Case 1:16-cv-00453-RGA Document 363 Filed 11/28/17 Page 1 of 155 PageID #: 27213
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`CA NO. 16-453-RGA
`16-454-RGA,
`16-455-RGA
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`November 11, 2017
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`9:02 o'clock a.m.
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`ACCELERATION BAY LLC,
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`Plaintiff,
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` v.
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`ACTIVISION BLIZZARD, INC.,
`et al.,
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`Defendants,
`.............................
`
`TRANSCRIPT OF MARKMAN HEARING
`BEFORE THE HONORABLE RICHARD G. ANDREWS
`UNITED STATES DISTRICT JUDGE
`
`APPEARANCES:
`
`For Plaintiff:
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`POTTER, ANDERSON & CORROON
`BY: PHILIP A. ROVNER, ESQ
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`1
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`CA NO. 16-453-RGA
`16-454-RGA,
`16-455-RGA
`
`November 11, 2017
`
`9:02 o'clock a.m.
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`: : : : : : : :
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`
`
`
`
`: : :
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
` v.
`
`ACTIVISION BLIZZARD, INC.,
`et al.,
`
`Defendants,
`.............................
`
`TRANSCRIPT OF MARKMAN HEARING
`BEFORE THE HONORABLE RICHARD G. ANDREWS
`UNITED STATES DISTRICT JUDGE
`
`APPEARANCES:
`
`For Plaintiff:
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`POTTER, ANDERSON & CORROON
`BY: PHILIP A. ROVNER, ESQ
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`Case 1:16-cv-00453-RGA Document 363 Filed 11/28/17 Page 2 of 155 PageID #: 27214
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`For Defendants:
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`-and-
`KRAMER LEVIN NAFTALIS & FRANKEL
`BY: JAMES R. HANNAH, ESQ
`BY: AARON M. FRANKEL, ESQ
`
`MORRIS NICHOLS ARSHT & TUNNELL
`BY: JACK B. BLUMENFELD, ESQ
`-and-
`WINSTON & STRAWN LLPO
`BY: MICHAEL A. TOMASULO, ESQ
`BY: MICHAEL M. MURRAY, ESQ
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`Also Present:
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`Omer Salik - Representative for Activision
`Linda Zabnskie - Representative for Take-Two
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`Court Reporter:
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`LEONARD A. DIBBS
`Official Court Reporter
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`Case 1:16-cv-00453-RGA Document 363 Filed 11/28/17 Page 3 of 155 PageID #: 27215
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` P R O C E E D I N G S
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`(The proceedings occurred at 9:02 o'clock a.m. as
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`follows:)
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`THE COURT: Good morning, everyone. Please be seated.
`This is the time set for the Markman Hearing in
`Acceleration Bay v. Activision Blizzard, Civil Action No. 16-453
`and two other related cases.
`Mr. Rovner, good morning.
`MR. ROVNER: Good morning, your Honor.
`Phil Rovner from Potter, Anderson & Corroon for
`plaintiff Acceleration Bay.
`With me today from Kramer Levin is John Hannah.
`Mr. HANNAH: Good morning, your Honor.
`MR. ROVNER: And Aaron Frankel.
`MR. FRANKEL: Good morning, your Honor.
`THE COURT: Thank you, Mr. Rovner.
`Mr. Blumenfeld?
`MR. BLUMENFELD: Good morning, your Honor.
`Jack Blumenfeld from Morris Nichols for all of the
`defendants.
`With me at counsel table is Mike Tomasulo and Mike
`Murray both from Winston & Strawn.
`In the first row is Omer Salik from Activision, and in
`the second row behind him is Linda Zabnskie from Take-Two.
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`THE COURT: Good morning to you all, also.
`All right.
`So, I assume we're ready to start here, and presumably
`we'll start with the plaintiff?
`MR. HANNAH: Yes, your Honor.
`I talked with the other side and it sounds like we're
`going to start with Term 30. We think that's a good place to
`start and that is in your Honor's order.
`So, we'll present first on that term. And then
`defendants will present first on terms that they choose. I
`believe they are going to choose 38 to 48, the wherein clauses.
`And then we'll proceed in order starting from 27, and then
`present first, and we'll just go in numerical order from there.
`THE COURT: Okay.
`MR. HANNAH: So, for my colleague here, we're going to
`kind of split up the terms, and he's going to start with Term
`34.
`
`THE COURT: Okay. That's fine.
`Mr. Frankel, good morning.
`MR. FRANKEL: Good morning, your Honor.
`Before we get to Term 30, I wanted to advise the Court
`that for Term 34, which is included in the Phase 1 briefing, the
`parties did stipulate to plain and ordinary meaning.
`THE COURT: Oh, okay.
`MR. FRANKEL: You can cross one off the list.
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`THE COURT: All right.
`Well, I will do that right now.
`Okay. That's good.
`Hold on just a moment, though. I'm curious to see what
`I was going to do.
`(Pause)
`Okay. Go ahead.
`MR. HANNAH: Your Honor, may I pass up the slide deck?
`THE COURT: Sure, yes.
`(Slides handed up to the Court.)
`MR. FRANKEL: Your Honor, we thought the Term 30 was an
`appropriate place to start, given the questions you proposed to
`the parties yesterday.
`THE COURT: All right.
`MR. FRANKEL: And the disagreement between the parties
`for this claim term is, if the claim requires that each
`participant has at least three connections, but can have a
`different number of connections, or if every participant has to
`have the exact same number of connections.
`When you look at the plain language of the claim, Claim
`1 of the '069 patent, it does not require an m-regular network.
`What this claim is talking about is a method for adding
`participants to a network to prevent the network from becoming
`elongated.
`And what that is referring to is that, if you keep
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`Case 1:16-cv-00453-RGA Document 363 Filed 11/28/17 Page 6 of 155 PageID #: 27218
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`adding participants in the same part of the network, it can take
`a longer time to get from one end of the network to the other.
`And the solution of this claim in the '069 patent is to
`randomly select where in the network to add new participants to
`break open connections at that point and insert the participant
`at that part of the network.
`Now, many of the other claims in the Acceleration Bay
`patents explicitly state that the network has to be m-regular.
`On this slide here, for example, we show from the '344
`patent in green, there's the language where each participant has
`to have connections to at least three neighbors.
`And, as you see on the right side, the exact same
`language appears in Claim 1 of the '069 patent.
`But then in the red box there's the language that says
`that the network has to be m-regular, which is a different
`requirement from the minimum of at least three connections.
`That language is not in the '069 claims.
`So, crediting the plain language of the claims, as well
`as the concept of claim differentiation, the '069 should not be
`construed to require an m-regular network. Rather, they should
`be construed, as we proposed, to require a minimum of three
`connections.
`An additional problem that we have with the
`construction requiring that each participant have the exact same
`number of connections is that the patents talk about how a
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`participant can be connected to multiple channels at the same
`time.
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`So, if one participant is in a network, and is
`connected to three, another participant might be in a different
`network connected to three, and another one is connected to
`four, and so on.
`Those are the two reasons that we believe the
`defendants' construction is incorrect.
`THE COURT: Okay.
`Thank you.
`MR. MURRAY: Good morning, your Honor, Michael Murray.
`May I approach with a couple sets of our slides?
`THE COURT: Sure.
`(Slides handed up to the Court.)
`MR. MURRAY: So, I thought we basically had a deal on
`Term 30, so I'm a little confused by plaintiff's position at
`this point.
`THE COURT: Well, I mean, in a way so am I, because
`that's the reason why I suggested it. Unless I actually --
`unless the briefing indicated that you were just arguing over
`clarity.
`MR. MURRAY: Right.
`And I think that's where we are, if we hold them to the
`positions that they took in their briefing, which I think we
`should do.
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`Case 1:16-cv-00453-RGA Document 363 Filed 11/28/17 Page 8 of 155 PageID #: 27220
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`So, here's the term. "Each participant being connected
`to three or more other participants."
`The plain language, to me, especially in the context of
`this patent is that each participant is connected to three, or
`each participate is connected to four, et cetera.
`That's the only way that it's disclosed throughout the
`patent specification.
`And the technique that's disclosed in this claim is not
`just about the sort of randomness that plaintiff's counsel
`referred to. It's also about disconnecting participants from
`each other and connecting them to the seeking participant.
`This is a technique that is disclosed throughout the
`specification only in the context of a network, where all the
`participants have the same number of connections.
`So, that's why we initially adopted our construction,
`because it's perfectly consistent with every disclosed
`embodiment. And, in the briefing, plaintiff's agreed with us.
`So, this is the statement that they made in their
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`brief.
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`"Defendants incorrectly argue that it is Plaintiff's
`position that a participant can have different numbers of
`neighbors" -- and then they have a typo there -- "within a
`particular broadcast channel. "
`That is not plaintiff's position.
`So, we saw this. And then it goes on to talk about
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`this issue of, you can be connected to multiple broadcast
`channels.
`And we saw this, and we said, well, that's not what
`we're trying to say. The claim itself clearly about a
`particular broadcast channel.
`If you back up to the claim here, it's for "adding a
`participant to a network of participants."
`So, the claim is talking about -- it's defining one
`network.
`And that's all we were doing. We were explaining what
`this means in the context of one network.
`So, they're saying, well, what if I have a participant
`that is connected to four in this network, and four in that
`network?
`He's connected to eight.
`THE COURT: Well, that's the reason why I -- that's
`what I thought the point of actual dispute between you all was,
`was that plaintiff wanted to make sure that if you had two
`networks, that that wasn't somehow outside, as long as one of
`the networks was meeting the terms of claim.
`That's the reason why I proposed adding the language
`in, "in the network," because I was trying to do what I thought
`plaintiff's wanted, which was to make it clear that when you're
`talking about a network at issue, if it's some other network, it
`doesn't matter.
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`MR. MURRAY: Your Honor, I think that's exactly the
`position that they took in their briefing. I think what has
`happened in the interim is, they've changed their minds.
`And now they don't like the position that they took in
`their briefing, so they are coming in now with a fundamentally
`different position, which is fundamentally unfair to us, because
`we relied on their statements, and this informed how we
`responded to this in the briefing.
`So, we actually --
`THE COURT: And let me just interrupt you for a second,
`Mr. Murray, because we have six patents here all together,
`right?
`
`MR. MURRAY: Right.
`THE COURT: The specifications are -- how many of them
`have essentially the same specification?
`MR. MURRAY: They basically all have the same
`specification. One has an additional section that talks about
`gaming. A little bit more detail about the gaming application.
`But the specifications are basically all the same,
`certainly from the point of view of this term, so they all have
`the same specification.
`Plaintiff's counsel talked about claim differentiation.
`Claim differentiation is not a doctrine that applies across
`patents.
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`THE COURT: Yeah, I think maybe it was called something
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`Case 1:16-cv-00453-RGA Document 363 Filed 11/28/17 Page 11 of 155 PageID #: 27223
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`different, because it would be the case, or there's at least a
`hint that if you have the same specification, and your Claim 1
`says one thing in one place, and another thing in another place,
`maybe you claimed something different?
`But I agree, I would normally call that claim
`differentiation.
`MR. MURRAY: I think the case law is pretty clear that
`claim differentiation within a patent, if you have a dependent
`claim that adds a limitation, you shouldn't interpret the
`independent claim to have that limitation.
`THE COURT: Even though I think the term can be used
`differently than that.
`MR. MURRAY: Right.
`THE COURT: And I think it's used. Some are used the
`same way in different claims.
`MR. MURRAY: So, they didn't say m-regular specifically
`in here. They did what is typical of patent lawyers. They
`thought of multiple ways to claim the same thing.
`So, instead of saying m-regular, they said, each
`participant is connected to three or more other participants.
`And, again, in view of the specification, that means
`that everybody is connect to three, everybody is connected to
`four, everybody is connected to five.
`That's the only way they disclose how to do it.
`And, most importantly, they agreed with that in their
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`briefing, and we relied on their agreement.
`So, after their briefing, and then our sur-reply to
`this was, okay, we basically have an agreement. The only
`problem we have with this is, you know, this issue that you
`raised about multiple networks.
`But the claim is about one network, so we really didn't
`understand how that was a legitimate complaint.
`And then following the briefing, we proposed a
`compromise to them, which is this, which is almost exactly what
`your Honor proposed yesterday, to sort of relieve or address the
`one issue that they had raised about this, you know, possibly
`multiple networks, and not trying to preclude that, which we
`weren't trying to do.
`So, we added in the network of participants to our
`construction to clarify that the same number of connections are
`in the network of participants, not -- we're not talking about
`across all networks or something like that.
`And, again, almost word-for-word what your Honor
`proposed yesterday.
`So, we think this is the appropriate construction, or
`what your Honor proposed yesterday, we're equally happy with
`that. It addresses the only objection that they raised in their
`briefing, which is this idea of multiple networks.
`And they shouldn't be allowed now to reverse the
`position that they took in their briefing on which we rely for
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`our briefing.
`That would be fundamentally unfair.
`THE COURT: All right.
`I have your position, I think.
`THE COURT: Mr. Frankel, I didn't ask you directly the
`first time, because I thought maybe I had missed something, but
`it does seem that the defendants read the briefing the same way
`as I did.
`What is your response to that?
`You seem to be backing away from what you said in the
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`briefing.
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`MR. FRANKEL: Well, we're not backing away from what we
`said in the briefing.
`And I wish the discussion of the term in that
`particular part of the brief had been clearer. And it may have
`been an artifact of our taking this unified brief on all the
`terms and then slicing it up into different phases.
`Elsewhere in the claim construction briefing, this is
`what we said on this issue.
`"Defendants' contention that the quote, 'invention
`always requires the network to be m-regular and incomplete is
`demonstrably false,' for example, the following claims, which
`each define an invention do not require the network to be
`m-regular and incomplete."
`'497, Claims and 16, and '069, Claims 1, 11 through 13.
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`THE COURT: And where is that?
`MR. FRANKEL: That's in the Phase II claim construction
`briefing.
`THE COURT: This is the Phase 1 claim construction
`briefing, though.
`MR. FRANKEL: Yes. In our claim construction briefing,
`as a whole, we made clear that '069, Claim 1, does not require
`the network to be m-regular.
`We put defendants on notice of that position. And our
`construction -- the plain language --
`THE COURT: So whether you may or may not have put the
`defendants on notice, I've only read the Phase 1 briefing.
`Phase II briefing, that's for another day.
`So, whatever notice they may have, apparently, is not
`greatest notice in the world, is not notice -- all right.
`So, I take it what you're saying is, in the briefing,
`as a whole, you made the position you're saying now, even though
`the briefing in this particular brief that I've actually read,
`may not be quite so clear, but that's your position?
`MR. FRANKEL: I would agree with that, your Honor.
`Again, emphasizing that in the collective briefing
`we've taken a very clear position on this issue. And the
`construction itself contrasts in bolded the language at least
`three other participants, not including the requirement that
`they be the same.
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`THE COURT: Right.
`But, you know, the general format of having these
`things is, this is a box where you started, and it is not
`uncommon, in my experience, and in accordance with the briefing,
`that the parties flesh out their arguments back and forth, that
`they move away from their original position, but, okay.
`All right.
`So, the question of whether -- well, actually, though I
`guess in a way it makes sense why you all wanted to start with
`this term is, I guess, because your view is -- and I may not be
`saying this correctly -- but the specification and the claims,
`the invention, m-regular, that's just one embodiment of the
`invention?
`MR. FRANKEL: Well, there are particular claims and
`particular patents that are specifically focused in part on
`having the network being m-regular and using that aspect of the
`network to accomplish different features.
`In the '069 patent, they're focusing on something
`different, which is that problem of elongating the network.
`And we'll come back to that concept for other terms.
`Again, the specific solution was rather than adding
`participants in the same place in the network, randomly picking
`a place, breaking open the network, and putting it in. It does
`not require a regular network.
`THE COURT: The concept of elongating the network, is
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`Case 1:16-cv-00453-RGA Document 363 Filed 11/28/17 Page 16 of 155 PageID #: 27228
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`that discussed at all in the briefing that I read for today?
`MR. FRANKEL: It is discussed for some of the other
`terms that we're going to get to. The issue for Term 30 is
`really just the plain language of the claim itself.
`What the defendants are asking the Court to do is read
`a limitation in from the specification.
`THE COURT: Okay.
`MR. FRANKEL: Whether or not you're going to call it a
`claim differentiation, or just looking at the way that language
`is used by the inventors, in some cases they added language to
`say that the network has to be m-regular, and in other cases
`they just said it has to have at least three participants.
`And these are two separate clauses within the claims.
`One of them is plainly missing from the claims of the
`'069 patent. It's a logical reading that that omission is
`intentional and not accidental, given that the phrase is used in
`some claims and not others.
`I would also direct the Court's attention to the notice
`of supplemental authority that defendants submitted last night.
`THE COURT: Sorry, I haven't read anything that was
`submitted last night.
`MR. FRANKEL: Well, just for the record, this Exhibit L
`is papers from the IPR proceeding.
`THE COURT: Oh, I did see the -- oh, okay.
`I did actually see that there was something submitting
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`Case 1:16-cv-00453-RGA Document 363 Filed 11/28/17 Page 17 of 155 PageID #: 27229
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`papers from an IPR proceeding, but I thought the attachments
`were 70 pages long, and it wasn't exactly something that I was
`planning on reading last night.
`MR. FRANKEL: Well, on the off-chance that you haven't
`completed your exhaustive study of the IPR papers, which --
`THE COURT: I haven't started.
`MR. FRANKEL: Okay.
`You haven't even started.
`I would direct the Court's attention to Page 13 of
`Exhibit L, as well as Page 14.
`THE COURT: You directed my attention to these pages
`because?
`MR. FRANKEL: That's where Acceleration Bay, again,
`clearly takes the position that the '069 claims require at least
`three connections, but not an m-regular network.
`THE COURT: Okay.
`And maybe I lost track somewhere along the line here,
`but there were IPRs pending on some of these patents, or pending
`is maybe not initiated, but there are IPRs activity going on in
`some of these patents right now?
`MR. FRANKEL: Mr. Hannah is the expert. I'm not
`participating in the IPRs.
`MR. HANNAH: Your Honor, there's a -- there are a
`number of IPRs that were filed by different parties. We've gone
`through the process. We have some claims that were confirmed
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`Case 1:16-cv-00453-RGA Document 363 Filed 11/28/17 Page 18 of 155 PageID #: 27230
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`that are at issue in this litigation. Those are on appeal.
`And, so, those are the only ones that are at issue
`
`right.
`
`Then we have another set that was just recently filed.
`We submitted our preliminary patent owners' statement on those.
`THE COURT: So, let me just play that out.
`There were some IPRs, so to speak, you want --
`MR. HANNAH: Right.
`THE COURT: -- and now they've appealed, or somebody --
`who's opposed to you has appealed?
`MR. HANNAH: Exactly.
`THE COURT: Okay.
`So, that is somewhere -- and when you say "appeal,"
`that is in front of the Federal Circuit, right?
`MR. HANNAH: Correct.
`THE COURT: I'm not too concerned about those.
`MR. HANNAH: Okay.
`THE COURT: You say there are also then some that are
`in a much earlier stage?
`MR. HANNAH: So, there are some that have been recently
`filed. It's our position that they are time-barred, because we
`filed our preliminary owner patent responses very, very
`recently.
`And, so, those are in the preliminary stages. Those
`are, I believe, only concern one or two of the patents.
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`Case 1:16-cv-00453-RGA Document 363 Filed 11/28/17 Page 19 of 155 PageID #: 27231
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`THE COURT: Okay.
`MR. HANNAH: But, again, you know, it's filed by the
`same parties, so it's our position that they're time-barred and
`--
`
`THE COURT: Well, which patents are being challenged in
`these most recent IPRs?
`MR. HANNAH: Your Honor, I don't want to misspeak for
`the record.
`I know it's not the '344, '966, or '634, but it might
`be one or more of the other three.
`THE COURT: Okay.
`MR. HANNAH: And the particular claims as well.
`THE COURT: All right.
`Thank you, Mr. Hannah.
`MR. FRANKEL: So, your Honor, I can read these passages
`into the record or just leave you with --
`THE COURT: Just tell me what the point of it is.
`MR. FRANKEL: The point is that the position that
`Acceleration Bay is taking in the IPRs, and I believe the
`petitioners as well, the defendants, is that the '069 claims
`require at least three connections, but not an m-regular
`network, as is reflected in the plain language of the claims.
`THE COURT: All right.
`So, you're telling me you're being consistent with the
`position you're taking right now?
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`Case 1:16-cv-00453-RGA Document 363 Filed 11/28/17 Page 20 of 155 PageID #: 27232
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`MR. FRANKEL: That's correct, your Honor.
`And the position has been disclosed to the defendants
`throughout the case.
`THE COURT: Anything else, Mr. Frankel?
`MR. FRANKEL: Not unless you have any questions that I
`can field?
`THE COURT: No.
`MR. FRANKEL: Thank, your Honor.
`MR. MURRAY: May I respond briefly?
`THE COURT: Yes, you may.
`MR. MURRAY: So, first of all, with respect to the
`IPRs, there are two recent IPRs filed by a third party, not by
`us, that addressed two of the patents.
`And that's why we submitted the supplemental material
`to your Honor, because --
`THE COURT: Well, which two patents do they address?
`MR. MURRAY: The '069 and '634 patents.
`THE COURT: All right.
`Go ahead.
`MR. MURRAY: So, they keep talking about m-regular.
`And the issue here is not necessarily m-regular, although, I
`realize that they are kind of related, but the issue is, what
`does each participant being connected to three or more other
`participants mean?
`We didn't take -- we're not construing this saying,
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`Case 1:16-cv-00453-RGA Document 363 Filed 11/28/17 Page 21 of 155 PageID #: 27233
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`this means m-regular. M-regular would impact some other
`constructions that your Honor has already dealt with.
`Our position with respect to this term, again, based on
`the specification is that it simply means that each participant
`has the same number of connections as every other participant.
`And they agreed with that. I can't emphasize that
`enough. They took the position in their briefing that we were
`right about that.
`And they raised another issue about multiple networks,
`which we have now resolved, either with our proposed compromise
`or with your Honor's proposed compromise.
`But it's not -- so they are trying to sort of, you
`know, dodge to m-regular and saying, oh, you know, it says
`m-regular in some patents and it doesn't say m-regular here.
`We're not construing this to say that it means
`m-regular. We're construing it to say it means each participant
`has the same number of connections in that network.
`They agreed.
`That really should be the end of the analysis.
`Thank you.
`THE COURT: Thank you.
`Mr. Frankel, just before we leave this topic, do you
`agree with Mr. Murray that the stuff that is highlighted in
`yellow says what it says?
`MR. FRANKEL: I respectfully disagree.
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`Case 1:16-cv-00453-RGA Document 363 Filed 11/28/17 Page 22 of 155 PageID #: 27234
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`THE COURT: Okay.
`What does it actually say?
`MR. FRANKEL: All right.
`I mean, the -- again, it's not best-worded paragraph.
`The point we were trying to make was the next sentence
`that wasn't highlighted, which is that we're having a dispute
`about the participation and the other -- in multiple broadcast
`channels at the same time.
`I don't understand the distinction that they are trying
`to make between every participant being connected to the same
`number of participants and the network being m-regular.
`That means the same thing. M-regular is each
`participant is connected to other participants.
`So, the fight here is -- you can say, does the network
`have to be m-regular, or does every participant have to be
`connected to the same number of participants?
`That means the same thing.
`We think the plain language of the claims -- and I --
`that's what I thought the parties have always thought the claim
`had meant and that we were quibbling over smaller issues.
`From our construction, it's a minimum of three.
`What they're saying is that everyone is connected to
`the same. They're saying that the network should be m-regular,
`just with a different name.
`THE COURT: All right. Thank you.
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`Case 1:16-cv-00453-RGA Document 363 Filed 11/28/17 Page 23 of 155 PageID #: 27235
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`Let's go on to a different term.
`MR. TOMASULO: Good morning, your Honor.
`THE COURT: Good morning, Mr. Tomasulo.
`MR. TOMASULO: I'm going to address Terms 38 through 40
`
`--
`
`THE COURT: Right.
`MR. TOMASULO: -- which starts at Page 13 of the slides
`we've given you.
`THE COURT: Okay.
`MR. TOMASULO: So, our position is that these are
`sequential method steps that render the claims invalid.
`Go to the next slide, please.
`Even here's a summary of our position.
`The plain language of the claim confirms that these are
`apparatus claims that include method steps.
`Plaintiff's only constructions require that the
`participants quote, "send," unquote, data, which is a method
`step. Plaintiff's mere capability argument contradicts the
`claim language. Its own construction, its experts, and its
`representations to the Patent Office and the PTAB, its mere
`capability argument eliminates the terms all together in light
`of the term, connection to neighbors, which already includes
`those capabilities that they say are represented by the wherein
`clauses. And they read out many important limitations and
`contradictions in the intrinsic evidence.
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`Case 1:16-cv-00453-RGA Document 363 Filed 11/28/17 Page 24 of 155 PageID #: 27236
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`The asserted claims are plainly system claims, which
`are a computer network, or a distributed game system, or an
`information delivery service.
`There's not a dispute about the law.
`Both sides agree that if the claims include method
`steps, they are invalid.
`Here is the claim we've put out here.
`You see Elements 1, 2 and 3 are representing the
`apparatus, OR the system claim. And A and B are the method
`steps.
`
`And the claims are very clear. It's a computer network
`for providing an information delivery service for a plurality of
`participants. And each of those participants having connections
`to at least three neighbor participants.
`And if we skip down to 3, further wherein the network
`is m-regular, where m is the exact number of neighbor
`participants of each participant, and further wherein the number
`of participants is at least two greater than m thus resulting in
`a non-complete graph.
`Those all describe the network.
`If we go back to 2 it says, each participant having
`connections to at least three neighbor participants. And then
`it jumps to a completely different version.
`Wherein an originating participant, which is a new
`term, sends data to each of the other participants by sending
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`Case 1:16-cv-00453-RGA Document 363 Filed 11/28/17 Page 25 of 155 PageID #: 27237
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`data through each of its connection to its neighbor
`participants, and wherein -- the second step -- each
`participants sends data that it receives from a neighbor
`participant to its other neighbor participants.
`Note that where they are describing a characteristic of
`a participant, each participa
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