Case 1:16-cv-00453-RGA Document 366 Filed 11/30/17 Page 1 of 82 PageID #: 27710
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-453 (RGA)
`
`C.A. No. 16-454 (RGA)
`
`C.A. No. 16-455 (RGA)
`
`)))))))))
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`)))))))))
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`)))))))))))
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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.
`
`JOINT CLAIM CONSTRUCTION BRIEF (GROUP III) TERMS: 9, 10, 21, 24-26, 28, 37
`
`

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`Case 1:16-cv-00453-RGA Document 366 Filed 11/30/17 Page 2 of 82 PageID #: 27711
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`Table of Contents
`
`I.
`
`INTRODUCTION .................................................................................................................. 1
`A. Plaintiff’s Opening Introduction ......................................................................................... 1
`B. Defendants’ Rebuttal Introduction ...................................................................................... 1
`C. Plaintiff’s Reply Introduction ............................................................................................. 1
`II. ARGUMENT .......................................................................................................................... 2
`A. Term 9 (‘344/12 & ‘966/12) ............................................................................................... 2
`1.
`Plaintiff’s Opening Statement (Term 9) ......................................................................... 2
`2. Defendants’ Rebuttal Statement (Term 9) ...................................................................... 4
`3.
`Plaintiff’s Reply Statement (Term 9) .............................................................................. 8
`4. Defendants’ Sur-Reply Statement (Term 9) ................................................................. 12
`B. Term 10 (‘344/13 & ‘966/13) ........................................................................................... 14
`1.
`Plaintiff’s Opening Statement (Term 10) ..................................................................... 14
`2. Defendants’ Rebuttal Statement (Term 10) .................................................................. 17
`3.
`Plaintiff’s Reply Statement (Term 10) .......................................................................... 23
`4. Defendants’ Sur-Reply Statement (Term 10) ............................................................... 27
`C. Term 21 (‘147/15) ............................................................................................................. 29
`1.
`Plaintiff’s Opening Statement (Term 21) ..................................................................... 29
`1. Defendants’ Rebuttal Statement (Term 21) .................................................................. 30
`2.
`Plaintiff’s Reply Statement (Term 21) .......................................................................... 31
`3. Defendants’ Sur-Reply Statement (Term 21) ............................................................... 32
`D. Terms 24-26 ...................................................................................................................... 33
`1.
`Plaintiff’s Opening Statement (Terms 24-26) ............................................................... 34
`2. Defendants’ Rebuttal Statement (Terms 24-26) ........................................................... 38
`3.
`Plaintiff’s Reply Statement (Terms 24-26) ................................................................... 52
`4. Defendants’ Sur-Reply Statement (Terms 24-26) ........................................................ 60
`E. Term 28 (‘497/9) ............................................................................................................... 65
`1.
`Plaintiff’s Opening Statement (Term 28) ..................................................................... 65
`2. Defendants’ Rebuttal Statement (Term 28) .................................................................. 66
`3.
`Plaintiff’s Reply Statement (Term 28) .......................................................................... 68
`4. Defendants’ Sur-Reply Statement (Term 28) ............................................................... 69
`F. Term 37 (‘497/9) ............................................................................................................... 69
`1.
`Plaintiff’s Opening Statement (Term 37) ..................................................................... 69
`2. Defendants’ Rebuttal Statement (Term 37) .................................................................. 72
`
`i
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`Plaintiff’s Reply Statement (Term 37) .......................................................................... 74
`3.
`4. Defendants’ Sur-Reply Statement (Term 37) ............................................................... 76
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`Case 1:16-cv-00453-RGA Document 366 Filed 11/30/17 Page 4 of 82 PageID #: 27713
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`I.
`
`INTRODUCTION
`
`A.
`
`Plaintiff’s Opening Introduction
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`The terms in this final round of claim construction briefing are all readily understood by
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`lay persons and have plain and ordinary meanings consistent with Acceleration Bay’s proposed
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`constructions. For example, “Computer Network” is a well-known phrase, meaning simply a
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`group of connected computers or computer processes. Defendants attempt to limit these terms
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`beyond their plain and ordinary meaning by importing unsupported limitations for other terms
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`such as “Network.” Defendants now also incorrectly contend that some terms are indefinite
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`(e.g., “network”), directly contradicting their positions and arguments before the PTAB during
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`inter partes review (IPR) proceedings and in their proposed constructions for other disputed
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`terms, which included the terms Defendants now contend are indefinite. Defendants’ prior
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`positions confirm that these terms are not indefinite.
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`B.
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`Defendants’ Rebuttal Introduction
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`Where a term can be reasonably construed, Defendants have proposed definitions faithful
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`to the intrinsic evidence and consistent with the operation of the purported invention. There are
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`also a number of terms that cannot be construed or afforded patentable weight, due to flawed
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`claims-drafting or defects in the original patent disclosure. Finally, there are terms for which
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`Plaintiff’s proposed constructions are simply nonsensical, are inconsistent with the Court’s prior
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`construction for related terms, or are otherwise improper because their adoption would result in
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`an invalid claim. For the reasons explained herein, the Court should adopt Defendants’ positions
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`and should reject Plaintiff’s constructions.
`
`C.
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`Plaintiff’s Reply Introduction
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`Acceleration Bay’s proposed claim constructions hew to the claims and intrinsic record.
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`Indeed, for many of the disputed terms, Defendants do not even offer their own constructions or
`
`1
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`

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`Case 1:16-cv-00453-RGA Document 366 Filed 11/30/17 Page 5 of 82 PageID #: 27714
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`seriously dispute Acceleration Bay’s constructions. Instead, as Defendants have done
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`throughout the claim construction process, they take a position that is contrary to their previous
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`one. Here, Defendants now argue that various terms are indefinite and a POSITA would be
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`unable to grasp many of the most basic concepts and inventive aspects of the claimed inventions
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`–– despite submitting numerous declarations from its expert that purportedly describe how the
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`inventions work, what they cover and differences over the prior art. In the final round of
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`briefing, however, all the knowledge of their expert seems to have gone missing and now, to
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`argue indefiniteness, Defendants contend that a POSITA would not even understand the basic
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`differences between a network that uses routing tables and a network that does not use routing
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`tables. The Court should reject Defendants’ baseless indefiniteness and invalidity arguments.
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`II.
`
`ARGUMENT
`
`A.
`
`Term 9 (‘344/12 & ‘966/12)
`
`Term
`
`“Computer Network”
`
`Plaintiff’s Proposed Constructions Defendants’ Proposed
`Constructions
`at least two physical
`computers that are
`interconnected
`
`a group of connected computers
`and/or computer processes
`
`1.
`
`Plaintiff’s Opening Statement (Term 9)
`
`A computer network is “a group of connected computers and/or computer processes.”
`
`Declaration of Nenad Medvidovic in Support of Amend. Opening Claim Construction Brief
`
`(“Medvidović Decl.”), ¶ 7. Plaintiff’s construction is consistent with the usage of this term in the
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`claims and specifications. Id. at ¶¶ 7-9. In contrast, Defendants improperly seek to limit
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`computer networks to connections between “physical” computers, seeking a construction that
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`could mislead the jury into thinking that computer processes cannot be part of the network.
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`The following exemplary quotations from the specifications confirm that participants in
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`the application layer overlay network can include computer processes (e.g., application
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`Case 1:16-cv-00453-RGA Document 366 Filed 11/30/17 Page 6 of 82 PageID #: 27715
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`programs) as proposed by Acceleration Bay, and directly refute Defendants’ construction which
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`improperly requires two physical computers:
`
`More generally, a network of computers may have multiple
`broadcast channels, each computer may be connected to more than
`one broadcast channel, and each computer can have multiple
`connections to the same broadcast channel. The broadcast channel
`is well suited for computer processes (e.g., application programs)
`that execute collaboratively, such as network meeting programs.
`Each computer process can connect to one or more broadcast
`channels.
`
`Ex. A-1 (‘344 Patent) at 15:13-21 (emphasis added).
`
`The broadcast technique overlays the underlying network system
`with a graph of point-to-point connections (i.e., edges) between
`host computers (i.e., nodes) through which the broadcast channel is
`implemented. In one embodiment, each computer is connected to
`four other computers, referred to as neighbors. (Actually, a
`process executing on a computer is connected to four other
`processes executing on this or four other computers.)
`
`Id. (‘344 Patent) at 4:23-30 (emphasis added).
`
`Defendants’ construction should also be rejected because it incorrectly requires at least
`
`two physical computers at all times. The specifications specifically explained that when the
`
`broadcast channel is initially formed, a computer (running more than one computer process) will
`
`form the first fully connected computer by a connection of multiple application programs on a
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`computer:
`
`If the seeking computer exhausts its search depth, then either the
`broadcast channel has not yet been established or, if the seeking
`computer is also a portal computer, it can then establish the
`broadcast channel with itself as the first fully connected
`computer.
`
`Id. (‘344 Patent) at 12:60-65 (emphasis added).
`
`Defendants’ construction, therefore should be rejected because it contradicts the usage of
`
`the term in the patents and the meaning of the term to a person of ordinary skill in the art
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`Case 1:16-cv-00453-RGA Document 366 Filed 11/30/17 Page 7 of 82 PageID #: 27716
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`(“POSA”). Namely, a POSA would understand from the specifications quoted above that the
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`disclosures in the asserted patents specifically contemplate an application layer computer
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`network formed by two or more software applications executing on a computer or server to form
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`a network. Medvidović Decl., ¶¶ 7-11. Specifically, the specifications describe configurations
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`where two instances of software applications executing on the same computer or server, form a
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`network. Id.
`
`There is no basis to read in Defendants’ proposed limitations. The intrinsic record never
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`even refers to a “physical computer.” See Ex. A-3 (‘147 Patent). Defendants cannot point to a
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`clear and unmistakable disclaimer or disavowal of claim scope that requires the term “computer
`
`network” to mean “at least two physical computers that are interconnected.” Indeed, Defendants
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`recently conceded that the word “physical” does not need to be included in the construction for
`
`the term “computer” (Term 11) as Defendants originally proposed. Thus there is no reason it
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`should be grafted into “Computer Network.” D.I. 320 (stipulation regarding construction of
`
`Term 11-computer).1
`
`2.
`
`Defendants’ Rebuttal Statement (Term 9)
`
`Term
`computer
`network
`
`Plaintiff’s Proposed Construction Defendants’ Proposed Construction
`a group of connected computers
`at least two physical computers that
`and/or computer processes
`are interconnected
`
`Plaintiff (see Opening Br., p.2) and its expert (see Medvidovic Decl. (Apr. 28, 2017), ¶¶
`
`80-81) contend that the claims and the specification use this term as is it generally understood
`
`but then offer an ambiguous and contorted definition that a POSITA would not necessarily have
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`adopted. See October 25, 2017 Declaration of Dr. John P.J. Kelly (“Kelly Decl.”) ¶¶19-21.
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`1 All docket citations are to C.A. No. 16-453-RGA, and are representative of filings in the related
`cases.
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`Case 1:16-cv-00453-RGA Document 366 Filed 11/30/17 Page 8 of 82 PageID #: 27717
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`Instead, a POSITA would have understood the term “computer network” in this context
`
`to refer to “at least two physical computers that are interconnected.” Id; see also, e.g., Ex. 1
`
`(Tanenbaum, COMPUTER NETWORKS (3d ed. 1996), p.2 (“Throughout the book we will use the
`
`term ‘computer network’ to mean an interconnected collection of autonomous computers.”)
`
`(“Tanenbaum”)); and Brooktrout, Inc. v. Eicon Networks Corp., 2004 WL 5643968, at *4-6
`
`(E.D. Tex. 2004) (defining “computer network” to mean “a system of two or more
`
`interconnected computers,” the ordinary meaning in the 1990s).
`
`Indeed, the specification prefaces its disclosure by emphasizing that “[t]he described
`
`technology relates generally to a computer network and more particularly, to a broadcast channel
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`for a subset of [sic] a computers of an underlying network.” A-1, 1:27-29 (emphasis added).
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`The specification further explains that computers are physical devices made up of pieces of
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`hardware. See, e.g., A-1, 4:1-30 (referencing “host computers”) and 15:58-61 (“include a central
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`processing unit, memory, input devices . . . .”).
`
`Defendants’ proposal for a “computer network” is simple, straightforward, and supported
`
`by the specification (see A-1, 1:27-29). Around the time of the alleged invention, if a single
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`computer were running and hosting multiple participants, a POSITA would not have regarded
`
`that standalone console as a “computer network.” Kelly Decl. ¶ 21. It would have been an
`
`unremarkable and generally accepted proposition in the 1990-2000s that there must be at least
`
`two, separate computers before a “computer network” is formed. See id.; see also Tanenbaum,
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`p.2.
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`Plaintiff’s proposed definition needlessly injects ambiguity with its use of the “and/or”
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`conjunction, and also overcomplicates the issue by introducing software processes, begging
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`clarification about whether to view the construct at the application layer or an underlying layer of
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`Case 1:16-cv-00453-RGA Document 366 Filed 11/30/17 Page 9 of 82 PageID #: 27718
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`the OSI model. See, e.g., C-1, p.23 (discussing Plaintiff’s attempt to differentiate between the
`
`application layer and the network layer). Plaintiff does not explain how its proposed mixing and
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`matching of a physical computer, on the one hand, and a software computer process, on the other
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`hand, could be amalgamated to form the claimed computer network.
`
`The incongruity primarily stems from Plaintiff’s citations that purportedly suggest
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`participants in a computer network may include processes. See Opening Br., p.3 (citing A-1,
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`4:23-30 and 15:13-21). But Plaintiff’s reliance is misplaced, as those passages actually cut the
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`other way. Indeed, col. 15, ll. 13-21 discusses physical, separate, autonomous computers that
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`make up “a network of computers.” The passage does not relate computer processes with the
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`computer network. Instead, it relates computer processes with broadcast channels. See A-1,
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`15:17-19 (“The broadcast channel is well suited for computer processes (e.g., application
`
`programs)”).
`
`Similarly, col. 4, ll. 23-34, explains that five interconnected “host computers” make up
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`“the underlying network system” whereas the communications among the participating computer
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`“processes” relate, once again, to the “broadcast technique.” Of note, in tandem with its
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`reference to multiple processes, this passage also refers to five physical computers (“four other
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`computers”). Each process is being executed on at least one physical computer (“a process
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`executing on a computer”), confirming that processes cannot exist in a vacuum; they must run on
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`a hardware platform. See A-1, 15:29-30. Both passages reinforce Defendants’ position that a
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`POSITA would have understood the computer network to be comprised of a plurality of physical
`
`computers.
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`Similarly, the third passage cited by Plaintiff misses the point. Col. 12, ll. 60-65 (“it can
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`then establish the broadcast channel with itself as the first fully connected computer.”). A single
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`Case 1:16-cv-00453-RGA Document 366 Filed 11/30/17 Page 10 of 82 PageID #: 27719
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`computer may establish a broadcast channel where none had been established before, but the
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`passage is silent about a computer network. It does not suggest a computer network can consist
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`of a single computer.
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`In making its arguments, Plaintiff fails to point to any intrinsic evidence supporting its
`
`position that a single physical computer may comprise a computer network. Nor does the
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`parties’ stipulation to the definition of “computer” undermine the physicality of the devices that
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`make up a computer network. A device, or apparatus, is a physical structure. See Kelly Decl., ¶
`
`21. In its arguments before the PTAB, Plaintiff has repeatedly acknowledged that a computer
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`network comprises more than one physical computer. For example, in its preliminary response
`
`in IPR2015-01970, contemplating a plurality of autonomous computers, Plaintiff explained:
`
`As described in the ’344 patent, to broadcast a message, the
`originating computer sends the message to each of its neighbors
`using its point-to-point connections. Each computer that receives
`the message then sends the message to all of its neighbors (but
`not to the computer that provided the message) using the point-
`to-point connections. In this way, the message is propagated to
`each computer using the underlying network, thus broadcasting
`the message to each computer over a logical broadcast channel.
`
`D-2, pp.12-13 (internal citations omitted) (emphasis added). Plaintiff also explained:
`
`That is, a network is m-regular when each node is connected to m
`other nodes and a computer would become disconnected from the
`broadcast channel only if all m of the connections to its
`neighbouring nodes fail. . . . . A network is said to be m-connected
`when it would take a failure of m computers to divide the graph
`into disjoint sub-graphs, i.e., separate broadcast channels.
`
`D-2, p.10 (internal citations omitted) (emphasis original). Neither of Plaintiff’s respective
`
`definitions for an m-regular network and an m-connected network would make sense if the
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`“network” were comprised of a single computer that was merely hosting a plurality of processes.
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`Case 1:16-cv-00453-RGA Document 366 Filed 11/30/17 Page 11 of 82 PageID #: 27720
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`3.
`
`Plaintiff’s Reply Statement (Term 9)
`
`The parties’ dispute boils down to whether a network can be comprised of computer
`
`processes. A POSITA would understand that the term “computer network” (Term 9), as used in
`
`the claims, means a group of connected computers and/or processes. Medvidović Decl. ¶¶ 7-8.
`
`Acceleration Bay’s proposed construction is supported by the explanation in the specifications
`
`that computer processes can form a network. Id. at ¶¶ 9-11. In contrast, Defendants propose an
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`overly narrow construction that is completely inconsistent with the specification. Id. The Court
`
`should therefore adopt Acceleration Bay’s constructions.
`
`The specifications make clear that a network may be comprised of computer processes
`
`executing on a computer:
`
`The broadcast technique overlays the underlying network system
`with a graph of point-to-point connections (i.e., edges) between
`host computers (i.e., nodes) through which the broadcast channel is
`implemented. In one embodiment, each computer is connected to
`four other computers, referred to as neighbors. (Actually, a process
`executing on a computer is connected to four other processes
`executing on this or four other computers.)
`
`Ex. A-1 (‘344 Patent) at 4:23-30 (emphasis added); see also id. at 15:13-21.
`
`Defendants make the flawed argument that this and other portions of the specifications
`
`cited by Acceleration Bay above, confirming that participants may be computer processes, are
`
`not related to computer networks. Defendants remarkably attempt to argue that a broadcast
`
`channel is somehow not a computer network:
`
`[T]he third passage cited by Plaintiff misses the point… A single
`computer may establish a broadcast channel where none had been
`established before, but the passage is silent about a computer
`network.
`
`Defendants’ Responsive Discussion of Term 9 (emphasis in original).
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`Case 1:16-cv-00453-RGA Document 366 Filed 11/30/17 Page 12 of 82 PageID #: 27721
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`Defendants’ assertion that a broadcast channel and broadcast technique described in the
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`specifications with computer process participants is not a computer network ignores the context
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`of the specifications which explain that a broadcast channel is a network for broadcasting
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`information. Id. Moreover, Defendants’ argument is also contrary to the opinions of their own
`
`expert. For example, Dr. Kelly repeatedly states in his declaration that the broadcast channel is
`
`also a network:
`
`30. The asserted patents explain that each computer will have a
`broadcaster component that allows it to “participate” in the
`network and that each broadcast channel (or network) will have a
`specific session identifier or channel type and instance by which it
`can be identified and located. A-1 at 15:30-31 (“Each application
`program interfaces with a broadcaster component 602 for each
`broadcast channel to which it is connected.”); id. at 17:65-18:5
`….
`
`31. The five Topology Patents are all directed to a specific
`topology referred to as an m-regular, non-complete graph and
`operations performed within that topology. See, e.g., A-1 at Fig. 1.
`A network, or broadcast channel, is m-regular if each node of the
`graph is connected to exactly the same number (“m”) of other
`nodes….
`
`D.I. 191-4, Ex. H (6/22/17 Dr. Kelly Decl. Ex. H) ¶¶ 30, 31 (emphasis added).
`
`Further, Defendants’ argument that a “broadcast channel” is unrelated to a “computer
`
`network” is contradicted by their own proposed construction for “broadcast channel” which
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`confirms it is a “communications network”:
`
`a communications network with a unique identifier consisting of
`interconnected computers where each computer receives all data
`broadcasted on that uniquely identified communications network
`
`D.I. 236-1 Ex 2 (Joint Claim Construction Chart) Term 22 at p. 62. (emphasis added).
`
`Therefore, the Patents teach that a broadcast channel is a network and may be made up of
`
`computer processes, confirming that computer networks may be made of computer processes.
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`Case 1:16-cv-00453-RGA Document 366 Filed 11/30/17 Page 13 of 82 PageID #: 27722
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`Defendants also misstate the record in claiming that Acceleration Bay “repeatedly
`
`acknowledged that a computer network comprises more than one physical computer.”
`
`Acceleration Bay never argued to the PTAB that a computer network was limited to physical
`
`computers and never even used the word “physical.” Acceleration Bay’s arguments to the PTAB
`
`did not limit or redefine the term “computer network.” Defendants’ quotations are not the
`
`contrary, and were from discussions about other aspects of other claim elements. Indeed,
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`Acceleration Bay’s construction is entirely consistent with its arguments to the PTAB because its
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`proposed construction can include physical computers in addition to computer processes.
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`Defendants fail to establish that a narrow construction of computer network excluding
`
`computer processes is warranted here. Specifically, the proposed definition of “computer
`
`network” from the book relied upon by Dr. Kelly is intentionally narrow, stating that “[b]y
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`requiring the computers to be autonomous, we wish to exclude from our definition systems in
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`which there is a clear master/slave relation.” Ex. 1 to Defs. Br. (Tanenbaum) at 2.
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`Throughout the book we will use the term “computer network” to
`mean an interconnected collection of autonomous computers. . . . By
`requiring the computers to be autonomous, we wish to exclude from
`our definition systems in which there is a clear master/slave
`relation. If one computer can forcibly start, stop, or control
`another one, the computers are not autonomous. A system with
`one control unit and many slaves is not a network; nor is a large
`computer with remote printers and terminals.
`
`Id. (emphasis added). Such a narrow approach does not apply here because the Asserted Patents
`
`describe networks where functions may be remotely operated and controlled, including, for
`
`example, requiring computers to broadcast data through the graph, and forming and breaking
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`connections to maintain an m-regular network. See e.g., Ex. A-1 (‘344 Patent) at 7:30-49 (“When
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`a computer receives a broadcast message from a neighbor, it sends the message to its three other
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`neighbors….”)
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`Case 1:16-cv-00453-RGA Document 366 Filed 11/30/17 Page 14 of 82 PageID #: 27723
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`Further, the danger of relying on such extrinsic evidence to narrowly construe a term is
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`highlighted by the fact that the proposed definition of “computer network” from the book relied
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`upon by Dr. Kelly would even exclude “computer networks” under Defendants’ own definition.
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`Defendants’ proposed “two physical computers that are interconnected” construction does not
`
`require the user to explicitly move files around and handle all the network management
`
`personally because these computer networks would be considered a “distributed system” and not
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`a “computer network” as defined in the book relied upon by Dr. Kelly:
`
`There is considerable confusion in the literature between a
`computer network and a distributed system. The key distinction is
`that in a distributed system, the existence of multiple autonomous
`computers is transparent (i.e., not visible) to the user…. With a
`network, users must explicitly log onto one machine, explicitly
`submit jobs remotely, explicitly move files around and generally
`handle all the network management personally. With a distributed
`system, nothing has to be done explicitly; it is all automatically
`done by the system without the users' knowledge. In effect, a
`distributed system is a software system built on top of a network.
`
`Ex. 1 to Defs. Br. (Tanenbaum) at 2 (emphasis added).
`
`Certain claims are specifically directed to distributed systems (e.g. Claim 13 of the ‘344
`
`Patent: “A distributed game system comprising . . . ”), yet Defendants intentionally choose to
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`rely on extrinsic evidence that specifically excludes distributed systems –– this cannot be correct.
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`Moreover, Defendants’ contention that the term “computer network” can only refer to a
`
`physical hardware device and not a computer processor (or hardware running a process) cannot
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`be reconciled with the fact that certain claims specifically recite that the participants are
`
`computer process. See Ex. A-1 (‘344 Patent) at Claim 9 (“the computer network of claim 1
`
`wherein each participant is a process executing on a computer.”)
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`Similarly, Defendants’ argument that “[i]t would have been an unremarkable and
`
`generally accepted proposition in the 1990-2000s that there must be at least two, separate
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`Case 1:16-cv-00453-RGA Document 366 Filed 11/30/17 Page 15 of 82 PageID #: 27724
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`computers before a ‘computer network’ is formed” ignores the revolutionary changes in
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`computers network between “1990” and the “2000s.” At the time of the inventions, a POSITA
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`would have been familiar with virtual networks that do not require separate physical connections
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`but instead are logical networks that can be formed using application processes. Medvidović
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`Decl.¶ 7-10. Likewise, a POSITA would have understood that “computer networks” means a
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`group of connected computers and/or processes and not just physical computers. Id.
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`Accordingly, the Court should adopt Acceleration Bay’s proposed construction
`
`4.
`
`Defendants’ Sur-Reply Statement (Term 9)
`
`The term “Computer Network” has a generally understood meaning in the art. See, e.g.,
`
`Ans. Br. at 4-7. The term refers to a network of physical computers and not simply processes,
`
`hence the word “computer” is in the term itself.2 While, a “process” can execute on a computer,
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`here, the claimed network is a computer network (i.e., the computers themselves).
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`A “computer process” is distinct from physical “computers” that form the “underlying
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`network.” Indeed, the specification states that “it would take a failure of [m] computers to
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`divide the graph into disjoint sub-graphs, that is two separate broadcast channels.” See, e.g., A-1
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`at 4:39-46 (emphasis added). This feature of the alleged invention would not be present in a
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`network where “computer” and “computer process” are used interchangeably – as Plaintiff does
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`– because the failure of a single computer would destroy (not “divide”) the “network” (e.g.,
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`where all of the processes are on a single computer, as Plaintiff’s construction would allow).
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`Plaintiff argues that the specification explains that “computer processes can form a
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`network.” Reply Br. at 8. Indeed, Plaintiff notes that “[t]he broadcast technique overlays the
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`underlying network …. In one embodiment, each computer is connected to four other computers,
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`2 Indeed, Plaintiff has already agreed that “computer” means a physical device – “a device
`capable of processing information to produce a desired result.” See, e.g., D.I. No. 320 (Sep. 29,
`2017 Stipulation) at 2.
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`Case 1:16-cv-00453-RGA Document 366 Filed 11/30/17 Page 16 of 82 PageID #: 27725
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`referred as neighbors. (Actually a process executing on a computer is connected to four other
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`processes executing on this or four other computers.).” Id (citing A-1 at 4:23-30) (emphasis
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`added). However, as discussed, the “broadcast technique” that “overlays the underlying
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`network” does not refer to the physical (or underlying) computer network itself. Tellingly, the
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`language Plaintiff quotes and relies on does not use the term “computer network.” Plaintiff’s
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`references to the term “network” throughout its brief ignore the fact that the terms “network” and
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`“computer network” are different.
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`Furthermore, even if a “broadcast channel” impliedly referred to a “network,” it clearly
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`does not refer to a “computer network.” Plaintiff’s contention – that two or more processes
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`executing on a single computer can form a broadcast channel – does not support Plaintiff’s
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`position that any such processes form a “computer network.” Plaintiff’s construction for
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`computer network plainly contradicts the specification because a single computer cannot form a
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`computer network.
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`Plaintiff attempts to distort the issue of what a computer network is by using “computer
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`network” and “network” interchangeably when referencing the specification. Reply Br. at 9 (“a
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`broadcast channel is a network for broadcasting information”); id (“the Patents teach that a
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`broadcast channel is a network…”). But, as explained above, the term “computer network” is
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`narrower than the term “network.”
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`Indeed, in its discussion of “computer network,” Plaintiff cites a number of other
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`networking terms as if they are all interchangeable with “computer network.”