In Game and Technology Co., Ltd. v. Activision Blizzard Inc., No. 2018-1981 (Fed. Cir. June 21, 2019), the Federal Circuit affirmed the PTAB’s invalidation Game and Technology’s patent as obvious under pre-AIA 35 U.S.C. § 103.

Before the PTAB, Activision Blizzard sought an IPR of the challenged claims of Game and Technology’s patent, which relates to customizing characters in online games by combining game items with layers of an avatar in the game. The patent referred to the type of avatar created in this process as a “gamvatar.” The PTAB construed two key terms—“gamvatar” and “layers.” “Gamvatar” was construed as the combination of the “conventional avatar with the game item function,” and “layers” was construed as encompassing “graphics regions for displaying graphical objects” and “constructions for holding graphics.” Subsequently, the PTAB held that the challenged claims were obvious in light of prior art disclosing customizable avatars.

On appeal, the Federal Circuit affirmed the PTAB’s claim construction and obviousness determinations, reiterating that under pre-AIA Section 103 “[a] patent claim is invalid ‘if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a [person having ordinary skill in the art].’”