Valve gets a new patent review from Fed. Circ. in conflict with a gamepad

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  • PTAB mistakenly discovered that the controller’s examination was not prior art
  • Federal circuit returned for re-determination based on article
  • Court upheld mixed rulings on other parts of patents

(Reuters) – Video game company Valve Corp was given another chance on Tuesday to invalidate parts of two patents owned by Ironburg Inventions Ltd, which sued the Bellevue, Wash., Based company for infringement of patents related to an improved game controller.

Patent Trial and Appeal Board ignored “overwhelming evidence” that article examining allegedly similar controller was pre-patent art, U.S. Circuit Judge Timothy Dyk wrote for a panel of three judges.

Dyk also confirmed the board’s mixed decisions on the validity of other parts of Ironburg’s two patents.

Valve and its attorney Sharon Israel of Shook Hardy & Bacon did not immediately respond to a request for comment, nor did Ironburg’s parent company – California-based gaming accessories maker Corsair Gaming Inc – or its attorney. Robert Becker of Manatt Phelps & Phillips.

Ironburg for follow-up Valve for infringing the patents at issue and two others with its Steam Controller video game controller in federal court in Atlanta, in a case that was transferred to federal court in Seattle in 2017.

Valve challenged the validity of the patents in issue at PTAB in 2017, and counsel find one of the patents validates while invalidating parts of the other in 2019. Both parties have appealed parts of the decision.

Dyk, joined by circuit judges Alan Lourie and Pauline Newman in Tuesday’s opinion, agreed with Valve that the board wrongly discredited a piece of prior art that Valve claimed had invalidated parts patents.

Valve presented the board with a printout of an online review of an Xbox 360 controller with allegedly similar technology that predated Ironburg’s two patents, and noted that Ironburg himself had cited the item during the application process. The board said Valve did not prove the print was a copy of the article cited by Ironburg.

But Dyk said the print was genuine because the two documents were “virtually identical” and both were prior art.

The only difference between them was their release dates, with Valve’s version released six years ago and Ironburg’s version in 2010.

“The difference in dates does not relate to the subject disclosed, which is the same in every document,” Dyk said.

Ironburg also argued that the article was not prior art because it was not “publicly available” until the 2013 priority date of its patents. But Dyk said there was “overwhelming evidence” that it was available to the public in 2010, noting, among other things, that patent examiners trained to determine publication dates found it was published in 2010, that it was intended to reach the general public, and that a reviewer found the article through a simple Internet search.

The fact that the article was viewed via the Wayback Machine – an online digital archive of web pages – did not affect the court’s calculation.

“District courts have taken judicial notice of the content of web pages available through the Wayback Machine as facts that can be accurately and easily determined from sources the accuracy of which cannot reasonably be questioned,” said Dyk.

Dyk referred the matter back to the board for reconsideration of the article in Valve’s challenges.

Dyk also upheld the board’s mixed decisions on the validity of other parts of the two patents.

The case is Valve Corp v Ironburg Inventions Ltd, United States Court of Appeals for the Federal Circuit, No. 20-1315.

For Valve: Sharon Israel of Shook Hardy & Bacon

For Ironburg: Robert Becker of Manatt Phelps & Phillips


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