Case 1:16-cv-00453-RGA Document 176 Filed 06/14/17 Page 1 of 20 PageID #: 18896
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-453 (RGA)
`
`C.A. No. 16-454 (RGA)
`
`C.A. No. 16-455 (RGA)
`
`)))))))))
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`)))))))))
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`)))))))))
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`)
`)
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.,
`
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ELECTRONIC ARTS INC.,
`
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC., and 2K
`SPORTS, INC.,
`
`Defendants.
`
`PLAINTIFF ACCELERATION BAY’S OPPOSITION
`TO DEFENDANTS’ MOTION TO STRIKE PROPOSED CLAIM CONSTRUCTIONS
`
`

`

`Case 1:16-cv-00453-RGA Document 176 Filed 06/14/17 Page 2 of 20 PageID #: 18897
`
`Philip A. Rovner (# 3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street 6th Floor
`Wilmington, Delaware 19801
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff
`Acceleration Bay LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`Hannah Lee
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: June 14, 2017
`5245753
`
`2
`
`

`

`Case 1:16-cv-00453-RGA Document 176 Filed 06/14/17 Page 3 of 20 PageID #: 18898
`
`TABLE OF CONTENTS
`
`Page
`
`I.
`II.
`III.
`
`B.
`
`C.
`
`SUMMARY OF THE ARGUMENT ..................................................................................1
`STATEMENT OF FACTS ..................................................................................................2
`ARGUMENT .......................................................................................................................6
`A.
`Acceleration Bay Timely Disclosed Its Means-Plus-Function
`Constructions ...........................................................................................................6
`Acceleration Bay Timely Disclosed Its Constructions For “M-Regular”
`and “M-Connected” .................................................................................................6
`Acceleration Bay Never Changed Its Position For the Forty-Six Terms
`That Do Not Require Construction ..........................................................................7
`Acceleration Bay Met and Conferred With Defendants For Over an Hour
`on the Parties’ Proposed Constructions .................................................................11
`Defendants Fail to Identify Any Prejudice, and No Sanctions Are
`Warranted ...............................................................................................................13
`
`D.
`
`E.
`
`i
`
`

`

`Case 1:16-cv-00453-RGA Document 176 Filed 06/14/17 Page 4 of 20 PageID #: 18899
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`EMC Corp. v. Pure Storage Inc.,
`C.A. No. 13-1985-RGA, D.I. 66 (D. Del. Sept. 19, 2014) ......................................................10
`
`Energy Transp. Group, Inc. v. William Demant Holding A/S,
`697 F.3d 1342 (Fed. Cir. 2012)................................................................................................10
`
`Finjan, Inc. v. Secure Computing Corp.,
`626 F.3d 1197 (Fed. Cir. 2010)................................................................................................10
`
`Integrated Discrete Devices, L.L.C. v. Diodes Inc.,
`C.A. No. 08-888-GMS (D. Del. Apr. 28, 2010) ......................................................................15
`
`Magnetar Technologies Corp. v. Six Flags Theme Parks Inc.
`C.A. No. 07-127-LPS-MPT, 2012 WL 394660 (D. Del. Feb. 1, 2012) ..................................14
`
`Meyers v. Pennypack Woods Home Ownership Ass’n,
`559 F.2d 894 (3d Cir. 1977)...............................................................................................13, 15
`
`Microbix Biosystems, Inc. v. Novartis Vaccines and Diagnostics, Inc.,
`No. 6:14-cv-00003-JDL, D.I. 65 (E.D. Tex. Dec. 3, 2014) .......................................................7
`
`NuVasive, Inc. v. Globus Medical, Inc.,
`C.A. No. 10–849–LPS, 2013 WL 3705731 (D. Del. July 12, 2013) .......................................14
`
`The Proctor & Gamble Co. v. Teva Pharms. USA, Inc.,
`C.A. No. 04-940-JJF, 2006 WL 2241128 (D. Del. Aug. 4, 2006) ...........................................13
`
`Sound View Innovations, LLC v. Facebook, Inc.,
`C.A. No. 16-116-RGA, D.I. 85 (D. Del. March 13, 2017) .....................................................10
`
`V. Mane Fils S.A. v. Int’l Flavors and Fragrances, Inc.,
`No. 06-2304 (FLW), 2011 WL 1344193 (D.N.J. Apr. 8, 2011) ..............................................14
`
`Via Vadis LLC v. Skype Inc.
`C.A. No. 11-507-RGA, D.I. 91 (D. Del. Nov. 20, 2012).........................................................14
`
`Other Authorities
`
`United States District Court for the Northern District of California
`Patent Local Rules 4.1(b) .........................................................................................................11
`
`Manual of Patent Examining Procedure § 2173.01 .........................................................................2
`
`ii
`
`

`

`Case 1:16-cv-00453-RGA Document 176 Filed 06/14/17 Page 5 of 20 PageID #: 18900
`
`Acceleration Bay LLC (“Acceleration Bay”) submits this opposition brief in response to
`
`Defendants Activision Blizzard, Inc., Electronic Arts Inc., Take-Two Interactive Software, Inc.,
`
`Rockstar Games, Inc. and 2K Sports, Inc.’s (collectively, “Defendants”) motion to strike Plaintiff
`
`Acceleration Bay LLC’s proposed claim constructions (the “Motion”). For the reasons set forth
`
`below, Defendants’ Motion should be denied.
`
`I.
`
`SUMMARY OF THE ARGUMENT
`
`Defendants’ Motion, long on vitriol and short on actual facts, is entirely baseless. Indeed,
`
`its main two premises are plainly wrong. First, contrary to Defendants’ claim that Acceleration
`
`Bay “proposed constructions for nearly every claim term identified by Defendants,” even a
`
`cursory review of the Declaration of Nenad Medvidović in Support of Plaintiff Acceleration Bay
`
`LLC’s Opening Claim Construction Brief (D.I. 166-1 (“Def. Ex.”), Ex. 13) proves that
`
`Acceleration Bay never changed its position from the Joint Claim Construction Chart.
`
`Acceleration Bay has maintained from the very beginning that the vast majority of the claim
`
`terms proposed by Defendants should be given their plain and ordinary meaning, as shown in
`
`Exhibit A to the Declaration of Aaron Frankel (“Frankel Decl.”), a table comparing the claim
`
`constructions Acceleration Bay proposed in the Joint Claim Construction Chart and in the claim
`
`construction briefing.
`
`Second, Defendants offer a selective and misleading characterization of the parties’ meet
`
`and confer regarding their claim construction positions. Contrary to their claims, Acceleration
`
`Bay’s counsel was fully prepared to discuss the claim terms at issue and discussed those
`
`positions with Defendants’ counsel for over an hour. Thus, Defendants’ Motion is nothing more
`
`than a trumped up collateral attack on Acceleration Bay, a side show that falls apart upon even a
`
`quick review of the facts, which confirm that Acceleration Bay disclosed its claim construction
`
`

`

`Case 1:16-cv-00453-RGA Document 176 Filed 06/14/17 Page 6 of 20 PageID #: 18901
`
`positions in full compliance with the Scheduling Order. Defendants’ meritless Motion should be
`
`denied.
`
`II.
`
`STATEMENT OF FACTS
`
`Pursuant to the Scheduling Order, the Parties exchanged an identification of terms
`
`requiring construction on March 25, 2017. D.I. 62 at 6. Defendants identified fifty-six terms for
`
`construction. Defendants’ proposal was surprising because during the related inter partes review
`
`(IPR) proceedings, Defendants proposed constructions for only a handful of terms, including “m-
`
`regular” and “m-connected,” but never claimed that the vast majority of the fifty-six terms for
`
`which they now seek constructions needed to be construed. Because Defendants did not provide
`
`constructions for these terms, Defendants’ position during the IPR proceedings was that those
`
`terms should have their plain and ordinary meaning in the context of the invention. See, e.g.,
`
`Manual of Patent Examining Procedure § 2173.01 (“Under a broadest reasonable interpretation,
`
`words of the claim must be given their plain meaning, unless such meaning is inconsistent with
`
`the specification. The plain meaning of a term means the ordinary and customary meaning given
`
`to the term by those of ordinary skill in the art at the time of the invention.”).
`
`In contrast to Defendants’ identification of nearly every word in every claim as requiring
`
`construction, Acceleration Bay identified eight means-plus-function (“MPF”) limitations as
`
`requiring constructions. Acceleration Bay did not nominate any other terms for construction
`
`because all other terms should be given their plain and ordinary meaning. Def. Ex. 5.
`
`Thereafter, on April 3, 2017, the parties disclosed their proposed constructions for the terms at
`
`issue. Def Exs. 4, 6. Specifically, Acceleration Bay provided its proposed constructions and
`
`underlying support for the eight MPF terms (Def. Ex. 6) and Defendants’ provided their
`
`proposed constructions for fifty-six terms (Def. Ex. 4).
`
`2
`
`

`

`Case 1:16-cv-00453-RGA Document 176 Filed 06/14/17 Page 7 of 20 PageID #: 18902
`
`The exchange on April 3, 2017 was the first time Acceleration Bay learned that
`
`Defendants were proposing different constructions for “m-regular” and “m-connected” than
`
`those they proposed during the IPRs. Specifically, Defendants proposed much broader
`
`constructions in the IPRs, likely hoping that a broader reading would cover the alleged
`
`invalidating prior art. In the IPRs, Defendants advocated that these terms should mean simply
`
`that “each node is connected to exactly m other nodes” and “dividing the network into two or
`
`more separate parts would require the removal of at least m nodes.” D.I. 119-1, Ex. C-1 at 9.
`
`The PTAB agreed and used Defendants’ construction for the IPR review. Now, however,
`
`Defendants changed their proposed constructions materially and are seeking a narrower
`
`construction (presumably in the hopes of avoiding a finding of infringement) that adds the
`
`additional requirements of “seeks to maintain” and “at all times.” The chart below shows (1)
`
`Defendants’ constructions during the IPR proceedings; (2) what the PTAB adopted; and (3)
`
`Defendants’ new constructions.
`
`Term
`
`Defendants’ IPR Position
`
`17.1 M-
`Regular
`
`“each node is connected to
`exactly m other nodes.” Pet.
`14 (citing Ex. 1101, 4:38–39,
`14:65-15:7). Patent Owner
`does not offer a construction
`of this term. Prelim. Resp. 13;
`PO Resp. 17–23.
`D.I. 119-1, Ex. C-1 at 9
`[PTAB Opinion]
`
`PTAB’s Construction Defendants’ April 3
`Claim Construction
`Position
`“a state that the network
`seeks to maintain at all
`times, where each
`participant is connected to
`exactly m neighbor
`participants.” Def Ex. 4 at
`5 (emphasis added).
`
`“we agreed that
`Petitioner’s proposed
`construction accords with
`the broadest reasonable
`construction consistent
`with the specification”
`D.I. 119-1, Ex. C-1 at 9
`[PTAB Opinion]
`
`1 The numbering for the terms corresponds to the numbering used in the filed Joint Claim
`Construction Chart filed on May 17, 2017. D.I. 117-1.
`
`3
`
`

`

`Case 1:16-cv-00453-RGA Document 176 Filed 06/14/17 Page 8 of 20 PageID #: 18903
`
`Term
`
`Defendants’ IPR Position
`
`18. M-
`Connected
`
`“dividing the network into
`two or more separate parts
`would require the removal of
`at least m nodes.” Pet. 14
`(citing Ex. 1101, 4:42–46).
`Patent Owner does not offer
`a construction of this term.
`Prelim. Resp. 13; PO Resp.
`17–23.
`D.I. 119-1, Ex. C-1 at 9
`[PTAB Opinion]
`
`PTAB’s Construction Defendants’ April 3
`Claim Construction
`Position
`“a state that the network
`seeks to maintain at all
`times, where dividing the
`network into two or more
`separate parts would
`require the removal of at
`least m participants.” Def
`Ex. 4 at 5 (emphasis
`added)
`
`Because Petitioner’s
`construction accords with
`the specification
`description, we see no
`reason to alter that
`construction here.
`
`D.I. 119-1, Ex. C-1 at 9
`[PTAB Opinion]
`
`On April 10, 2017, the parties engaged in a meet and confer to discuss their positions and
`
`whether they could resolve any disputes. Frankel Decl., at ¶ 2. The parties conferred for well
`
`over an hour, and discussed almost all of the claim terms at issue. Id. Acceleration Bay objected
`
`to Defendants’ proposal that the Court construe fifty-six terms as unwieldly and unnecessary.
`
`Acceleration Bay also explained why it thought that many of the terms, such as “computer” and
`
`“network” did not require any construction beyond their plain and ordinary meaning. Def. Ex.
`
`10 (Email from A. Frankel to K. Barry); Frankel Decl., at ¶ 3. In response to Defendants’ new
`
`proposed constructions for “m-regular” and “m-connected,” Acceleration Bay stated during the
`
`meet and confer that it would provide a counter-proposal to Defendants’ overly narrow
`
`constructions, which Acceleration Bay did three days later. Def. Ex. 10; Frankel Decl., at ¶ 4.
`
`Finally, when asked about the details for the support that Acceleration Bay cited for some of its
`
`MPF constructions, counsel stated that, while other members of the team had worked on this
`
`issue, Acceleration Bay identified in its disclosure to Defendants the citations to the specification
`
`upon which it would rely as the structures corresponding to those limitations. Frankel Decl., at
`
`¶ 5.
`
`4
`
`

`

`Case 1:16-cv-00453-RGA Document 176 Filed 06/14/17 Page 9 of 20 PageID #: 18904
`
`Throughout its Motion, Defendants provide an inaccurate summary of the parties’
`
`discussions. Acceleration Bay promptly refuted Defendants’ summary of the meet and confer,
`
`noting that the parties had extensively discussed the claim terms at issue, and that Acceleration
`
`Bay had identified the support for its MPF constructions and had explained why Defendants’
`
`proposed constructions were overly narrow and why a plain and ordinary meaning was
`
`appropriate:
`
`Your purported summary of our meet and confer is completely
`inaccurate. Over the course of more than an hour we discussed
`virtually every
`term
`identified by
`the parties as requiring
`construction. We do not believe that a further meet and confer would
`be productive at this time.
`
`that Acceleration Bay’s proposed
`told you
`For example, I
`constructions identify the structure and function for the means plus
`function terms at issue. As to the terms for which Acceleration Bay
`proposes plain and ordinary meaning, I walked you through many
`examples, such as “computer” and “network,” which are well-
`understood and do not require construction, and explained that
`Defendants’ construction improperly import requirements from
`other parts of the claim or provide overly narrow constructions.
`
`Def. Ex. 10 (emphasis added). Acceleration Bay also provided its constructions for m-regular
`
`and m-connected, in response to Defendants’ new constructions, as it said it would during the
`
`meet and confer. Id. At no time after receiving these proposed constructions did Defendants
`
`claim they required some additional discovery or request more time.
`
`Consistent with the Scheduling Order, the parties filed their Joint Claim Construction
`
`Chart on April 17, 2017. D.I. 117-1. Acceleration Bay served its opening and reply claim
`
`construction briefs on April 28 and June 2, 2017, along with the supporting Medvidović
`
`Declaration. Acceleration Bay’s claim construction positions are the exact same constructions it
`
`set forth in the parties’ Joint Claim Construction Chart. See Frankel Decl., Exhibit A (comparing
`
`constructions).
`
`5
`
`

`

`Case 1:16-cv-00453-RGA Document 176 Filed 06/14/17 Page 10 of 20 PageID #: 18905
`
`III.
`
`ARGUMENT
`
`Defendants’ Motion should be denied because Acceleration Bay timely disclosed its
`
`claim construction positions and did not change them in its Opening Claim Construction Brief.
`
`Acceleration Bay Timely Disclosed Its Means-Plus-Function Constructions.
`
`In their Motion, Defendants concede that Acceleration Bay’s proposed constructions for
`
`the eight MPF terms at issue (Terms 1-8) have not changed from Acceleration Bay’s initial
`
`proposal. Motion at 2, 5-6, 11; see also Def. Ex. 6; D.I. 117-1 at 1-18; Def. Ex. 12 at 7-13.
`
`Therefore, Defendant’s Motion should be denied for these terms.
`
`Acceleration Bay Timely Disclosed Its Constructions For “M-Regular” and
`“M-Connected”.
`
`Acceleration Bay timely disclosed its constructions for “m-regular” and “m-connected.”
`
`While Acceleration Bay originally proposed the plain and ordinary meaning, a proposed
`
`construction became necessary when Defendants proposed constructions for these terms that
`
`were different and inconsistent from the constructions that they convinced the PTAB to adopt
`
`during the IPRs. The problem with Defendants’ new constructions, aside from the fact that
`
`Defendants should be estopped from arguing for a new claim construction position after the
`
`PTAB adopted Defendants’ original construction, is that they include an intent requirement and a
`
`“substantially all times requirement.” Both of these elements significantly narrow the scope of
`
`the plain language of the claims. See Table in Section II (comparing Defendants’ IPR and
`
`litigation proposed constructions). As it became apparent during the meet and confer process
`
`that the parties had a fundamental dispute regarding the meaning of these terms, Acceleration
`
`Bay informed Defendants that it would propose responsive constructions. Three days later, in
`
`advance of the preparation of the Joint Claim Construction Chart, Acceleration Bay served its
`
`proposed constructions for these two terms. Def. Ex. 10 (Email from A. Frankel to K. Barry).
`
`6
`
`

`

`Case 1:16-cv-00453-RGA Document 176 Filed 06/14/17 Page 11 of 20 PageID #: 18906
`
`It can hardly be improper (let alone sanctionable) for a party to address newly introduced
`
`claim construction positions, particularly where, as here, Defendants’ new constructions varied
`
`substantially from those they presented to the PTAB. To the contrary, as other courts have
`
`recognized, the purpose of the meet and confer is to identify and resolve disputes. To the extent
`
`it becomes apparent that a construction should be modified as part of the meet and confer
`
`process, there is no unfair prejudice to the other party. Microbix Biosystems, Inc. v. Novartis
`
`Vaccines and Diagnostics, Inc., No. 6:14-cv-00003-JDL, D.I. 65, slip op. at 2 (E.D. Tex. Dec. 3,
`
`2014) (modifying construction as part of meet and confer process under P.R. 4-2 may be
`
`expected and amendments after the deadline for preliminary construction, while not encouraged,
`
`are not unfairly prejudicial) (Frankel Decl., Ex. 1).
`
`Acceleration Bay Never Changed Its Position For the Forty-Six Terms That
`Do Not Require Construction.
`
`Acceleration Bay timely disclosed its position that the remaining forty-six terms should
`
`be given their plain and ordinary meaning and do not require a claim construction. Indeed, as
`
`made clear in the Medvidović Declaration and as show in the summary table provided as Exhibit
`
`A, Acceleration Bay’s position on these terms has not changed from its original list of proposed
`
`constructions. Def. Ex. 6; D.I. 117-1; Def. Ex. 12; Frankel Decl., Ex. A. The premise of
`
`Defendants’ attack on these constructions is that Acceleration Bay had a sudden change of heart
`
`and proposed constructions in its opening brief for these terms, but that is demonstrably
`
`incorrect.
`
`To rebut Defendants’ unsupported, narrow constructions for these 46 terms, Acceleration
`
`Bay argued in its Opening Brief that these terms, such as “computer,” “network,” “participant”
`
`and “connection,” should not be construed because they have a well-known meaning and are
`
`used in the specifications consistently with that well-known meaning. See, e.g., Def. Ex. 12 at 1
`
`7
`
`

`

`Case 1:16-cv-00453-RGA Document 176 Filed 06/14/17 Page 12 of 20 PageID #: 18907
`
`(“Almost all of these terms — such as “computer,” “network,” and “connection” — require no
`
`construction because they are readily understood by those skilled in the art.”) (emphasis added);
`
`see also id. at 6, 13-15. For other terms, Acceleration Bay maintained that no construction is
`
`necessary because the claims fully explain the meaning of the term. For example, Defendants
`
`incorrectly contended that Acceleration Bay has provided a new proposed construction for “m”.
`
`To the contrary, Acceleration Bay contends no construction is necessary because the claims
`
`themselves expressly define “m”: “where m is the exact number of neighbor participants of each
`
`participant.” See, e.g., D.I. 117-2, Ex. A-1 at Claim 1. Acceleration Bay does not contend that
`
`the terms should be construed to have that well-known meaning. Rather, Acceleration Bay
`
`maintains that no construction should be given for the additional forty-six terms identified by
`
`Defendants. Thus, Acceleration Bay did not provide alternative or belated constructions in its
`
`briefing.
`
`Likewise, the Medvidović Declaration provides exemplary discussions of the plain and
`
`ordinary meaning in order to explain that no constructions are needed because the usage of the
`
`terms in the specifications is consistent with the plain and ordinary meanings. Below is an
`
`exemplary excerpt from his declaration explaining that the term “computer” should not be
`
`construed because it has a well understood plain and ordinary meaning:
`
`8
`
`

`

`Case 1:16-cv-00453-RGA Document 176 Filed 06/14/17 Page 13 of 20 PageID #: 18908
`
`Def. Ex. 13 at 28-29; see also, e.g., id. at 12 (“Based on my professional experience, a person of
`
`ordinary skill in the art would understand the term ‘m’ to be consistent with its plain and
`
`ordinary meaning, and no construction is needed.”), 29 (“a person of ordinary skill in the art
`
`would understand [a plurality of participants] to be consistent with its plain and ordinary
`
`meaning, and no construction is needed.”), 30 (“a person of ordinary skill in the art would
`
`understand [‘participant,’ and ‘participants’] to be consistent with their plain and ordinary
`
`meaning, and no construction is needed.”), 31 (“a person of ordinary skill in the art would
`
`understand
`
`[‘connection’;
`
`‘connections’;
`
`‘connected’;
`
`‘connect’;
`
`‘connecting’;
`
`9
`
`

`

`Case 1:16-cv-00453-RGA Document 176 Filed 06/14/17 Page 14 of 20 PageID #: 18909
`
`‘interconnections’; ‘disconnecting’] to be consistent with their plain and ordinary meaning, and
`
`no construction is needed.”).
`
`An argument that the meaning of a word is well-known and, therefore, the word need not
`
`be explained to the jury, is not a new claim construction. Rather, it is explaining Acceleration
`
`Bay’s consistent position that these terms should be given the plain and ordinary meaning. The
`
`Federal Circuit has consistently held that, where claim terms have a plain and ordinary meaning
`
`and are not given any special meaning in the patent specifications, the court need not construe
`
`them. Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1206-07 (Fed. Cir. 2010)
`
`(affirming district court’s holding that no construction was needed and finding the court resolved
`
`the parties’ dispute when it rejected and prohibited the use of a construction that was more
`
`narrow than the plain and ordinary meaning); Energy Transp. Group, Inc. v. William Demant
`
`Holding A/S, 697 F.3d 1342, 1349 (Fed. Cir. 2012) (claim term given plain and ordinary
`
`meaning and “even where a patent describes only a single embodiment, claims will not be read
`
`restrictively unless the patentee has demonstrated a clear intention to limit the claim scope using
`
`words or expressions of manifest exclusion or restriction.”) (citation omitted). Therefore,
`
`Acceleration Bay has not changed its position as to these terms since the parties first exchanged
`
`their proposed claim constructions.
`
`Defendants’ suggestion that Acceleration Bay has been trying to hide the ball by avoiding
`
`the claim construction process is entirely unreasonable.
`
` Acceleration Bay proposed
`
`constructions for ten terms. While Defendants criticize this as a “small” number of terms, ten
`
`terms is the maximum that this Court previously allowed parties to argue at a Markman hearing.
`
`Sound View Innovations, LLC v. Facebook, Inc., C.A. No. 16-116-RGA, D.I. 85, slip. Op. at 1
`
`(D. Del. March 13, 2017) (anticipating limiting oral argument for claim construction to 10
`
`10
`
`

`

`Case 1:16-cv-00453-RGA Document 176 Filed 06/14/17 Page 15 of 20 PageID #: 18910
`
`terms); EMC Corp. v. Pure Storage Inc., C.A. No. 13-1985-RGA, D.I. 66, slip op. at 2 (D. Del.
`
`Sept. 19, 2014) (limiting oral argument for claim construction to 10 terms) (Frankel Decl., Ex.
`
`2); see also N.D. Cal. Patent Local Rule 4.1(b) (“The parties shall also jointly identify the 10
`
`terms likely to be most significant to resolving the parties’ dispute”) (Frankel Decl., Ex. 3). In
`
`contrast, as discussed in Acceleration Bay’s claim construction briefs, Defendants have abused
`
`the claim construction process by asking the Court to construe fifty-six terms, a wholly
`
`unfocused approach that forces the parties to brief, and the Court to construe, an unmanageable
`
`number of terms. Defendants likely hope that by sheer force of numbers they can obtain some of
`
`their unsupported and unwarranted constructions.
`
`Acceleration Bay Met and Conferred With Defendants For Over an Hour on
`the Parties’ Proposed Constructions.
`
`Acceleration Bay engaged in an extensive meet and confer with Defendants on the
`
`parties’ claim constructions. During the course of well over an hour, the parties discussed almost
`
`all of the claim terms at issue. Frankel Decl., at ¶ 2; Def. Ex. 10 (Email from A. Frankel to K.
`
`Barry). Acceleration Bay explained the problems with Defendants’ constructions, including that
`
`Defendants sought to unnecessarily construe many terms that had a plain and ordinary meaning
`
`and were seeking to read in unsupported limitations. Frankel Decl., at ¶ 3; Def. Ex. 10.
`
`Acceleration Bay also stated during the meet and confer that it would be providing responsive
`
`constructions for “m-regular” and “m-connected,” which it did shortly thereafter. Frankel Decl.,
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`at ¶ 4; Def. Ex. 10. Thus, Acceleration Bay met and conferred with Defendants in good faith,
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`fully discharging its obligation under the Scheduling Order.
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`To trump up some deficiency in the parties’ meet and confer, Defendants repeatedly
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`argue throughout their Motion that Acceleration Bay was not prepared to substantively address
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`the issues raised during the meet and confer because counsel for Acceleration Bay purportedly
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`stated that he was not a member of the “tech team.” See e.g., Motion at 3, 8, 9, 11, 19.
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`Defendants are wrong. Acceleration Bay’s counsel addressed all questions regarding the m-
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`regular and m-connected terms, and the forty-six terms for which Acceleration Bay proposed a
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`plain and ordinary meaning. For the eight MPF terms, while noting that other members of the
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`team had worked on these terms, counsel confirmed that Acceleration Bay’s disclosure of its
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`proposed claim constructions identified the support for its MPF constructions. Frankel Decl., at
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`¶ 5. Counsel did not reference other members of the team on any other issue discussed during
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`the meet and confer. Id. The purpose of the claim construction meet and confer was not to
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`debate the merits of particular citations in support of a handful of MPF constructions, but rather
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`to discuss the parties’ positions to see if it was possible to reach agreement on terms or narrow
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`the issues in dispute.
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`Defendants repeatedly cite to their self-serving and inaccurate summaries of the meet
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`and confer as though they were a transcript of the proceedings, but ignore Acceleration Bay’s
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`contemporaneous email refuting their version of the meet and confer:
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`Your purported summary of our meet and confer is completely
`inaccurate. Over the course of more than an hour we discussed
`virtually every
`term
`identified by
`the parties as
`requiring
`construction. We do not believe that a further meet and confer would
`be productive at this time.
`
`that Acceleration Bay’s proposed
`told you
`I
`For example,
`constructions identify the structure and function for the means plus
`function terms at issue. As to the terms for which Acceleration Bay
`proposes plain and ordinary meaning, I walked you through many
`examples, such as “computer” and “network,” which are well-
`understood and do not require construction, and explained that
`Defendants’ construction improperly import requirements from other
`parts of the claim or provide overly narrow constructions.
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`Def. Ex. 10 (Email from A. Frankel to K. Barry). As Acceleration Bay’s constructions for the
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`MPF terms have been unchanged since the start of the claim construction process, there is no
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`Case 1:16-cv-00453-RGA Document 176 Filed 06/14/17 Page 17 of 20 PageID #: 18912
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`basis for Defendants’ Motion. Moreover, Defendants have not been prejudiced whatsoever from
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`any alleged deficiencies in the meet and confer process. Indeed, if Defendants truly believed
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`they needed some additional time to prepare their positions, they should have asked for an
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`extension.
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`Defendants Fail to Identify Any Prejudice, and No Sanctions Are Warranted.
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`Defendants’ Motion should be denied because Acceleration Bay timely disclosed its
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`claim construction positions. Moreover, with the exception of the “m-regular” and “m-
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`connected” terms discussed above, Acceleration Bay has not changed its original constructions
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`served on April 3, 2017. Even if Defendants’ manufactured claims regarding the meet and
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`confer and allegedly changed positions were true, there still is no basis to strike Acceleration
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`Bay’s proposed claim constructions because there is no evidence of any material prejudice to
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`Defendants (or any of the other Pennypack factors, including bad faith or disruption to the case
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`schedule). Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 904-905 (3d Cir.
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`1977) (overturned on other grounds) (to decide a motion to strike the Court should consider (1)
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`the prejudice or surprise to the moving party; (2) the ability to cure such prejudice; (3) the extent
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`to which the violation of the court order would disrupt the orderly and efficient trial of the case;
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`and (4) the bad faith or willfulness of the non-moving party in failing to comply with the court’s
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`order.); Proctor & Gamble Co. v. Teva Pharms. USA, Inc., C.A. No. 04-940-JJF, 2006 WL
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`2241128, at *1, n.1 (D. Del. Aug. 4, 2006) (applying Pennypack factors in denying motion
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`asserting violation of court’s scheduling order where court found neither prejudice nor bad faith).
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`Because Acceleration Bay timely disclosed its claim construction positions there can be
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`no prejudice to Defendants. Furthermore, Defendants’ responsive brief was due twenty-one days
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`after Acceleration Bay’s opening brief, such that it had ample time to respond to Acceleration
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`Bay’s positions. D.I. 62 at 6-7. Belying their claims of prejudice, Defendants never requested
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`any additional time for their claim construction brief or for their purported expert Dr. John P.J.
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`Kelly to prepare his rebuttal declaration, confirming that this is not a bona fide claim.
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`Judges have denied motions to strike under situations considerably worse than those
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`alleged (incorrectly) here. For example, in Magnetar Techs. Corp. v. Six Flags Theme Parks
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`Inc., Chief Judge Stark declined to strike a parties’ claim construction brief or proposed
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`constructions because the other side had adequate time (twenty-eight days) to respond, even
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`where there was no dispute that the party proposed new terms and constructions for the first time
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`in its opening brief (which is not the case here). C.A. No. 07-127-LPS-MPT, 2012 WL 394660,
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`at *3, n.4 (D. Del. Feb. 1, 2012); see also, e.g., NuVasive, Inc. v. Globus Med., Inc., C.A. No.