Case 1:16-cv-00455-RGA Document 186 Filed 07/14/17 Page 1 of 122 PageID #: 17285
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`1
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`CA NO. 16-453-RGA,
`16-454-RGA, 16-455-RGA
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`July 10, 2017
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`9:04 o'clock a.m.
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`: : : : : : : : : :
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`ACCELERATION BAY LLC,
`
`Plaintiff,
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`v.
`
`ACTIVISION BAY INC, et al.,
`
`Defendants,
`.............................
`
`TRANSCRIPT OF MARKMAN HEARING
`BEFORE THE HONORABLE RICHARD G. ANDREWS
`UNITED STATES DISTRICT JUDGE
`
`APPEARANCES:
`
`For Plaintiff:
`
`POTTER, ANDERSON & CORROON
`BY: PHILIP A. ROVNER, ESQ
`BY: ALAN R. SILVERSTEIN, ESQ
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`1
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`CA NO. 16-453-RGA,
`16-454-RGA, 16-455-RGA
`
`July 10, 2017
`
`9:04 o'clock a.m.
`
`: : : : : : : : : :
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BAY INC, et al.,
`
`Defendants,
`.............................
`
`TRANSCRIPT OF MARKMAN HEARING
`BEFORE THE HONORABLE RICHARD G. ANDREWS
`UNITED STATES DISTRICT JUDGE
`
`APPEARANCES:
`
`For Plaintiff:
`
`POTTER, ANDERSON & CORROON
`BY: PHILIP A. ROVNER, ESQ
`BY: ALAN R. SILVERSTEIN, ESQ
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`Case 1:16-cv-00455-RGA Document 186 Filed 07/14/17 Page 2 of 122 PageID #: 17286
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`2
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`For Defendants:
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`-and-
`KRAMER, LEVIN NAFTALIS & FRANKEL
`BY: PAUL J ANDRE, ESQ
`BY: JAMES R. HANNAH, ESQ
`BY: AARON M. FRANKEL, ESQ
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`MORRIS, NICHOLS, ARSHT & TUNNELL
`BY: JACK B. BLUMENFELD, ESQ
`-and-
`WINSTON & STRAWN LLP
`BY: MICHAEL A. TOMASULO, ESQ
`BY: MICHAEL M. MURRAY, ESQ
`BY DAVID P. ENZMINGER, ESQ
`BY: ANDREW R. SOMMER, ESQ
`BY: DAVID K. LIN, ESQ
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`Also Present:
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`OMER SALIK
`JULIA KAZAKS
`Activision Blizzard Representatives
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`KERRY HOPKINS
`Electronic Arts Representative
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`Case 1:16-cv-00455-RGA Document 186 Filed 07/14/17 Page 3 of 122 PageID #: 17287
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`LINDA ZABRISKIE
`Take 2 Interactive Software, Inc.
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`Court Reporter:
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`LEONARD A. DIBBS
`Official Court Reporter
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`Case 1:16-cv-00455-RGA Document 186 Filed 07/14/17 Page 4 of 122 PageID #: 17288
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`P R O C E E D I N G S
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`(The proceedings occurred at 9:04 o'clock a.m. as
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`follows:)
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`THE COURT: Good morning. Please be seated.
`(All counsel responded "Good morning, your Honor.")
`This is Acceleration Bay v. Activision Blizzard, Civil
`Action No. 16-453, and two other related cases.
`THE COURT: Mr. Rovner.
`MR. ROVNER: Good morning, your Honor.
`Phil Rovner from Potter Anderson for Acceleration Bay.
`And with me from Kramer Levin is Paul Andre, James
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`Hannah --
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`MR. HANNAH: Good morning, your Honor.
`MR. ROVNER: -- and Aaron Frankel.
`Also with me from my office is Alan Silverstein.
`THE COURT: All right.
`Good morning to you all.
`Mr. Blumenfeld.
`MR. BLUMENFELD: Good morning your Honor.
`Jack Blumenfeld from Morris Nichols for all three sets
`of defendants.
`And with me from Winston & Straw is Mike Tomasulo,
`Michael Murray --
`MR. MURRAY: Good morning.
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`Case 1:16-cv-00455-RGA Document 186 Filed 07/14/17 Page 5 of 122 PageID #: 17289
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`MR. BLUMENFELD: -- and Andrew Sommer.
`And behind them is David Enzminger and David Lin.
`And in the back is Linda Zabriskie from Take 2. Omer
`Salik and Julia Kazaks from Activision. And Kerry Hopkins from
`from Electronic Arts.
`THE COURT: All right.
`Thank you, Mr. Blumenfeld. And good morning to you
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`all.
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`morning?
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`All right.
`Have you all talked how you wanted to do the terms this
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`MR. ANDRE: Your Honor, we did discuss it, and it's
`really up to your Honor's discretion.
`But what we talked about was, doing introductory
`statements first, doing the m terms, and then they'll do the --
`they'll do their m terms, and then we'll take the
`means-plus-function one at a time, going back and forth.
`THE COURT: Sounds good.
`MR. ANDRE: Does that work for you?
`MR. TOMASULO: That's fine.
`If you want to combine your introductions straight into
`your m terms, I don't need to go back and forth.
`THE COURT: That's fine.
`MR. ANDRE: Your Honor, we have some slides.
`May I approach.
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`Case 1:16-cv-00455-RGA Document 186 Filed 07/14/17 Page 6 of 122 PageID #: 17290
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`THE COURT: Yes.
`MR. ANDRE: Your Honor, I'm going to do the
`introduction and lay the groundwork here.
`And then Mr. James Hannah, my partner, will be doing
`most of the heavy lifting on the technical aspects. Mr. Hannah
`is a trained network engineer, and I think he would have more
`input for the Court if you have any technical questions.
`THE COURT: Okay.
`MR. ANDRE: So, as your Honor knows, this case involves
`six patents. And the patents are unrelated patents filed by the
`same inventors, but they are different patents.
`And they're different aspects of forming a network of
`broadcast channels. That's what these patents are about.
`Building a better mousetrap as it were.
`Now, in the claim construction, one of the things that
`became very apparent was that the defendants were trying to
`rewrite the claims. They proposed 54 different terms for
`construction.
`Now, your Honor has since modified that dramatically
`here for today that we'll be briefing out later.
`But they are not true to the intrinsic record, the
`plain and ordinary meaning.
`As your Honor knows, the plain and ordinary meaning
`should be given to the claims, unless there's a reason not to do
`so.
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`Case 1:16-cv-00455-RGA Document 186 Filed 07/14/17 Page 7 of 122 PageID #: 17291
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`And those reasons are, there's a valid disclaimer, a
`very specific disclaimer, or if the patentee acts as his own
`lexicographer to define the terms very specifically.
`Acceleration Bay's constructions are consistent with
`the clams in the intrinsic records.
`If you look at the defendants' constructions, they are
`confusing and importing unnecessary limitations.
`Now, in today's hearing, it's somewhat unique, because
`we have the three, what we call m terms, but then there are, I
`believe there was eight, now there's seven, means-plus-function
`terms.
`
`The defendants are not giving any definitions to the
`means-plus-function terms. They didn't put anything in on
`those.
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`THE COURT: Well, they say they are all indefinite.
`MR. ANDRE: They said they were all indefinite,
`
`exactly.
`
`Back when they were petitioning for IPRs, they were
`able to construe those terms. They had no problem then.
`But now, in this case, because they were not successful
`in the IPRs --
`THE COURT: It's true, isn't it, if the PTAB thought
`they were indefinite, then the PTAB wouldn't up touch them,
`right?
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`MR. ANDRE: No, they actually tried to construe the
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`Case 1:16-cv-00455-RGA Document 186 Filed 07/14/17 Page 8 of 122 PageID #: 17292
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`claims --
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`THE COURT: No, no, no, what I'm saying is, if they
`say, you can't construe these things, then the PTAB doesn't
`grant it?
`
`MR. ANDRE: If they have would have said that, yes, but
`they didn't say that.
`What they said was, these are the proposed
`construction, these are the structures for the functions, and
`the PTAB said, you didn't do enough, they didn't meet their
`burden -- but that's neither here nor there, but back then they
`could construe them, but today they can't.
`I think that's very telling to say the least.
`Now, with respect to the m terms, we have a very
`general introduction of the m terms, Mr. Hannah will step up and
`talk more technically.
`The term m, we had originally said it needed no
`construction, because it's defined in the claims. We actually
`defined it in our brief, but that was our position.
`And when we got your Honor's Order saying you wanted to
`give the ordinary meaning, we'll do so -- and actually we did in
`the brief.
`The m-regular term is defined as "a network where each
`participant has m neighbor participants in a steady state."
`And that's based on the specification and the claims
`themselves.
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`Case 1:16-cv-00455-RGA Document 186 Filed 07/14/17 Page 9 of 122 PageID #: 17293
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`And, of course, the m-connected terms is a properly
`defined, as a network that may be divided into disconnected
`sub-networks by the removal of m participants as a steady state,
`based on the specification as well.
`What --
`THE COURT: Well, the difference between the
`m-connected proposals of you and the defendant, is it really
`just this "in the steady state" part?
`MR. ANDRE: Yes, for the most part.
`THE COURT: Okay.
`MR. ANDRE: And really the m-regular definition, if you
`look at the sur-reply that the defendant's filed, it is somewhat
`ambiguous to say what the differences are between the parties.
`If you look at the way they defined the m-regular, they
`said it's a network that seeks to maintain at all times where
`each participant is connected to exactly m neighborhood
`participants. They don't have it in a steady state.
`We had an objection to the word "seeks." It seeks to
`maintain a network. It's to maintain intent. Networks don't
`really have an intent. That's a human emotion.
`So we raised that and we said it doesn't do it at all
`times, because the network is very dynamic, it's very fluid,
`people join in and drop off the network all the time.
`In their sur-reply they said, no, they are not trying
`to imply intent. And they said -- they said that -- and, you
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`know, people do drop off and come on all the time.
`So I'm not sure what it seeks to maintain at all times
`is. I'm not sure what that means at this point, because they --
`THE COURT: Do you think it means maintains whenever
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`possible?
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`MR. ANDRE: Yeah, but it's in a dynamic network, that's
`going change dramatically. And our patent actually talks about
`sometimes the m number, it can go four, six, eight, 12. I think
`it can change as time goes on. It's trying to keep a regular
`network, an m-regular network.
`And the m number will vary depending on how many
`participants come into the network.
`So what we're concerned about, as an overall theme
`here, is the word "seeks to maintain at all times."
`What kind of shenanigans is that going to bring up?
`THE COURT: Well, isn't the essence of the -- it seems
`to me like both sides agree that, in fact -- or that would be a
`question -- don't both sides agree then whenever it's possible
`for each one -- each participant to have exactly the m neighbor
`participants, that that's what it does?
`Each side agrees that there are times when people are
`coming, people are going, possibly if you have odd numbers, when
`it's not possible, or at least it's not existing as these
`transitions take place, then it seems like both sides agree that
`that is allowed.
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`And, so, it seems like both sides are really just
`jockeying for a position to argue stuff to the jury later on
`that you don't actually disagree on what the underlying science,
`so to speak, is.
`MR. ANDRE: That was my conclusion after reading the
`sur-reply, your Honor.
`I tend to agree with you that the parties fundamentally
`agree on the technology. And the word "seeks to maintain at all
`times" is somewhat countered by the steady state.
`"Steady state" comes from the specification. "Seeks to
`maintain at all times" is nowhere in the specification. That's
`just not there. That's the big difference.
`But in -- from a technology point of view, you're
`absolutely right, your Honor. I think the parties do agree,
`because if you can -- we can agree to the fact that the regular
`network is what is desired, but as the dynamic nature of the
`network evolves, participants come in, participants drop out,
`there will be times when there are odd number sometimes may drop
`below a threshold, or may not be a regular network.
`Sometimes it will just be a good transition state where
`the m number will change periodically, because more participants
`come in. That's perfectly acceptable and that's what the patent
`talks about.
`The briefing seems to agree that is the case.
`So if you look at the actual definition of the
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`m-regular, the parties agree that a network where each
`participant has m neighbor participants, that's agreed upon.
`What is not agreed on is we say "in a steady state."
`They say that the "network seeks to maintain at all times" where
`each participant has an m neighbor. That's the big difference.
`If you read the briefing, itself, as your Honor pointed
`out, from a technology of point of view, there is not much
`difference. We all agree it works in a certain way, as far as
`the claim interpretation goes.
`Mr. Hannah will discuss that a little bit more.
`I do want to, before I pass it off to Mr. Hannah, I do
`want to talk about the m construction. The term m.
`THE COURT: Okay.
`MR. ANDRE: We did put m in our construction, no
`construction necessary, plain and ordinary meaning.
`Your Honor asked us not to do that going forward, so we
`did give a definition in the brief, and I want to talk about
`that now.
`
`The defendants' definition, "a predetermined design
`parameter specifying the number of neighbors each participant
`should maintain."
`That is actually contrary to what they said
`participants come and go. If you have a predetermined number,
`that wouldn't allow any flexibility.
`And in the briefing, they talk about participants can
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`come and go. If you have an Examiner specifying the exact
`number of neighbors, you would have no flexibility, so that just
`gets pulled out of thin air.
`THE COURT: So you think that a construction, if I took
`out the word "predetermined," is that what you think m is?
`MR. ANDRE: Well, I will go to the claim itself.
`If you look at Slide 6 -- I don't know that I've ever
`seen this easy of an explanation of what m is.
`This is the patentee saying exactly what m is right
`from the claim itself. "M is the exact number of neighbor
`participants of each participant."
`That's the claim language.
`I can't imagine your Honor having an easier job
`construing what m is, if it is that explicit.
`I don't think there's a clearer definition than that.
`I think if you go back to the defendant, the number of
`neighbors each participants should maintain, the word "should"
`is kind of interesting. I'm not sure what that means.
`Here, this is the exact number of neighbor participants
`of each participant. The word "should" should not be in there.
`So this is about as easy as it comes.
`Now, to get into the m-regular and the definitions,
`I'll let Mr. Hannah --
`THE COURT: And, Mr. Andre, is that definition of m, or
`is that the explanation of m, is that the same in each of the
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`patents? Is the phrase like that in there for each of them?
`MR. ANDRE: Whenever m is discussed, because some of
`the patents don't have the m language in there, but the ones
`that do that language is consistent -- that's consistent with
`the specification as well.
`At this point, I am going to turn it over to Mr. Hannah
`and let him go forth with the rest of the m terms.
`THE COURT: Okay.
`MR. HANNAH: Thank you, your Honor.
`May it please the Court, good morning.
`I've briefly going to hit -- I'm going to back up a
`little bit and hit some of the m language that Mr. Andre talked
`about and try to answer some of your Honor's questions.
`THE COURT: Well, so, I guess one thing is, according
`to the patents when -- how is -- who decides what m is, or how
`is m decided?
`MR. ANDRE: So m can be decided in that couple of
`different ways.
`There can be rules in the program that's going to set
`forth the optimal connections that each node is going to want to
`connect to.
`So when look at these patents, these patents are about
`the networks patents. And, as Mr. Andre said, the emphasis is
`on the telecommunication networks. I actually have a passion
`for these patents and the technology at issue here.
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`If you read through the patents, what this is trying to
`do is set up a reliable network, a reliable internet that is
`cabled to be efficient, and be able to send information in a
`redundant manner to many different participants, so that you can
`collaborate with a lot of people at the same time.
`And in order to do this, you have this very particular
`network that the claim teaches you how to build. They teach you
`how to build this regular network that is incomplete.
`And in order to do that, you have to have relays that
`are going to send information. So, if one peer doesn't good get
`information from a peer that is expecting, it's going relay from
`another peer.
`And, so, what you do is, you have these constraints on
`these, and these rules that are going to be set to say, okay, I
`don't want to overload a particular node. I have one node here
`and it has five connections.
`I don't want it to have ten connections, because if I
`do that, and this node has two connections, then all of a sudden
`this node becomes overloaded and this one doesn't have enough.
`So I can set rules, or I can set rules on this
`particular node saying, okay, I only want you to have -- I only
`want everyone in the network to have four connections, so I can
`have a rule base that goes through --
`THE COURT: When you say "rule base," what you're
`saying is, there's software somewhere that says --
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`MR. HANNAH: That maintains the network, absolutely.
`There's software that maintains these different -- so the way
`that these network are set up, there's multiple different layers
`in these networks.
`And, so, you have rules that a particular network that
`says, these are all applications that talk to each other, but I
`don't want any particular node to become overloaded, so I have a
`rule is that says, keep everybody at four, keep everybody -- you
`know, keep all the connections at five.
`THE COURT: All right.
`So you said m could be determined by a rule in
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`software.
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`How else could you figure out m control m?
`MR. HANNAH: How could you figure it out or how could
`you design the network to figure it out?
`THE COURT: Well, that's probably bad terminology.
`So how do you design it so it is m-regular, or
`whatever, but that it knows what m is and does what is necessary
`in relation to m?
`MR. HANNAH: I mean, it's essentially going to come
`down to how the program -- whoever is maintaining the network,
`how they are going to establish the connections to the network,
`so it's going to be in the software itself.
`THE COURT: Okay. And if it's in the software, that
`just means it's a rule?
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`MR. HANNAH: It could be -- I mean, I think about it
`typically as rules that are going to be set up in the software
`that is going to say, if your connections are more than five,
`drop a connection and only be four. I mean, that's a rule to
`me.
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`Or you say, if you are bandwidth is, you know, X
`amount, I want the bandwidth only to be Y, so add connections or
`drop connections.
`I view those all as rules to me and software and
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`programs.
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`THE COURT: And, so, if you have all these rules and
`software, does that, in fact, mean that m is predetermined?
`MR. HANNAH: Well, I think that's a soft term, and I
`wouldn't use it especially in terms of networking, because to me
`-- I mean, it could be predetermined in the fact that, yes, I
`have these rules that are predetermined, and that they're coded,
`and that they're going to moving around -- it's that if I have
`so many connections that I want it to be optimal number of
`connections to everybody else.
`So, in that sense, you could say that's predetermined.
`But the way the defendants are construing it is a
`predetermined design parameter, which I think is -- I mean, it
`is not explained anywhere in the specification or in the
`intrinsic record.
`And, so, to me, I just think that's an inappropriate
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`construction based on the specification. The specification -- I
`mean, this specification just for the '344 patent, there are 34
`figures and 30 columns of text describing these networks, and
`describing how -- you know, how this -- and nowhere does it talk
`about a predetermined design parameter.
`So I think what is going to happen is, they are going
`to go to the jury, and they're going to argue some type of
`non-infringement defense based on this archaic construction that
`is nowhere in the construction.
`When we did our construction, we looked -- that's the
`first place we looked. We looked at the claims, and we looked
`to the specs, and we stayed true to that. And the spec, I think
`is just the way that any network engineer is going understand we
`have to construe these in light of one of skill in the art.
`THE COURT: And, so, Mr. Andre showed me part of a
`claim where it said something m is -- and I forget what it said
`now -- but if I -- is it your view that that is the plain and
`ordinary meaning of m in the context of this patents is whatever
`it was, the exact number of neighbor participants of each
`participant?
`MR. HANNAH: Absolutely, your Honor.
`I mean, I think that this is the way you have to define
`it. The first place we look to is the claims. I've rarely seen
`claims that are self-defining.
`I mean, there's a way to write claims that are
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`self-defining claims and this is a perfect example of it.
`And that it goes through and tells you how to build
`this network. How to send the data through the network. And
`then it defines the terms within the claim itself.
`So I would say that this is absolutely what the
`definition of m is. It's m is the exact number of neighbor
`participants of each participant.
`And that's exactly what was described throughout the
`prosecution history. That's described throughout the
`specification.
`So I would absolutely agree that this is the
`construction.
`The reason that we said that no construction was
`necessary, plain and ordinary meaning applies, is because the
`claims are self-defining.
`THE COURT: So that's not necessarily the same thing as
`the plain and ordinary meaning.
`MR. HANNAH: I would also say that construction --
`THE COURT: Yeah, yeah, that's probably the one. It's
`covered by the --
`MR. HANNAH: It's covered by the claim. And in every
`patent that talks about m, defines it in a similar manner to
`answer your previous question before. There are claims that
`don't have m in there, so obviously that's not going to apply.
`But when you look at -- when you look at the patents,
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`they have m defined, you know, in a similar manner.
`So, I think, like I said, I rarely see claims that are
`self-defining like this where they actually have a claim
`construction within the terms.
`And I think that's just the way the construction has to
`go, in terms of, you know, Phillips and all the other case law.
`If I look at defendants' construction, you know, I
`alluded to earlier, but I think it's completely unsupported. I
`think it's circularly inconsistent.
`And what I'd like to do is, I would kind of just do a
`base test to see, okay, does this construction kind of make
`sense in terms of everything else?
`And, so, I took the definition of m, and I put it in
`m-regular. And if you see that, when you see that, you get a
`very bizarre application of the term, and it makes absolutely no
`sense.
`
`It says "a state that the network seeks to maintain at
`all times where each participant is connected to exactly a
`predetermined design parameter specifying the number of
`neighbors each participant should be maintain] neighbor
`participants."
`It doesn't make sense. And the reason is, is because
`the claims have the word "is" in there.
`It says m is exactly. The definition that we provided
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`earlier.
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`Case 1:16-cv-00455-RGA Document 186 Filed 07/14/17 Page 21 of 122 PageID #: 17305
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`And when you have that kind of -- when you have that
`kind of definition in there, it just makes the claims makes no
`sense when you try to construe it in terms of fashion.
`Especially when you try to him import limitations.
`On Slide 8 in front of your Honor, I did the same
`thing, except that I put it in the context of Claim 1.
`I'm not going to read the entire claim, but once you
`look at it, and you put it in context, you can see that the
`intent behind here isn't to apply a construction for the claim.
`It's to provide additional limitations, unnecessary limitations,
`and that you're going to confuse the jury.
`And, again, this comes down to, when you have a claim
`that actually defines what a term is, when you put in additional
`terms in there, it just makes it -- makes it -- have the term
`have no sense, because you have all these additional
`limitations.
`And that's why you have this -- long claims where it
`says, where, and then a big bracket, and then you try to define
`what you just said it was.
`So it's a test that I commonly like to do just to see
`if it really makes sense. In terms of the claim limitations
`here, it just absolutely makes no sense.
`One thing that Mr. Andre did try to hit on earlier was
`that these networks are dynamic and they are constantly growing
`and shrinking in scale. And that's just the nature of it.
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`That's actually why this invention is so valuable, is that it
`has -- it's able to maintain this very robust, reliable network
`with connections constantly adding and dropping and being able
`to, you know, facilitate this kind of -- this data communication
`and maintain this regularity without, you know, with this
`dynamic nature of the network.
`And, so, what these terms have are predetermined design
`parameters, and things like that, I think it's completely
`contrary to the intrinsic record.
`One of the quotes that Mr. Andre said was, you know,
`from the specs. And he recited from memory, but it says, for
`example, each computer could have six, eight, or any number of
`internal connections.
`And it says, "as the number of internal connections
`increase, the diameter of the broadcast channel tends to
`decrease."
`So the spec, itself, is saying that you can have a
`variety of -- it's not a predetermined parameter as the
`defendants are saying -- in that m can vary with these dynamic
`networks.
`
`Defendants main argument in this brief was a
`prosecution history argument. In particular, one from September
`20th -- from September 9th, 2013, or something like that.
`And if you read the entire prosecution history, and
`especially the portions that -- even the portions that the
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`defendants are citing -- you can see that there's no clear and
`unmistakable disclaimer in the prosecution history.
`First of all, prosecution history disclaimers typically
`arise only when there aren't amendments made in the claims
`themselves.
`So an applicant will making an argument to the examiner
`and say, these claims don't cover -- don't cover X, and then
`they never reflect those in the claims.
`When you look at this prosecution history, all they are
`talking about is the limitations they add. Specifically,
`m-regular and m-incomplete graph.
`So all the discussions and all the citations that the
`defendants point to are already covered in the claims as they've
`issued. It wasn't like, we don't have to add any more
`limitation, because they are already there.
`The other thing you're going to see from the
`prosecution history is that they never talked about m by itself.
`It never says anything about the being a predetermine design
`parameter. The only thing it really talks about is, is these
`nodes are entering -- you know, it becomes regular in a steady
`state when the nodes are entering the network.
`And I think the clearest example of this in that
`prosecution history is - it's the September 10th, 2003, on Slide
`11. The applicant specifically states what makes it novel over
`the prior art.
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`And it says, "It is the combination of having a
`computer network that is m-regular and that is not a complete
`graph that is patentable over the Alagar reference."
`That's the statement that the applicant makes. It
`never makes a statement about what m is, or what it isn't, or
`that it is a predetermined design parameter.
`And these amendments were specifically put in the
`claims. The applicant put in m-regular and put in that it was
`an incomplete graph. There is no prosecution history disclaimer
`here, because the amendments were put in.
`THE COURT: Well, you said the applicants put it in and
`earlier Mr. Andre said, these are -- I forget his exact
`terminology -- but he said these are different patents, even
`though they have the same inventors.
`But my impression was that, in fact, the specification
`-- I thought there was -- I thought the specification was mostly
`the same in these patents?
`MR. HANNAH: Mostly the same, your Honor, so --
`THE COURT: But they are not continuations of each
`other? They are just patents where they just plagiarize
`themselves?
`MR. HANNAH: Well, your Honor, so it's a strategy in
`prosecution.
`What they did was, they filed all the applications on
`the same day, and they covered a just a variety of networks.
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`And, so, for instance, if you're going to have the '344
`patent, and if you look at the specification, I would say, you
`know, 85 or 90 percent of it is the same, but then the 10 or 15
`percent actually describes the game environment.
`THE COURT: So when you have a prosecution history,
`does it only apply to whichever patent -- it only applies to one
`patent?
`
`MR. HANNAH: Well, and this is the only argument that
`they make that would apply just to the '344 patent. This is the
`only prosecution history that was cited in the briefing itself.
`And this is specific to the '344 patent.
`THE COURT: Okay.
`MR. HANNAH: And, again, the patents, just to further
`answer your question, the patents, the '966 also filed on the
`same day has a slightly different specification that describes
`the informati
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