Case 1:16-cv-00453-RGA Document 354 Filed 11/13/17 Page 1 of 9 PageID #: 27040
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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’ REPLY 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
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`Case 1:16-cv-00453-RGA Document 354 Filed 11/13/17 Page 2 of 9 PageID #: 27041
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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
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
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`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
`Anup K. Misra
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`Andrew R. Sommer
`Thomas M. Dunham
`Michael Woods
`Paul N. Harold
`Joseph C. Masullo
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
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`November 13, 2017
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`Case 1:16-cv-00453-RGA Document 354 Filed 11/13/17 Page 3 of 9 PageID #: 27042
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`I.
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`Plaintiff Points to No Substantive Difference Between Figs. 3A,B and Fig. 8
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`Plaintiff argues that the alleged “First and Second Embodiments are substantively
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`different” and then proceeds to identify only additional disclosure associated with Fig. 8, but
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`nothing at all that is inconsistent with or different between Figs. 3A,B and Fig. 8. Acceleration
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`Bay’s Opposition Brief. (“Opp. Br.”) at 2. For example, Plaintiff argues (correctly) that the
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`example shown in Figs. 3A,B is a “large regime” example whereas Fig. 8 addresses both large and
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`small regime cases. Id. at 4-5. This is unremarkable given that Fig. 8 (along with its related
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`figures) is the only algorithm disclosed for performing the connecting process, so it must, of
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`course, apply to any value of m, in both the large or small regime. This does not mean that Figs.
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`3A,B and Fig. 8 are directed to different embodiments. As Defendants explained, Figs. 3A,B
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`introduce the basic process to be performed when adding a node to the m-regular network (using
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`an example with m=4 in the large regime), without providing any of the details necessary to
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`actually accomplish the “connecting” of Term 4. Fig. 8 and its related figures naturally, and
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`necessarily, include more information, namely the actual algorithms used to perform the
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`connecting operation for any value of m.
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`Plaintiff has been unable to point to a single inconsistency between Figs. 3A,B and Fig. 8
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`because there is none. Far from being alternative embodiments, Fig. 8 provides the algorithm
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`necessary to achieve the “connecting” introduced early in the specification when addressing Figs.
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`3A,B. See Defendants’ Supplemental Claim Construction Brief Addressing Term 4 (“Defs. Br.”)
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`at 2-4. Plaintiff’s analogy of the “nail” and the “barbed nail” underscores the fallacy of its
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`position. Opp. Br. at 7. A plain nail (without barbs) and a barbed nail are inconsistent alternatives
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`to each other and are thus different embodiments. As shown in the figure below, a plain nail has a
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`smooth surface whereas a barbed nail has barbs, making them alternative embodiments.
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`1
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`Case 1:16-cv-00453-RGA Document 354 Filed 11/13/17 Page 4 of 9 PageID #: 27043
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`In contrast, there is nothing alternative about Figs. 3A,B and Fig. 8. A more apt analogy
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`would be a description early in a patent specification that generally says two pieces of wood are to
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`be attached, and then a later description that explains that the wood pieces will be attached using a
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`barbed nail. In such an example, there are no alternative embodiments, simply additional details of
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`the same embodiment provided later in the specification. Here, the description associated with
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`Figs. 3A,B similarly just says that “each of” the identified “computers then cooperates with the
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`seeking computer to effect the connecting of the seeking computer to the broadcast channel”
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`without providing an algorithm for how this “cooperation” is accomplished. Ex. A-1 at 5:45-48.
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`Fig. 8 and its related figures then provides the algorithm to effect this “cooperation” and achieve
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`the “connecting” of Term 4. Id. at 17:65-18:56.
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`II.
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`Figs 3A and 3B Do Not Provide an Independent Algorithm for “Connecting”
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`To try and fashion an algorithm out of the disclosure associated with Figs. 3A,B, Plaintiff
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`argues that the disclosed process includes three steps: “[1] locating the broadcast channel, [2]
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`identifying the neighbors for the connecting computer, and then [3] connecting to the identified
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`neighbor.” Opp. Br. at 3. But Term 4 is a “means for connecting,” not a “means for locating” or a
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`“means for identifying.” A-1 at 30:25. As Defendants have explained, the disclosure associated
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`with Figs. 3A,B does not even arguably constitute an algorithm for connecting to the broadcast
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`channel. Defs. Br. at 5-6. Incredibly, after arguing that “identifying the neighbors” is part of the
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`“connecting” process Plaintiff, later in the same brief, criticizes Defendants for “point[ing] to
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`functions that are not required by Term 4” such as “how pairs of computers [i.e., the neighbors] are
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`2
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`Case 1:16-cv-00453-RGA Document 354 Filed 11/13/17 Page 5 of 9 PageID #: 27044
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`identified.” See Opp. Br. at 3, 10. Thus, Plaintiff both holds up the identification of neighbors as
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`being part of the alleged algorithm for Figs. 3A,B (id. at 3) and then argues that identifying
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`neighbors (which are pairs of computers) is “not required by Term 4” (id. at 10).1
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`Plaintiff is correct at page 10 of its brief (and wrong at page 3) that functions such as
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`locating the broadcast channel and identifying the neighbors are not required by Term 4, which is
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`why it should not have relied on these functions to try and show an algorithm associated with Figs.
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`3A,B. Id. at 3. As Defendants pointed out, all the specification says with respect to the connecting
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`function in connection with Figs 3A,B is that “each of the [identified neighbor] … computers then
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`cooperates with the seeking computer to effect the connecting of the seeking computer to the
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`broadcast channel.” Defs. Br., chart at 6 (citing ‘344 patent at 5:45-48). “Cooperating” to “effect
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`the connecting” is not an algorithm. Id.
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`Furthermore, even if Plaintiff were correct at page 3 of its brief (and wrong at page 10) that
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`“locating the broadcast channel” and “identifying the neighbors” are properly viewed as being part
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`of the overall connecting process, the description associated with Figs. 3A,B nevertheless does not
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`provide an algorithm; it is nothing more than a series of “black box” functions with no algorithm
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`for actually accomplishing the recited functions. See Defs. Br. at 5-6 (chart showing that the
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`“locating,” “identifying,” and “connecting” descriptions in col. 5 do not contain algorithms for
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`accomplishing the connecting function of Term 4).
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`Finally, Plaintiff’s reliance on Dr. Kelly’s May 19, 2017 Declaration (D.I. 191-4, Ex. H)
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`(“Kelly Decl.”) is unavailing. Dr. Kelly merely referenced the disclosure in the specifications at
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`col. 5 as an overview of the process for a new node joining the broadcast channel, but said nothing
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`about the col. 5 disclosure disclosing an algorithm for the “means for connecting” term. And, in
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`1 Defendants never argued that these additional functions are part of Term 4, but rather were
`simply addressing the portions of the specifications relied upon by Plaintiff as relating to Figs.
`3A,B. See Defs. Br. at 5-6.
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`3
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`Case 1:16-cv-00453-RGA Document 354 Filed 11/13/17 Page 6 of 9 PageID #: 27045
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`fact, Dr. Kelly specifically relied upon the “broadcaster component” of Fig. 6 and the associated
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`algorithms shown in Fig. 8 to support his analysis of the connecting function. Id. at ¶ 30. Thus,
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`Plaintiff’s argument that Dr. Kelly took the position that the col. 5 description was “sufficient to
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`connect a participant” (Opp. Br. at 10) is refuted by Dr. Kelly’s inclusion of the broadcaster
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`component and Fig. 8 in his analysis. Kelly Decl. at ¶ 30.
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`III.
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`Plaintiff Ignores the Fact that the Only Disclosure for Computer Z of Fig. 3B is
`Provided in Fig. 6
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`Defendants explained that the specifications are divided into sections which address
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`different features of the disclosed broadcast channel: “Composing the Graph” (A-1 at 5:17-7:29),
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`“Broadcasting Through the Graph” (id. at 7:30-8:67), “Decomposing the Graph” (id. at 9:1-11:31),
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`“Port Selection” (id. at 11:32-12:32), “Locating a Portal Computer” (id. at 12:33-13-22),
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`“Identifying Neighbors for a Seeking Computer” (id. at 13:23-14:20), “External Data
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`Representation” (id. at 14:21-51) and “Components” (id. at 15:8-16:28). See Defs. Br. at 2-3.
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`Figs. 3A,B are addressed under “Composing the Graph.” A-1 at 5:17. There are no details
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`whatsoever about the components of computer “Z” of Fig. 3B in this section; it is merely a “black
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`box.” Id. Instead, it is the “Components” section (id. at 15:8-16:28) that describes the
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`“components of a computer that is connected to the broadcast channel” in connection with Fig. 6.
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`Id. at 15:9-10. This is the only description in the specifications of the components of such a
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`computer, and thus is the only description of how to implement computer “Z” of Fig. 3B. One of
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`these components is the “broadcaster component 602” which implements the algorithms described
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`in Fig. 8 and its related figures. Id. at 15:30-32; 16:1-28; 17:67-18:2.
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`Accordingly, although Figs. 3A,B address “a new computer Z connecting to the broadcast
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`channel,” the only embodiment of such a computer is shown in Fig. 6, and the only “connecting”
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`algorithm for such a computer is set forth in Fig. 8 and related Figs. 9, 11, 13, 14, 17 and 18. Id. at
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`4
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`Case 1:16-cv-00453-RGA Document 354 Filed 11/13/17 Page 7 of 9 PageID #: 27046
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`5:65-66; 15:9-10; 17:66-67. Defendants devoted almost half of their brief to explaining the logical
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`layout of the specifications and this connection between computer Z and Fig. 6 (Defs. Br. at 2-4),
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`but Plaintiff ignores entirely both Defendants’ arguments and this disclosure in the specifications.
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`Indeed, Fig. 6 is not even cited by Plaintiff in its opposition.
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`IV. Conclusion
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`Plaintiff contends that Figs. 3A,B are directed to a different embodiment than Fig. 8 but is
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`unable to point to a single inconsistency between the two that would indicate that they are
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`alternative embodiments. Plaintiff further ignores Fig. 6 entirely and the clear relationship between
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`Fig. 6 and computer Z in Fig. 3B. Although it tried to extract an algorithm out of the sparse
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`description in col. 5 relating to Figs. 3A,B, Plaintiff can cite to nothing relating to the actual
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`“connecting” function of Term 4 other than the vague statement that the identified computers will
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`“cooperate” to effect the connection. Opp. Br. at 3. The specification is clear that Fig. 6 shows the
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`“components of a computer that is connected to the broadcast channel” and therefore the
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`components of computer Z of Fig. 3B. These components include the broadcaster component,
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`which is explained in connection with Fig. 8 and its related figures. Figs. 3A,B simply cannot be
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`divorced from Fig. 6, Fig. 8, and the figures related to Fig. 8. Further, even if Figs. 3A,B were
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`viewed as separate, there is clearly no algorithm for the “connecting” function of Term 4 disclosed
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`in the portion of the specification related to Figs. 3A,B.
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`For the reasons set forth in their Supplemental Brief and herein, Defendants respectfully
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`request that the Court amend its previous claim construction to clarify that Figs. 3A,B alone do not
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`provide support for the “means for connecting” of Term 4.
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`Case 1:16-cv-00453-RGA Document 354 Filed 11/13/17 Page 8 of 9 PageID #: 27047
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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
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`David P. Enzminger
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
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`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
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`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
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`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
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`Andrew R. Sommer
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
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`November 13, 2017
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
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`/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
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`Attorneys for Defendants
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`Case 1:16-cv-00453-RGA Document 354 Filed 11/13/17 Page 9 of 9 PageID #: 27048
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`CERTIFICATE OF SERVICE
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`I hereby certify that on November 13, 2017, I caused the foregoing to be
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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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`I further certify that I caused copies of the foregoing document to be served on
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`November 13, 2017, upon the following in the manner indicated:
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`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
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`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
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`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
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`/s/ Stephen J. Kraftschik
`Stephen J. Kraftschik (#5623)
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