Case 1:16-cv-00453-RGA Document 225 Filed 07/17/17 Page 1 of 12 PageID #: 22576
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 16-453 (RGA)
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`C.A. No. 16-454 (RGA)
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`C.A. No. 16-455 (RGA)
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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 SUPPLEMENTAL
`MEANS-PLUS-FUNCTION CLAIM CONSTRUCTION BRIEF
`
`

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`Case 1:16-cv-00453-RGA Document 225 Filed 07/17/17 Page 2 of 12 PageID #: 22577
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`I.
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`INTRODUCTION
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`Pursuant to the Court’s July 10 Order, Acceleration Bay provides this Supplemental
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`Claim Construction Brief regarding the means-plus-function (“MPF”) claim terms to address the
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`new arguments Defendants raised at the Markman hearing. Ex. 1 (Markman Tr.) at 121:22-
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`122:11.1 This new round of briefing on the MPF terms is necessitated by Defendants’ latest
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`position on the proper structure that performs the function recited in the MPF terms. In the IPRs,
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`Defendants advocated for a simple structure. Here, Defendants first argued that the terms are
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`indefinite, and then, during the Markman hearing, changed their argument and advanced
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`improperly complex structures for the MPF terms. D.I. 151 at 28-51 (MPF Terms 1-8); see also
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`Ex. 1 (Markman Tr.) at 89:1-25. The end result is that the parties now agree that the structures
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`for the MPF terms are disclosed in the patents, but disagree as to what they are.
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`In the parties’ Joint Claim Construction Brief, Plaintiff proposed constructions for the
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`eight MPF terms and identified the supporting structure for each function which are found in the
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`following asserted Patents and Claims: ‘344 Patent, Claims 13 and 14; ‘966 Patent, Claim 13;
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`‘497 Patent, Claim 9 (e.g., D.I. 151 at 28-51). These MPF claims describe how to build different
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`networks than the other independent claims in the respective patents.2 For example, Claim 1 of
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`the ‘344 Patent describes how to build a scalable, redundant network at the application layer that
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`overlays existing network protocols using an m-regular and incomplete network topology that
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`was unavailable in prior networking systems. Ex. A-1 (‘344 Patent), Abstract, 1:33-2:42; Claim
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`8 (describing underlying network connections as TCP/IP while overlay network topology is m-
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`regular and incomplete); see generally Ex. B-1 (‘344 File History) (File History having no
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`1 Citations to Ex. 1 and Ex. 2 refer to exhibits attached to the Declaration of Marcus A. Colucci
`submitted herewith. Citations to Exs. A-1, A-2, and B-1 refer exhibits attached to the Joint
`Claim Construction Chart (D.I. 99-2, 99-3) (C.A. No. 16-0455-RGA).
`2 To be clear, as explained during the hearing, no claim of any of the asserted patents is
`representative because each of the independent claims teaches how to build different network
`topologies.
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`

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`Case 1:16-cv-00453-RGA Document 225 Filed 07/17/17 Page 3 of 12 PageID #: 22578
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`discussion of networks having the combination of incomplete, m-regular networking topologies
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`while using underlying network protocols, such as TCP/IP). Claim 13, on the other hand,
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`describes a different network that involves a network computer that is programmed to perform a
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`specialized algorithm, namely one that is able to identify a broadcast channel using a channel
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`type and channel instance, and connect to the broadcast channel using a specific connect routine.
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`See Ex. B-1.
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`Defendants incorrectly argued that all of the MPF terms are indefinite because the
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`asserted patents purportedly do not disclose the corresponding structures. At the hearing,
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`Defendants abandoned this argument and conceded that at least Terms 1-4 are not indefinite
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`because the patents include several figures with corresponding specifications that provide
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`adequate disclosures to render the terms definite (and also tie the claims to structures for solving
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`concrete and specific problems). (Defendants adopted Acceleration Bay’s construction for Term
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`6 and concede it is not indefinite). Ex. 1 (Markman Tr.) at 88:12-19, 89:1-10. Defendants,
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`instead, made the new argument that Plaintiff did not identify all of the relevant structures
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`necessary to perform the claimed functions. Id. at 94:22-95:11. The Court invited the parties to
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`address Defendants’ new argument. As set forth below, Defendants seek to read into the
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`construction for these MPF terms additional structural limitations from other functions (for
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`example, conflating the steps to identify a network and then connect to the network).
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`Defendants’ approach is fundamentally flawed because the relevant disclosures and structure
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`only need to describe the specified function for the particular MPF term, and do not need to
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`include the structures for other functions.
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`II.
`
`ARGUMENT
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`The structures and algorithm Acceleration Bay identifies in the Joint Claim Construction
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`Brief are sufficient to perform the specified functions for each of the MPF terms, rendering each
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`2
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`

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`Case 1:16-cv-00453-RGA Document 225 Filed 07/17/17 Page 4 of 12 PageID #: 22579
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`of these terms definite by teaching one of skill in the art how to build a network and provide a
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`real solution to computer networking problems identified in the specifications. “[T]he patent
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`need only disclose sufficient structure for a [POSA] to provide an operative software program for
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`the specified function.” See Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376, 1385 (Fed.
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`Cir. 2011) (emphasis added) (citation omitted); Declaration of Nenad Medvidovic in Support of
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`Pltf. Opening Claim Construction Brief (“Medvidović Decl.”), ¶¶ 49, 53, 56, 62, 65, 72, 77.
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`The following asserted claims include MPF terms, ‘344 Patent, Claims 13 and 14; ’966
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`Patent, Claim 13, ‘497 Patent, Claim 9. Each of these claims includes more than one MPF term
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`with different functions, for example, as shown in Claim 13 of the ‘344 Patent:
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`13. A distributed game system comprising:
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`a plurality of broadcast channels, each broadcast channel for playing a
`game, each of the broadcast channels for providing game information
`related to said game to a plurality of participants, each participant having
`connections to at least three neighbor participants, wherein an originating
`participant sends data to the other participants by sending the data through
`each of its connections to its neighbor participants and wherein each
`participant sends data that it receives from a neighbor participant to its
`neighbor participants, further wherein the network is m-regular, where m
`is the exact number of neighbor participants of each participant and further
`wherein the number of participants is at least two greater than m thus
`resulting in a non-complete graph;
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`means for identifying a broadcast channel for a game of interest; and
`means for connecting to the identified broadcast channel.
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`Ex. A-1 (‘344 Patent) Claim 13 (emphasis added). Both sides agree that these MPF terms have
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`separate functions of (1) identifying a broadcast channel for a game of interest and then (2)
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`connecting to that broadcast channel. D.I. 151 (Joint Claim Construction Br.) at 32, 36; Ex. 1,
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`(Markman Tr.) at 84:14-85:18.
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`1.
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`“Means for connecting to the identified broadcast channel” (Term 4)
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`The bulk of the argument during the Markman hearing was directed to Term 4,
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`3
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`

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`Case 1:16-cv-00453-RGA Document 225 Filed 07/17/17 Page 5 of 12 PageID #: 22580
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`“connecting a [participant] to an identified broadcast channel.” The parties agree that the
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`function of this MPF element is focused on “connecting.” D.I. 151 (Joint Claim Construction
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`Br.) at 32-36. The structure for this function is a special purpose computer that is programed to
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`perform the connect routine. Figure 8 (reproduced below) of the asserted patents is “a flow
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`diagram illustrating the processing of the connect routine in one embodiment.” Ex. A-2 (‘966
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`Patent) at 3:7-8. The ‘966 Patent further describes Figure 8 at 18:3-19:19, including the specific
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`steps that are performed. Id.; Medvidović Decl., ¶ 57. A POSA would understand that a
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`processor programmed to perform at least one of the algorithms disclosed in steps 801 to 806 in
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`Figure 8 is sufficient to perform the function of connecting a participant to a broadcast channel.
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`Medvidović Decl., ¶¶ 57, 59. In particular, the flow diagram can proceed from block 801 to
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`block 806 to “Achieve connection.” In other words, at step 806 the participant has completed
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`the function of connecting to the broadcast channel and has achieved a connection.
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`Ex. A-2 (‘966 Patent), Fig. 8.
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`Similarly, the ‘966 Patent includes Figs. 3A and 3B, which “illustrate the process of
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`connecting a new computer Z to the broadcast channel” and the steps of this algorithm are
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`4
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`

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`Case 1:16-cv-00453-RGA Document 225 Filed 07/17/17 Page 6 of 12 PageID #: 22581
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`further detailed in the specification at 5:32-52. See Ex. 1 (Markman Tr.) at 77:21-80:14; Ex. A-2
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`at 5:32-52; id., Figs. 3A and 3B; Medvidović Decl., ¶ 58. A POSA would understand that these
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`figures and the related portions of the specification further disclose the algorithms for performing
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`the function of “connecting a participant to an identified broadcast channel.” Medvidović Decl.,
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`¶ 59; see also TecSec, Inc. v. Int’l Bus. Machs. Corp., 731 F.3d 1336, 1348-49 (Fed. Cir. 2013)
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`(holding an algorithm may be expressed in prose, flow charts, and diagrams)(citation omitted).
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`Because the structures discussed above are sufficient to complete the connection process,
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`they render the claim definite, and there is no need to incorporate further structures into the
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`construction. Nevertheless, Defendants argued for the first time at the hearing that blocks 807 –
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`809 of Figure 8 and disclosures associated with Figure 11 are also necessary to perform the
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`specified function (and render the claims definite). In particular, Defendants argue that the
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`specifications provide a series of figures and detailed disclosures, which, if included, would
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`render the claims definite –– “If I go there, and I look at that, and I incorporate that into the
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`construction that is [] sufficient, I think it probably is.” See Ex. 1 (Markman Tr.) at 94:22-
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`95:11.3 Further, Defendants’ Markman Slides 46 and 47 (reproduced below) highlight block 807
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`– 809 (in slide 46) and identify columns and lines 20:41-21:19 and Figure 11 (in slide 47) as
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`corresponding structures.
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`3 Defendants’ arguments that the MPF terms should be construed to include the various specific
`and complex structures further confirms that these claims are patent eligible and not abstract
`because they necessarily describe a special purpose computer that is programmed to perform a
`specific algorithm, rather than an abstract idea of transferring information with no concrete
`limitations, and do not broadly preempt the field. See, e.g., Ex. 1 (Markman Tr.) at 87:12-19,
`90:15-93:6 (specifications disclose a series of figures and routines for connecting to a broadcast
`channel). Further, Defendants’ own slides confirm that the claimed inventions provide concrete
`solutions to improving the efficiency of forming network connections. Ex. 2 (Def. Markman
`Slide) at No. 83 (“The random ordering could also be weighted where the first port number
`generated by the hashing algorithm would have a 50% chance of being first in the reordering,
`the second port number would have a 25% chance of being first in the reordering, and so on.
`Because the seeking computers would use different orderings, the likelihood of finding a busy
`port is reduced.”) (emphasis added).
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`5
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`Case 1:16-cv-00453-RGA Document 225 Filed 07/17/17 Page 7 of 12 PageID #: 22582
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`Ex. 2 (Def. Markman Slide) at No. 46 Ex. 2 (Def. Markman Slide) at No. 47.
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`Defendants’ arguments are flawed because these disclosures may provide additional
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`functionality, but are not necessary to complete the connection process, which can be completed
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`at step 806. Ex. A-2 (‘966 Patent) at 19:15-31. In effect, Defendants seek to import structural
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`limitations for additional functionality.
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`For example, Defendants seek to import the functionality described in the specifications
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`that blocks 807-809 provide the added functionality for “identifying neighbors for the seeking
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`computer,”
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`In block 807, the routine installs the external dispatcher for processing
`messages received through this process' external port for the passed
`channel type and channel instance. When a message is received through
`that external port, the external dispatcher is invoked. The routine then
`returns. In block 808, the routine installs an external dispatcher. In
`block 809, the routine invokes the connect request routine to initiate the
`process of identifying neighbors for the seeking computer. The routine
`then returns.
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`Ex. A-2 (‘966 Patent) at 19:22-31 (emphasis added).
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`Defendants seek to further import the structures shown in Figure 11, but the functionality
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`to which blocks 807-809 refer provide ancillary functionality and tangible solutions to overcome
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`specific problems caused by portal computers connecting and disconnecting (e.g., “the portal
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`computer may no longer be in the list if it recently disconnected from the broadcast channel”).
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`6
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`

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`Case 1:16-cv-00453-RGA Document 225 Filed 07/17/17 Page 8 of 12 PageID #: 22583
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`Ex. A-2 (‘966 Patent) at 20:45-51.
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`Additionally, the specifications explain that Figure 8 refers to a “connect routine” where
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`the portal computer may be in a partially connected state. Figure 11 describes a “connect
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`request routine” where the portal computer is in a fully connected state:
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`FIG. 8 is a flow diagram illustrating the processing of the connect routine
`in one embodiment…. When a portal computer is located that is
`connected and this routine connects to at least one neighbor, this process
`enters the partially connected state, and when the process eventually
`connects to four neighbors, it enters the fully connected state.
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`Ex. A-2 (‘966 Patent) at 18:3-18 (emphasis added).
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`FIG. 11 is a flow diagram illustrating the processing of the connect
`request routine in one embodiment. This routine requests a process of a
`portal computer that was identified as being fully connected to the
`broadcast channel to initiate the connection of this process to the broadcast
`channel. In decision block 1101, if at least one process of a portal
`computer was located that is fully connected to the broadcast channel, then
`the routine continues at block 1103, else the routine continues at
`block 1102.
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`Ex. A-2 (‘966 Patent) at 20:41-51 (emphasis added).
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`Accordingly, Figure 11 and the associated discussion in the specification describe
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`different network states, and there is no basis to import the steps of these additional processes
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`into the Term 4, for connecting to the identified broadcast channel. Thus, the Court should reject
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`Defendants’ construction, which is an attempt to complicate proof of infringement by leading to
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`an elongated construction of this term.
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`In the alternative, to the extent the Court finds that the additional structural support is
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`necessary, it should include them in the construction of this term to preserve the validity of the
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`claim. Ruckus Wireless, Inc. v. Innovative Wireless Sols., LLC, 824 F.3d 999, 1004 (Fed. Cir.
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`2016) (“If, after applying all other available tools of claim construction, a claim is ambiguous, it
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`should be construed to preserve its validity”)(citation omitted).
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`7
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`

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`Case 1:16-cv-00453-RGA Document 225 Filed 07/17/17 Page 9 of 12 PageID #: 22584
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`2.
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`“Means for identifying a broadcast channel for a game of interest” and
`“means for identifying a game of interest…” (Terms 1, 2)
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`The functions of Terms 1 and 2 are set forth in their plain language, respectively
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`“identifying a broadcast channel for a game of interest” and “identifying a game of interest.”
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`The structure for performing this function is a special purpose computer programmed to perform
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`an algorithm that uses the channel type and the channel instance to identify the broadcast
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`channel: “When joining a game, the user would download the broadcaster component and the
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`game application program from the web server…. The web server would also provide the
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`channel type and channel instance associated with the game and the identification of the portal
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`computers for the game…. This routine is passed a channel type (e.g., application name) and
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`channel instance (e.g., session identifier), that identifies the broadcast channel to which this
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`process wants to connect.” Ex. A-1 (‘344 Patent) at 16:57-17:1, 18:2-5; see also id. at 17:65-
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`18:7; id., Fig. 8 (illustrating algorithm for processing the broadcast channel connect routine); id.
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`at 17:67-18:56 (describing steps in Fig. 8); Medvidović Decl., ¶¶ 51-52; Ex. D-15 at 14, 48-49.
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`Similar to MPF Term 4, Defendants’ slides confirm that they agree that MPF Terms 1
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`and 2 are definite. Defendants’ slide No. 54, reproduced below, seeks to important additional
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`structures into these terms. While Terms 1 and 2 are directed to identifying the broadcast
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`channel and game of interest, Defendants seek to import structures relating to the separate and
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`different function of connecting to the broadcast channel, which is the subject of separate Term
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`4, discussed above. Specifically, Defendants’ Slide No. 54 states that the “broadcaster
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`component provides functions (e.g., methods of class) that can be invoked by the application
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`programs. The primary functions provided may include a connect function that an application
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`program invokes passing an indication of the broadcast channel to which the application program
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`wants to connect.”
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`8
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`

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`Case 1:16-cv-00453-RGA Document 225 Filed 07/17/17 Page 10 of 12 PageID #: 22585
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`Ex. 2 (Def. Markman Slide) at No. 54.
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`Thus, there is no basis to import these structures for separate functionality into the
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`construction for Terms 1 and 2. Nevertheless, to the extent the Court agrees with Defendants, it
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`should so construe Terms 1 and 2 to preserve their validity.
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`3.
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`“Means for identifying a broadcast channel for a topic of interest”
`(Term 3)
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`The parties agree that the function of Term 3 is “identifying a broadcast channel for a
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`topic of interest,” which is analogous to Term 1’s identifying the broadcast channel for a game
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`of interest. Defendants’ Slide No. 58 confirms that MPF Term 3 is similar to Term 1 discussed
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`above.
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`Ex. 2 (Def. Markman Slide) at No. 58.
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`9
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`Case 1:16-cv-00453-RGA Document 225 Filed 07/17/17 Page 11 of 12 PageID #: 22586
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`The structures identified by Acceleration Bay provide sufficient structural support.
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`Namely, the ‘966 Patent specification sets forth an algorithm for performing this function:
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`The information delivery service may provide a directory web site where
`consumers can locate and subscribe to broadcast channels of interest….
`When a user decides to subscribe to a broadcast channel, the broadcaster
`component and information delivery service application program may be
`downloaded to the user's computer if not already available on the user's
`computer. Also, the channel type and channel instance associated with
`that broadcast channel and the identification of the portal computers for
`that broadcast channel may be downloaded to the subscriber's computer.
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`Ex. A-2 (‘966 Patent) at 16:41-51 (emphasis added); see also, e.g., id. at 16:30-40 (describing
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`different broadcast channels for topics of interest which may be selected), 16:55-17:10
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`(identifying relevant broadcast channels), Fig. 8 (flow chart of steps to connect to broadcast
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`channel), 18:3-19:31 (describing steps in Fig. 8); Medvidović Decl., ¶¶ 54, 55.
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`Defendants make the same argument for Term 3 as they do for Term 1, importing
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`additional structural limitations for the separate functionality of connection, and should be
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`rejected for the same reasons discussed above. To the extent the Court finds that the additional
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`structural limitations are required, however, Defendants concede that the asserted patent include
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`the structural support. Ex. 1 (Markman Tr.) at 88:12-19, 89:1-10, 94:22-95:11. Nevertheless, to
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`the extent the Court agrees with Defendants, it should so construe Term 3.
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`4.
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`Terms 5, 7, and 8
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`The parties did not address MPF Terms 5, 7 and 8 during the hearing. Accordingly,
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`Acceleration Bay relies on its prior briefing on these terms. D.I. 151 (Joint Claim Construction
`
`Brief) at 42-45, 47-51.
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`10
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`

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`Case 1:16-cv-00453-RGA Document 225 Filed 07/17/17 Page 12 of 12 PageID #: 22587
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`POTTER ANDERSON & CORROON LLP
`
`By: /s/ Philip A. Rovner
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff
`Acceleration Bay LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`James Hannah
`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: July 17, 2017
`5316101
`
`11
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