Case 1:16-cv-00453-RGA Document 345 Filed 11/06/17 Page 1 of 12 PageID #: 26961
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-453 (RGA)
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`C.A. No. 16-454 (RGA)
`
`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.
`
`ACCELERATION BAY’S OPPOSITION TO DEFENDANTS’
`SUPPLEMENTAL CLAIM CONSTRUCTION BRIEF (TERM 4)
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`

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`Case 1:16-cv-00453-RGA Document 345 Filed 11/06/17 Page 2 of 12 PageID #: 26962
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`I.
`
`Introduction
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`In construing means-plus-function Term 4, the Court found that the specifications
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`adequately disclose structures for the function of “connecting to the identified broadcast
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`channel,” including Figures 3A and 3B, Figure 8 and corresponding portions of the detailed
`
`descriptions. D.I. 275 at 7-91. The Court requested additional briefing to address the following
`
`two questions regarding Term 4:
`
`(1) whether there is a substantive difference between the
`algorithm/“process of new computer Z connecting to the broadcast
`channel” of Figure 3A and 3B and corresponding specifications
`and the algorithm/“process in the connect routine” of Figure 8 and
`corresponding specifications, and
`
`(2) if there is a difference, whether Figures 3A and 3B and
`corresponding specifications constitute a separate algorithm.
`
`D.I. 332 at 2.
`
`The answer to both questions is yes. Declaration of Nenad Medvidović in Support of
`
`Opposition to Supplemental Claim Construction (Term 4) (“Medvidović Decl.”), at ¶¶ 34-36, 26,
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`29, 32.
`
`The specifications for the ‘344 and ‘966 patents include multiple embodiments that
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`describe how a participant can connect to a broadcast channel. Id. at ¶¶ 9-13. The first
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`embodiment is disclosed in Figures 3A and 3B and described in the corresponding description
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`(“First Embodiment”). The First Embodiment is a three-step algorithm. Id. at ¶¶ 15-23.
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`The second embodiment is shown in Figure 8 and further disclosed in the corresponding
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`description and associated Figures 9, 11, 13, 14, 17, 18 (“Second Embodiment”). The Second
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`Embodiment describes a more robust process for a participant to connect to broadcast channel.
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`1 Citations to the docket refer to C.A. No. 16-453 unless otherwise noted.
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`

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`Case 1:16-cv-00453-RGA Document 345 Filed 11/06/17 Page 3 of 12 PageID #: 26963
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`While there are overlapping aspects in the connect algorithm disclosed in the First and
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`Second Embodiments, there are substantive differences. Medvidović Decl. at ¶¶ 34, 26-33. The
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`First Embodiment provides a streamlined and efficient process for connecting new computers to
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`an established graph with five or more participants, and the specification characterizes this
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`algorithm as “the process of connecting to the broadcast channel.” Ex. A-1 (‘344 patent) at 5:33-
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`34. Further, the First Embodiment describes to a POSITA the algorithm for connecting to the
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`broadcast channel. The Second Embodiment provides an additional, more robust algorithm and
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`includes additional steps for connecting to a broadcast channel in particular circumstances.
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`To try to complicate the process of showing infringement, Defendants incorrectly urge
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`the Court to combine the distinct embodiments shown in Figures 3A/3B and Figure 8.
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`Defendants gloss over the differences between these embodiments and mischaracterize the
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`fulsome disclosure of the First Embodiment as just an overview of the Second Embodiment.
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`Defendants also rely on an oversimplification of the Second Embodiment that fails to grapple
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`with the various sub-routines and additional steps to connect to the identified broadcast channel.
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`For these reasons, as currently drafted the Court’s Claim Construction Order (D.I. 287) is
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`correct (e.g., “the algorithms disclosed in steps 801 to 809 in Figure 8… or Figures 3A and 3B
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`and described in the ‘344 Patent at 5:33-55….”) (emphasis added).
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`II.
`
`Argument
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`A.
`
`The First Embodiment Discloses the Structure to Perform the Claimed
`Function of Connecting to a Broadcast Channel
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`The First and Second Embodiments are substantively different and separate algorithms,
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`and both can be used to connect a participant to a broadcast channel. Therefore, the Court’s
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`current construction correctly identifies the relevant structures for Term 4 as shown in Figure 8
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`or Figures 3A and 3B. Versa Corp. v. Ag-Bag Int'l Ltd., 392 F.3d 1325, 1328 (Fed. Cir. 2004)
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`2
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`

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`Case 1:16-cv-00453-RGA Document 345 Filed 11/06/17 Page 4 of 12 PageID #: 26964
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`(where a preferred embodiment included multiple structures that can perform the function, the
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`presence of both is not needed); Micro Chem. Inc. v. Great Plain. Chem.Co., 194 F.3d 1250,
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`1258-59 (Fed. Cir. 1999) (where multiple structures were disclosed for performing a function,
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`infringement can be shown by the presence of any one of the structures or its equivalent).
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`A comparison of the algorithms in the First and Second embodiments confirms the
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`substantive differences between them. The Asserted Patents describe the First Embodiment as
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`“the process of connecting to the broadcast channel” and that it “includes [1] locating the
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`broadcast channel, [2] identifying the neighbors for the connecting computer, and then [3]
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`connecting to each identified neighbor.” Ex. A-1 (‘344 patent) at 5:33-37 (emphasis added).
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`The specifications further disclose this connection process for the First Embodiment as follows,
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`with the portions corresponding to and further describing each of these three steps indicated:
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`This description assumes that the broadcast channel is in the large
`regime, unless specified otherwise.)
` 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. [1a] Each
`computer is aware of one or more “portal computers” through
`which that computer may locate the broadcast channel. [1b] 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. [2] The 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. [3] Each of these four computers then
`cooperates with the seeking computer to effect the connecting
`of the seeking computer to the broadcast channel.”
`
`Id. at 5:31-48 (highlighting added); see Medvidović Decl. at ¶¶ 14-23.
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`Figures 3A and 3B illustrate the process described above and show new computer Z
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`connecting to the broadcast channel in the large regime (i.e., when five or more computers are
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`connected):
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`3
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`

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`Case 1:16-cv-00453-RGA Document 345 Filed 11/06/17 Page 5 of 12 PageID #: 26965
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`This description alone describes a full algorithm for connecting a computer to a specific
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`broadcast channel and is suitable for scenarios with at least five or more computers connected
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`(the “large regime”) because a POSITA would understand how to practice the invention. See
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`Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376, 1385 (Fed. Cir. 2011) (“[T]he patent
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`need only disclose sufficient structure for a [POSITA] to provide an operative software program
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`for the specified function.”) (emphasis added); Medvidović Decl. at ¶¶ 36, 14-23.
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`In contrast to the First Embodiment, the Asserted Patents describe the Second
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`Embodiment as “the processing of the connect routing in one embodiment.” Ex. A-1 (‘344
`
`patent) at 17:67-18:2 (emphasis added). The Second Embodiment presents a different algorithm
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`for connecting to a broadcast channel with additional steps, including, for example, call-back and
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`notifications routines. Because of the additional steps and routine, the Second Embodiment may
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`also, for example, be used to connect a participant to a broadcast channel where there are less
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`than five participants (i.e. the “small regime”), in contrast to the First Embodiment. See Ex. A-1
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`(‘344 patent) at 18:15-16 (“When in the small regime, a fully connected process may have less
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`than four neighbors.”). This exemplary additional process in the Second Embodiment is further
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`illustrated in Figure 11 and corresponding description:
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`4
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`

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`Case 1:16-cv-00453-RGA Document 345 Filed 11/06/17 Page 6 of 12 PageID #: 26966
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`In block 1108, the routine sets the expected
`number
`of holes
`(i.e.,
`empty
`internal
`connections) for this process based on the
`received response. When in the large regime, the
`expected number of holes is zero. When in the
`small regime, the expected number of holes
`varies from one to three. In block 1109, the
`routine sets
`the estimated diameter of
`the
`broadcast channel based on the received response.
`In decision block 1111, if the dialed process is
`ready to connect to this process as indicated by the
`response message, then the routine continues at
`block 1112, else the routine continues at block
`1113. In block 1112, the routine invokes the add
`neighbor routine to add the answering process as
`a neighbor to this process. This adding of the
`answering process typically occurs when the
`broadcast channel is in the small regime.
`
`Ex. A-1 (‘344 patent) at Fig. 11 and 20:27-41 (emphasis added).
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`The broadcast channel is either in the small regime or large regime––they are mutually
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`exclusive. For this reason alone, the First and Second Embodiments are substantively different.
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`The Second Embodiment also has additional routines. Medvidović Decl. ¶¶ 24-33.
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`Copied below are portions of the specifications describing the Second Embodiments and
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`highlighted in yellow are examples of these differences compared to the First Embodiment:
`
`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. This routine
`is passed a channel
`type (e.g.,
`application name) and channel instance (e.g., session identifier),
`that identifies the broadcast channel to which this process wants to
`connect. The routine is also passed auxiliary information that
`includes the list of portal computers and a connection callback
`routine. When the connection is established, the connection
`callback routine is invoked to notify the application program.
`When this process invokes this routine, it is in the seeking
`connection state. When a portal computer is located that is
`connected and this routine connects to at least one neighbor, this
`process enters the partially connected state, and when the process
`eventually connects to four neighbors, it enters the fully connected
`state. When in the small regime, a fully connected process may
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`5
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`

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`Case 1:16-cv-00453-RGA Document 345 Filed 11/06/17 Page 7 of 12 PageID #: 26967
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`have less than four neighbors. In block 801, the routine opens the
`call-in port through which the process is to communicate with
`other processes when establishing external and
`internal
`connections. The port is selected as the first available port using
`the hashing algorithm described above. In block 802, the routine
`sets the connect time to the current time. The connect time is used
`to identify the instance of the process that is connected through this
`external port. One process may connect to a broadcast channel of a
`certain channel type and channel instance using one call-in port
`and then disconnects, and another process may then connect to that
`same broadcast channel using the same call-in port. Before the
`other process becomes fully connected, another process may try to
`communicate with it thinking it is the fully connected old process.
`In such a case, the connect time can be used to identify this
`situation. In block 803, the routine invokes the seek portal
`computer routine passing the channel type and channel instance.
`The seek portal computer routine attempts to locate a portal
`computer through which this process can connect to the broadcast
`channel for the passed type and instance. In decision block 804, if
`the seek portal computer routine is successful in locating a fully
`connected process on that portal computer, then the routine
`continues at block 805, else the routine returns an unsuccessful
`indication. In decision block 805, if no portal computer other than
`the portal computer on which the process is executing was located,
`then this is the first process to fully connect to broadcast channel
`and the routine continues at block 806, else the routine continues at
`block 808
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`Ex. A-1 (‘344 patent) at 17:66-18:45 (emphasis and highlighting added).
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`Because a participant connecting to a broadcast channel using the process described in
`
`the First Embodiment can complete the connecting function without using all of the same
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`application processes described in the Second Embodiment, including call-back routines, connect
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`time, current time routines, and hashing algorithm, the First Embodiment is a different more
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`streamlined process compared to the Second Embodiment. Medvidović Decl. ¶¶ 34, 26, 29, 32.
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`Indeed, a POSITA would understand that the Asserted Patents describe the use of
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`modular software applications. Medvidović Decl., ¶ 35. By using modular software applications,
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`the functionality of the broadcast technique is divided into discrete, independent, and
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`interchangeable application modules. Specifically, the Asserted Patents describe that a
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`6
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`Case 1:16-cv-00453-RGA Document 345 Filed 11/06/17 Page 8 of 12 PageID #: 26968
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`broadcaster component used to connect a participant to a broadcast channel is modular and
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`includes functions that can be separately executed rather than one monolithic algorithm, further
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`confirming that the First and Second Embodiments relate to alternative processes. Id.
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`Defendants’ argument that there are no substantive differences between the First
`
`Embodiment and Second Embodiment should be rejected because Defendants ignore the
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`additional steps and processes in the Second Embodiment. Indeed, Defendants’ second
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`argument addressing the question of whether the First Embodiment is a separate algorithm (D.I.
`
`340, Defs. Br. at 4-6), confirms that there are substantive differences between the streamlined
`
`process in the First Embodiment and more complex Second Embodiment. For example,
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`Defendants argue that additional routines for breaking connections are described in the second
`
`embodiments (e.g., Figures 8 and 11). See e.g., id. at 4-5.
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`Defendants, however, ignore these differences. They incorrectly argue that the First
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`Embodiment merely describes the “broad concept” (Defs. Br. at 4) for connecting to a broadcast
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`channel. The Asserted Patents specifically describe Figure 8 as a distinct embodiment,
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`characterizing Figures 3A/3B as the process for connecting to the broadcast channel while Figure
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`8 includes a specific alternative with various additional components that are not necessary to
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`complete the process of connecting. Medvidović Decl. ¶¶ 26, 29, 32.
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`By analogy, a patent that includes a means-plus-function claim, for example, a fastening
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`means, may describe in the specifications a nail and may also describe later in the specifications
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`a nail with a barbed tip. The fact that the barbed nail is more complex but still includes the same
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`features as the plain nail does not mean these are the same embodiments. Here, the First
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`Embodiment and Second Embodiment are alternative algorithms/processes where the Second
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`Embodiment is a more complex––it is the barbed nail in the analogy. Both embodiments,
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`7
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`Case 1:16-cv-00453-RGA Document 345 Filed 11/06/17 Page 9 of 12 PageID #: 26969
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`however, are sufficient to perform the claimed function and there is no basis to conflate these
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`two algorithms in construing Term 4.
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`B.
`
`The First and Second Embodiments Provide Alternative Processes for
`Connecting to the Broadcast Channel
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`The specification expressly states that Figures 8-34 are “one embodiment” and that
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`Figure 8 provides the connection routine for the one embodiment:
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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.
`
`Ex. A-1 (‘344 patent) at 17:66-18:2 (emphasis added).
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`The specifications do not include Figures 3A and 3B in this embodiment. As such, when
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`the specification describes Figures 3A and 3B as one embodiment and later describes Figures 8-
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`34 as one embodiment, it confirms that these reflect different embodiments.
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`Even without the express distinction between these embodiments, they should be
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`construed as alternative structures. In Storz Instrument Co. v. Alcon Labs., Inc., the Federal
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`Circuit confirmed that the lack of any clear labeling of a first and a second embodiment in the
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`written description is irrelevant when the written description discloses two alternative structures.
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`No. 97-1149, 1998 WL 50947, at *4 (Fed. Cir. Jan. 26, 1998). The Federal Circuit explained
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`that there were clearly two embodiments because the specifications described one embodiment
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`and then described features in addition to the first embodiment. Id. at *4-5. Here the description
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`of the First Embodiment (Ex. A-1 (‘344 patent) at 5:33-55) is followed by a separate discussion
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`of a different algorithm, including additional processes in the Second Embodiment. Id. (‘344
`
`patent) at 17:67-19:34, 19:66-20:44, 21:4-53, 22:61-24:6. Both embodiments perform the
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`function of connecting to a broadcast channel and therefore should be construed as alternative
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`structures for the function of Term 4. Medvidović Decl. ¶ 36.
`
`8
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`

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`Case 1:16-cv-00453-RGA Document 345 Filed 11/06/17 Page 10 of 12 PageID #: 26970
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`C.
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`The First Embodiment Provides a Stand-Alone Algorithm
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`As discussed above, the specifications provide separate algorithms for the First
`
`Embodiment and Second Embodiment. Defendants incorrectly argue that the First Embodiment
`
`is not a stand-alone algorithm and just an overview of the Second Embodiment.
`
`That the First Embodiment is sufficient to disclose a process for connecting to a
`
`broadcast channel is confirmed by the first declaration of Defendants’ claim construction expert
`
`Dr. Kelly. In his initial May 19, 2017 declaration, Dr. Kelly explained (repeatedly throughout
`
`his declaration) that the process exclusively described in the First Embodiment is used to connect
`
`to the broadcast channel:
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`D.I. 191-4, Ex. H (5/19/2017 Kelly Decl.), at ¶ 71; see also id. at ¶¶ 36, 41, 42 (confirming that
`
`the First Embodiment describes the process for connecting participants to the broadcast channel).
`
`9
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`

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`Case 1:16-cv-00453-RGA Document 345 Filed 11/06/17 Page 11 of 12 PageID #: 26971
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`In submitting this declaration to the Court, Dr. Kelly confirmed that the procedures for
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`connecting to the broadcast channel of the First Embodiment are sufficient to connect a
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`participant, directly refuting Defendants’ current argument that they are not. Further, Dr.
`
`Medvidović confirmed that the disclosures in the First Embodiment adequately describe a
`
`process for connecting to a broadcast channel. Medvidović Decl. at ¶¶ 36, 14-23.
`
`Notwithstanding the fact that the First Embodiment is a complete process, Defendants
`
`argue it lacks details to perform functions, but Defendants point to functions that are not required
`
`by Term 4 or that are addressed by other elements in the asserted claims. For example,
`
`Defendants argue that the disclosures for the First Embodiment do not explain how connections
`
`are broken and how pairs of computers are identified. The claimed function, however, is only
`
`connecting to the broadcast channel, and does not require breaking connections or identifying
`
`pairs of computers. These concepts are separately recited in the Asserted Patents and are the
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`subject of different claims. For example, the ‘147 Patent includes claims relating to the breaking
`
`of connections and the ‘069 Patent includes claims relating to identifying pairs of computers.
`
`See Ex. A-3 (’147 patent) at Claim 11; Ex. A-5 (‘069 patent) at Claim 1.
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`10
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`

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`Case 1:16-cv-00453-RGA Document 345 Filed 11/06/17 Page 12 of 12 PageID #: 26972
`
`OF COUNSEL:
`
`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
`
`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
`Marcus A. Colucci
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: November 6, 2017
`5540900
`
`11
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`