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Game & Technology Co. v. Wargaming Group Ltd.

Failure to Brief IPR Time-Bar Challenge Leads to Waiver

Game & Technology Co. v. Wargaming Group Ltd., __ F.3d __, 2019 WL ___ (Fed. Cir. Nov. 19, 2019) (Dyk, Plager, STOLL) (PTAB) (2 of 5 stars)

Fed Cir affirms IPR decision that GAT’s claims are obvious. The claims relate to an online game in which, as the player’s character increases in ability, so does the ability of a non-player unit such as a piloted robot.

Time-bar: The court has jurisdiction to review the PTAB’s determination that Wargaming’s petition was not time-barred, per Wi-Fi One, 878 F.3d 1364 (Fed. Cir. 2018) (en banc). The opinion finds no reversible error. While the Board erred in stating that it lacked authority to examine whether GAT’s pre-critical date attempt at serving a patent complaint on Wargaming (a UK entity) was lawful, its analysis of the time bar issue was otherwise correct. The opinion declines to take up most of GAT’s time bar arguments due to appellate waiver. The opinion describes how GAT’s opening brief “devotes only one paragraph to its substantive argument that UK service occurred more than a year before Wargaming filed the petition,” and finds its “level of detail . . . insufficient to properly preserve GAT’s argument on appeal.” Op. at 12–13. To the extent GAT proposed (at oral argument) that Wargaming waived UK service, it waived this by not presenting it to the Board or in appellate briefing.

Obviousness: The opinion reviews the record and finds no error in claim construction or in the Board’s treatment of the references.

KEYWORDS: INTER PARTES REVIEW; TIME BAR; WAIVER; OBVIOUSNESS (YES)