Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 1 of 26 PageID #: 2105
`
`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)
`
`)))))))))
`
`))))))))) )))))))))))
`
`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 LLC’S ANSWERING BRIEF
`IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
`REGARDING U.S. PATENT NOS. 6,701,344, 6,714,966 AND 6,829,634
`
`

`

`Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 2 of 26 PageID #: 2106
`
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`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 R. Hannah
`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: October 21, 2016
`1236480
`
`

`

`Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 3 of 26 PageID #: 2107
`
`TABLE OF CONTENTS
`
`Page
`
`I.
`
`II.
`
`NATURE AND STAGE OF PROCEEDINGS .................................................................. 1
`
`SUMMARY OF THE ARGUMENT ................................................................................. 2
`
`III.
`
`STATEMENT OF FACTS ................................................................................................. 4
`
`A.
`
`B.
`
`C.
`
`The Broadcast Claims Require an Incomplete, M-Regular Network ......................5
`
`The Broadcast Claims Require an Application Layer Network ..............................6
`
`The Broadcast Claims Provide Important Benefits .................................................8
`
`IV.
`
`ARGUMENT...................................................................................................................... 9
`
`A.
`
`The Broadcast Claims Are Patent Eligible under Step 1 of Alice ...........................9
`
`1.
`
`2.
`
`The Broadcast Claims are Patent Eligible Because They Are
`Directed to a Specific, Non-Abstract Idea ...................................................9
`
`Defendants’ Arguments Rely on Overgeneralization of the
`Broadcast Claims .......................................................................................11
`
`B.
`
`The Broadcast Claims Are Patent Eligible under Step 2 of Alice .........................12
`
`1.
`
`2.
`
`3.
`
`The Broadcast Claims Recite Concrete Limitations and Do Not
`Preempt the Field .......................................................................................13
`
`The Broadcast Claims Provide Tangible Benefits.....................................16
`
`The Broadcast Claims Include Inventive Concepts...................................17
`
`C.
`
`Factual and Claim Construction Issues Preclude Dismissal on the
`Pleadings................................................................................................................18
`
`V.
`
`CONCLUSION................................................................................................................. 20
`
`i
`
`

`

`Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 4 of 26 PageID #: 2108
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Federal Cases
`
`Affinity Labs of Tex., LLC v. DIRECTV, LLC,
`No. 2015-1845, 2016 WL 5335501 (Fed. Cir. Sept. 23, 2016) ...............................................11
`
`Alice Corp. Pty. Ltd. v. CLS Bank Int’l,
`134 S. Ct. 2347 (2014)..................................................................................................... passim
`
`Art+COM Innovationpool GMBH, v. Google Inc.
`C.A. No. 14-217-RGA, 2016 WL 1718221 (D. Del. Apr. 28, 2016) ................................15, 16
`
`Bascom Global Internet Servs., Inc., v. AT&T Mobility LLC,
`827 F.3d 1341 (Fed. Cir. 2016)..........................................................................................17, 19
`
`C.R. Bard, Inc. v. Angiodynamics, Inc.,
`156 F. Supp.3d 540 (D. Del. Jan. 12, 2016) ............................................................................20
`
`CLS Bank Int’l v. Alice Corp. Pty. Ltd.,
`717 F.3d 1269 (Fed. Cir. 2013)..................................................................................................9
`
`DDR Holdings, LLC v. Hotels.com, L.P.,
`773 F.3d 1245 (Fed. Cir. 2014)........................................................................................ passim
`
`Dealertrack, Inc. v. Huber,
`674 F.3d 1315 (Fed. Cir. 2012)................................................................................................11
`
`Enfish, LLC. v. Microsoft Corp.,
`822 F.3d 1327 (Fed. Cir. 2016)........................................................................................ passim
`
`Fuzzysharp Techs. Inc. v. Intel Corp.,
`No. 12-cv-04413-YGR, 2013 U.S. Dist. LEXIS 60959 (N.D. Cal. Apr. 29, 2013) ................19
`
`Intellectual Ventures I LLC v. Symantec Corp.,
`No. 2015-1769 2016 WL 5539870 (Fed. Cir. 2016) ...............................................................11
`
`Int’l Bus. Machines Corp. v. Priceline Grp. Inc.,
`C.A. No. 15-137-LPS-CJB, 2016 WL 626495 (D. Del. Feb. 16, 2016)..................................20
`
`Int’l Bus. Machines Corp. v. Priceline Grp. Inc.,
`C.A. No. CV 15-137-LPS-CJB, 2016 WL 1253472 (D. Del. Mar. 30, 2016)...................19, 20
`
`MAZ Encryption Techs. LLC, v. Blackberry Corp.,
`C.A. No. CV 13-304-LPS, 2016 WL 5661981 (D. Del. Sept. 29, 2016) ................................11
`
`ii
`
`

`

`Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 5 of 26 PageID #: 2109
`
`McRO Inc. v. Bandai Namco Games Am. Inc.,
`No. 2015-1080, 2016 WL 4896481 (Fed. Cir. Sept. 13, 2016) .........................................16, 19
`
`Network Congestion Sols., LLC v. U. S. Cellular Corp.,
`170 F. Supp. 3d 695 (D. Del. 2016).........................................................................................10
`
`Rapid Litig. Mgmt. Ltd. v. CellzDirect, Inc.,
`827 F.3d 1042 (Fed. Cir. 2016)................................................................................................18
`
`Smartflash LLC v. Apple, Inc.,
`No. 6:13cv-447-JRG-KNM, 2015 WL 661174 (E.D. Tex. Feb. 13, 2015).......................13, 16
`
`SRI Int’l, Inc. v. Cisco Sys., Inc.,
`C.A. No. CV 13-1534-SLR, 2016 WL 1437655 (D. Del. Apr. 11, 2016)...............................10
`
`StoneEagle Servs., Inc. v. Pay-Plus Solutions, Inc.,
`113 F. Sup. 3d 1241, 1252-53 (M.D. Fla. July 1, 2015)..........................................................16
`
`Treehouse Avatar LLC v. Valve Corp.,
`170 F. Supp. 3d 706 (D. Del. 2016).........................................................................................10
`
`Vehicle IP, LLC, v. AT&T Mobility LLC,
`C.A. No. 09-CV-1007-LPS, 2016 WL 5662004 (D. Del. Sept. 29, 2016)..............................19
`
`Federal Statutes
`
`35 U.S.C. § 282(a) ...........................................................................................................................9
`
`Rules
`
`Federal Rules of Civil Procedure, Rule 12 ................................................................................4, 20
`
`Federal Rules of Civil Procedure, Rule 16 ......................................................................................2
`
`iii
`
`

`

`Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 6 of 26 PageID #: 2110
`
`I.
`
`NATURE AND STAGE OF PROCEEDINGS
`
`Plaintiff Acceleration Bay filed suits against Defendants in early 2015, alleging that
`
`Defendants’ video games infringe Acceleration Bay’s patents. At no point during the year those
`
`cases were pending did Defendants challenge the patent eligibility of any claims, including those
`
`at issue now. The Court dismissed the 2015-filed cases without prejudice in favor of these actions,
`
`after Acceleration Bay cured a purported defect in prudential standing. C.A. No. 15-228-RGA,
`
`D.I. 149.
`
`Defendants then filed a Motion to Dismiss, Stay or Transfer these actions in favor of
`
`declaratory judgment actions filed by Defendants in the Northern District of California (the “DJ
`
`Actions”). Defendants abandoned their third motion to dismiss as untenable after Judge Seeborg
`
`transferred the DJ Actions to this Court. D.I. 13-11 at 6-9 (Judge Seeborg’s Order); D.I. 14
`
`(withdrawing Motion to Dismiss). Notwithstanding that they had already moved to dismiss, rather
`
`than respond to Acceleration Bay’s Complaints, Defendants improperly filed two additional
`
`motions to dismiss (their fourth and fifth), including the instant motion. Defendants moved for
`
`partial dismissal as to the patent eligibility of some of the claims from three of the six asserted
`
`patents (claims 1-18 of U.S. Patent No. 6,829,634 (“’634 Patent”) and all claims of U.S. Patent
`
`Nos. 6,701,344 (“’344 Patent”) and 6,714,966 (“’966 Patent”)2, referred to by Defendants as the
`
`“Broadcast Claims”). D.I. 21 (the “Motion”). Defendants also separately moved to dismiss
`
`Acceleration Bay’s infringement claims against the PlayStation versions of the accused products.
`
`D.I. 18.
`
`1 Docket citations herein are to C.A. No. 16-453-RGA. The parties filed substantially similar
`pleadings in related actions C.A. Nos. 16-454-RGA and 16-455-RGA.
`2 The ‘634 Patent, ‘344 Patent, and ’966 Patent are attached as Exhibits 1-3 to the Declaration of
`Aaron Frankel in Support of Acceleration Bay’s Answering Brief in Opposition to Defendants’
`Motion to Dismiss filed herewith.
`
`

`

`Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 7 of 26 PageID #: 2111
`
`Because Defendants are not permitted to file serial motions to dismiss in lieu of answering
`
`and because Defendants’ Motions only apply to a subset of Acceleration Bay’s claims,
`
`Acceleration Bay requested that the Court order Defendants to answer the Complaints and
`
`schedule a Rule 16 conference so that discovery can begin. D.I. 25.
`
`II.
`
`SUMMARY OF THE ARGUMENT
`
`The Broadcast Claims are prototypical patent eligible claims because they are directed to
`
`concrete, non-abstract solutions to real-world problems, recite specific limitations, do not preempt
`
`the field, are directed to a technical application that is uniquely rooted in computer technology and
`
`cover inventive concepts providing tangible benefits.
`
`Prior to these inventions, there was a need for improved networks and methods for sharing
`
`data between widely-distributed participants. It was impractical to have every participant directly
`
`communicate because the number of connections quickly becomes unmanageable and individual
`
`connections often fail or operate slowly. The Broadcast Claims solve these problems with a very
`
`specific and inventive concept: a better network that serves as a broadcast channel for distribution
`
`of data among various participants. The broadcast channel network exists as a logical overlay to
`
`a series of point-to-point connections between participants. The broadcast channel is formed as
`
`an m-regular network, where each participant has a set number of neighbors. For example, in a 4-
`
`regular network, each participant has four neighbors. Participants pass data to their neighbors in
`
`the network, who then forward the message to their neighbors, and so on, rather than being directly
`
`connected to all the participants in the network.
`
`This non-conventional overlay network structure, not found in any of the alleged prior art
`
`identified by Defendants, provides tangible benefits. Defendants’ incorrect claims that these
`
`concepts were well-known or conventional are unsupported attorney argument. The structures
`
`2
`
`

`

`Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 8 of 26 PageID #: 2112
`
`allows for rapid and reliable dissemination of data through the network because each participant
`
`forwards data to a manageable subset of network participants. For example, in a 5-regular network,
`
`a participant sends a message to its five neighbors each of which forward the message to their own
`
`neighbors, thus rapidly distributing the message over even a large network. Data will still be
`
`rapidly delivered, even if individual connections fail or operate slowly, because of the alternative
`
`pathways formed by the network, i.e., each neighbor is the start of a potential path to all other
`
`participants. This structure is also flexible, allowing for participants to be added and dropped
`
`while the network is operating. In other words, the inventors figured out a way to build a “better
`
`mouse trap” that provides participants with a robust network for broadcasting data between
`
`numerous and widely-distributed participants.
`
`The Federal Circuit has repeatedly confirmed the patent eligibility of claims similarly
`
`“directed to a specific implementation of a solution to a problem in the software arts” Enfish, LLC.
`
`v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016) (finding patent eligible software claims
`
`related to innovative and beneficial data storage technology).
`
`Defendants commit the cardinal sin of patent eligibility analysis by overgeneralizing these
`
`claims as broadly covering all transmission of data, ignoring the specific m-regular network
`
`limitations in the claims. The Supreme Court warned against such an approach as, at some level,
`
`“all inventions . . . embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or
`
`abstract ideas” and one must “tread carefully in construing this exclusionary principle [of patent
`
`eligibility] lest it swallow all of patent law.” Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct.
`
`2347, 2354 (2014) (citation omitted). Defendants also implicitly rely on an overly broad claim
`
`construction that reads out the concept of a broadcast channel network overlay, where the
`
`participants and connections are at the application layer, not the underlying layers of the network
`
`3
`
`

`

`Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 9 of 26 PageID #: 2113
`
`topology. Thus, Defendants’ Motion attacks a straw-man, and ignores the specific limitations of
`
`the Broadcast Claims, which are novel and provide tangible benefits, as explained by Acceleration
`
`Bay’s expert Dr. Michael Goodrich.
`
`Accordingly, the Court should deny Defendants’ Motion and confirm that the Broadcast
`
`Claims are patent eligible. At a minimum, the Court should defer consideration of the Motion or
`
`convert it to a motion for summary judgment, pending resolution of claim construction and factual
`
`issues regarding the novelty and benefits of the Broadcast Claims.3
`
`III.
`
`STATEMENT OF FACTS
`
`The Broadcast Claims are directed to network broadcast channels that are implemented in
`
`an m-regular, incomplete network. See e.g., ‘344 patent, 4:23-26.4 The Broadcast Claims solve
`
`the need for a fast and reliable communications network for a large number of widely-distributed
`
`processes, where it would be impracticable to have each participant directly communicate with all
`
`other participants. Declaration of Michael Goodrich (“Goodrich Decl.”), ¶ 27; ‘344 Patent, 1:49–
`
`51, 2:38–41.
`
`The Broadcast Claims cover networks for a variety of applications. The ‘344 Patent
`
`describes “a distributed game environment,” which “is provided by a game application program
`
`executing on each player’s computer.” ’344 Patent, 16:29–34; Goodrich Decl., ¶¶ 37-38. Each
`
`time a player takes an action, a message representing that action can be broadcast on the game’s
`
`broadcast channel. Goodrich Decl., ¶ 39. The broadcast channel allows a player to send messages
`
`3 For the reasons set forth in Acceleration Bay’s October 12, 2016 letter (D.I. 25), the Court should
`deny the Motion as an unauthorized serial motion to dismiss under Rule 12. Fed. R. Civ. P.
`12(g)(2) (“a party that makes a motion under this rule must not make another motion under this
`rule raising a defense or objection that was available to the party but omitted from its earlier
`motion.”); see also D.I. 25 at 2-3 (collecting cases showing that Defendants’ prior motion to
`dismiss or transfer is a motion under Fed. R. Civ. P. 12).
`4 Citations to the ‘344 Patent are representative of the ‘634 and ‘966 Patents.
`
`4
`
`

`

`Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 10 of 26 PageID #: 2114
`
`(e.g., communications or strategy information) to one or more other players. ‘344 Patent, 16:36-
`
`43; Goodrich Decl., ¶ 39.
`
`The ‘966 Patent provides “an information delivery service application” which “allows
`
`participants to monitor messages as they are broadcast on the broadcast channel.” ‘966 Patent,
`
`16:25-28; Goodrich Decl., ¶ 42. The ‘634 Patent covers “a non-routing table based method for
`
`broadcasting messages in a network,” where, rather than have each participant store routing-table
`
`information (i.e., information about non-neighboring participants in the network), each participant
`
`in the network implements the broadcast using information about neighboring participants. ‘634
`
`Patent, 2:45-67; Goodrich Decl., ¶ 45.
`
`A.
`
`The Broadcast Claims Require an Incomplete, M-Regular Network
`
`Rather than forming the network as a complete graph, which could cause congestion by
`
`requiring each participant to be directly connected to all other participants, requiring a large
`
`number of connections, (e.g., ‘344 Patent, 1:44-57), the participants are connected so as to form
`
`an m-regular, incomplete network. Goodrich Decl., ¶ 28. This topology ensures reliability and
`
`scalability of the network. Id. In one example, the ‘344 Patent shows “a graph that is 4-regular
`
`and 4-connected which represents the broadcast channel,” meaning that each participant is
`
`connected to four neighbors and at least four connections must be broken to prevent a participant
`
`from being able to communicate, at least indirectly, with all other participants. ’344 Patent, 4:48–
`
`49, Fig. 1.
`
`5
`
`

`

`Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 11 of 26 PageID #: 2115
`
`B.
`
`The Broadcast Claims Require an Application Layer Network
`
`Network protocols are typically modeled conceptually as being partitioned into layers,
`
`which collectively are called the network protocol stack. Goodrich Decl., ¶ 18. Each layer
`
`provides a set of services and functionality guarantees for higher layers and, to the extent possible,
`
`each layer does not depend on details or services from higher levels. Id. To reduce complexity,
`
`most networks are designed with a small number of layers, from the physical layer, at the bottom,
`
`where computer hardware interfaces with copper wire or wireless radio, to the application layer,
`
`at the top, where the user interacts with the software. Id.
`
`The broadcast channel is implemented through a “graph of point-to-point connections” that
`
`“overlays the underlying network.” ’344 Patent, 4:23-26.
`
`Importantly, the claimed networks
`
`establish a gaming or information delivery environment at the application level, rather than the
`
`underlying transport or network levels. ‘344 Patent, 4:15-19 (“The logical broadcast channel is
`
`implemented using an underlying network system (e.g., the Internet) that allows each computer
`
`connected to the underlying network system to send messages to each other connected computer
`
`using each computer's address.”); Goodrich Decl., ¶ 30.
`
`Further emphasizing that the networks are implemented at the application level, the ‘344
`
`Patent explains that “[t]he broadcast channel
`
`is well suited for computer processes (e.g.,
`
`application programs) that execute collaboratively, such as network meeting programs.” ‘344
`
`Patent, 15:17-20 (emphasis added). The patent further explains that “[t]he application program
`
`invokes the connect component to establish a connection to a designated broadcast channel.” ‘344
`
`Patent, 16:9-11 (emphasis added). Moreover, “[t]he broadcast component is invoked by the
`
`application program to broadcast messages in the broadcast channel.” ‘344 Patent, 16:26-28
`
`(emphasis added). With respect to the game environment, the patent explains that “[t]he game
`
`6
`
`

`

`Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 12 of 26 PageID #: 2116
`
`environment is provided by a game application program executing on each player's computer that
`
`interacts with a broadcaster component.” ‘344 Patent, 16:31-34 (emphasis added); see also ‘344
`
`Patent, 15:29-49; Goodrich Decl., ¶ 38.
`
`Each participant application process maintains the connections to its neighbors as edges in
`
`the overlay network. Goodrich Decl., ¶ 33. That is, pairs of participants share a connection
`
`established in the application layer overlay, while an underlying network handles the actual
`
`transfer of data between the physical network components. See ‘344 Patent, 4:23–26 (“The
`
`broadcast technique overlays the underlying network system with a graph of point-to-point
`
`connections (i.e., edges between host computers (i.e., nodes) through which the broadcast channel
`
`is implemented.”) (emphasis added)).
`
`Figure 2 shows the application layer connections
`
`established for twenty participants of a broadcast channel, such as the one that implements the
`
`game environment of the ‘344 Patent:
`
`‘344 Patent, Fig. 2; id., 5:6–7. This overlay is implemented on top of a reliable underlying
`
`network, such as the Internet. ‘344 Patent, 4:15–22 (“logical broadcast channel is implemented
`
`using an underlying network system (e.g., the Internet)”); Goodrich Decl., ¶ 33.
`
`7
`
`

`

`Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 13 of 26 PageID #: 2117
`
`C.
`
`The Broadcast Claims Provide Important Benefits
`
`The inventions covered by the Broadcast Claims represented a quantum leap forward for
`
`applications,
`
`like multiplayer networked games,
`
`that require “the simultaneous sharing of
`
`information among a large number of… processes that are widely distributed.” ‘344 Patent, 2:38–
`
`41, 1:33-43 (distinguishing prior art as unsuitable for simultaneous sharing between large number
`
`of widely dispersed participants); Goodrich Decl., ¶ 35. In particular, the combination of an m-
`
`regular, incomplete graph overlay where participants communicate by sending data to their
`
`neighbor participants to forward to other participants solved one of the major problems that
`
`prevented earlier development of such gaming environments—the fundamental tradeoff between
`
`network latency and reliability. Goodrich Decl., ¶¶ 29, 40, 44.
`
`The Broadcast Claims networks are “implemented using broadcast channels,” providing
`
`the best of both worlds: reliable message delivery and low latency communications. Goodrich
`
`Decl., ¶¶ 34, 36, 40, 43, 46. These networks are reliable and have a low latency because they
`
`provide alternative pathways. Id. For example, referring to Figure 2 above, a message can travel
`
`from participant 1 directly to participant 12, but if that link fails or operates slowly, the message
`
`can also reach participant 12 by travelling from 1 to 11 to 7 to 4 to 12 (and by many other possible
`
`pathways). The network is efficient and scalable because it only requires about 40 connections to
`
`create the broadcast channel linking 20 participants. In contrast, a complete network linking each
`
`participant directly to all other participants would require 190 such connections and messages
`
`would fail to timely reach all participants if even one connection failed or operated slowly. ‘344
`
`Patent, 1:44-2:42 (complete point-to-point networks do not scale well because of the large number
`
`of connections); Goodrich Decl., ¶ 34.
`
`8
`
`

`

`Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 14 of 26 PageID #: 2118
`
`IV.
`
`ARGUMENT
`
`The Broadcast Claims are presumed to be valid and, therefore, patent eligible. Defendants
`
`bear the burden of establishing that each claim of the Broadcast Claims is invalid by “clear and
`
`convincing evidence.” 35 U.S.C. § 282(a); CLS Bank Int’l v. Alice Corp. Pty. Ltd., 717 F.3d 1269,
`
`1304-05 (Fed. Cir. 2013). Defendants fail to meet this burden.
`
`A.
`
`The Broadcast Claims Are Patent Eligible under Step 1 of Alice
`
`1.
`
`The Broadcast Claims are Patent Eligible Because They Are Directed
`to a Specific, Non-Abstract Idea
`
`The first step under Alice in assessing the patent eligibility of the Broadcast Claims is to
`
`determine if they are directed toward patent eligible subject matter, which is broadly defined, but
`
`does not include “abstract” ideas. Alice, 134 S. Ct. at 2355. The Broadcast Claims satisfy Step 1
`
`of Alice because “the claimed solution is 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). Specifically, the claims address
`
`problems with conventional networks, specifically efficiently, flexibly and reliably distributing
`
`data between a large number of geographically dispersed participants. Goodrich Decl., ¶¶ 11, 47.
`
`The Broadcast Claims are directed to specific concepts, not abstract ideas, to address these
`
`challenges.
`
`In particular, by using an incomplete m-regular data network to form a broadcast
`
`channel that is overlaid on a point-to-point network, the claims provide a novel solution that
`
`provides for more efficient, reliable and flexible delivery of information to a network of computers
`
`than was possible using prior art network structures. Goodrich Decl., ¶ 47. Thus, the Broadcast
`
`Claims cover a specific solution (an incomplete, m-regular overlay network) to the problem of
`
`reliable and scalable communications between widely distributed computers, which is specifically
`
`set forth in the claimed “networks,” not the abstract idea of message forwarding. See e.g., ‘344
`
`9
`
`

`

`Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 15 of 26 PageID #: 2119
`
`Patent, 2:38-41, 4:19-26.
`
`The Federal Circuit’s recent decision holding that claims “directed to an innovative logical
`
`model for a computer database” were patent eligible particularly supports the patent eligibility of
`
`the Broadcast Claims. Enfish, 822 F.3d at 1330. In Enfish, the patents at issue related generally
`
`to improving the traditional relational database model with the logical database model. Id. at 1336-
`
`37. These claims were patent eligible because they covered a specific way of organizing data, not
`
`just the broad idea of organizing data.
`
`Id. The Broadcast Claims are similarly “directed to a
`
`specific improvement to the way computers operate” by providing a specific and better network
`
`structure for the distribution of data. See id. at 1335-36; Goodrich Decl., ¶¶ 53, 54. As noted
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`above, the Broadcast Claims offer multiple improvements to networking, including increased
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`flexibility, efficiency and reliability.
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`This District has found similar computer and networking claims to be non-abstract, where
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`they are directed to a specific solution, rather than a problem. See e.g., SRI Int’l, Inc. v. Cisco Sys.,
`
`Inc., C.A. No. 13-1534-SLR, 2016 WL 1437655, at *6 (D. Del. Apr. 11, 2016) (finding claims
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`non-abstract and “necessarily rooted in computer technology in order to overcome a problem
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`specifically arising in the realm of computer networks.”) (quoting DDR, 773 F.3d at 1257);
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`Network Congestion Sols., LLC v. U. S. Cellular Corp., 170 F. Supp. 3d 695 (D. Del. 2016)
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`(finding claims patent eligible because they “are directed to ‘alleviating congestion in a
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`communication network’ and recite steps used to perform the method for a flow of data to and
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`from end user devices connected to a network through communication devices.”); Treehouse
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`Avatar LLC v. Valve Corp., 170 F. Supp. 3d 706 (D. Del. 2016) (claims non-abstract because they
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`“are directed to users selecting and modifying customizable characters (avatars) in real time on
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`[computer game site], as well as storing and retrieving such characters within an information
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`Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 16 of 26 PageID #: 2120
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`network”); MAZ Encryption Techs. LLC, v. Blackberry Corp., C.A. No. 13-304-LPS, 2016 WL
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`5661981, at *8 (D. Del. Sept. 29, 2016) (“claim 31 is directed to more than pure data manipulation.
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`It is directed to a specific implementation of transparent encryption that improves security and
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`efficiency.”) (emphasis in original). In contrast, the cases cited by Defendants deal with claims
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`found patent ineligible because they broadly cover the idea of information collection and exchange
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`transmission, rather than a specific structure for data transmission as a solution to a problem
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`specifically arising in the realm of computer networks, as is the case here.5
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`2.
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`Defendants’ Arguments Rely on Overgeneralization of the Broadcast
`Claims
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`Defendants fail to establish that the Broadcast Claims are abstract. Rather than grapple
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`with the actual limitations of the claims, Defendants take a bird’s-eye view of the claims that
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`ignores the concrete and specific inventions of the Broadcast Claims, mischaracterizing them as
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`directed to the broad idea of message forwarding. Defendants thus ignore the Supreme Court’s
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`warning that, at some level, all inventions can be deemed abstract. Alice, 134 S. Ct. at 2354;
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`Enfish, 822 F.3d at 1337 (“describing the claims at such a high level of abstraction and untethered
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`from the language of the claims all but ensures that the exceptions to § 101 swallow the rule.”).
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`Defendants’ telephone game, chain letter and phone tree analogies are forms of
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`communications between humans where one person passes information to another person, and do
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`5 See, e.g., Affinity Labs of Tex., LLC v. DIRECTV, LLC, No. 2015-1845, 2016 WL 5335501, at
`*3 (Fed. Cir. Sept. 23, 2016) (“The [patent at
`issue] claims the function of wirelessly
`communicating regional broadcast content to an out-of-region recipient, not a particular way of
`performing that function.”) (emphasis added); Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333
`(Fed. Cir. 2012) (adding a “computer aided” limitation is insufficient to constitute a specific
`application where “the claim explain[s] the basic concept of processing information through a
`clearinghouse” only) (internal quotations omitted); Intellectual Ventures I LLC v. Symantec Corp.,
`No. 2015-1769, 2016 WL 5539870, at *5 (Fed. Cir. 2016) (“when a claim directed to an abstract
`idea ‘contains no restriction on how the result is accomplished . . . [and] [t]he mechanism . . . is
`not described, although this is stated to be the essential innovation[,]’ then the claim is not patent-
`eligible.” (citation omitted)).
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`Case 1:16-cv-00453-RGA Document 28 Filed 10/21/16 Page 17 of 26 PageID #: 2121
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`not apply to the Broadcast Claims, which require a very specific technical structure, of a particular
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`type of network, i.e., an incomplete, m-regular overlay network. Goodrich Decl., ¶ 49. These
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`human systems require a pre-mapped structure where information can only flow in one direction
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`from a specific starting point or person (for example, a chain letter cannot be used to send
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`information back up the chain or to people on a different branch of the chain). Id. ¶¶ 50-51. If
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`any link in these human communication systems is dropped, the entire distribution in the network
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`fails (for example, in a phone tree, if someone is not home or misses a call, everyone downstream
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`on the phone tree will be cut off). Participants also cannot flexibly be added or removed without
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`centralized control. Id.
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`In contrast, the incomplete, m-regular overlay network of the Broadcast Claim provides a
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`robust, flexible network that is not dependent upon a specific direction or starting point for the
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`distribution of information or messaging, that continues to operate even if specific links fail or
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`operate slowly, and where any network participant can be the source of a message that is broadcast
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`throughout the network. Goodrich Decl., ¶ 51. Thus Defendants’ analogies are inapt and the
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`Broadcast Claims do not just implement on a computer an old mode of communications.
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`B.
`
`The Broadcast Claims Are Patent Eligible under Step 2 of Alice
`
`The Broadcast Claims are not abstract and, therefore, the Court should deny Defendants’
`
`Motion without reaching Step 2 of the Alice analysis. Nonetheless, the patent eligibility of the
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`Broadcast Claims is further confirmed when “consider[ing] the elements of each claim both
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`individually and ‘as an ordered combination.’” Enfish, 822 F.3d at 1334, 1339. Specifically, the
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`Broadcast Claims include concrete limitations that avoid broad preemption of the field, are based
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`on inventive concepts and provide tangible benefits.
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