Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 1 of 17 PageID #: 24087
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELA WARE
`
`Civil Action No. 16-453-RGA
`
`Civil Action No. 16-454-RGA
`
`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., ROCKST AR GAMES, INC., AND 2K
`SPORTS, INC.
`
`Defendants.
`
`Civil Action No. 16-455-RGA
`
`MEMORANDUM OPINION
`
`Philip A. Rovner, Jonathan A. Choa, POTTER ANDERSON & CORROON LLP, Wilmington,
`DE; Paul J. Andre (argued), Lisa Kobialka, James Hannah, Hannah Lee, KRAMER LEVIN
`NAFTALIS & FRANKEL LLP, Menlo Park, CA; Aaron M. Frankel (argued), KRAMER
`LEVIN NAFTALIS & FRANKEL LLP, New York, NY.
`
`

`

`Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 2 of 17 PageID #: 24088
`
`Attorneys for Plaintiff.
`
`Jack B. Blumenfeld, Stephen J. Kraftschik, MORRIS, NICHOLS, ARSHT & TUNNEL LLP,
`Wilmington, DE; Michael A. Tomasulo (argued), Gino Cheng, David K. Lin, Joe S. Netikosol,
`WINSTON & STRAWN LLP, Los Angeles, CA; David P. Enzminger, WINSTON & STRAWN
`LLP, Menlo Park, CA; Dan K. Webb, Kathleen B. Barry, WINSTON & STRAWN LLP,
`Chicago, IL; Krista M. Enns, WINSTON & STRAWN LLP, San Francisco, CA; Michael M.
`Murray(argued), WINSTON & STRAWN LLP, New York, NY; Andrew R. Sommer,
`WINSTON & STRAWN LLP, Washington, DC.
`
`Attorneys for Defendants.
`
`December~~, 2017
`
`2
`
`

`

`Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 3 of 17 PageID #: 24089
`
`Presently before me is the issue of claim construction of multiple terms in U.S. Patent
`
`No. 6,701,344 (the '"344 patent"), U.S. Patent No. 6,714,966 (the "'966 patent"), U.S. Patent
`
`No. 6,829,634 (the '"634 patent"), U.S. Patent No. 6,910,069 (the "'069 patent"), U.S. Patent
`
`No. 6,732,147 (the'" 147 patent"), and U.S. Patent No. 6,920,497 (the "'497 patent"). I have
`
`considered the parties' Joint Claim Construction Brief. (D.I. 321). 1 I issued an Order and
`
`Stipulation Regarding Supplemental Claim Construction Briefing, pursuant to which the parties
`
`address terms 14, 15, 19, 20, and 22. (D.I. 206; D.I. 215). I held oral argument on December 4,
`
`2017. (D.I. 370 ("Tr.")).
`
`I.
`
`LEGAL ST AND ARD
`
`"It is a bedrock principle of patent law that the claims of a patent define the invention to
`
`which the patentee is entitled the right to exclude." Phillips v. A WH Corp., 415 F.3d 1303, 1312
`
`(Fed. Cir. 2005) (en bane) (internal quotation marks omitted). "'[T]here is no magic formula or
`
`catechism for conducting claim construction.' Instead, the court is free to attach the appropriate
`
`weight to appropriate sources 'in light of the statutes and policies that inform patent law.'"
`
`SoftView LLC v. Apple Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4, 2013) (quoting Phillips,
`
`415 F.3d at 1324) (alteration in original). When construing patent claims, a court considers the
`
`literal language of the claim, the patent specification, and the prosecution history. Markman v.
`
`Westview Instruments, Inc., 52 F.3d 967, 977-80 (Fed. Cir. 1995) (en bane), aff'd, 517 U.S. 370
`
`(1996). Of these sources, "the specification is always highly relevant to the claim construction
`
`analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term."
`
`Phillips, 415 F.3d at 1315 (internal quotation marks omitted).
`
`1 Citations to "D.I.
`
`"are to the docket in C.A. No. 16-453 unless otherwise noted.
`
`3
`
`

`

`Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 4 of 17 PageID #: 24090
`
`"[T]he words of a claim are generally given their ordinary and customary meaning ....
`
`[Which is] the meaning that the term would have to a person of ordinary skill in the art in
`
`question at the time of the invention, i.e., as of the effective filing date of the patent application."
`
`Id. at 1312-13 (citations and internal quotation marks omitted). "[T]he ordinary meaning of a
`
`claim term is its meaning to [an] ordinary artisan after reading the entire patent." Id. at 1321
`
`(internal quotation marks omitted). "In some cases, the ordinary meaning of claim language as
`
`understood by a person of skill in the art may be readily apparent even to lay judges, and claim
`
`construction in such cases involves little more than the application of the widely accepted
`
`meaning of commonly understood words." Id. at 1314.
`
`When a court relies solely upon the intrinsic evidence--the patent claims, the
`
`specification, and the prosecution history-the court's construction is a determination oflaw.
`
`See Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015). The court may also
`
`make factual findings based upon consideration of extrinsic evidence, which "consists of all
`
`evidence external to the patent and prosecution history, including expert and inventor testimony,
`
`dictionaries, and learned treatises." Phillips, 415 F.3d at 1317-19. Extrinsic evidence may assist
`
`the court in understanding the underlying technology, the meaning of terms to one skilled in the
`
`art, and how the invention works. Id. Extrinsic evidence, however, is less reliable and less
`
`useful in claim construction than the patent and its prosecution history. Id.
`
`"A claim construction is persuasive, not because it follows a certain rule, but because it
`
`defines terms in the context of the whole patent." Ren is haw PLC v. Marposs Societa 'per
`
`Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows that "a claim interpretation that would
`
`exclude the inventor's device is rarely the correct interpretation." Osram GMBH v. Int 'l Trade
`
`Comm 'n, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (citation omitted).
`
`4
`
`

`

`Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 5 of 17 PageID #: 24091
`
`II.
`
`BACKGROUND
`
`The following claims are the most relevant for the purposes of this Markman.
`
`Claim 11 of the '147 Patent
`
`11. A computer-readable medium containing instructions for controlling
`disconnecting of a computer from another computer, the computer and other
`computer being connected to a broadcast channel, said broadcast channel being
`an m-regular graph where mis at least 3, comprising:
`
`a component that, when the computer decides to disconnect from the other
`computer, the computer sends a disconnect message to the other computer, said
`disconnect message including a list of neighbors of the computer; and
`
`a component that, when the computer receives a disconnect message from another
`computer, the computer broadcasts a connection port search message on the
`broadcast channel to find a computer to which it can connect in order to maintain
`an m-regular graph, said computer to which it can connect being one of the
`neighbors on said list of neighbors.
`
`(D.I. 117-2, Exh. A-3('"147 patent"), claim 11) (emphasis added).
`
`Claim 1 of the '069 Patent
`
`1. A computer-based, non-routing table based, non-switch based method for
`adding a participant to a network of participants, each participant being connected
`to three or more other participants, the method comprising:
`
`identifying a pair of participants of the network that are connected wherein a
`seeking participant contacts a fully connected portal computer, which in turn
`sends an edge connection request to a number of randomly selected neighboring
`participants to which the seeking participant is to connect;
`
`disconnecting the participants of the identified pair from each other; and
`
`connecting each participant of the identified pair of participants to the seeking
`participant.
`
`(D.I. 117-2, Exh. A-5 ("'069 patent"), claim 1) (emphasis added).
`
`Claim 13 of the '344 Patent
`
`13. A distributed game system comprising:
`
`5
`
`

`

`Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 6 of 17 PageID #: 24092
`
`a plurality of broadcast channels, each broadcast channel for playing a game, each of the
`broadcast channels for providing game information related to said game to a plurality of
`participants, each participant having connections to at least three neighbor participants,
`wherein an originating participant sends data to the other participants by sending the data
`through each of its connections to its neighbor participants and wherein each participant
`sends data that it receives from a neighbor participant to its neighbor participants, further
`wherein the network ism-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;
`
`means for identifying a broadcast channel for a game of interest; and
`
`means for connecting to the identified broadcast channel.
`
`(D.I. 117-2, Exh. A-1 ("'344 patent"), claim 1) (emphasis added).
`
`Claim 19 of the '634 Patent
`
`13. A non-routing table based computer-readable medium containing instructions for
`controlling communications of a participant of a broadcast channel within a network, by
`a method comprising:
`
`locating a portal computer;
`
`requesting the located portal computer to provide an indication of neighbor participants
`to which the participant can be connected;
`
`receiving the indications of the neighbor participants; and
`
`establishing a connection between the participant and each of the indicated neighbor
`participants, wherein a connection between the portal computer and the participant is not
`established, wherein a connection between the portal computer and the neighbor
`participants is not established, further wherein the network is m-regular and m-connected,
`where m is the 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.
`
`(D.I. 117-2, Exh. A-4 ("'634 patent"), claim 19) (emphasis added).
`
`III.
`
`TERMS FOR CONSTRUCTION
`
`1. Term 14: "connection" ('344/12, 13; '966/12, 13; '634/19; '069/1, 11, 12; '147/1, 11, 14,
`15; '497/1, 9)
`
`a. Plaintiff's proposed construction: "link"
`
`6
`
`

`

`i
`
`I I
`
`I
`
`f I f l
`
`Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 7 of 17 PageID #: 24093
`
`b. Defendants· proposed construction:
`
`'344, '966, '634, '069: "point-to-point network channel maintained between the unique
`addresses of two participants through which data can be sent and received"
`
`'147, '497: "point-to-point network channel maintained between the unique addresses of
`two computers through which data can be sent and received"
`
`c. Court's construction:
`
`'344, '966, '634, '069: "connection between two participants, with no other participants
`in between, through which data can be sent and received"
`
`'147, '497: "connection between two computers, with no other computers in between,
`through which data can be sent and received"
`
`The parties agree on constructions for the related terms "connections," "connected,"
`
`"connect," "connecting," "interconnections," and "disconnecting." (D.I. 321 at 15). Each of
`
`these agreed-upon constructions uses the term "connection."
`
`The parties agree that "connection" refers to a connection between two participants, with
`
`no other participants in between. (Tr. at 13:22-14:2, 14:24-15:2, 32:16-19). They agree that
`
`"connection" does not encompass an "indirect" connection between two participants, with one or
`
`more other participants in between. (Id.).
`
`Defendants argue that Plaintiff's proposed construction contravenes this shared
`
`understanding. Specifically, Defendants argue "any two computers in a network can be said to
`
`be 'linked' together," regardless of whether or not there is a computer in between. (D.I. 321 at 3,
`
`24). I agree with Defendants. Thus, as a threshold matter, I reject Plaintiff's proposed
`
`construction.
`
`The parties dispute two parts of Defendants' proposed construction. First, they dispute
`
`whether a connection is a "point-to-point network channel." Second, they dispute whether the
`
`connection must be "maintained between the unique addresses of two computers."
`
`7
`
`

`

`Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 8 of 17 PageID #: 24094
`
`As to the first dispute, Defendants argue that a "connection" is a "point to point network
`
`channel." (D.I. 321 at 20). As evidence, Defendants point to the shared specification. (Id. at 22-
`
`23).2
`
`The specification repeatedly refers to a "point-to-point communications network," "point-
`
`to-point network protocols," and "point-to-point connections." (See, e.g., '344 patent at
`
`Abstract, 1 :33-34, 1 :46). In doing so, the specification teaches that "connections" are "point-to-
`
`point." However, "point-to-point" is not itself defined in the patents. Rather, the specification
`
`provides a non-exhaustive list of three kinds of "point-to-point protocols" used by "point-to-
`
`point connections": "UNIX pipes, TCP/IP, and UDP." ('344 patent at 1 :44-46).
`
`"Absent disclaimer or lexicography, the plain meaning of the claim controls." Toshiba
`
`Corp. v. Imation Corp., 681 F.3d 1358, 1369 (Fed. Cir. 2012). Because the specification
`
`provides neither lexicography for "connection" nor any relevant disclaimer, I do not use "point-
`
`to-point" in my construction. Furthermore, the "channel" used in Defendants' proposed
`
`construction is different than the broadcast "channel" in the claims. Thus, so as not to confuse
`
`the jury, I do not include "channel" in my construction, either.
`
`Instead, to clarify "connection" for the jury, I adopt the parties' shared understanding of
`
`the plain meaning of "connection." I construe "connection" to mean "connection between two
`
`[participants I computers], with no other [participants I computers] in between, through which
`
`data can be sent and received."
`
`My construction does not require that a "connection" specifically be a TCP/IP
`
`connection. Thus, my construction is consistent with Plaintiffs argument that dependent claim 8
`
`of the '344 patent, which specifies that "connections are TCP/IP connections," must be
`
`2 The parties agree that the patents share a specification. (D.1. 363 at 10: 14-21 ).
`
`8
`
`

`

`Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 9 of 17 PageID #: 24095
`
`differentiated from independent claim 1, which makes no such limitation. (D.I. 321 at 28-29; Tr.
`
`at 15:17-22).
`
`As to the second dispute, I do not adopt Defendants' "unique addresses" language.
`
`Plaintiff agrees that every computer has a unique address, but argues that connection
`
`protocols are not necessarily based on this unique address. (Tr. at 10:4-7, 10:19-11:8).
`
`Defendants, on the other hand, contend that unique addresses are "the only way" that
`
`connections can "be done." (Tr. at 40:20-41 :2; D.I. 321 at 25). Whether a connection can be
`
`made by some method that does not use unique addresses is not resolved by the intrinsic record.
`
`It is a question of fact, not an issue of claim construction. Accordingly, I do not include "unique
`
`addresses" in my construction.
`
`2. Term 15: "neighbor," "neighbors," "neighboring" ('344/12, 13; '966/12, 13; '634/19, 22;
`'069/1; '147/1, 11)
`
`a. Plaintiff's proposed construction: "computer and/or computer processes that can
`communicate"
`
`b. Defendants' proposed construction:
`
`'344, '966, '634, '069 ("neighbor"): "participant that has agreed to maintain a
`connection"
`
`'344, '966, '634, '069 ("neighbors"): "pair of participants that have agreed to maintain a
`connection"
`
`'14 7 ("neighbor"): "computer that has agreed to maintain a connection"
`
`'147 ("neighbors"): "pair of computers that have agreed to maintain a connection"
`
`"neighboring": "being a neighbor of'
`
`c. Court's construction:
`
`'344, '966, '634, '069 ("neighbor"): "a neighbor of a participant is another participant
`that has a connection to the first participant, with no other participants in between"
`
`9
`
`

`

`Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 10 of 17 PageID #: 24096
`
`'14 7 ("neighbor"): "a neighbor of a computer is another computer that has a connection
`to the first computer, with no other computers in between"
`
`'344, '966, '634, '069 ("neighbors"): "the neighbors of a participant are additional
`participants that each have a connection to the first participant, with no other participants
`in between the first participant and each additional participant"
`
`'147 ("neighbors"): "the neighbors of a computer are additional computers that each have
`a connection to the first computer, with no other computers in between the first computer
`and each additional computer"
`
`"neighboring": "being a neighbor of'
`
`The parties generally agree to the meaning of "neighbors." They agree that in Figure I of
`
`the '344 patent, participants A and E are neighbors, but participants A and B are not neighbors.
`
`(Tr. at 14:24-15:2, 38:20-39:4). Participants A and E are connected (as represented by the line
`
`AE) with no other participant between them. Participants A and B are connected, but only by
`
`lines that go through at least one other participant.
`
`A
`
`B
`
`H
`
`D
`
`F
`
`Fig. I
`
`To capture this understanding, I construe "neighbor" to clarify that a "neighbor of a first
`
`[participant I computer] is a [participant I computer] that has a connection to the first [participant
`
`I computer], with no other [participants I computers] in between." By excluding a pair of
`
`participants, with other participants in between, my construction gives meaning to both
`
`10
`
`

`

`Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 11 of 17 PageID #: 24097
`
`"neighbor" and "connection" and thereby alleviates Defendants' concern that the term
`
`"neighbor" "would have no meaning in a connectionless protocol." (D.I. 321 at 21).
`
`I do not adopt Defendants' proposed construction, which requires that "a pair of
`
`participants ... ha[ve] agreed to maintain a connection." (D.I. 321 at 14) (emphasis added).
`
`The specification teaches a "handshake" procedure whereby a requesting computer sends
`
`out a "request" to form a neighbor connection, which a computer with a connection to fill then
`
`accepts. ('344 patent at 9:36-45; D.I. 321 at 21).
`
`Plaintiff agrees that this "handshake" amounts to an agreement between neighbors to
`
`"form" a connection. (D.I. 321at31). Ultimately, it is true that a connection that is "formed" is
`
`"maintained" for its duration.
`
`However, the specification does not provide any lexicography defining "neighbors" as
`
`requiring an "agree[ment] to maintain" a connection or disclaiming "neighbors" that do not
`
`"agree[] to maintain" a connection. See Toshiba Corp., 681 F.3d at 1369 ("[a]bsent disclaimer
`
`or lexicography, the plain meaning of the claim controls."). As a result, I do not adopt
`
`Defendants' proposed language.
`
`3. Term 19: "thus resulting in a non-complete graph" ('344/12, 13; '966/12, 13; '634/19)
`
`a. Plaintiff's proposed construction: "a graph that is not complete"
`
`b. Defendants' proposed construction: "thus them-regular graph is always non-complete"
`
`c. Court's construction: "thus the graph is configured to maintain a non-complete state"
`
`The parties agree that a "non-complete graph" exists where "not all participants are
`
`connected because each participant is only connected to m participants and the number of
`
`participants is at least 2 greater than m." (D.I. 321 at 37). They disagree as to whether the graph
`
`must "always" be "non-complete." (Id.).
`
`11
`
`

`

`Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 12 of 17 PageID #: 24098
`
`Defendants argue that Plaintiff disavowed networks that are not always incomplete. (DJ.
`
`321 at 39); see Aylus Networks, Inc. v. Apple Inc., 856 F.3d 1353, 1360-61 (Fed. Cir. 2017)
`
`(holding that "statements made by patent owners during an IPR can be considered for
`
`prosecution disclaimer"); see also Omega Eng'g, Inc. v. Raytek Corp., 334 F.3d 1314, 1323
`
`(Fed. Cir. 2003) ("for prosecution disclaimer to attach ... the alleged disavowing actions or
`
`statements made during prosecution must be both clear and unmistakable.").
`
`As evidence, Defendants note that Plaintiff argued to the PT AB that a "key attribute of
`
`the computer network claimed in the '344 patent is that the number of network participants N ...
`
`is always greater than the number of connections m to each participant. . . . In fact, under the
`
`'344 patent claims, N must always be m+2 or greater: N2:m+2. This network topology, where no
`
`node is connected to every other node, is an incomplete graph." (D.I. 120-1, Exh. D-2 at 11; D.I.
`
`321 at 39-40). Similarly, to overcome a reference, Plaintiff argued that "use of an N participant
`
`complete graph" is "antithetical to the claims of the '966 patent" and that "the '966 patent
`
`requires that any complete graph structure be avoided and replaced with an incomplete graph by
`
`adding new nodes and connections thereto." (D.I. 120-1, Exh. D-1 at 20-21).
`
`These arguments are essential to the Patent Owner's argument, and amount to a "clear
`
`and unmistakable" understanding that the claims are directed to networks that are configured to
`
`be non-complete. See Aylus Networks, Inc., 856 F.3d at 1360-61. Plaintiff is bound to this
`
`understanding.
`
`However, Plaintiff argues "there may be times when the network is temporarily not
`
`incomplete," including when the network is in the small regime and when "the number of
`
`internal connections and participants are odd." (D.I. 321 at 37, 40-41).
`
`12
`
`

`

`Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 13 of 17 PageID #: 24099
`
`In response, Defendants offer an alternative construction: "thus them-regular graph is
`
`configured to maintain a non-complete state." (D.I. 377).
`
`Defendants' alternative construction captures Plaintiff's binding argument to the PTAB
`
`by requiring that the claimed networks are configured to maintain a non-complete state. It also
`
`addresses Plaintiff's argument that "there may be times when the network is temporarily not
`
`incomplete" by clarifying that the claims cover a network that is configured to be non-complete
`
`but may have completeness by happenstance. Accordingly, I adopt Defendants' alternative
`
`construction as my own.
`
`However, I do not include "m-regular" in my construction. Each of the claims in which
`
`term 19 appears is explicitly m-regular. Thus, to include "m-regular" in my construction would
`
`be redundant.
`
`4. Term 20: "data" ('344/12, 13; '966/12, 13; '634/22)
`
`a. Plaintiff's proposed construction: "a set of values"
`
`b. Defendants' proposed construction: "the payload inside a network message"
`
`c. Court's construction: plain and ordinary meaning
`
`The term "payload" does not appear anywhere in the patents. Defendants point to
`
`nothing in the claims or specification which provides that "data" must be so limited.
`
`Defendants do note that the claims use "data" to describe what is broadcast, while the
`
`specification refers to "messages" to describe what is broadcast. (D.I. 321 at 47 (citing '344
`
`patent at Abstract)). "Message," argues Defendant, is broader than "data," as a "message" is
`
`transmitted via a "packet," the "data" part of which is a called the "payload." (D.I. 321 at 47).
`
`However, Defendants' proposed language comes only from a treatise, a dictionary definition,
`
`Defendants' expert's declaration, and Plaintiff's expert's use of the word "packet" in a
`
`13
`
`

`

`Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 14 of 17 PageID #: 24100
`
`deposition. (Id. at 3, 47-48). To adopt Defendants' position would require me to read into the
`
`claims, on the basis of the patent's use of "data" and "message," a concept the patent does not
`
`teach.
`
`Furthermore, Defendants note that "each computer sends only the first copy of the
`
`message it gets to its neighbors and disregards subsequently received copies .... " (Tr. at 92: 16-
`
`19). For a computer to know whether a given message is a copy of something it received before,
`
`that computer must "examine the [message's] payload," argue Defendants. (Tr. at 92:22-25).
`
`Taking Defendants' assertion at face value, it would be redundant to read into the claims a
`
`limitation that is inherent to the transmission of data.
`
`For these reasons, I do not include "payload'' in my construction.
`
`On the other hand, Plaintiffs proposed construction for "data" neither defines nor
`
`clarifies the term. Thus, I do not adopt Plaintiffs proposed construction, either.
`
`Instead, I find that "data" needs no construction, as the jury will have no trouble
`
`understanding what "data" refers to. See Toshiba Corp., 681 F.3d at 1369 ("[a]bsent disclaimer
`
`or lexicography, the plain meaning of the claim controls.").
`
`5. Term 22: "broadcast channel(s)" ('344/12, 13, 14; '966/12, 13; '634/19; '147/1, 11, 15,
`16)
`
`a. Plaintiff's proposed construction: "a network for broadcasting information"
`
`b. Defendants' proposed construction:
`
`'344, '966, '634 ("broadcast channel"): "a communications network with a unique
`identifier consisting of interconnected participants where each participant receives all
`data broadcasted on that uniquely identified communications network"
`
`'14 7 ("broadcast channel"): "a communications network with a unique identifier
`consisting of interconnected computers where each computer receives all data
`broadcasted on that uniquely identified communications network"
`
`"broadcast channels": "more than one broadcast channel"
`
`14
`
`

`

`Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 15 of 17 PageID #: 24101
`
`c. Court's construction:
`
`'344, '966, '634 ("broadcast channel"): "communications network consisting of
`interconnected participants where each participant receives all data broadcasted on that
`communications network"
`
`'14 7 ("broadcast channel"): "communications network consisting of interconnected
`computers where each computer receives all data broadcasted on that communications
`network"
`
`"broadcast channels": "more than one broadcast channel"
`
`Defendants' proposed construction for "broadcast channel" clarifies that "broadcasted"
`
`data is received by each participant in the network, whereas non-"broadcasted'' data need not
`
`necessarily go to each participant in the network.
`
`Defendants' position is supported by both the claim language and the specification. It is
`
`not, as Plaintiff argues, "circular, confusing, and unhelpful." (Tr. at 88:2-5).
`
`The language of claim 13 of the '344 patent provides that an "originating participant" on
`
`a "broadcast channel" sends data to all other participants in the network. More specifically, it
`
`provides that "an originating participant sends data to the other participants" in the network by
`
`first "sending the data through each of its connections to it neighbor participants," after which
`
`"each participant sends data that it receives from a neighbor participant to its neighbor
`
`participants." ('344 patent, claim 13; see also '344 patent, claims 12, 14; '966 patent, claims 12,
`
`13) (emphasis added). Moreover, claim 11 of the '147 patent specifically distinguishes a
`
`message a computer "sends" to a single other computer from a message a computer "broadcasts .
`
`. . on the broadcast channel." (' 14 7 patent, claim 11).
`
`The specification teaches that "[t]he broadcasting of a message over the broadcast
`
`channel" is a "multicast." ('344 patent at 4:5-8; D.I. 321 at 48). Multicasting is a term of art
`
`15
`
`I
`
`

`

`Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 16 of 17 PageID #: 24102
`
`which means that each participant on the multicast channel receives the same data. (D .I. 322-1,
`
`Exh. G at if 25).
`
`Thus, because Defendants' proposed construction is both helpful and supported, I adopt it
`
`as my own, with one exception. My construction excludes Defendants' proposed requirement
`
`that the "communications network" has a "unique identifier," because that language is
`
`unsupported.
`
`Defendants argue that, like an AM radio station, a "broadcast channel" must be
`
`identified. (Tr. at 106:24-107:2). Plaintiff admits that as a "matter of science," many broadcast
`
`channels, including those of the accused products, have a unique identifier. (Tr. at 80:7-12).
`
`However, Defendants point to no lexicography, disclaimer, or other support for the
`
`proposition that the "broadcast channels" in these particular claims require a "unique identifier."
`
`See Toshiba Corp., 681 F.3d at 1369 ("[a]bsent disclaimer or lexicography, the plain meaning of
`
`the claim controls."). Instead, Defendants point only to a teaching that "it is possible for a
`
`computer to be connected to multiple broadcast channels that are uniquely identified by channel
`
`type and channel instance" and to embodiments describing networks with unique identifiers.
`
`(D.I. 321at49; '344 patent at 18:2-5, 12:4-9, 29:13-24); see Liebel-Flarsheim Co. v. Medrad,
`
`Inc., 358 F.3d 898, 906 (Fed. Cir. 2004) ("claims of the patent will not be read restrictively
`
`unless the patentee has demonstrated a clear intention to limit the claim scope using words or
`
`expressions of manifest exclusion or restriction"). Accordingly, I do not include "unique
`
`identifier" in my construction.
`
`My construction addresses Defendants' urging that "network" and "broadcast channel"
`
`must have different meanings. (Tr. at 96:4-9; See Andersen Corp. v. Fiber Composites, LLC,
`
`474 F.3d 1361, 1369-70 (Fed. Cir. 2007) ("different words or phrases used in separate claims are
`
`16
`
`

`

`Case 1:16-cv-00455-RGA Document 346 Filed 12/20/17 Page 17 of 17 PageID #: 24103
`
`presumed to indicate that the claims have different meanings and scope")). By defining
`
`"broadcast channel" as a "network" with additional limitations, my construction acknowledges
`
`that "broadcast channel" is different from, and narrower than, "network."
`
`IV.
`
`CONCLUSION
`
`Within five days the parties shall submit a proposed order consistent with this
`
`Memorandum Opinion.
`
`17
`
`