Case 1:16-cv-00455-RGA Document 245 Filed 08/29/17 Page 1 of 9 PageID #: 18952
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`Civil Action No. 16-453-RGA
`
`I
`
`Civil Action No. 16-454-RGA
`
`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.
`
`Civil Action No. 16-455-RGA
`
`MEMORANDUM ORDER
`
`Presently before me is a Motion to Dismiss U.S. Patent Nos. 6,701,344 (the '"344
`
`patent"), 6,714,966 (the "'966 patent"), and 6,829,634 (the "'634 patent") by Defendants
`
`Activision Blizzard, Inc., Electronic Arts Inc., Take-Two Interactive Software, Inc., Rockstar
`
`

`

`!
`
`I
`
`Case 1:16-cv-00455-RGA Document 245 Filed 08/29/17 Page 2 of 9 PageID #: 18953
`
`Games, Inc., and 2K Sports, Inc. (collectively, "Defendants"). (C.A. No. 16-453, D.I. 21; C.A.
`
`No. 16-454, D.I. 22; C.A. No. 16-455, D.I. 23). 1 I have considered the parties' briefing. (D.I.
`
`22; D.I. 28; D.I. 33). Defendants contend that all claims of the '344 and '966 patents, and claims
`
`1-18 of the '634 patents (collectively, the "Broadcast Claims") are invalid for lack of patent-
`
`eligible subject matter under 35 U.S.C. § 101. (D.I. 21). I held oral argument on July 10, 2017.
`
`(D.I. 235 ("Tr.")).
`
`I.
`
`BACKGROUND
`
`Plaintiffs briefing does not dispute that Claim 1 from each of the '344, '966, and '634
`
`patents is representative. (See D.I. 28 at 9 n.4). Claim 1 of the '344 patent provides:
`
`1. A computer network for providing a game environment for 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 other neighbor participants, further wherein the network is m(cid:173)
`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.
`
`(D.I. 1-1, Exh. 1 ('344 patent), claim 1). Claim 1 of the '344 patent, for the purposes of this
`
`motion, is substantially similar to the language in claim 1 of the '966 and '634 patents.
`
`(Compare '344 patent, claim 1, with D.I. 1-1, Exh. 2 ('966 patent), claim 1 and D.I. 1-2, Exh. 4
`
`('634 patent), claim 1).
`
`The Broadcast Claims generally relate to a "broadcast channel for a subset of[]
`
`computers of an underlying network." ('344 patent, 1 :27-29). Prior communication techniques
`
`were not "particularly well suited to the simultaneous sharing of information among computers
`
`that are widely distributed." ('344 patent, 1 :33-39). Prior communication techniques
`
`1 Citations to "D.I.
`
`"are to the docket in C.A. No. 16-453 unless otherwise noted.
`
`2
`
`

`

`Case 1:16-cv-00455-RGA Document 245 Filed 08/29/17 Page 3 of 9 PageID #: 18954
`
`interconnected all participants using point-to-point connections, and thus, did not "scale well" as
`
`the number of participants grew. ('344 patent, 1 :44-49).
`
`The Broadcast Claims overlay the underlying network system with a certain graph of
`
`point-to-point connections between host computers (or "nodes") through which a broadcast
`
`channel is implemented. ('344 patent, 4:23-26). This graph is a non-complete, m-regular
`
`network. A non-complete, m-regular network is a network where each node is connected to the
`
`same number of other nodes, or "m" number of other nodes, and where each node is not
`
`connected to all other nodes. (See '344 patent, 4:2µ7). Figure 1 of the '344 patent illustrates
`
`an example of a non-complete, m-regular network, where m is four.
`
`A
`
`B
`
`H
`
`D
`
`Fig.1
`('344 patent, fig. 1). This graph is implemented at the application level using an underlying
`
`F
`
`network system (like the Internet). ('344 patent, 4:14-19). The Broadcast Claims meet the need
`
`for "a reliable communications network that is suitable for the simultaneous sharing of
`
`information among a large number of the processes that are widely distributed." ('344 patent,
`
`2:38-42).
`
`Ill
`
`3
`
`I
`
`

`

`Case 1:16-cv-00455-RGA Document 245 Filed 08/29/17 Page 4 of 9 PageID #: 18955
`
`II.
`
`LEGALSTANDARD
`
`A. Motion to Dismiss
`
`Rule 8 requires a complainant to provide "a short and plain statement of the claim
`
`showing that the pleader is entitled to relief .... " Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) allows
`
`the accused party to bring a motion to dismiss the claim for failing to meet this standard. A Rule
`
`12(b )(6) motion may be granted only if, accepting the well-pleaded allegations in the complaint
`
`as true and viewing them in the light most favorable to the complainant, a court concludes that
`
`those allegations "could not raise a claim of entitlement to relief." Bell At/. Corp. v. Twombly,
`
`550 U.S. 544, 558 (2007).
`
`"Though 'detailed factual allegations' are not required, a complaint must do more than
`
`simply provide 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of
`
`action."' Davis v. Abington Mem '/Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly,
`
`550 U.S. at 555). I am "not required to credit bald assertions or legal conclusions improperly
`
`alleged in the complaint." In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 216 (3d
`
`Cir. 2002). A complaint may not be dismissed, however, "for imperfect statement of the legal
`
`theory supporting the claim asserted." See Johnson v. City of Shelby, 135 S. Ct. 346, 346 (2014).
`
`A complainant must plead facts sufficient to show that a claim has "substantive
`
`plausibility." Id. at 347. That plausibility must be found on the face of the complaint. Ashcroft
`
`v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the [complainant]
`
`pleads factual content that allows the court to draw the reasonable inference that the [accused] is
`
`liable for the misconduct alleged." Id. Deciding whether a claim is plausible will be a "context-
`
`specific task that requires the reviewing court to draw on its judicial experience and common
`
`sense." Id. at 679.
`
`4
`
`

`

`Case 1:16-cv-00455-RGA Document 245 Filed 08/29/17 Page 5 of 9 PageID #: 18956
`
`B. Patent-Eligible Subject Matter
`
`Section 101 of the Patent Act defines patent-eligible subject matter. It provides:
`
`"Whoever invents or discovers any new and useful process, machine, manufacture, or
`
`composition of matter, or any new and useful improvement thereof, may obtain a patent therefor,
`
`subject to the conditions and requirements of this title." 35 U.S.C. § 101. The Supreme Court
`
`has recognized an implicit exception for three categories of subject matter not eligible for
`
`patentability-laws of nature, natural phenomena, and abstract ideas. Alice Corp. Pty. v. CLS
`
`Bank Int'!, 134 S. Ct. 2347, 2354 (2014). The purpose of these carve outs is to protect the "basic
`
`tools of scientific and technological work." Mayo Collaborative Servs. v. Prometheus Labs.,
`
`Inc., 132 S. Ct. 1289, 1293 (2012). "[A] process is not unpatentable simply because it contains a
`
`law of nature or a mathematical algorithm," as "an application of a law of nature or mathematical
`
`formula to a known structure or process may well be deserving of patent protection." Id. at
`
`1293-94 (emphasis omitted). In order "to transform an unpatentable law of nature into a patent(cid:173)
`
`eligible application of such a law, one must do more than simply state the law of nature while
`
`adding the words 'apply it."' Id. at 1294 (emphasis omitted).
`
`The Supreme Court recently reaffirmed the framework laid out in Mayo "for
`
`distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from
`
`those that claim patent-eligible applications of those concepts." Alice, 134 S. Ct. at 2355. First,
`
`the court must determine whether the claims are drawn to a patent-ineligible concept. Id. If the
`
`answer is yes, the court must look to "the elements of the claim both individually and as an
`
`'ordered combination'" to see if there is an '"inventive concept'-i.e., an element or
`
`combination of elements that is 'sufficient to ensure that the patent in practice amounts to
`
`significantly more than a patent upon the [ineligible concept] itself."' Id. (alteration in original).
`
`5
`
`

`

`Case 1:16-cv-00455-RGA Document 245 Filed 08/29/17 Page 6 of 9 PageID #: 18957
`
`"A claim that recites an abstract idea must include 'additional features' to ensure 'that the
`
`[claim] is more than a drafting effort designed to monopolize the [abstract idea]."' Id. at 2357
`
`(alterations in original) (quoting Mayo, 132 S. Ct. at 1297). "[S]imply appending conventional
`
`steps, specified at a high level of generality, to ... abstract ideas cannot make those ... ideas
`
`patentable." Mayo, 132 S. Ct. at 1300. Further, "the prohibition against patenting abstract ideas
`
`cannot be circumvented by attempting to limit the use of [the idea] to a particular technological
`
`environment." Alice, 134 S. Ct. at 2358 (quoting Bilski v. Kappos, 561 U.S. 593, 610-11
`
`(2010)). Thus, "the mere recitation of a generic computer cannot transform a patent-ineligible
`
`abstract idea into a patent-eligible invention." Id. For this second step, the machine-or(cid:173)
`
`transformation test can be a "useful clue," although it is not determinative. Ultramercial, Inc. v.
`
`Hulu, LLC, 772 F.3d 709, 716 (Fed. Cir. 2014), cert. denied, 135 S. Ct. 2907 (2015).
`
`The Federal Circuit has held that the district court is not required to individually address
`
`claims not asserted or identified by the non-moving party, so long as the court identifies a
`
`representative claim and "all the claims are substantially similar and linked to the same abstract
`
`idea." Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat. Ass 'n, 776 F.3d 1343,
`
`1348 (Fed. Cir. 2014).
`
`III. DISCUSSION
`
`The Broadcast Claims are directed to an innovative network structure for the distribution
`
`of data as the number of participants in a computer network is scaled. They are not "directed" to
`
`a patent-ineligible abstract idea. The Broadcast Claims do not recite a mathematical algorithm.
`
`They do not recite fundamental economic or longstanding commercial practices. They are not
`
`addressed to a business challenge.
`
`6
`
`

`

`Case 1:16-cv-00455-RGA Document 245 Filed 08/29/17 Page 7 of 9 PageID #: 18958
`
`Defendants argue that the Broadcast Claims are directed to the abstract idea of using
`
`message-forwarding to broadcast information among a group of participants. Defendants argue
`
`that the Broadcast Claims are analogous to situations such as the schoolyard game of
`
`"telephone," where a group of people forward messages to each other; a phone tree, where each
`
`person who receives a message calls designated contacts and passes along that message; or a
`
`chain letter, where each person who receives a letter is required to forward it to an equal number
`
`of people.
`
`Defendants' analogies do not present the same communication scaling issues as those that
`
`arise in computer networks. Defendants gloss over the claim requirement of a non-complete, m(cid:173)
`
`regular network that is implemented on an application level. The claims require a specific and
`
`apparently innovative structure of message-forwarding, which none of Defendants' analogies are
`
`known to employ. These Broadcast Claims are "necessarily rooted in computer technology in
`
`order to overcome a problem specifically arising in the realm of computer networks." DDR
`
`Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014). Defendants describe
`
`the claims at an impermissibly "high level of abstraction," such that they are "untethered from
`
`the language of the claims." Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1337 (Fed. Cir.
`
`2016).
`
`Like the claims in Enfish, the claims here "are directed to an improvement in the
`
`functioning of a computer." Enfish, 822 F.3d at 1338. Like the "self-referential table" in Enfish
`
`which was "a specific type of data structure designed to improve the way a computer stores and
`
`retrieves data in memory," the claims require a specific type of communication structure
`
`designed to improve the way computers communicate as participants scale. Enfish, 822 F .3d at
`
`1339. Like the lip-synching technology in McRO, Inc. v. Bandai Namco Games Am. Inc., the
`
`7
`
`I
`
`

`

`Case 1:16-cv-00455-RGA Document 245 Filed 08/29/17 Page 8 of 9 PageID #: 18959
`
`claims here are "specifically designed to achieve an improved technological result in
`
`conventional industry practice." 837 F.3d 1299, 1316 (Fed. Cir. 2016).
`
`In Electric Power Group, LLC, v. Alstom S.A., the Court of Appeals stated, "The present
`
`case is different: the focus of the claims is not on such an improvement in computers as tools, but
`
`on certain independently abstract ideas that use computers as tools." 830 F.3d 1350, 1354 (Fed.
`
`Cir. 2016). Unlike in Electric Power Group, the focus of the claims here is on an improvement
`
`in computers as tools. The specialized problem that the Broadcast Claims is designed to solve is
`
`unlike the abstract problem of "providing out-of-region access to regional broadcast content."
`
`See Affinity Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258 (Fed. Cir. 2016)
`
`(finding that providing regional content to out-of-region recipients could be implemented by
`
`low-tech means, "such as by mailing copies of a local newspaper to an out-of-state subscriber").
`
`Unlike in Dealertrack, Inc. v. Huber, the Broadcast Claims do not "explain[] the basic concept of
`
`processing information through a clearinghouse .... " 674 F.3d 1315, 1333 (Fed. Cir. 2012).
`
`Unlike in Intellectual Ventures I LLC v. Symantec Corp., where the court found that "receiving
`
`e-mail (and other data file) identifiers, characterizing e-mail based on the identifiers, and
`
`communicating the characterization-in other words, filtering files/ e-mail" was an abstract idea,
`
`here, the claims do not pertain to the abstract idea of collecting information, remembering those
`
`characteristics, and retransmitting those characteristics. 838 F.3d 1307, 1313 (Fed. Cir. 2016).
`
`Again, the claims are "rooted in computer technology in order to overcome a problem
`
`specifically arising in the realm of computer networks." DDR Holdings, LLC, 773 F.3d at 1257.
`
`Because Defendants fail to show that the claims are directed to an abstract idea under
`
`step one of Alice, an analysis of step two is not necessary. Enfish, 822 F.3d at 1339.
`
`8
`
`I t
`I t
`
`

`

`Case 1:16-cv-00455-RGA Document 245 Filed 08/29/17 Page 9 of 9 PageID #: 18960
`
`Defendants' argument, belatedly raised in their reply brief, that the Broadcast Claims are
`
`not physical or tangible structures and thus are not patent-eligible subject matter, is waived. See,
`
`e.g., D. Del. R. 7.l.3(c)(2) ("The party filing the opening brief shall not reserve material for the
`
`reply brief which should have been included in a full and fair opening brief,"). Even if it were
`
`not waived, I have no basis on a motion to dismiss to conclude that the Broadcast Claims do not
`
`exist in physical or tangible form. (See, e.g., '344 patent, 4:14-19, claim 8). Thus, at this stage,
`
`I cannot conclude that they are patent-ineligible.
`
`IV.
`
`CONCLUSION
`
`Defendants' Motion to Dismiss U.S. Patent Nos. 6,701,344, 6,714,966, and 6,829,634 is
`
`DENIED. It is SO ORDERED this~ day of August, 2017.
`
`~{J.~
`
`UilitedStates loistrict Judge
`
`9
`
`