crease by ten, the attack power of its associated unit would
increase by eight. Id. at col. 8 ll. 1–19.
    The specification expressly defines both “pilot” and
“unit”:
    1) Pilot. A pilot used in the present specification
    is a player character representing a gamer who im-
    ports his/her feelings in a game to continue the
    game. The gamer may control motions of a unit
    through the pilot.
    2) Unit. A unit used in the present specification
    is an object operated by a control of a gamer, and
    the unit may be an object for continuing a game
    substantially, for example, a robot character. The
    unit may be a target for the gamer to import his/her
    feelings. Also, a concept of item belonging to the
    gamer may be applied to the unit.
Id. at col. 3 ll. 6–17. The specification also states that “the
present invention may further include . . . a pet unit that
accompanies a robot unit as another unit of the pilot, and
helps a game progress.” Id. at col. 7 ll. 14–16. The ability
information of the pet unit “may also interoperate with
change of ability information of the pilot and change.” Id.
at col. 7 ll. 17–20.
    Claims 1–7 are at issue on appeal. Claim 1 is illustra-
tive of the independent claims, including independent
claims 6 and 7, and recites:
4                GAME AND TECH. CO. v. WARGAMING GRP. LTD.




    1. An online game providing [a] method for provid-
    ing a pilot and a unit associated with the pilot at
    an online game, the method comprising the steps
    of:
    controlling an online game such that a player can
    manipulate a pilot and a unit associated with said
    pilot, said pilot being a game character operated by
    a player, said pilot representing the player, said
    unit being a virtual object controlled by the player;
    maintaining a unit information database, the unit
    information database recording unit information
    on said unit, in which the unit information includes
    ability of said unit and sync point information;
    maintaining a pilot information database, the pilot
    information database recording pilot information
    on said pilot, in which the pilot information in-
    cludes a unit identifier indicating said unit associ-
    ated with said pilot, ability of said pilot and the
    ability of said unit associated with said pilot;
    receiving a request for update on first pilot ability
    information of a first pilot;
    searching for unit identifier information associated
    with the first pilot by referring to the pilot infor-
    mation database;
    searching for sync point information associated
    with the searched unit identifier information by re-
    ferring to the unit information database; and
    updating and recording the first pilot ability infor-
    mation and unit ability information associated
    therewith in accordance with the searched sync
    point information such that said ability of unit is
    changed proportionally to changes in ability of the
    pilot by referring to said sync point,
GAME AND TECH. CO. v. WARGAMING GRP. LTD.                  5



   wherein said sync point information is a ratio of
   which changes in said ability of pilot are applied to
   said ability of unit, and said steps of searching for
   unit identifier information and of searching for
   sync point information are performed by a proces-
   sor.
Id. at col. 11 ll. 13–47. Claims 2 through 5 depend from
claim 1. 1
                            II
    The date one year prior to the filing date of Wargam-
ing’s IPR petition is March 13, 2016. GAT filed a complaint
accusing Wargaming and its affiliate, Wargaming.net, of
infringing the ’243 patent on July 9, 2015. GAT hired a
process server to serve the complaint and summons on
Wargaming.net at its registered agent in the United King-
dom (hereinafter, the “UK service”). The process server
served Wargaming.net on December 10, 2015 “with the
Summons in a Civil Action issued herein, together with”
the attached documents. J.A. 1972. The attached sum-
mons given to Wargaming.net, however, was not signed by
the clerk of court and did not bear the court’s seal. GAT’s
attorney also mailed a copy of the complaint and summons
to Wargaming at its office in Cyprus in December 2015
(hereinafter, the “Cyprus service”).
    On February 11, 2016, counsel for Wargaming called
counsel for GAT to discuss the lawsuit. In a follow-up e-
mail, Wargaming’s counsel indicated that it would waive
service as follows:
   As I indicated, we still do not believe that service
   was properly effected on either Wargaming entity.



   1     GAT does not separately argue the validity of the
dependent claims and therefore the validity of these claims
rises or falls with the validity of independent claim 1.
6                GAME AND TECH. CO. v. WARGAMING GRP. LTD.




    Nevertheless, we will waive service and our de-
    fenses to improper service in exchange for your
    agreement that we have until April 1 to answer or
    otherwise respond to the complaint.
J.A. 1631. No formal waiver was filed with the district
court.
     On March 15, 2016, counsel for Wargaming appeared
in the action at a scheduling conference ordered by the dis-
trict court. On April 1, 2016, Wargaming filed a motion to
dismiss for improper venue or alternatively for failure to
state a claim.
                            III
    On March 13, 2017, Wargaming filed its petition for
IPR. The petition stated that “Petitioner and real-parties-
in-interest are not barred or estopped from requesting inter
partes review . . . because they have not been served.”
J.A. 3043. Petitioner cited a declaration of its general
counsel in support of this contention. In its preliminary
response, GAT relied on the UK service to show that War-
gaming’s IPR petition was barred under 

(b).
As evidence, GAT submitted a “witness statement of ser-
vice” from the process server stating that a complaint for
infringement of the ’243 patent was served in England and
that the deemed date of service was December 14, 2015.
J.A. 1972. After reviewing the parties’ briefs and evidence,
the Board acknowledged that the “record presents compet-
ing evidence as to whether Wargaming.net LLP was served
more than one year before the filing of the Petition.”
J.A. 3045. The Board determined that development of the
record would be required to resolve the factual issues un-
derlying the time bar, but it instituted the IPR in the in-
terim. In response, GAT submitted a supplementary brief,
now relying on both the UK service and the Cyprus service
to establish the § 315(b) bar date. Acknowledging that the
UK service’s summons may not have included the court’s
seal or the clerk’s signature, GAT argued that a “mere
GAME AND TECH. CO. v. WARGAMING GRP. LTD.                   7



procedural printing error that caused the seal and signa-
ture to be missing from the copy of the summons properly
served by [the process server] does not render the service
ineffective.” J.A. 3291.
    At a subsequent hearing before the Board, one Admin-
istrative Patent Judge stated that the Board does not “have
the authority, as far as I can see, to deem service to have
occurred and overlook errors in service. We are bound by
what happened in the district court.” J.A. 3109. Another
APJ on the panel expressed his concern that “[i]f we don’t
have a [district court] decision saying that service occurred,
what is it that we are supposed to hang our hat on here?”
J.A. 3110. When asked if it was relying on waiver of service
as an independent ground for service, GAT responded that
“the date that you should be looking at should be the date
of attempted service,” as the waiver simply “indicates there
was no intent by the parties to dispute service.” J.A. 3111.
     In its final written decision, the Board concluded that
neither the UK service nor the Cyprus service sufficed to
trigger § 315(b)’s time bar. The Board determined that the
lack of signature and seal rendered the UK service non-
compliant with Rule 4(a) of the Federal Rules of Civil Pro-
cedure. The Board reiterated that it has “no authority to
overlook defects in service of a complaint in district court
litigation and deem service to have occurred,” and empha-
sized that “no district court has deemed service to have oc-
curred.” Wargaming Grp. Ltd. v. Game & Tech. Co.,
No. IPR2017-01082, 

, at *6 (P.T.A.B.
Sept. 7, 2018). The Board likewise determined that the Cy-
prus service failed to satisfy Rule 4, which requires that the
clerk send the summons and that the form of mail include
a signed receipt. Because counsel for GAT had sent the
summons and did not include a signed receipt, the Board
concluded that the Cyprus service did not qualify as ser-
vice.
8                 GAME AND TECH. CO. v. WARGAMING GRP. LTD.




                              IV
    Wargaming’s IPR petition asserted that claims 1–7 of
the ’243 patent would have been obvious over two prior art
references: Levine2 and the Dungeons & Dragons Player’s
Handbook 3 (hereinafter, the “D&D Handbook”).
    Levine discloses a “computing grid for massively multi-
player online games.” J.A. 626 at Title. Levine’s invention
“includes an application database that stores state infor-
mation about the users, objects, and entities participating
in the interactive, multi-user application.” J.A. 631 ¶ 155.
Levine also discloses that “[t]he rules of many [massively
multi-player online games] are based on paper and dice
role-playing games popularized in the dice game Dungeons
and Dragons.” J.A. 627 ¶ 14.
     The D&D Handbook is a rulebook for playing the tab-
letop fantasy roleplaying game Dungeons & Dragons. The
D&D Handbook explains that a character may have a “fa-
miliar,” or a magical beast companion that enhances the
abilities of its master. J.A. 1054. Both the character and
its familiar have a certain number of “hit points,” or health.
A character’s hit points, which represent the amount of
damage that the character can withstand without dying or
falling unconscious, increase with its level. At any given
time, the familiar has “one-half the master’s total hit
points,” rounded down. J.A. 1054.
    In its final written decision, the Board construed the
terms “pilot,” “unit,” and “ability” in claim 1 of the ’243 pa-
tent. The Board rejected GAT’s argument that the “unit”
must be an object such as a robot or vehicle “on which a
pilot rides,” noting that the specification expressly defines


    2  U.S. Patent Application No. 2003/0177187.
    3  DUNGEONS AND DRAGONS: PLAYER’S HANDBOOK:
CORE RULEBOOK I V. 3.5 (Julia Martin & John Rateliff eds.,
2003).
GAME AND TECH. CO. v. WARGAMING GRP. LTD.                   9



“unit” as simply “an object operated by a control of a
gamer.” Wargaming, 

, at *9 (quoting
’243 patent col. 3 ll. 12–13). The Board emphasized that
the specification discloses as an example of a “unit” a “pet
unit,” which indicates that the “unit” need not be an object
operated by the pilot. 

 For similar reasons, the Board
rejected GAT’s proposed construction of “pilot” as “a player-
operated game character that operates the motion controls
of a separate unit” and construed “pilot” as simply “a game
character operated by a player, said pilot representing the
player.” 

 at *11–12. The Board likewise rejected GAT’s
assertion that an “ability” must be limited to “a character-
istic of the pilot or unit’s performance” as opposed to a
broader set of numerically represented attributes, finding
no support for this limitation in the claims or specification.

 at *12–13.
     Applying these constructions, the Board found that the
D&D Handbook’s reference to hit points and a hit point ra-
tio between a “character” and a “familiar” discloses the pi-
lot ability, unit ability, and sync point information
limitations in claim 1. 

 at *18–19. The Board also found
that Levine discloses claim 1’s remaining “database” and
“online game” limitations. 

 at *19–21. And because Lev-
ine expressly discloses that online games of its type incor-
porate D&D rules, the Board found that a person of
ordinary skill in the art would have sufficient motivation
to combine the two references. 

. The Board thus
concluded that the “subject matter of claim 1 would have
been obvious to a person of ordinary skill in the art based
on the combined teachings of D&D Handbook and Levine.”

    GAT appeals. We have jurisdiction under 

(a)(4)(A).
                        DISCUSSION
   GAT raises two issues on appeal, asserting that (1) the
Board erred by instituting the IPR when the petition was
10                GAME AND TECH. CO. v. WARGAMING GRP. LTD.




time-barred under § 315(b); and (2) the Board erred in its
determination that claims 1–7 of the ’243 patent would
have been obvious over Levine and the D&D Handbook.
We first address GAT’s time-bar arguments, and then we
turn to obviousness.
                              I
     We have jurisdiction to review the Board’s time-bar de-
termination in its final written decision. Wi-Fi One, LLC
v. Broadcom Corp., 

 (Fed. Cir. 2018)
(en banc). We review the Board’s legal conclusions de novo
and its fact findings for substantial evidence. Bennett Reg-
ulator Guards, Inc. v. Atlanta Gas Light Co., 

 (Fed. Cir. 2018). With respect to the Board’s proce-
dural or administrative decisions, our review is limited to
ensuring that they are not “arbitrary, capricious, an abuse
of discretion . . . otherwise not in accordance with law . . .
[or] unsupported by substantial evidence.” Personal Web
Techs., LLC v. Apple, Inc., 

 (Fed. Cir.
2017) (quoting 

(2)(A), (E)). The IPR peti-
tioner bears the burden of persuasion to demonstrate that
its petitions are not time-barred under § 315(b). Worlds
Inc. v. Bungie, Inc., 

 (Fed. Cir. 2018).
     Section 315(b) states that “[a]n inter partes review may
not be instituted if the petition requesting the proceeding
is filed more than 1 year after the date on which the peti-
tioner . . . is served with a complaint alleging infringement
of the patent.” 

(b). We have held that the
“plain meaning of the phrase ‘served with a complaint’ is
‘presented with a complaint’ or ‘delivered a complaint’ in a
manner prescribed by law.” Click-To-Call Techs., LP v. In-
genio, Inc., 

 (Fed. Cir. 2018), cert.
granted in part sub nom. Dex Media, Inc. v. Click-To-Call
Techs., LP, 

 (2019). Indeed, “the legally-
charged text ‘served with a complaint’ is used ordinarily in
connection with the official delivery of a complaint in a civil
action.” 

GAME AND TECH. CO. v. WARGAMING GRP. LTD.                  11



    At the outset, we address GAT’s assertion that the
Board erred by holding that it had “no authority to overlook
defects in service of a complaint in district court litigation
and deem service to have occurred” and that it cannot find
proper service if “no district court has deemed service to
have occurred.” Wargaming, 

, at *6. We
agree with GAT. Because the Board’s authority to institute
an IPR is dependent on whether the “petitioner . . . is
served with a complaint,” 

(b), the Board
must necessarily determine whether service of a complaint
alleging infringement was properly effectuated. The Board
cannot strictly rely on a district court’s determination of
proper service because district courts rarely make such de-
terminations. Indeed, where the parties do not challenge
service, a district court might never determine whether
service was proper or whether the defendant waived its de-
fense of improper service.
     Section 315(b) does not itself define what it means to
be “served with a complaint.” As we indicated in Click-To-
Call, the Board can look to multiple sources to discern the
meaning of “served.” 

. Rule 4 of the Fed-
eral Rules of Civil Procedure establishes the basic require-
ments for service in a federal court. See generally Fed. R.
Civ. P. 4. Other sources include the ordinary meaning of
“served,” as well as common law interpreting Rule 4. See,
e.g., 4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1083 (4th ed. 2019)
(noting that “[t]he general attitude of the federal courts is
that the provisions of Federal Rule 4 should be liberally
construed”); King v. Taylor, 

 (6th Cir.
2012) (explaining that the service requirement is satisfied
by proper service of process, consent, waiver, or forfeiture
by the defendant (first citing Murphy Bros., Inc. v. Michetti
Pipe Stringing, Inc., 

 (1999), then citing
Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 

 (1987))).
12               GAME AND TECH. CO. v. WARGAMING GRP. LTD.




     In its interpretation of § 315(b), the Board properly
looked to Rule 4 as a starting point for its analysis of
whether GAT’s complaint had been served. However, it is
presumed that Congress knows the universe of common
law interpreting a statutory term and that, absent any in-
dication to the contrary, Congress intends to adopt the
common law interpretation of the term when using identi-
cal language in later-enacted statute. See Cannon v. Univ.
of Chi., 

, 696–98 (1979). We therefore agree
with GAT that the Board’s conclusion that it lacked author-
ity to consider the propriety of service under Rule 4 and
common law interpreting Rule 4 was incorrect. Aside from
the Board’s general statement, however, we see no error in
the Board’s analysis, particularly given GAT’s failure to
raise certain arguments on appeal.
    GAT’s opening brief devotes seven pages to the time-
bar issue. Of those pages, almost six address GAT’s prin-
cipal argument that “[c]ompliance with the time-bar re-
quirement is a condition precedent to institution of an IPR,
and thus a decision should have been rendered before in-
stitution of the IPR requested by Wargaming.” Appellant’s
Br. 21. While we agree with GAT that issues related to the
time bar should ordinarily be decided prior to institution,
we note that GAT would only have been harmed by the
Board’s decision to institute if the IPR was in fact time-
barred. The gravity of this purported error is thus entirely
dependent on the merits of GAT’s substantive time-bar ar-
guments. See Cuozzo Speed Techs., LLC v. Lee, 

 (2016) (noting that courts need not “throw out
an inter partes review decision whenever there is some
technical deficiency in the . . . Patent Office’s institution
decision” and that “errors that do not cause a patent owner
prejudice may not warrant relief.” (citing 

)).
For at least this reason, we decline GAT’s invitation to find
error in the Board’s process.
   GAT’s opening brief devotes only one paragraph to its
substantive argument that the UK service occurred more
GAME AND TECH. CO. v. WARGAMING GRP. LTD.                  13



than a year before Wargaming filed the petition. GAT
simply states that it “provided proof [of the UK service] and
provided proof that Wargaming’s counsel in writing on Feb-
ruary 11, 2016 waived any defenses as to improper ser-
vice.” Appellant’s Br. 22–23 (citation omitted). This level
of detail is insufficient to properly preserve GAT’s argu-
ments on appeal. The Board rejected GAT’s service argu-
ments based on the plain language in Rule 4, and GAT fails
to address, let alone show, any specific errors in the Board’s
findings. Mere assertions that the UK service was proper
without explanation or legal argument are usually insuffi-
cient. See SmithKline Beecham Corp. v. Apotex Corp.,

 (Fed. Cir. 2006) (holding an argument
waived because it was not presented as a developed argu-
ment in the opening brief); see also CBOCS W., Inc. v. Hum-
phries, 

, 1963 n.2 (2008) (declining to
consider a claim that was waived because it was presented
as “only a skeletal argument” (quoting Humphries v.
CBOCS W., Inc., 

 (7th Cir. 2007))). As
such, we hold these issues waived on appeal.
    GAT also failed to preserve its argument that Wargam-
ing’s counsel waived service, thus triggering § 315(b)’s time
bar at the time of the waiver. In this court, counsel for GAT
argued for the first time that Wargaming’s e-mail qualified
as waiver under Rule 4(d). Reply Br. 1–3; Oral Arg.
at 1:38–6:36,     http://oralarguments.cafc.uscourts.gov/de-
fault.aspx?fl=2019-1171.mp3. But GAT did not present
this waiver theory based on the February 11 e-mail to the
Board. Before the Board, GAT argued only that the UK
service and the Cyprus service were proper despite minor
technical deficiencies, highlighting Wargaming’s state-
ment that it waived any deficiencies in service only as sup-
port for its position that there were no such deficiencies.
We will not consider GAT’s argument for the first time on
appeal. See Fresenius USA, Inc. v. Baxter Int’l, Inc.,

 (Fed. Cir. 2009) (collecting cases) (“If
a party fails to raise an argument before the trial court, or
14               GAME AND TECH. CO. v. WARGAMING GRP. LTD.




presents only a skeletal or undeveloped argument to the
trial court, we may deem that argument waived on ap-
peal.”); Sage Prods. Inc. v. Devon Indus., Inc., 

 (Fed. Cir. 1997) (“[A]ppellate courts do not con-
sider a party’s new theories, lodged first on appeal.”). Like
certain shapeshifting characters in Dungeons & Dragons,
GAT’s evolving arguments are difficult to track. Indeed, at
oral argument, counsel for GAT appeared to retract its re-
liance on Rule 4(d), explaining that GAT was merely con-
tending that the UK service and Cyprus service complied
with the Hague convention. See Oral Arg. at 1:38–6:36. As
noted above, however, GAT did not develop these argu-
ments in its opening brief. Because GAT did not preserve
its specific arguments for why service was proper, we can-
not conclude that the Board erred in its determination that
Wargaming’s petition was not barred by § 315(b).
                             II
    Turning to the merits, GAT argues that the Board
erred in concluding that claims 1–7 of the ’243 patent
would have been obvious over Levine and the D&D Hand-
book. GAT focuses its arguments on the Board’s construc-
tion of the terms “unit,” “pilot,” and “ability.”
    We review the ultimate question of the proper con-
struction of a patent claim term de novo, with any under-
lying fact findings reviewed for substantial evidence. See
Teva Pharm. USA, Inc. v. Sandoz, Inc., 

(2015); Praxair Distrib., Inc. v. Mallinckrodt Hosp. Prods.
IP Ltd., 

 (Fed. Cir. 2018) (citing HTC
Corp. v. Cellular Commc’ns Equip., LLC, 

 (Fed. Cir. 2017)). If, as here, the IPR stems from a
petition filed before November 13, 2018, the claims are
given the “broadest reasonable interpretation” consistent
with the specification. Cuozzo, 

; see also
Changes to the Claim Construction Standard for Interpret-
ing Claims in Trial Proceedings Before the Patent Trial and
Appeal Board, 

 (Oct. 11, 2018) (to be
GAME AND TECH. CO. v. WARGAMING GRP. LTD.                   15



codified at 37 C.F.R. pt. 42). Obviousness is also a question
of law reviewed de novo, with any underlying fact findings
reviewed for substantial evidence. WBIP, LLC v. Kohler
Co., 

 (Fed. Cir. 2016).
    GAT first argues that in the context of the ’243 patent
specification, a “unit” must be “piloted” by the “pilot,” and
that the D&D Handbook does not disclose such a unit. Ap-
pellant’s Br. 28, 35. GAT identifies a robot character or
vehicle character as an example of a “unit” whose move-
ment is influenced or controlled by the pilot. GAT’s pro-
posed construction, however, is contradicted by the express
definition of “pilot” in the patent specification. The specifi-
cation defines “pilot” as “a player character representing a
gamer.” ’243 patent col. 3 ll. 7–8. The definition further
states that “the gamer may control motions of a unit
through the pilot.” 

 at col. 3 ll. 9–10 (emphasis added).
The use of the word “may” in the definition strongly implies
that the pilot does not necessarily control the motions of the
unit. In addition, the specification discloses that a “unit”
may be a “pet unit.” 

 at col. 7 l. 15. We agree with the
Board that a “pet unit” that accompanies a “player charac-
ter representing a gamer” is analogous to the D&D Hand-
book’s magical beast companion “familiar” that
accompanies a player’s character. Because, as the Board
explained, “[t]he parties agree that a familiar in D&D
Handbook is controlled by the player,” we see no error in
the Board’s conclusion that “the combination of D&D
Handbook and Levine renders obvious a ‘unit being a vir-
tual object controlled by the player.’” J.A. 39.
     GAT next argues that the “hit point” disclosed in the
D&D Handbook is not the same as an “ability” because
“[a]bility denotes skill, either native or acquired, and refers
to action under its plain meaning.” Appellant’s Br. 35. The
’243 patent specification offers no such definition for “abil-
ity,” nor is GAT’s proposed construction supported by the
specification. For example, the ’243 patent discloses an em-
bodiment in which a pilot’s ability is represented by its
16                GAME AND TECH. CO. v. WARGAMING GRP. LTD.




“brave points,” 

 at col. 7 l. 38–col. 8 l. 18, but does not
explain or indicate how a “brave point” represents a partic-
ular skill or action. While GAT argues that its construction
is consistent with the plain meaning of “ability,” it does not
adequately address the Board’s finding that a “hit point”
can plausibly be interpreted as the “ability” of a character
to withstand damage. GAT’s argument with respect to the
construction of the term “ability” is therefore unconvincing.
     GAT finally argues that Levine and the D&D Hand-
book cannot disclose all of the claim elements because the
“claimed invention is directed to computer processes, not
game rules or story lines attributable to a dice game that
emphasizes interpersonal engagement without the assis-
tance of electronics or computers.” Appellant’s Br. 34.
GAT does not argue that Levine or the D&D Handbook
fails to disclose a particular claim element or that there
would be no motivation to combine the two references. In-
stead, GAT’s argument seems to focus on the fact that the
D&D Handbook provides the rules for a dice game. See,
e.g., Appellant’s Br. 33–34 (stating that “[a] dice game man-
ual cannot reasonably be interpreted as disclosing” the
claim elements). The Board, however, found that Levine
discloses all computer processing elements of the claims,
not the D&D Handbook. The question in an obviousness
inquiry is whether it would have been obvious to a person
of ordinary skill in the art to combine the relevant disclo-
sures of the two references, not whether each individual
reference discloses all of the necessary elements. See Co-
hesive Techs., Inc. v. Waters Corp., 

(Fed. Cir. 2008) (“Obviousness can be proven by combining
existing prior art references, while anticipation requires all
elements of a claim to be disclosed within a single refer-
ence.”). GAT’s argument therefore misses its mark.
                        CONCLUSION
    For the reasons set forth above, we discern no error in
the Board’s decision to institute the IPR. Furthermore,
GAME AND TECH. CO. v. WARGAMING GRP. LTD.            17



because substantial evidence supports the Board’s deter-
mination that claims 1–7 of the ’243 patent would have
been obvious over the asserted prior art, we affirm.
                      AFFIRMED