Case 1:16-cv-00453-RGA Document 318 Filed 09/26/17 Page 1 of 9 PageID #: 25185
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 16-453 (RGA)
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`C.A. No. 16-454 (RGA)
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`C.A. No. 16-455 (RGA)
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`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.,
`
`Defendant.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ELECTRONIC ARTS INC.,
`
`Defendant.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC., and 2K
`SPORTS, INC.,
`
`Defendants.
`
`PLAINTIFF ACCELERATION BAY’S OPPOSITION TO
`DEFENDANTS’ MOTION FOR CLARIFICATION TO
`THE COURT’S CLAIM CONSTRUCTION OPINION AND ORDER
`
`

`

`Case 1:16-cv-00453-RGA Document 318 Filed 09/26/17 Page 2 of 9 PageID #: 25186
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`I.
`
`INTRODUCTION
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`Looking for a third bite at the claim construction apple, Defendants’ motion for
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`clarification seeks to undo the Court’s Claim Construction Order and Memorandum Opinion
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`regarding means-plus-function (MPF) Term 4. The parties submitted extensive briefing, spent
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`the majority of the Markman Hearing discussing this term, and also submitted supplemental
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`briefing specifically addressing MPF Term 4. The Court’s Claim Construction Order is entirely
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`consistent with its Memorandum Opinion, the parties’ extensive briefing, and arguments
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`presented to the Court, in finding that the structure corresponding to this term could fall within
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`alternative disclosures of the ‘966 and ‘344 Patents regarding alternative embodiments.
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`In particular, in its briefs and exhibits, Plaintiff proposed the following function and
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`structures for MPF Term 4, including the fact that the structures could include portions of Figure
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`8 and corresponding specifications or Figures 3A and 3B and corresponding specifications:
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`Function: connecting a participant to an identified broadcast channel
`‘966:
`Structure: a processor programmed to perform at least one of the
`algorithms disclosed in steps 801 to 806 in Figure 8 and described
`in the ‘966 Patent at 18:3-19:22 or 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.
`
`‘344:
`Structure: a processor programmed to perform at least one of the
`algorithms disclosed in steps 801 to 806 in Figure 8 and described
`in the [‘344] Patent at 17:67-18:47 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. 117-7, Ex. 1 (4/17/17 Joint Claim Construction Chart) Term 4 at 7-8 (emphasis added).
`
`

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`Case 1:16-cv-00453-RGA Document 318 Filed 09/26/17 Page 3 of 9 PageID #: 25187
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`In view of these unambiguous arguments, Defendants’ claim that the Court’s
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`Construction is not consistent with Plaintiff’s arguments or the Court’s reasoning is plainly
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`incorrect, as explained below. For this reason alone, Defendants’ arguments should be rejected.
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`Additionally, Defendants’ arguments that the structures described in different and
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`alternative embodiments (e.g., embodiments described in Figs. 3A and 3B and embodiment in
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`Fig. 8) must be found in a single accused embodiments is nonsensical and Defendants are (for
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`the third time) conflating alternative embodiments to read in additional limitations.
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`With respect to Term 18 (m-connected), the Court’s Claim Construction Order requires
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`the network be in “[a] state that the network is configured to maintain, where the network may
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`be divided into disconnected sub-networks by the removal of m participants in in a steady state.”
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`D.I. 287 (Claim Construction Order) Term 18 at 5 (emphasis added). As discussed at the
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`Markman Hearing and consistent with Court’s Memorandum Opinion, the Court’s construction
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`captures the concept that the network must be configured to attempt to maintain, rather than
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`something it maintains at all times. Including the phrase “in a steady state” is consistent with the
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`Court’s Memorandum Opinion. As such, Plaintiff defers to the Court to confirm if it intended to
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`include “in a steady state,” in the construction.
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`II.
`
`ARGUMENT
`A.
`Term 4 (“means for connecting to the identified broadcast channel”)
`In its briefs and at the Markman Hearing, Plaintiff identified the function and supporting
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`structures for Term 4. In doing so, Plaintiff identified alternative embodiments. Specifically
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`Plaintiff identified an embodiment 1, which included portions of Figure 8 (and corresponding
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`portions of the specifications) and embodiment 2, which included portions of Figures 3A and 3B
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`(and corresponding portions of the specifications). See D.I. 117-1, Ex. 1 (4/17/17 Joint Claim
`
`Construction Chart) Term 4 at 7-8; D.I. 191-1, Ex. F (Medvidović Decl.) at ¶¶ 57-61; D.I. 225
`
`2
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`

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`Case 1:16-cv-00453-RGA Document 318 Filed 09/26/17 Page 4 of 9 PageID #: 25188
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`(Plf. Supp. Br.) at 4, 5 (Fig. 8 shows completion of connection function at step 806 and similarly,
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`Fig. 3A and 3B also show a connection function). In its Memorandum Opinion, the Court found
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`that the function and supporting structures for alternative embodiments identified by Plaintiff
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`were sufficient for validity. For embodiment 1, the Court included additional structures,
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`including, for example, the specifications at 19:34, 19:66-20:44, 21:4-53, 22:61-24:6, and
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`Figures 9, 11, 13, 14, 17. A side-by-side comparison of the Court’s Construction and Plaintiff’s
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`proposed construction reflects the additional structures that the Court has already included:
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`Court’s Claim Construction Order
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`Plaintiff’s Proposed Construction
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`Function: “Connecting to the identified
`broadcast channel”
`
`Function: connecting a participant to an
`identified broadcast channel
`
`‘344 Structure: 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.
`
`‘966 Structure: A processor programmed to
`perform at least one of 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, or 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.
`
`‘344 Structure: a processor programmed to
`perform at least one of the algorithms disclosed
`in steps 801 to 806 in Figure 8 and described
`in the [‘344] Patent at 17:67-18:47 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.
`
`‘966 Structure: a processor programmed to
`perform at least one of the algorithms disclosed
`in steps 801 to 806 in Figure 8 and described
`in the ‘966 Patent at 18:3-19:22 or 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.
`
`D.I. 287 (Claim Construction Order) Term 4 at
`3 (emphasis added).
`
`D.I. 117-1, Ex. 1 (4/17/17 Joint Claim
`Construction Chart) Term 4 at 7-8 (emphasis
`added).
`
`3
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`

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`Case 1:16-cv-00453-RGA Document 318 Filed 09/26/17 Page 5 of 9 PageID #: 25189
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`Even if the Court entertains Defendants’ motion, for the reasons previously explained at
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`the hearing and in Acceleration Bay’s supplemental briefing, the focus of this function,
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`“connecting a participant to an identified broadcast channel,” is connecting a participant. Figure
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`8 (reproduced below) of the asserted patents is “a flow diagram illustrating the processing of the
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`connect routine in one embodiment.” Ex. A-2 (‘966 Patent) at 3:7-8. A POSA would
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`understand that a processor programmed to perform at least one of the algorithms disclosed in
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`steps 801 to 806 in Figure 8 is sufficient to perform the function of connecting a participant to a
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`broadcast channel. D.I. 191-1, Ex. F (Medvidović Decl.) at ¶¶ 60-61. In particular, the flow
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`diagram can proceed from block 801 to block 806 to “Achieve connection” completing the
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`process (with no reference to Figure 3A or 3B):
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`Following this extensive briefing, the Court, in its Memorandum Opinion, adopted
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`4
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`

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`Case 1:16-cv-00453-RGA Document 318 Filed 09/26/17 Page 6 of 9 PageID #: 25190
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`Plaintiff’s construction and also required the additional structures in steps 807-809 in Figure 8,
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`including the corresponding specifications and Figures 9, 11, 13, 14, 17 and 18 which flesh out
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`the description of the steps in Figure 8. D.I. 275 (Memorandum Opinion) at 6-7.
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`Separately, Plaintiff also explained that entirely different figures, i.e., Figures 3A and 3B,
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`also provide support because they “illustrate the process of connecting a new computer Z to the
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`broadcast channel.” The steps of this algorithm are further detailed in the specification at 5:22-
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`34. See Ex. A-2 (‘966 Patent) at 5:22-34; Figs. 3A and 3B; D.I. 191-1, Ex. F (Medvidović Decl.)
`
`at ¶¶ 57-59. Plaintiff explained that a POSA would understand that these figures (3A and 3B),
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`and the related portions of the specification that are entirely different from Figure 8, disclose the
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`algorithms for performing the function of “connecting a participant to an identified broadcast
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`channel.” D.I. 191-1, Ex. F (Medvidović Decl.) at ¶ 59; TecSec, Inc. v. Int’l Bus. Machs. Corp.,
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`731 F.3d 1336, 1348-49 (Fed. Cir. 2013) (holding an algorithm may be expressed in prose, flow
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`charts, and diagrams). The Court did not impose additional requirements to flesh out the
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`alternative embodiments shown in Figure 3A and 3B (and corresponding specifications).
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`The ‘344 and ‘966 Patents confirm these are optional alternative embodiments, not one
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`additive set of combined operations in a single embodiment. For example, the following
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`quotations from the ‘344 Patent specifications highlight different embodiments and show that the
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`embodiments in Figures 3A and 3B are not included in the embodiment shown in Figures 8-34:
`
`In one embodiment, the broadcast technique identifies two pairs of
`computers that are currently connected to each other. Each of
`these pairs of computers breaks the connection between them, and
`then each of the four computers (two from each pair) connects to
`the seeking computer. FIGS. 3A and 3B illustrate the process of
`a new computer Z connecting to the broadcast channel. FIG. 3A
`illustrates the broadcast channel before computer Z is connected.
`
`Ex. A-1 (‘344 Patent) at 5:60-6:1 (emphasis added).
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`5
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`

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`Case 1:16-cv-00453-RGA Document 318 Filed 09/26/17 Page 7 of 9 PageID #: 25191
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`FIGS. 8-34 are flow diagrams illustrating the processing of the
`broadcaster component in one embodiment. FIG. 8 is a flow
`diagram illustrating the processing of the connect routine in one
`embodiment.
`
`Id. at 17:66-18:2 (emphasis added).
`
`The specifications also use similar language (e.g., “one embodiment”) to
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`connote that there are different embodiments disclosed in the specifications:
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`In one embodiment, a set of port numbers can be reserved for use
`by the computer connected to the broadcast channel. In an
`alternative embodiment, the port numbers used are dynamically
`identified by each computer. Each computer dynamically identifies
`an available port to be used as its call-in port.
`
`Id. at 6:35-39 (emphasis added).
`
`In view of the alternative embodiments in the specifications, the Court’s Claim
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`Construction Order properly includes at least two alternative structures by using the term “or”
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`rather than “in combination with.”
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`Defendants’ request for “clarification” seeks, without support, that the Court amend its
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`construction by replacing “or” with “in combination with” which effectively conflates and
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`combines the two different embodiments and requires that an accused product include all the
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`structures disclosed for either embodiment.1
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`The Court’s Claim Construction Order (D.I. 287) is entirely consistent with the portions
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`of the specifications cited in Acceleration Bay’s briefs and relied upon in the Court’s
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`1 Defendants styled their motion as one for “clarification,” but it is effectively a motion for
`reconsideration, which should only be granted “sparingly” and requires a showing of change in
`controlling law, the availability of new evidence, or the need for the Court to correct a clear error
`of law or fact. See Dentsply Int’l, Inc. v Kerr Mfg. Co., 42 F. Supp. 2d 385, 419 (D. Del. 1999);
`Max’s Seafood Café by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Here, no
`further clarification is required for Term 4, given the parties’ extensive briefing and argument on
`this issue preceding the Court’s Memorandum Opinion and Claim Construction Order.
`
`6
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`

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`Case 1:16-cv-00453-RGA Document 318 Filed 09/26/17 Page 8 of 9 PageID #: 25192
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`Memorandum Opinion. For example, the Court reasoned that Figure 8 and corresponding
`
`functions fleshed out the connecting function:
`
`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.” See Gemstar-TV Guide Int'l, Inc.
`v. Int'l Trade Comm’n, 383 F.3d 1352, 1362 (Fed. Cir. 2004).
`
`D.I. 275 (Memorandum Opinion) at 6-7.
`Separately, the Court also found the specifications describing Figures 3A
`
`and 3B illustrate the process for the connecting 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 specification adequately discloses structure for
`the function, and thus, the claims are not indefinite.
`Id. at 8 (emphasis added).
`Accordingly, Defendants’ motion for clarification should be rejected because the Court’s
`
`Claim Construction Order is consistent with its Memorandum Opinion and supported by the
`
`patent specifications and arguments submitted by Acceleration Bay in its claim construction
`
`briefing. See D.I. 117-1, Ex. 1 (4/17/17 Joint Claim Construction Chart) Term 4 at 7-8; D.I. 191-
`
`1, Ex. F (Medvidović Decl.) at ¶¶ 57-61; D.I. 225 (Supp. Br.) at 4, 5.
`
`B. Term 18 (“m-connected” and “m-connected network”)
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`The Court’s construction for Term 18 is consistent with its Memorandum Opinion
`
`because it captures the concept of “[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
`
`7
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`

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`Case 1:16-cv-00453-RGA Document 318 Filed 09/26/17 Page 9 of 9 PageID #: 25193
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`a steady state.” D.I. 287 (Claim Construction Order) Term 18 at 5 (emphasis added).
`
`Defendants argue that the Court failed to remove the term “in a steady state.” The Court,
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`however, removed Defendants’ improper construction that the network must intend or seek to
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`maintain this state “at all times.” Thus, it does not appear that the Court made an error by
`
`retaining the term “in a steady state,” nor does Plaintiff presume the Court made an error.
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`However, Acceleration Bay notes that the Court did not include “in a steady state” in its
`
`construction of Term 17 (m-regular). As such, Plaintiff defers to the Court to confirm if it
`
`intended to include “in a steady state” in its construction.
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`POTTER ANDERSON & CORROON LLP
`
`By:
`
` /s/ Philip A. Rovner
`Philip A. Rovner (# 3215)
`Jonathan A. Choa (#5319)
` 1313 North Market Street 6th Floor
`Wilmington, Delaware 19801
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
` Attorneys for Plaintiff
`ACCELERATION BAY LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`James Hannah
`Hannah Lee
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: September 26, 2017
`5408642
`
`8
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`