Case 1:16-cv-00455-RGA Document 385 Filed 02/02/18 Page 1 of 5 PageID #: 24674
`
`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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`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.
`
`PLAINTIFF ACCELERATION BAY LLC’S
`MOTION TO CORRECT CLAIM 19 OF THE ‘634 PATENT
`
`
`
`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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`)))))))))))
`
`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.
`
`PLAINTIFF ACCELERATION BAY LLC’S
`MOTION TO CORRECT CLAIM 19 OF THE ‘634 PATENT
`
`
`
`Case 1:16-cv-00455-RGA Document 385 Filed 02/02/18 Page 2 of 5 PageID #: 24675
`
`NATURE AND STAGE OF THE PROCEEDINGS
`
`The Court found Term 24 from Claim 19 of U.S. Patent No. 6,829,634 (“A non-routing
`
`table based computer readable medium containing instructions for controlling communications
`
`of a participant of a broadcast channel within a network”) to be indefinite. The Court held that
`
`“non-routing table based” modified “computer-readable medium,” and not “network,” and that
`
`“non-routing table based computer-readable medium” is “nonsensical.” D.I. 423 at 16-17.
`
`Claim 19, however, contains an obvious error. In view of the Court’s construction,
`
`Acceleration Bay now moves the Court to correct that error by moving the adjective “non-
`
`routing table based” to modify “method.” The corrected Term 24 should read as follows: “A
`
`computer readable medium containing instructions for controlling communications of a
`
`participant of a broadcast channel within a network, by a non-routing table based method
`
`comprising.”1
`
`SUMMARY OF THE FACTS
`
`Term 24 recites “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.” D.I. 423 at 14.
`
`The Court held Term 24 to be indefinite based in-part on the purported agreement
`
`between Acceleration Bay and the Defendants that the phrase “non-routing table based
`
`computer-readable medium” is “nonsensical” as drafted. Id. at 17. As a basis for the Court’s
`
`decision, the Court stated that the patent could not be rewritten to make “non-routing table
`
`based” modify “network.”
`
`1 Counsel for Acceleration Bay made reasonable efforts to reach agreement with Defendants’
`counsel. Defendants do not agree to the relief requested.
`
`
`
`Case 1:16-cv-00455-RGA Document 385 Filed 02/02/18 Page 3 of 5 PageID #: 24676
`
`In the same Opinion, the Court found to be definite similar Term 25 (the preamble of
`
`Claim of U.S. Patent No. 6,910,069), which recites “[a] computer-based, non-routing table
`
`based, non-switch based method for adding a participant to a network of participants.” The
`
`Court concluded that Term 25 did not “fail to inform, with reasonable certainty, those skilled in
`
`the art about the scope of the invention.” (Id.). at *9.
`
`ARGUMENT
`
`Acceleration Bay moves the Court to correct Term 24 to recite “A computer readable
`
`medium containing instructions for controlling communications of a participant of a non-routing
`
`table based broadcast channel.” The correction is limited to moving the adjective “non-routing
`
`table based” from modifying “computer readable medium” to modifying the “method.”
`
`The Court noted in its claim construction order that, for purposes of determining if the
`
`claim as drafted was definite, the Court could not ignore the actual language and “rewrite” the
`
`claim. D.I. 375 at 17. This motion, however, does not ask the Court to ignore the actual
`
`language of the claim for purposes of claim construction. Instead, Acceleration Bay asks the
`
`Court to exercise its authority to correct Claim 19 to fix a clear error based on the intrinsic record
`
`of the ‘634 Patent.
`
`The Federal Circuit confirmed that a district court may correct “obvious” errors in a
`
`patent claim if “(1) the correction is not subject to reasonable debate based on consideration of
`
`the claim language and the specification and (2) the prosecution history does not suggest a
`
`different interpretation of the claims.” CBT Flint Partners, LLC v. Return Path, Inc., 654 F.3d
`
`1353, 1358 (Fed. Cir. 2011) (reversing the district court’s summary judgment of invalidity based
`
`on indefiniteness because the court could have corrected an obvious error within the claim)
`
`(citing Novo Indus., L.P. v. Micro Molds Corp., 350 F.3d 1348, 1354 (Fed. Cir. 2003)
`
`2
`
`
`
`Case 1:16-cv-00455-RGA Document 385 Filed 02/02/18 Page 4 of 5 PageID #: 24677
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`(establishing a two-part test to correct obvious errors in patent claims); Advanced Med. Optics,
`
`Inc. v. Alcon Inc., 361 F. Supp. 2d 370, 384 (D. Del. 2005) (correcting an obvious error under
`
`Novo Indus.). Both factors are present here.
`
`The meaning of Term 24 does not require any “debate.” The Court found it is
`
`nonsensical as drafted, but found definite a very similar preamble that simply located the “non-
`
`routing table based” modifier to make clear it was modifying the nature of the network. The
`
`same meaning can be achieved here simply by moving the phrase to modify “a method.”
`
`The prosecution history of the ‘634 Patent is not to the contrary, and gives no indication
`
`that “non-routing table based” was intended to modify computer readable medium, as opposed to
`
`modifying the nature of the subject network. Indeed, the applicant specifically stated that Claim
`
`19 (which was Claim 44 during prosecution) was amended to cover “a ‘non-routing table based’
`
`method for routing information.” D.I. 118-2, Ex. B-4, ‘634 Patent File History (Response to
`
`Office Action dated February 4, 2004) at Pg. 13. Thus, one of skill in the art reading the intrinsic
`
`record as a whole would understand that the amendment to the computer readable medium was
`
`an obvious error and should be corrected to modify the type of method.
`
`Because the requested correction satisfies the two-part Novo Industries test, the Court can
`
`and should correct the obvious error on the face of Claim 19 of the ‘634 Patent.
`
`CONCLUSION
`
`As discussed above, the Court should correct the preamble of Claim 19 of the ‘634 Patent
`
`to read “A computer readable medium containing instructions for controlling communications of
`
`a participant of a broadcast channel, by a non-routing table based method comprising.”
`
`3
`
`
`
`Case 1:16-cv-00455-RGA Document 385 Filed 02/02/18 Page 5 of 5 PageID #: 24678
`
`POTTER ANDERSON & CORROON LLP
`
`By: /s/ Philip A. Rovner
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff
`Acceleration Bay LLC
`
`OF COUNSEL:
`Paul J. Andre
`Lisa Kobialka
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: February 2, 2018
`5616324
`
`4
`
`
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