My take away observations from the PTAB hearing are overall positive.
While no particular comments by either the judges or lawyers will forecast the ultimate ruling there were some definitive statements that I found quite important for Worlds.
The agreement that the priority date of the provisional patent will not be challenged offers a higher and earlier threshold for prior art challenges.
The acquiescence of the Phillips standard rather than BRI is significant in narrowing the construing of claims
In that regard Judge Easthom asked Bungies lawyer how the board could square Judge Caspers Markman order on the definition of an avatar being a 3D representation of the online user with Bungies proposal as simple a graphic representation of the user. By appearing to narrow that definition the reliance on prior art appears to become harder for Bungie to overcome.
On the claims covering the maximum number of avatars - N and N prime
As a comparative step in determining which avatars could be displayed i felt the board understood and agreed, Bungie simply didn't offer a compelling rebuttal on this set of claim issues.
Consensus on the definition of "determining" was complicated. Worlds argued that this was a process done at the client prior to being sent to the graphic pipeline as a separate pre function to the rendering engine output to the display.
Bungie argued that the rendering engine and display are all one process that Funkhouser covers in his prior art. Worlds pointed out that even Bungies expert agreed that Funhouse did not address filtering of avatars within the field of view, which is a core element of Worlds patent claims necessary for load balancing and crowd control.
The complex and unclear issue was proving that Worlds conceptualization and reduction to practice antedated Funkhouser. Although Worlds provided source code log files proving the early development and implementation of "crowd control" pre Funkhouser supported by affidavits from worlds developers and project leaders pre release as well as Wall Street Journal article and press release on Worlds Chat, the board replied" how can we be certain that the conceptualization and implementation were in fact utilized in the initial product launch and not updated after Funkhouser's paper
I took this to be an attempt by certain members of the board to look for a rationale to accept Funkhouser.
On this point my gut tells me they are torn between Bungie's argument that Funhouser filtered avatars on the client when a user turned and limited the avatars outside of the field of view and the prima faca evidence that Worlds launched its product and thousands of people downloaded it and it worked therefore proving that the features of "filtering avatars within the field if view" were implemented as claimed, otherwise the system would have failed and could not have handled to flood of users on line. Thats a fairly strait proof of fact in my book. If they choose to consider the reality of the products functionality. after all that is what Worlds Chat was all about, hosting large numbers of people in a 3d virtual space.
We'll have to wait until the ruling but I believe Worlds will survive with a number of claims ruled as valid.
If some are invalidated then the next issue based on which claims are ruled invalid is whether an appeal is filed by Worlds or Bungie and does the Federal case get rescheduled or does the Federal Court continue the stay pending the outcome of an appeal.
Overall I believe Worlds came through the oral arguments very well.
