Case 1:16-cv-00453-RGA Document 340 Filed 10/30/17 Page 1 of 11 PageID #: 26914
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`ACCELERATION BAY LLC,
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`ACTIVISION BLIZZARD, INC.
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`Defendant.
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`ACCELERATION BAY LLC,
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`ELECTRONIC ARTS INC.,
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`Defendant.
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`ACCELERATION BAY LLC,
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`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
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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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`Plaintiff,
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`Plaintiff,
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`Plaintiff,
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`C.A. No. 16-454 (RGA)
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`C.A. No. 16-455 (RGA)
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`Defendants.
`DEFENDANTS’ SUPPLEMENTAL CLAIM
`CONSTRUCTION BRIEF ADDRESSING TERM 4
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`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
`
`
`
`

`

`Case 1:16-cv-00453-RGA Document 340 Filed 10/30/17 Page 2 of 11 PageID #: 26915
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`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
`
`October 30, 2017
`
`
`
`

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`Case 1:16-cv-00453-RGA Document 340 Filed 10/30/17 Page 3 of 11 PageID #: 26916
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`
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`I.
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`Introduction
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`As requested by the Court (D.I. 332)1, Defendants submit this additional briefing
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`addressing Term 4 and the issues of “(1) whether there is a substantive difference between the
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`algorithm/‘process of new computer Z connecting to the broadcast channel’ of Figures 3A and 3B
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`and corresponding specifications and the algorithm/‘processing of the connect routine’ of Figure 8
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`and the corresponding specifications, and (2) if there is a difference, whether Figures 3A and 3B
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`and corresponding specifications constitute a separate algorithm.” D.I. 332 at 2.
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`Figs. 3A and 3B and the corresponding portions of the specifications provide an overview
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`of the process for adding a node to an m-regular network in an example where m=4, but include no
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`details for how a node is actually connected to the network. The only algorithm for “connecting”
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`the new node (i.e., corresponding to the function in the “means for connecting” of Term 4) is set
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`forth in Fig. 8 and those figures the Court has already determined are “integral to performing the
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`stated function” of Term 4, i.e., Figs. 9, 11, 13, 14, 17 and 18, along with the associated portions of
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`the specifications. See D.I. 275 at 7-8 (Markman Opinion). Because Fig. 8 and the related figures
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`provide the algorithms for accomplishing the addition of a new node “Z” shown in Figs. 3A and
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`3B, they are part of the same embodiment and there is therefore no substantive difference between
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`Figs. 3A and 3B and the algorithm of Fig. 8.
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`Furthermore, even if Figs. 3A and 3B were viewed as being different in some respects,
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`there is no “connecting” algorithm disclosed in Figs. 3A and 3B or the associated portions of the
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`specifications. Thus, it is only the combination of Figs. 3A and 3B with Figs. 8, 9, 11, 13, 14, 17
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`and 18 that provides support for the “connecting” function of Term 4. Defendants, therefore,
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`request that the Court adopt the construction of term 4 (“means for connecting to the identified
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`broadcast channel”) as follows:
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`1 Unless indicated otherwise, all citations to the record herein refer to Case No. 16-453.
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`1
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`

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`Case 1:16-cv-00453-RGA Document 340 Filed 10/30/17 Page 4 of 11 PageID #: 26917
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`
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`Claim Term
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`Construction
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`“means for
`connecting to
`the identified
`broadcast
`channel”
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`Function: “Connecting to the 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 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 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 in combination with 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.
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`
`II.
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`Argument
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`a. There is No Substantive Difference Between Figs 3A, 3B and Fig. 8
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`The specifications of the ‘344 patent and ‘069 patent make it clear that Figs. 3A and 3B are
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`not directed to a different embodiment than Fig. 8.2 The specifications first broadly disclose
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`various concepts, including how a new computer is added to the claimed network, and then provide
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`details, including the components of such a computer in the network and the algorithms that can be
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`used to implement the functions introduced earlier in the specification. Thus, Fig. 8 and the related
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`figures provide the algorithms that implement the connecting process introduced in Figs. 3A and
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`3B.
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`Specifically, after discussing the “broadcast technique” of the invention in broad strokes
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`and introducing several concepts central to the invention, such as “m-regular” and “m-connected”
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`(see A-1 (’344 Patent) at 4:3-5:16), the specifications describe various functions performed in the
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`2 The specifications of the ‘344 patent and the ‘069 patent are the same for purposes of this
`analysis. For convenience, all citations are to the ‘344 patent specification.
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`2
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`

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`Case 1:16-cv-00453-RGA Document 340 Filed 10/30/17 Page 5 of 11 PageID #: 26918
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`network in a series of sections entitled “Composing the Graph” (id. at 5:17-7:29), “Broadcasting
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`Through the Graph” (id. at 7:30-8:67), “Decomposing the Graph” (id. at 9:1-11:31), “Port
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`Selection” (id. at 11:32-12:32), “Locating a Portal Computer” (id. at 12:33-13-22), “Identifying
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`Neighbors for a Seeking Computer” (id. at 13:23-14:20), and “External Data Representation” (id.
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`at 14:21-51). Figs. 3A and 3B are addressed in the first of these sections, i.e., under “Composing
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`the Graph.” Id. at 5:17. The specifications here introduce “the process of a new computer Z
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`connecting to the broadcast channel.” Id. at 5:65-66. “Fig. 3A illustrates the broadcast channel
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`before computer Z is connected.” Id. at 5:66-6:1. In this “4-regular graph… [t]he connections
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`between each of these [two neighbor] pairs is broken, and a connection between computer Z and
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`each of computers B, C, D, and E is established as indicated by FIG. 3B.” 5:56; 6:3-6. There are
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`no details provided in connection with Figs 3A and 3B as to how the neighbor pairs are broken or
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`how the new computer is connected to the graph. Those details are provided in the specifications
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`in connection with Fig. 8.
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`In particular, following the sections outlining the various functions implemented by the
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`claimed system, the specifications then have a “Components” section (id. at 15:8) that describes
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`the “components of a computer that is connected to the broadcast channel.” Id. at 15:9-10. This is
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`the only description in the specifications of the components of such a computer, and thus is the
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`only description of how to implement computer “Z” shown in Fig. 3B. One of these components is
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`the “broadcaster component 602.” Id. at 15:30-32; 16:1-28. The “primary functions provided” by
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`the broadcaster component “may include a connect function that an application program
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`invokes…” to allow connection to the broadcast channel. Id. at 15:39-41. Thus, the “connect
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`function” is how a computer, such as computer Z in Fig. 3B, is added to the broadcast channel.
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`The “Flow Diagrams” section of the specification, which begins at col. 17, line 65, “illustrates the
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`3
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`

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`Case 1:16-cv-00453-RGA Document 340 Filed 10/30/17 Page 6 of 11 PageID #: 26919
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`processing of the broadcaster component in one embodiment.” Id. at 17:66-67. “Fig. 8 is a flow
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`diagram illustrating the processing of the connect routine in one embodiment.” Id. at 17:67-18:2.
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`Thus, Figs. 3A and 3B show the broad concept for how a “new computer Z” will connect
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`to the broadcast channel, and the details of the components that make up such a computer are
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`shown in Fig. 6, including the “broadcaster component.” Id. at 15:30-32. The flow diagrams of
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`Fig. 8 and the related figures provide the “connect routine” of the broadcaster component, and thus
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`provide the algorithms used by computer Z of Fig. 3B to connect to computers B, C, D and E. Id.
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`at 17:66-67. Accordingly, not only is there “no substantive difference” between Figs. 3A and 3B
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`and the algorithm of Fig. 8, they are in fact part of the same embodiment.
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`b. Figs 3A and 3B Do Not Provide a Separate Algorithm
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`As explained above, the algorithm for connecting new computer Z of Figs. 3A, 3B is
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`provided by Fig. 8 and its related figures. There is therefore no separate algorithm associated with
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`Figs. 3A and 3B. As shown in the table below, the description of Figs. 3A and 3B in the
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`specifications provides no details at all about several critical steps related to how computer Z joins
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`the network, include how the “connecting” is accomplished:
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`Specification Related to Figs. 3A and 3B
`“Since the broadcast channel is a 4-regular
`graph, each of the identified computers is
`already connected to four computers. Thus,
`some connections between computers need
`to be broken so that the seeking computer
`can connect to four computers.” 5:56-60.
`“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.” 5:60-65.
`
`Missing Detail
`This merely explains that connections “need to be
`broken” but not how they are broken, or how new
`connections are formed.
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`Broad description of the process with no algorithm
`for how the “two pairs of computers” are identified,
`how the connections are broken or, most critically,
`how “each of the four computers (two from each
`pair) connects to the seeking computer.”
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`This detail is provided in connection with Fig. 8
`and, more particularly,
`the “connect
`request
`routine” of block 809, which will “initiate the
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`4
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`

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`Case 1:16-cv-00453-RGA Document 340 Filed 10/30/17 Page 7 of 11 PageID #: 26920
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`
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`process of identifying neighbors for the seeking
`computer.” Id. at 18:53-55. Regarding connecting,
`the algorithm for accomplishing the “connect
`request routine” is shown in Fig. 11. Id. at 19:66-
`20:44.
`Again, no explanation here as to how the “pairs of
`computers B and E and computers C and D” are
`“identified as the neighbors” for the new computer
`Z. Fig. 8 and its related figures provide this
`algorithm. Id. at 18:53-55.
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`Again, no explanation here as to how a “connection
`… is established” between node Z and the identified
`neighbors (i.e., B, C, D and E). The algorithm for
`accomplishing the connecting of node Z to each
`neighbor is shown in the “add neighbor routine”
`which is part of the “connect request routine” of
`Fig. 11. Id. at 20:33-39; 24:30-32.
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`“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.
`The pairs of computers B and E and
`computers C and D are the two pairs that
`are identified as the neighbors for the new
`computer Z.” 5:65-6:3 (emphasis added).
`“The connections between each of these
`pairs is broken, and a connection between
`computer Z and each of computers B, C, D,
`and E
`is established as
`indicated by
`FIG. 3B.” 6:3-6 (emphasis added).
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`
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`When identifying the portions of the specifications that purportedly correspond to Figs. 3A
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`and 3B, plaintiff actually ignores the above portions, which directly address these figures, and
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`instead points to col. 5, lines 33-55. D.I. 275 at 6. While this section does not specifically address
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`Figs. 3A and 3B, and instead provides a generic introduction to the “process of connecting to the
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`broadcast channel” (id. at 5:33-34), it nevertheless also fails to provide an algorithm for
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`“connecting” a joining node, as illustrated in the following table:
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`‘344 Specification Cited by Plaintiff
`“Thus, the process of connecting to the broadcast
`channel includes locating the broadcast channel,
`identifying the neighbors for the connecting
`computer, and then connecting to each identified
`neighbor.” 5:33-37.
`“Each computer is aware of one or more ‘portal
`computers’ through which that computer may
`locate the broadcast channel. A seeking computer
`locates the broadcast channel by contacting the
`portal computers until it finds one that is currently
`fully connected to the broadcast channel. The
`
`Missing Detail
`This is a mere summary of the process, with
`no details about connecting.
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`the portal
`that
`This generally explains
`computer “directs the identifying” of the new
`neighbors for the new computer, but includes
`no algorithm for how that is accomplished. As
`explained above, this detail is provided in
`connection with the “connect request routine”
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`5
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`

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`Case 1:16-cv-00453-RGA Document 340 Filed 10/30/17 Page 8 of 11 PageID #: 26921
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`
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`found portal computer then directs the identifying
`of four computers (i.e., to be
`the seeking
`computer's neighbors) to which the seeking
`computer is to connect.” 5:37-45 (emphasis
`added).
`“Each of these four computers then cooperates
`with the seeking computer to effect the connecting
`of
`the seeking computer
`to
`the broadcast
`channel.” 5:45-48 (emphasis added).
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`“A computer that has started the process of
`locating a portal computer, but does not yet have a
`neighbor, is in the ‘seeking connection state.’ A
`computer that is connected to at least one
`neighbor, but not yet four neighbors, is in the
`‘partially connected state.’ A computer that is
`currently, or has been, previously connected to
`four neighbors is in the ‘fully connected state.’”
`5:48-55.
`
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`which will “initiate the process of identifying
`neighbors for the seeking computer.” Id. at
`18:53-55; 19:66-20:44.
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`This provides no algorithm whatsoever for
`actually accomplishing the connecting. The
`specification here merely says that each of the
`identified neighbors “cooperates” (somehow)
`to effect the connecting. As explained above,
`the “connecting” is accomplished by the “add
`neighbor routine” which
`is part of
`the
`“connect request routine” of Fig. 11. Id. at
`20:33-39; 24:30-32.
`This merely defines the various “states” but
`says nothing about how the “connecting” of
`Term 4 is implemented.
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`Accordingly, neither the portions of the specifications that actually address Figs. 3A and
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`3B, nor the portions of the specifications on which Plaintiff relies as relating to Figs. 3A and 3B
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`include an algorithm for accomplishing the “connecting” function of Term 4.
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`c. Plaintiff’s Arguments Regarding Figs. 3A, 3B and Fig. 8 being
`“Alternative” Embodiments Are Not Supported by the Specifications
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`In its Opposition to Defendants’ Motion for Clarification Plaintiff argued that Figs. 3A, 3B
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`and Fig. 8 are “optional alternative embodiments.” D.I. 286 at 5. To support this argument
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`Plaintiff cited the specifications as referring to Figs. 3A and 3B being “one embodiment” and Figs.
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`8-34 similarly being described in connection with “one embodiment.” Id. at 5-6 (citing Ex. A-1
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`(‘344 patent) at 5:60-6:1 and 17:66-18:2). But the fact that the specifications use the language “in
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`one embodiment” for both Figs. 3A, 3B and Fig. 8 does not indicate that these are, in any way,
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`6
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`

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`Case 1:16-cv-00453-RGA Document 340 Filed 10/30/17 Page 9 of 11 PageID #: 26922
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`“alternative” embodiments. Fig. 8 is simply not described as an “alternative” to Figs. 3A, 3B, nor
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`is it described as a “second embodiment” as might be expected if this were the case. Plaintiff cites,
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`with emphasis, a portion of the specification that does use the language “[i]n an alternative
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`embodiment” but that refers to how port numbers are selected, i.e., either “reserved” in advance or
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`“dynamically identified.” Id. at 6 (citing Ex. A-1 (‘344 patent) at 6:35-39). Plaintiff has cited
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`nothing to indicate that the computer of Fig. 6A is an “alternative” to computer Z of Fig. 3A. As
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`noted above, the Fig. 6 computer is the only embodiment of “a computer that is connected to the
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`broadcast channel” and thus is not an “alternative” to computer Z of Fig. 3A. Ex. A-1 (‘344
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`patent) at 15:9-10. And, as also noted above, the “flow diagrams” of Fig. 8 and the related figures
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`implement the “broadcaster component” of Fig. 6 and thus implement the connecting function of
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`computer Z. Id. at 17:66-67.
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`III. Conclusion
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`Figs. 3A and 3B address “a new computer Z connecting to the broadcast channel” and the
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`only embodiment of such a computer is shown in Fig. 6. In addition, the only “connecting”
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`algorithm for such a computer joining the broadcast channel is set forth in Fig. 8 and related Figs.
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`9, 11, 13, 14, 17 and 18. Id. at 5:65-66; 15:9-10; 17:66-67. Accordingly, Defendants respectfully
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`ask the Court to clarify the claim construction for Term 4 to confirm that it is the combination of
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`Figs. 3A and 3B with the algorithms disclosed in Figs. 8, 9, 11, 13, 14, 17 and 18 that support the
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`“connecting” function of Term 4.
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`7
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`

`

`Case 1:16-cv-00453-RGA Document 340 Filed 10/30/17 Page 10 of 11 PageID #: 26923
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`
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`
`
`
`
`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
`
`October 30, 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
`
`8
`
`

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`Case 1:16-cv-00453-RGA Document 340 Filed 10/30/17 Page 11 of 11 PageID #: 26924
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`CERTIFICATE OF SERVICE
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`I hereby certify that on October 30, 2017, I caused the foregoing to be
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`
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`electronically filed with the Clerk of the Court using CM/ECF, which will send notification of
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`such filing to all registered participants.
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`
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`I further certify that I caused copies of the foregoing document to be served on
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`October 30, 2017, upon the following in the manner indicated:
`
`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
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
`
`/s/ Stephen J. Kraftschik
`Stephen J. Kraftschik (#5623)
`
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`
`