Case 1:16-cv-00455-RGA Document 264 Filed 09/08/17 Page 1 of 78 PagelD #: 19541
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`) )
`
`) ) ) ) ) ) ) ) ) )
`
`C.A. No. 16-453 (RGA)
`Plaintiff, pe
`PUBLIC VERSION
`
`ACCELERATIONBAYLLC,
`
`Vv.
`
`ACTIVISION BLIZZARD,INC.,
`
`
`Defendant.
`ACCELERATION BAYLLC,
`
`Plaintiff,
`
`v.
`
`C.A. No. 16-454 (RGA)
`
`) ) ) ) )
`
`ELECTRONIC ARTSINC.,
`
`
`Defendant.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`) C.A.No. 16-455 (RGA)
`)
`TAKE-TWO INTERACTIVE SOFTWARE,_)
`INC., ROCKSTAR GAMES, INC., and2K
`__)
`SPORTS, INC.,
`
`) ) )
`
`Defendants.
`
`JOINT CLAIM CONSTRUCTION BRIEF (PHASE J) TERMS: 27, 39, 30-34, 38-40
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`

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`Case 1:16-cv-00455-RGA Document 264 Filed 09/08/17 Page 2 of 78 PagelD #: 19542
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`TABLE OF CONTENTS
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`Page
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`I,
`
`INTRODUCTION oo. cccececeeeeeseeececeseseeseesescessssesesessescsacsessesssesecsucsssacecsesessevecsessesaeseaeens 1
`
`A.
`B.
`
`C.
`
`Plaintiff's Opening Introduction cee eee cccccscescssesecescscsscscsesesesecavecsesatsenenscsacaes 1
`Plaintiff's Statement Of Facts... ceeeccsescsesescscsseseecscscscssescsccsvavsvsvevsesesevaseesataenacees 2
`
`Summary of Defendants’ Positions ........cccccecscessccsssescssesscsseecsssecncsetetesessseaseseeses 2
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`I.
`
`ARGUMENT: TERMS27, 29-34, 38-40 ....ccceccccssescsscsssesessesesscseescsesscsssscscsesevsceseeeesvacaees 3
`A.
`Term 27: Computer Readable Medium (’634/19, 22 and °147/11,
`14, 15, 16) eee ceceecsesccseseessecseeeeeeeseseseeesssesesesessesecsessesecsessvstassevassesecsseacaeeaesaes 3
`Term 29: “fully connected portal computer,” “located portal
`computer” (7634/19 and ?069/1) 0... ceeesceeseeessesesssesesessessescscssscscssstscsssssseneveves 18
`
`B.
`
`C.
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`D.
`E.
`F,
`G.
`H.
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`Term 30: “each participant being connected to three or more other
`participants” (6069/1) occ ceeseseesesssecsesessecsecsescsessccscsesssscsesessevevecevaceesevsseasananeaes36
`Term 31: “sends an edge connection request...” (6069/1) .....cccccccseeceseceseseesseceeesAl
`Term 32: “connection port search message” (7147/1, 11) .c.cccceccscceesesesesseeceseeees46
`Term 33: “in order to maintain an m-regular graph” (4147/1, 11)...cccccceeeeseeeee50
`Term 34: “list of neighbors” (147/1, 11) .ccccccescessesessescssssssssscsescesessseceaeeseasens 56
`Term 38: “wherein an originating participant sends data...”
`(°344/1, 13, 16, 18; ‘634/1; ‘966/1, 13); Terms 39: “wherein each
`participant sends thatthat it receives...” (*344/12; ‘966/12); Term
`40: “wherein each participant sends data thatit receives...”
`(5344/13; ©966/13) oo eeceeseseeesecscetesssesetsssesesecsssesseesesessssusescsscssssacasssveveecateassesaeaes 60
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`

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`Case 1:16-cv-00455-RGA Document 264 Filed 09/08/17 Page 3 of 78 PagelD #: 19543
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`I.
`
`INTRODUCTION!
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`A.
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`Plaintiff's Opening Introduction
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`Acceleration Bay proposes constructions for Terms 27, 29-34, and 38-40 that are
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`consistent with their plain-arid ordinary meaning as understood by a person of ordinary skill in -
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`the art (“POSA”) in the context of the Asserted Patents, including the claims, specification, and
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`intrinsic record. The Court should adopt Acceleration Bay’s constructions because they comport
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`with well-established claim construction principles and are designed to make the asserted claims
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`more readily accessible and understandableto the jury.
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`In contrast, Defendants propose unnecessarily complex constructions and improperly
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`import
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`limitations into the Terms. Defendants’ argument that Plaintiff's constructions are
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`inconsistent with “the inventions” is flawed andflips the claim construction process on its head.
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`As the Federal Circuit has held, proper construction should focus on the language of the claims
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`themselves. Medtronic Inc. v. Boston Sci. Corp., 695 F.3d 1266, 1275 (Fed. Cir. 2012) (words of
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`a patent claim are given their ordinary and customary meaning anda patenteeis afforded thefull,
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`broad scope of a chosen term) (citing Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir.
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`2005) (en banc)). Defendants’ reliance on the prosecution history to import limitations fails
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`because Defendants cannotsatisfy their burden of showing the clear and unmistakable disclaimer.
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`required to depart from the language of the claims.
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`In terms of importance, the plain meaning of
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`claim terms should always be given substantially more weight than other sources of intrinsic
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`evidence. The Court then considers the remainder of the specification for guidance, and,finally,
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`
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`' Pursuant to the Court’s July 5, 2017 Order (D.I. 206, 16-cv-453) and Stipulation Regarding
`Supplemental Claim Construction Briefing (D.I. 215, 16-cv-453), the parties hereby submit the
`first of four Supplemental Joint Claim Construction Briefs, addressing the following terms: 27,
`29-34, 38-40.
`See Ex. 2 (DJ. 236, 16-cv-453)
`(Supplemental Joint Claim Construction
`Chart)(“JICCC”).
`
`

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`Case 1:16-cv-00455-RGA.Document 264 Filed 09/08/17 Page 4 of 78 PagelD #: 19544
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`the prosecution history, which “often lacks the clarity of the specification and thus is less useful
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`for claim construction purposes.” Phillips, 415 F.3d at 1317.
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`B.
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`Plaintiff’s Statement of Facts
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`_ Acceleration Bay incorporates by reference its Statement of Facts from the partiés’ prior
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`joint claim construction brief. D.L. 186 (16-cv-453) at 3, 4.
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`In support of its constructions for terms 27, 29-34, and 38-40, Acceleration Bay offers the
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`testimony of Professor Nenad Medvidovicéof the University of Southern California’s Computer
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`Science Department. Asdetailed below, Dr. Medvidovié explains that a person of ordinary skill
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`in the art (POSA) reading the claims in the context of the Asserted Patents would understand that
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`the claims have a well understood meaning and the constructions proposed by Acceleration Bay
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`are consistent with those meanings. Declaration of Nenad Medvidovié in Support of
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`Acceleration Bay’s Supplemental Claim Construction Brief (“Medvidovié Decl.) at F{ 38, 43,
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`52, 56, 59, 60, 63, 64, 68, 69, 71, 76, and 80. Further, Dr. Medvidovié explains that the Asserted
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`Patents,
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`including the intrinsic record, do not redefine or give the terms any specialized
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`definitions beyond their conventional meaning.
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`Jd. at J] 39, 44, 53, 57, 58, 60, 65, 66, 70, 72,
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`77. Because Defendants propose constructions that improperly redefine the terms and fail to
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`construe the claims in their proper context, Dr. Medvidovié explains that POSA would disagree
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`with Defendants’ proposed constructions. Jd.
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`Cc.
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`Summary of Defendants’ Positions
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`Plaintiff offers claim constructions at odds with the claims, the specification, and the
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`prosecution history. And they are directly contrary to what it argued to the Patent Office in
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`related inter partes reviewsandto this Court in earlier filings. The “computer readable medium”
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`term (Term 27) includes transitory media as plaintiff itself contended earlier, which renders six
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`asserted claims invalid under 35 U.S.C. § 101. The “maintaining an m-regular graph” terms
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`

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`Case 1:16-cv-00455-RGA Document 264 Filed 09/08/17 Page 5 of 78 PagelD #: 19545
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`(Terms 29-34) require actually maintaining the claimed m-regular, incomplete networktopology,
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`where the degree of regularity (7) remains the same. Plaintiff's attempt to read these terms to
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`cover conventional networks that allegedly infringe by occasional coincidence, and not by
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`design, directly contradicts the applicant’s arguments during prosecution fo distinguish fhe
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`claims from those prior art networks. Finally, the Flooding Tenns (Terms 38-40) wuproperly
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`include method steps in an apparatus claim, rendering six asserted claims invalidas indefinite.
`
`I.
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`ARGUMENT: TERMS27, 29-34, 38-40
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`Term 27: Computer Readable Medium (’634/19, 22 and.’147/11, 14, 15, 16)
`A.
`
`
`| Plaintiff’sProposed Constructions | Defendants’ Proposed
`oe) Constructions:
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`
`
`
`
`
`
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`a non-fleeting medium for storing
`“computer
`27
`
`
`any medium for
`storing
`or
`
`
`
`instructions and data that a computer
`readable
`
`transporting
`computer
`readable
`
`
`
`
`medium”
`can read, such as hard disks, random
`instructions,
`including memory,
`access memory, read only memory,
`storage devices, carrier waves and
`
`
`
`DVDs, USB drives.
`communications links.
`
`
`1.
`
`Plaintiff's Opening Statement
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`The term “computer readable medium” has a well understood plain and ordinary
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`meaning. Ex. F, Medvidovic Decl., at (£38, 39.
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`In the context of the claims andintrinsic
`
`record, a POSA would understand this term to mean “a non-fleeting mediumfor storing
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`instructions and data that a computer can read, such as hard disks, random access memory, read
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`only memory, DVDs, USB drives.” /d. at 938. The claims, specifications and intrinsic record.
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`are consistent with this construction. Jd. at {Ff39, 40.
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`In contrast, Defendants propose a construction that is overly broad for the sole purpose of
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`manuiacturing an argument that computer readable medium covers unpatentable subject matter.
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`In particular, Defendants argue that computer readable medium includes “any medium for
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`storing or transporting computer readable instructions,
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`including .
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`.
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`. carrier waves and
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`communications links.” DI. 236 (16-cv-453), Ex. 2, JCCC at 70 (emphasis added). By adding
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`

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`Case 1:16-cv-00455-RGA Document 264 Filed 09/08/17 Page6 of 78 PagelD #: 19546
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`the phrase “or transporting,” Defendants’ proposed construction improperly untethers the
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`computer readable medium from the claim requirementthat it be used for containing or storing
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`instruction. Ex. F, Medvidovié Decl. at ¥f 39, 40. Defendants then double down on this flawed
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`construction and argue that, based on their proposed (improper) construction, Term 27 covers
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`unpatentable subject matter. Defendants’ construction should be rejected because it
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`is
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`completely divorced from the context ofthe claims andintrinsic record.
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`The parties are in general agreement that “computer readable medium” covers medium
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`for storing instructions and data such as hard disks and memory storage devices. The parties’
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`dispute boils down to whether a computer readable medium includes a fleeting signal such as
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`carrier wave, or any other medium — suchastheair itself or a piece of wire.
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`In arguing for a
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`broader construction including “carrier waves and communication links,” Defendants make the
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`mistake offailing to read this term in the context of the claim as a whole. Jd. at {§ 40-42. For
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`example, Claim 11 of the ‘147 Patent states in relevantpart:
`
`11. A computer-readable medium containing instructions for
`controlling disconnecting of a computer from another computer,
`the computer and the other computer being connected to a
`broadcast channel, said broadcast channel being an m-regular
`graph where mis at least 3, comprising:
`
`*
`
`*
`
`*
`
`Ex. A-3 (147 Patent), Claim 11 (emphasis added).
`
`The very language of the claim further defines the term “computer readable medium” and
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`requires that computer readable is one that contains instructions — not just something for the
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`fleeting transport ofinstructions.
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`While the instructions and data contained in computer readable medium may also be
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`transmitted, the claims require that the computer readable medium contain or store instructions.
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`Defendants have no basis for reading out this requirement. Ex. F, Medvidovié Decl. at 4 39.
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`

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`Indeed, the portion of the specification cited by Defendants in support of their construction
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`demonstrates that their construction is incorrect. D.I. 236 (16-cv-453), Ex. 2, JCCC at Term 27.
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`The specification explains that the instructions for implementing the broadcast channel are held
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`in persistent storage devices (so they can be executed by the computer performing the steps),
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`while noting, in contrast, that data structures and messages sent over the channel maybecarried
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`in communications links. Ex. A-3 (‘147 Patent) at 15:59-65 (“The memory and storage devices
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`are computer-readable medium that may contain computer instructions that implement the
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`broadcaster component
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`.
`
`.
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`. the data structures and message structures may be stored or
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`transmitted via a signal transmitted on a computer-readable media, such as a communications
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`link.”) (emphasis added); see also Ex. F, Medvidovié Decl., at 39.
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`The specification does not suggest (as Defendants incorrectly argue) that the instructions
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`used to provide the network are somehow stored in carrier waves (which are only used for
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`carrying transmitted data and messages). Ex. F, Medvidovié Decl., at |] 40-42. Carrier waves
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`are not suitable for storing instruction information for a computer to read. Jd. Because the term
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`“computer readable medium” is used in the claims only to describe how the instructions are
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`stored or used on computers, and not how data are sent over the network, it should notbe broadly
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`construed to cover carrier waves and communicationslinks that transport data. Jd.
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`2.
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`Defendants’ Rebuttal Statement
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`The sole dispute is whether the term “computer readable medium”covers non-physicalor
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`transitory media, such as communication links, carrier waves or signals. Plaintiff does not
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`appear to dispute that communication links, carrier waves and signals are all outside the four
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`

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`Case 1:16-cv-00455-RGA Document 264 Filed 09/08/17 Page 8 of 78 PagelD #: 19548
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`statutory classes of patentable subject matter and that the computer readable mediumclaimsare
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`invalid if they are construed to cover any such subject matter.”
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`Defendants’ construction — which includes carrier waves and communication links — is
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`correct becauseit is both the plain and ordinary meaning of the term and becausethe patent
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`specifications specifically confirm that
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`the term includes communication links and other
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`transitory computer readable media. The patents explain that “[t]he computers connecting to the
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`broadcast channel may include .. . memory .
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`.
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`. and storage devices (e.g., disk drives)” each of
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`which are a “computer-readable medium.” A-4 (’634 Patent) at 16:27-33. The patents are
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`further clear that “computer readable media” also includes “communications links” and any
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`other computer readable media that can “store[] or transmit[] a signal,” stating: “In addition, the
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`data structures and message structures may be stored or transmitted via a signal transmitted
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`on a computer-readable media, such as a communications link.” Id. at 16:33-36 (emphasis
`
`added). Thus, the specifications expressly define the “computer readable medium”term to cover
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`communication links. For that reason alone, the claim term covers nonpatentable subject matter
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`and therefore renders the claim invalid. See Declaration of John P. Kelly (“Kelly Decl.,” Ex. H)
`
`-
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`2? Nor could it. The law on this point is well settled. Pursuant to Section 101, an inventor may
`obtain a patent for "any new and useful process, machine, manufacture, or composition of
`matter, or any new and useful improvement thereof." 35 U.S.C. § 101. “Forall categories except
`process claims,
`the eligible subject matter must exist
`in some physical or tangible form.”
`Digitech Image Tech's v. Electronics For Imaging, 758 F. 3d 1344 (Fed. Cir. 2014). Carrier
`waves, communication links and transitory signals do not fall into any of those four categories.
`In re Nuijten, 500 F.3d 1346, 1354-57 (Fed. Cir. 2007); Mentor Graphics Corp. v. Eve-USA,
`Ine., 851 F.3d 1275, 1294 (Fed. Cir. 2017) (claims found invalid where “machine-readable
`medium”term construed to covercarrier waves in addition to physical storage media). Even ifa
`claim ostensibly relates to one of those four categories, if it
`is broad enough to also cover
`unpatentable subject matter such as a transitory, propagating signal then the claim is invalid as
`directed to patent-eligible subject matter. See, e.g., Mentor Graphics Corp., 851 F.3d at 1294;
`Kinglite Holdings Inc. v. Micro-Star Int’l Co. Ltd., C.A. No. 14-03009-IVS, 2016 WL 4205356,
`at *15-18 (C.D. Cal. May 26, 2016) (finding the claimed “computer usable medium”to include
`“computer data signal[s]” and invalidating the claimed product for encompassing transitory
`embodiments); RaceTech, LLC v. Kentucky Downs, LLC, 167 F.Supp.3d 853, 861 n.6 (W.D. Ky.
`March 1, 2016) (“To be eligible for patent protection, computer-readable storage media must be
`non-transitory because transitory signals are not patentable.”).
`
`6
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`

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`Case 1:16-cv-00455-RGA Document 264 Filed 09/08/17 Page 9 of 78 PagelD #: 19549
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`at {9 52-55 (a communication link is a “transmission path or means for connecting devices on a
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`network” and need not be physical (e.g. wireless communication links)). A carrier waveis
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`another well-known example of a computer readable media used to “store[] or transmit[]” data
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`“via a signal.” Ex. H., Kelly Decl. at § 53. Thus, the claim term should be construed to cover
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`not just the physical memory and communication links specifically recited, but also carrier
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`waves, signals and any other media that can store or transport data. A-3 (’147 Patent) at 15:56-
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`65; see also A-4 (634 Patent) at 16:27-36.
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`In addition, as the term implies, the plain and ordinary meaning of “computer-readable
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`medium” encompasses any medium that a computer can read, which includes both transitory and
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`non-transitory media. Ex. H., Kelly Decl. at J§ 52-56. As recognized by the Patent Office, the
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`ordinary meaning of that term computer readable medium “typically covers forms of non-
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`transitory tangible media and transitory propagating signals per se,’ even when the
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`specification is silent. Ex. G-1 (Subject Matter Eligibility of Computer-Readable Media) (“PTO
`
`- Memo”) (emphasis added)); see also, Ex. H., Kelly Decl. at [{ 55-63.
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`Ignoring both the specifications and the ordinary meaning, Plaintiff re-writes the term to
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`be “a non-fleeting medium for storing instructions.” (Emphasis added). However,the plain
`
`language of the claims includes nothing about whether the computer readable mediais “fleeting”
`
`or “non-fleeting.” The claim language also says nothing about whether data must be stored;
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`data must merely be “readable” and what Plaintiff interprets as fleeting media, such as a carrier
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`wave, can certainly be read by a computer. Ex. H., Kelly Decl. at 4] 64-65. Further, there is no
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`disclosure whatsoever in the specification of a distinction between fleeting and “non-fleeting”
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`media—the specification says both are computer readable media.
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`Plaintiffs principal argument
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`is that because the term is followed by “containing
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`instructions,”the term should belimited to “non-fleeting storage” media containinginstructions.
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`

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`But, a transitory or “fleeting” medium (as Plaintiff describes it) such as a communication link,
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`carrier waveor signal can certainly “contain[] instructions” as well as all other kinds of data. Ex.
`
`H., Kelly Decl. at 9] 59-65. Nothing in the claim requires that the instructions be contained
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`indefinitely or over a long period of time, as would be the case with a non-transitory media such
`
`as a compact disc.
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`Indeed, the term “computer readable medium” (as used in the claims) is
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`distinct from “computer readable storage medium.” Here, the applicants chose the broader
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`language
`
`and
`
`specifically
`
`described
`
`the
`
`computer-readable media
`
`as
`
`including
`
`a
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`“communications link” and any other media used to store or transmit data via a signal. Ex. H.,
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`Kelly Decl. at J 52-65; A-1 (344 Patent) at 15:61-67.
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`Plaintiff also argues that Computer Readable Mediummustbelimited to “storage” media
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`because “[c]arrier waves are not suitable to store instruction information.” See, supra, Plaintiff's
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`Opening Statement at Term 27. This is just unsupported circular reasoning. The claims do not
`
`require that the medium store instructions. They only require the medium to be “readable,” by a
`
`computer, which carrier waves, signals and communicationlinks certainly are.
`
`Indeed, just like
`
`the claims here, the claims found invalid in the Mentor case were directed to “A machine-
`
`readable medium containing instructions.” Mentor Graphics, 851 F.3d at 1294. Other courts
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`have also refused to limit the “computer readable medium” term to a “storage medium” even
`where data storage was morerelevantto the claims than here. See, e.g., Ex. G-6 (Data Retrieval
`
`Tech. LLC y. Sybase, Inc.) at 5-6 (declining to import “storage” limitation even though the
`
`computer readable medium claim was for “storing” a computer program). Here, the relevant
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`asserted claims relate to a particular condition of a network at a particular time,i.e., a transitory
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`technology. Thus, excluding transitory signals from the definition of computer readable medium
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`when the claimsare directed to transitory technology makeslittle sense.
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`

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`Plaintiff's argumentis also contrary to its Interrogatory responses in which it recognized
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`that aee Ex. G-2 (Plaintiff's Response to
`
`Interrogatory No. 10). A downloadis byits very nature fleeting and transitory.
`
`Furthermore, the argument that transitory mediums are not encompassed by the term
`
`computer readable medium is also incorrect from a technical standpoint. Boeing and named
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`inventor Bourassa’s other patents explicitly state that computer-readable instructions can be
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`“contained”in a carrier wave.> Ex. H., Kelly Decl. at §§ 54-57.
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`Even assuming arguendo that the term computer readable medium should be narrowedto
`
`“computer readable storage medium,” that would notrestrict the term to non-transitory media
`
`and wouldstill include carrier waves. See, Ex. 1 (PTO Memo). As noted above, carrier waves
`
`do indeed store instructions while the wave is being transmitted. A-4 (634 Patent) at 16:33-36;
`
`Ex. H., Kelly Decl. at § 59-61. As Dr. Kelly describes in great detail, a computer reads data and
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`instructions from carrier waves in the same way it would read it from a disc interface. Ex. H.,
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`Kelly Decl. at { 65. Therefore, Plaintiff's proposed construction encompassing DVD’s and other
`
`media but not encompassing carrier waves does not make sense, see Ex. H., Kelly Decl. at {9 52-
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`65, and appears manufactured solely to preserve the validity of a claim term that is consistently
`
`invalidated by Federal Courts. See, e.g., Mentor Graphics, 851 F.3d at 1294.
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`As such, there is no basis for importing limitations as Plaintiff purports to do to saveits
`
`claims. The Patent Office has suggested that Plaintiff could have narrowed the claim (e.g.
`
`through reissue proceedings) before bringing this suit to try to limit the computer readable
`
`medium terms to “non-transitory” computer readable media as many other Patents now do. Ex.
`
`3 See, e.g., Kelly Ex. 9 at | 16 (noting that “software instructions” may be “contained” in a
`“computer-readable medium, such as ... carrier wave.”) (emphasis added); Kelly Ex. 8 at J§ 18,
`20 (“computer-readable media may comprise computer storage media and communication
`media ... Communication media typically embodies computer-readable instructions... or other
`data in a modulated data signal such as a carrier wave...”) (emphasis added).
`
`9
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`

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`Case 1:16-cv-00455-RGA Document 264 Filed 09/08/17 Page 12 of 78 PagelD #: 19552
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`G-1 (PTO Memo). This Court does not have the power to re-write the claims to preserve them
`
`by changing “computer readable medium”to “non-fleeting computer readable medium.” Thus,
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`claims 19 and 22 of the °634 Patent and claims 11-16 of the 147 Patent should be found invalid
`
`under 35 U.S.C. § 101. Mentor Graphics, 851 F.3d at 1294.
`
`3.
`
`Plaintiff's Reply Statement
`
`Plaintiff's construction for “computer readable medium”reflects the plain and ordinary
`
`meaning of this terms as it would be understood in the context of the claim themselves.
`
`Specifically, computer readable medium means “a non-fleeting medium for storing instructions
`
`and data that a computer can read, such as hard disks, random access memory, read only
`
`memory, DVDs, USB drives” which based on a plain reading of the exemplary claims (‘634
`
`Claim 19 and ‘147 Claim 11) copied below, which require that the computer-readable medium
`
`contains instructions for controlling communications:
`
`19. A non-routing table based computer-readable medium
`containing instructions
`for controlling communications of a
`participant of a broadcast channel within a network, by a method
`comprising,
`
`11. A computer-readable medium containing instructions for
`controlling disconnecting of a computer from another computer,
`the computer and the other computer being connected to a
`broadcast channel, said broadcast channel being an m-regular
`graph where m is at least 3, comprising:
`
`*
`
`*
`
`*
`
`Ex. A-4 (634 Patent) at Claim 19 (emphasis added); Ex. A-3 (‘147 Patent) at Claim 11
`
`(emphasis added).
`
`Defendants fail to address the context in which this term appears in the claims, and, in
`
`fact, do not even cite the actual claim language. Instead, Defendants arguetheoretical definitions
`
`of computer-readable medium based on the academic teachings of their expert are completely
`
`10
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`Case 1:16-cv-00455-RGA Document 264 Filed 09/08/17 Page 13 of 78 PagelD #: 19553
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`divorced from the context of the Asserted Patents.
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`Further, Defendants admit
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`that their
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`construction was crafted for the sole purpose of invalidating the claims, contrary to claim
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`constructions principles that terms should be construed to preserve their validity where amenable
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`to alternative constructions. Ruckus Wireless, Inc. v. Innovative Wireless Sols., LLC, 824 F.3d
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`999, 1004 (Fed. Cir. 2016) (“Hf, after applying all other available tools of claim construction, a
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`claim is ambiguous,it should be construed to preserveits validity.”).
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`Here,
`the claims themselves use the term “computer-readable medium” to refer to
`medium for containing the instructions used to control communications contrary to Defendants’
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`construction. Computer-readable medium is not described in the claims as covering transitory
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`signals, communication links, or carrier waves. Rather, the claims require the computer-readable
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`medium to contain instructions; and the claims describe how those instructions are executed. As
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`such, computer-readable medium is referring to non-fleeting medium for containing instructions
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`so a computer can perform the claimedsteps.
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`The specifications do not state that computer-readable medium covers transitory signals.
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`To make this improper argument, Defendants string together excerpts from the specifications,
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`however, when the specifications are read in the full context, the specifications confirm that
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`“computer-readable medium for containing instructions” refers to a non-fleeting medium for
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`storing instructions and data that a computer can read, such as hard disks, random access
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`memory, read only memory, DVDs, USB drives.
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`In particular,
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`the specifications refer to
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`computer-readable medium to define the components of a computer* — a tangible concrete device
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`~ and not sometransitory signal or carrier wave:
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`“ Defendants’ argument that a computer, which includes computer-readable medium,is limited
`to a physical device is wholly inconsistent with Defendants’ other argument that computer-
`readable medium includes non-tangible transitory signals.
`See Defendants’ proposed
`construction for Term 11 (computer).
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`11
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`Case 1:16-cv-00455-RGA Document 264 Filed 09/08/17 Page 14 of 78 PagelD #: 19554
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`The computers connecting to the broadcast channel may include a
`central processing unit, memory, input devices (e.g., keyboard and
`pointing device), output devices(e.g., display devices), and storage
`devices (e.g., disk drives). The memory and storage devices are
`computer-readable medium that may
`contain
`computer —
`instructions that implement the broadcaster component.
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`Ex. A-4 (‘634 Patent) at 16:27-33 (emphasis added).
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`The specification distinguishes
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`such non-fleeting computer-readable medium for
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`containing instructions from medium used for data transmission:
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`the data structures and message structures may be
`In addition,
`stored or transmitted via a signal transmitted on a computer-
`readable media, such as a communicationslink.
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`Id. at 16:33-36 (emphasis added).
`The claims recite computer readable medium for containing computer instructions that
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`are executed to perform steps. The memory and storage devices for containing instructions are
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`non-fleeting storage devices.
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`Id. at 16:27-33. A POSA would understand that the instructions
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`for implementing the broadcast channel are held in persistent storage devices (so they can be
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`executed by the computer performing the steps), while noting, in contrast, that data structures
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`and messages sent over the channel may be carried in communications links. Ex. A-3 (‘147
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`Patent) at 15:56-65 (“The memory and storage devices are computer-readable medium that may
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`contain computer instructions that implement the broadcaster component. .
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`.
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`. the data structures
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`and message structures may be stored or transmitted via a signal transmitted on a computer-
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`readable media, such as a communications link.”) (emphasis added); see also Medvidovié Decl.
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`at 4392
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`° In this same section of the specification, the Asserted Patents state that data structures may be
`stored or transmitted by a “signal .
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`. on a computer-readable media.” Ex. A-4 (‘634 Patent) at
`16:33-36 (emphasis added).
`In other words, the data transmitted by a signal is different and
`separate from the computer-readable media on whichit is stored or transmitted. Defendants rely
`on a superficial reading ofthe specification that ignoresthis critical distinction.
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`12
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`Case 1:16-cv-00455-RGA Document 264 Filed 09/08/17 Page 15 of 78 PagelD #: 19555
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`Additionally, while a transmission link may be used to transmit data, a POSA would not
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`consider a “transmission link” or a piece of wire to be a “computer readable medium for
`containing instructions for controlling communications” in the context of the Asserted Patents .
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`and claims. Medvidovié Decl. at { 41. Even assuming arguendo that a transmission link is
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`computer readable media, the specifications do not refer to the transmission links as a fleeting
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`signal. Rather, the specifications refer to the transmission links as concrete, tangible, and non-
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`transitory devices. To view a transmission link merely as a signal would makethe distinction in
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`the specification between the signal and the transmissionlink illogical.6
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`Defendants’ reliance on Mentor Graphics is inapposite because the specifications in the
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`patents at issue in Mentor Graphics explicitly stated that machine/computer-readable medium
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`included “carrier waves.” Mentor Graphics, 851 F.3d at 1294 (“the specification defined the
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`claimed machine-readable medium as including read-only memory, random-access memory,
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`CD-ROMs, magnetic tape, optical data storage devices, and carrier waves. Even though carrier
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`wavesdiffer greatly from the other disclosed mediums (such as CD-ROMsor magnetic tape), we
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`are bound bythe patentee's lexicography.”) (citation omitted)(emphasis added). As explained
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`above, the specifications in the Asserted Patents distinguish transmission signal media from the
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`computer-readable media used to contain instructions and do notexplicitly cover carrier signals.
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`Likewise, Defendants’ reliance on Data Retrieval Tech. LLC v. Sybase, Inc., 3:09-cv-
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`5360, Dkt. 87 (N.D. Cal. Jan. 24, 2011) does not support Defendants’ argument that a POSA
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`would understand computer-readable medium to include transitory signals and carrier waves.
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`ineligible subject matter.
`° A concrete and tangible communication link is not patent
`Defendants’ reliance on cases where the disputed claim terms covered transitory non-tangible
`signals are inapposite here because the transmission link is distinguished from transitory non-
`tangible signals. See, e.g., Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d
`1344, 1350 (Fed. Cir. 2014); In re Nuijten, 500 F.3d 1346, 1354-57 (Fed. Cir. 2007); Mentor
`Graphics Corp. v. Eve-USA, Inc., 851 F.3d 1275, 1294 (Fed. Cir. 2017).
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`13
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`Case 1:16-cv-00455-RGA Document 264 Filed 09/08/17 Page 16 of 78 PagelD #: 19556
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`Def. Ex. 6. Rather, the court in Sybase held that computer-readable medium was limited to
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`tangible non-transitory media such as hard disks or CD:
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`Independent claim 26 of the °617 Patent reads: “A_computer-
`readable medium, having stored therein a computer program, the
`computer program comprising instructions * * *.” .. . While the
`claim states that the medium has a computer program stored on it,
`“data-storage” is not
`required to understand the term.
`.
`.
`.
`Accordingly, the court construes “a computer-readable medium”as
`“a medium such as a hard disk or CD which can be read by a
`computer.”
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`Def. Ex. 6, Data Retrieval Tech., 3:09-cv-5360, Dkt. 87 at 5-6.
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`The cour