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`C.A. No. 16-453 (RGA)
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`C.A. No. 16-454 (RGA)
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`C.A. No. 16-455 (RGA)
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`Plaintiff,
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`
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`v.
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`
`DEFENDANTS’ MOTION FOR CLARIFICATION OF
`THE COURT’S CLAIM CONSTRUCTION OPINION AND ORDER
`
`Case 1:16-cv-00455-RGA Document 271 Filed 09/12/17 Page 1 of 12 PageID #: 19950
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`ACTIVISION BLIZZARD, INC.
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`Defendant.
`
`
`
`
`
`
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`ELECTRONIC ARTS INC.,
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`Defendant.
`
`
`
`
`
`
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
`
`
`
`
`
`Defendants.
`
`Defendants respectfully move for clarification of the Court’s August 29, 2017 Claim
`
`Construction Opinion (D.I. 275) and September 6, 2017 Claim Construction Order (D.I. 287).1
`
`Defendants requested but Plaintiff did not agree to a joint submission requesting clarification.
`
`
`1
`All citations to docket entries refer to C.A. No. 16-453 unless otherwise stated.
`
`

`

`Case 1:16-cv-00455-RGA Document 271 Filed 09/12/17 Page 2 of 12 PageID #: 19951
`
`Defendants believe that two terms, Terms 4 and 18, require clarification because the
`
`language of the constructions is subject to different interpretations, one of which is not consistent
`
`with the reasoning in the Court’s Memorandum Opinion or arguments presented by the parties.
`
`Defendants request that the Court enter the Proposed Amended Claim Construction Order
`
`submitted herewith.
`
`I.
`
`Term 4 (“means for connecting to the identified broadcast channel”)
`
`For term 4 (“means for connecting to the identified broadcast channel”), the Court’s
`
`construction for the ’344 patent is:2
`
`A processor programmed to perform at least one of the algorithms disclosed in
`steps 801 to 809 in Figure 8 and described in the '344 Patent at 17:67-19:34,
`19:66-20:44, 21:4-53, 22:61-24:6, and Figures 9, 11, 13, 14, 17 and 18, or Figures
`3A and 3B and described in the '344 Patent at 5:33-55, which involves invoking
`the connecting routine with the identified broadcast channel's type and instance,
`connecting to the broadcast channel, connecting to a neighbor, and connecting to
`a fully connected state.
`
`D.I. 287 at 3 (emphasis added). The placement of the words “at least one of” and “or” might
`
`lead to confusion as to whether less than all of the identified algorithms (or equivalents thereof)
`
`are required as the corresponding structure for performing the recited function. Defendants
`
`believe that the Court’s Memorandum Opinion indicates that all of the identified algorithms are
`
`required as part of the structure. Specifically, the Court stated:
`
`Thus, the specification describes all of Figure 8 as the structure for “connecting to
`the identified broadcast channel.” The algorithm in Figure 8 is further fleshed out
`by Figures 9, 11, 13, 14, 17 and 18 and their corresponding descriptions in the
`specification. (See, e.g., '966 patent, 18:3-20:9, 20:41-21 :19, 21 :46-22:28, 23:37-
`24:49). Block 806 is therefore relevant to the connecting function that is claimed.
`I think Figure 8, considered as a whole, and its accompanying disclosures, are
`“integral to performing the stated function.”… The specification describes Figures
`3A and 3B as ‘illustrat[ing] the process of a new computer Z connecting to the
`broadcast channel.’ (See, e.g., '966 patent, 5:62-63). The specification also
`provides a description of the process. (See, e.g., '966 patent, 5:32-52). Thus, this
`portion of the specification also serves as structure for the function. Overall, the
`
`2
`Term 4 for the '966 patent has the same issue as Term 4 for the ’344 patent.
`
`2
`
`

`

`Case 1:16-cv-00455-RGA Document 271 Filed 09/12/17 Page 3 of 12 PageID #: 19952
`
`specification adequately discloses structure for the function, and thus, the claims
`are not indefinite.
`
`D.I. 287 at 7-8. Defendants seek clarification of the construction of Term 4 to reflect this
`
`reasoning by the Court.
`
`During meet and confers regarding this point of clarification, Plaintiff has implied that
`
`the Court’s construction renders the recited algorithms as alternative, and that, e.g., only Figures
`
`3A-3B and col. 5:33-55 need to be addressed as the required structure. Defendants believe that
`
`this position is contrary to the Court’s intent as reflected in its claim construction order.
`
`Further, Plaintiff never even argued that Figures 3A-3B and col. 5:33-55 are an algorithm
`
`on its own. At the hearing, when the Court asked Plaintiff’s counsel to confirm that “3A and 3B
`
`by themselves don’t possibly give an algorithm,” Plaintiff’s counsel initially said “no” but then
`
`conceded that it was Figures 3A and 3B “in combination” with Figure 8 that provided support for
`
`this means term. See Ex. 1, Markman 7/10/17 Tr. at 80:20-81:19. Also, in its supplemental
`
`claim construction brief regarding Term 4 filed after the hearing, Plaintiff said about Figs 3A-B
`
`and the related disclosure: “these figures and the related portions of the specification further
`
`disclose the algorithms for performing the function of ‘connecting a participant to an identified
`
`broadcast channel,’” and “the structures discussed above [including Figs. 801 to 806, Figs. 3A-
`
`B, and related discussions] are sufficient to complete the connection process.” D.I. 225 at 5;
`
`see also D.I. 198 (Acceleration Bay’s Reply Statement for Term 4) at 35 (“Figures 3A and 3B
`
`and the associated discussion further illustrate the corresponding steps.”) (emphasis added).
`
`Thus, Plaintiff has never argued that Figs 3A-3B (and col. 5:33-55) alone constitute an
`
`algorithm. It should not now be permitted to interpret the Court’s Memorandum Opinion in a
`
`way that it can ignore Fig. 8, and the related Figs. 9, 11, 13, 14 and 17, and focus its
`
`infringement case on Figs 3A and 3B alone.
`
`3
`
`

`

`Case 1:16-cv-00455-RGA Document 271 Filed 09/12/17 Page 4 of 12 PageID #: 19953
`
`Term 4 for the '966 patent has the same construction as the ’344 patent where the only
`
`differences are for the column and line citations. Thus, the issue for Term 4 for the ’966 patent
`
`is the same as it is for the ’344 patent.
`
`Therefore, Defendants respectfully request that the Court clarify the construction by
`
`deleting “at least one of” and changing “or” to “in combination with,” as shown in the Proposed
`
`Amended Claim Construction Order submitted herewith, to confirm that the Court’s construction
`
`should not be interpreted to be a finding that Figs. 3A and 3B alone are sufficient structure
`
`II.
`
`Term 11 ("m-connected" and "m-connected network")
`
`For term 11 (“m-connected” and “m-connected network”), the Court's construction is:
`
`A state that the network is configured to maintain, where the network may be
`divided into disconnected sub-networks by the removal of m participants in a
`steady state.
`
`D.I. 287 at 5 (emphasis added). The issue is whether the Court intended to include the phrase “in
`
`a steady state.” It appears that the Court’s construction here was intended to mirror the
`
`construction it provided for m-regular. D.I. 275 at 16 (“For the reasons given above in
`
`connection with the previous term, I am changing ‘seeks’ to ‘is configured’ and striking ‘at all
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`times’ from Defendants’ proposed construction.”). With regard to the m-regular construction,
`
`the Markman Order states that the “steady state” issue was resolved by taking out Defendants’
`
`language of “at all times.” Id. at 14. Because the Court similarly took out Defendants’ language
`
`of “at all times” from the construction for the “m-connected” terms, Defendants believe it was
`
`the Court’s intention to remove the “in a steady state” language. Accordingly, Defendants
`
`request that “in a steady state” be stricken from this construction to be consistent with the
`
`construction for the m-regular terms.
`
`
`
`4
`
`

`

`Case 1:16-cv-00455-RGA Document 271 Filed 09/12/17 Page 5 of 12 PageID #: 19954
`
`OF COUNSEL:
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`David P. Enzminger
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`
`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
`
`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`
`Andrew R. Sommer
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`September 12, 2017
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`
`
`
`
`
`
`/s/ Stephen J. Kraftschik
`
`
`
`
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`
`Attorneys for Defendants
`
`5
`
`

`

`Case 1:16-cv-00455-RGA Document 271 Filed 09/12/17 Page 6 of 12 PageID #: 19955
`
`
`
`
`
`7.1.1 CERTIFICATION
`
`I hereby certify that the subject of the foregoing motion has been discussed with
`
`counsel for the plaintiff and that we have not been able to reach agreement.
`
`/s/ Stephen J. Kraftschik
`
`Stephen J. Kraftschik (#5623)
`
`
`
`
`
`
`
`

`

`Case 1:16-cv-00455-RGA Document 271 Filed 09/12/17 Page 7 of 12 PageID #: 19956
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`ACTIVISION BLIZZARD, INC.
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`Defendant.
`
`
`
`
`
`
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`ELECTRONIC ARTS INC.,
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`Defendant.
`
`
`
`
`
`
`
`
`
`
`
`C.A. No. 16-453 (RGA)
`
`
`
`
`
`
`
`C.A. No. 16-454 (RGA)
`
`
`
`
`
`
`
`C.A. No. 16-455 (RGA)
`
`
`
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`ACCELERATION BAY LLC,
`
`
`
`
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
`
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`Defendants.
`
`[PROPOSED] AMENDED CLAIM CONSTRUCTION ORDER
`
`The Court, having considered the parties’ briefing on claim construction (D.I. 186, 225,
`
`237, 240), and in accordance with the reasoning set forth in the Court’s Memorandum Opinion
`
`(D.I. 275), IT IS HEREBY ORDERED that the terms of U.S. Patent Nos. 6,701,344 (the “‘344
`
`Patent”), 6,714,966 (the “‘966 Patent”), 6,829,634 (the “‘634 Patent”), 6,910,069 (the “‘069
`
`
`
`

`

`Case 1:16-cv-00455-RGA Document 271 Filed 09/12/17 Page 8 of 12 PageID #: 19957
`
`
`
`Patent”), 6,732,147 (the “‘147 Patent”), and 6,920,497 (the “‘497 Patent”) set forth below are
`
`construed as follows:
`
`Term # Claim Term
`
`Patent(s)
`
`Construction
`
`1
`
`2
`
`3
`
`‘344/13
`
`“means for identifying
`a broadcast channel for
`a game of interest”
`
`
`‘344/14
`
`“means for identifying
`a game of interest
`includes accessing a
`web server that maps
`games to corresponding
`broadcast channel”
`
`
`‘966/13
`
`“means for identifying
`a broadcast channel for
`a topic of interest”
`
`
`Function: “Identifying a broadcast channel
`for a game of interest”
`Structure: A processor programmed to
`perform the algorithm disclosed in steps
`described in the ‘344 Patent at 16:57-17:1,
`which involves connecting to a web server
`and downloading a broadcaster component
`that identifies the broadcast channel for the
`game of interest.
`
`Function: Identifying a game of interest
`includes accessing a web server that maps
`games to corresponding broadcast channel
`Structure: A processor programmed to
`perform the algorithm disclosed in steps
`described in ‘344 Patent at 16:57-17:1,
`which involves connecting to a web server
`and downloading a broadcaster component
`that identifies the broadcast channel for the
`game of interest
`
`Function: Identifying a broadcast channel
`for a topic of interest
`Structure: A processor programmed to
`perform the algorithm disclosed in steps
`described in ‘966 Patent at 16:41-51, which
`involves connecting to a web server and
`downloading a broadcaster component that
`identifies the broadcast channel for a topic
`of interest
`
`2
`
`

`

`Case 1:16-cv-00455-RGA Document 271 Filed 09/12/17 Page 9 of 12 PageID #: 19958
`
`
`
`Term # Claim Term
`
`Patent(s)
`
`Construction
`
`4
`
`“means for connecting
`to the identified
`broadcast channel”
`
`
`‘344/13
`‘966/13
`
`5
`
`“means for identifying
`the portal computer”
`
`
`‘497/9
`
`Function: “Connecting to the identified
`broadcast channel”
`‘344 Structure: A processor programmed
`to perform the algorithms disclosed in steps
`801 to 809 in Figure 8 and described in the
`‘344 Patent at 17:67-19:34, 19:66-20:44,
`21:4-53, 22:61-24:6, and Figures 9, 11, 13,
`14, 17 and 18, in combination with Figures
`3A and 3B and described in the ‘344 Patent
`at 5:33-55, which involves invoking the
`connecting routine with the identified
`broadcast channel's type and instance,
`connecting to the broadcast.
`‘966 Structure: A processor programmed
`to perform the algorithms disclosed in steps
`801 to 809 in Figure 8 and described in the
`‘966 Patent at 18:3-20:9, 20:41-21:19,
`21:46-22:28,23:37-24:49, and Figures 9,
`11, 13, 14, 17 and 18, in combination with
`Figures 3A and 3B and described in the
`‘966 Patent at 5:32-52, which involves
`invoking the connecting routine with the
`identified broadcast channel's type and
`instance, connecting to the broadcast
`channel, connecting to a neighbor, and
`connecting to a fully connected state.
`
`Function: “Identifying a portal computer”
`Structure: A processor programmed to
`perform the algorithm described in the ‘497
`Patent at 12:34-36 and 12:49-52, which
`involves performing the steps of the
`seeking computer having a list of portal
`computers to connect to and selecting the
`port number of the portal computer using a
`port-ordering algorithm.
`
`3
`
`

`

`Case 1:16-cv-00455-RGA Document 271 Filed 09/12/17 Page 10 of 12 PageID #: 19959
`
`
`
`Term # Claim Term
`
`Patent(s)
`
`Construction
`
`6
`
`7
`
`8
`
`‘497/9
`
`‘497/9
`
`“means for identifying
`the call-in port of the
`identified portal
`computer by repeatedly
`trying to establish a
`connection with the
`identified portal
`computer through
`contacting a
`communications port or
`communications ports
`until a connection is
`successfully
`established”
`
`
`“means for selecting
`the call-in port of the
`identified portal
`computer using a port
`ordering algorithm”
`
`
`‘497/9
`
`“means for re-ordering
`the communications
`ports selected by the
`port ordering
`algorithm”
`
`
`Function: “Identifying the call-in port of
`the identified portal computer by
`repeatedly trying to establish a connection
`with the identified portal computer through
`contacting a communications port or
`communications ports until a connection is
`successfully established”
`Structure: A processor programmed to
`perform the algorithm described in the ‘497
`Patent at 12:46-65, which involves
`performing the steps of the seeking
`computer contact the portal computer using
`the dynamically selected call-in port and
`repeating the process with the next
`dynamically selected port number if no
`acceptable broadcast channel is found.
`
`Function: “Selecting the call-in port of the
`identified portal computer using a port
`ordering algorithm”
`Structure: A processor programmed to
`perform the algorithm described in the ‘497
`Patent at 11:60-12:12, which involves
`performing the steps of using a port
`ordering algorithm for selecting the call in
`port of the identified portal computer by
`using an algorithm that provides a
`sequence of port numbers.
`
`Function: “Re-ordering the
`communications ports selected by the port
`ordering algorithm”
`Structure: A processor programmed to
`perform the algorithm described in the ‘497
`Patent at 12:18-12:28, which involves
`performing the steps of using the call-in
`port number generated by the port ordering
`algorithm, and if the connection is
`unsuccessful, reordering the
`communication ports.
`
`4
`
`

`

`Case 1:16-cv-00455-RGA Document 271 Filed 09/12/17 Page 11 of 12 PageID #: 19960
`
`
`
`Term # Claim Term
`
`Patent(s)
`
`Construction
`
`17
`
`“m-regular”
`“m-regular network”
`
`‘344/1, 13, 18
`‘966/1, 13
`‘634/1, 19
`‘147/1, 11
`
`18
`
`“m-connected”
`“m-connected network”
`
`‘634/1, 19
`
`16
`
`“m”
`
`‘344/1, 13, 18
`‘966/1, 13
`‘634/1, 19
`‘147/1, 11
`
`For the ‘344, ‘966, and ‘634 patents: “A
`state that the network is configured to
`maintain, where each participant is
`connected to exactly m neighbor
`participants”
`For the ‘147 patent: “A state that the
`network is configured to maintain, where
`each computer is connected to exactly m
`neighbor computers”
`
`“A state that the network is configured to
`maintain, where the network may be
`divided into disconnected sub-networks by
`the removal of m participants”
`
`No construction. Plain and ordinary
`meaning.
`
`
`
`
`
`
`
`IT IS SO ORDERED this _______ day of _______________, 2017
`
`
`
`
`
`
`
`
`
`
`United States District Judge
`
`
`
`
`
`
`
`5
`
`

`

`Case 1:16-cv-00455-RGA Document 271 Filed 09/12/17 Page 12 of 12 PageID #: 19961
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on September 12, 2017, I caused the foregoing to be
`
`
`
`electronically filed with the Clerk of the Court using CM/ECF, which will send notification of
`
`such filing to all registered participants.
`
`
`
`
`
`I further certify that I caused copies of the foregoing document to be served on
`
`September 12, 2017, upon the following in the manner indicated:
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`/s/ Stephen J. Kraftschik
`Stephen J. Kraftschik (#5623)
`
`
`
`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
`
`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`Greg Proctor, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
`
`Aaron M. Frankel, Esquire
`Marcus A. Colucci, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Attorneys for Plaintiff
`
`
`
`
`