Case 1:16-cv-00453-RGA Document 472 Filed 02/16/18 Page 1 of 14 PageID #: 39146
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ACCELERATION BAY LLC,
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`ACTIVISION BLIZZARD, INC.
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`Defendant.
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`ACCELERATION BAY LLC,
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`ELECTRONIC ARTS INC.,
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`Defendant.
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`ACCELERATION BAY LLC,
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`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
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`Plaintiff,
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`Plaintiff,
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`C.A. No. 16-453 (RGA)
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`C.A. No. 16-454 (RGA)
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`C.A. No. 16-455 (RGA)
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`Plaintiff,
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`Defendants.
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`DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO CORRECT CLAIM 19
`OF THE ’634 PATENT
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`Case 1:16-cv-00453-RGA Document 472 Filed 02/16/18 Page 2 of 14 PageID #: 39147
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`I.
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`INTRODUCTION
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`This the second time in less than a month that Plaintiff has advanced a new and previously
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`undisclosed claim construction position to avoid a ruling that Term 24, the preamble of Claim 19
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`of the ‘634 patent, is indefinite. Just last month, Plaintiff argued for the first time that Term 24 is
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`not even a limitation. The Court rejected that argument, specifically admonished Plaintiff’s
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`national counsel for advancing it, and found Term 24 indefinite. D.I. 422; D.I. 423 at 14.
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`Now, Plaintiff offers yet another construction for Term 24, this time under the guise of a
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`Motion to Correct Claim 19 (D.I. 438)1 (“Motion”). The Motion is not supported by any expert
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`testimony and contradicts Plaintiff’s prior five different positions on this term. The Motion should
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`be rejected as untimely, unreasonable, and not meeting the very high standard for judicial
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`correction of a patent claim.
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`This latest position is one of many constructions Plaintiff has offered for Term 24
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`including:
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`1.
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`2.
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`3.
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`4.
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`5.
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`the preamble should have its plain and ordinary meaning. See, e.g., D.I. 117, Ex. 1 at
`76; D.I. 186 at 94;
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`“non-routing table based” modifies the “network” and means that the network does not
`“need” routing tables to “move messages between participants.” See, e.g., D.I. 366 at
`33;
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`“non-routing table” modifies network and means that the network “does not use routing
`tables.” See, e.g., Exh. C (December 18, 2017 Markman transcript) at 8:3-9;
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`“non-routing table based” modifies the entire preamble beginning with “computer
`readable medium.” See Exh. A (Nov. 21, 2017 Markman Transcript) at 91:1-92:25);
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`the preamble is not actually limiting. D.I. 417 at 1-2; and
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`1 All citations to docket items refer to C.A. No. 16-453 unless otherwise stated.
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`Case 1:16-cv-00453-RGA Document 472 Filed 02/16/18 Page 3 of 14 PageID #: 39148
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`6.
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`via the present motion, the placement of “non-routing table based” in the claim is an
`“obvious” error (albeit one Plaintiff never even mentioned during the lengthy Markman
`process) and should modify the “method.” See D.I. 438 at 2.2
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`The circumstances of this newest position are reminiscent of Plaintiff’s fifth position,
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`where Plaintiff argued that the preamble was not limiting after agreeing on the record to a
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`construction that specifically stated the preamble was limiting. The Court rejected Plaintiff’s
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`“preamble is not limiting” position out of hand, finding it to be unreasonable as well as waived.
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`See D.I. 423 (“Plaintiff waived the issue, and the preamble is limiting.”); D.I. 422 (questioning
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`reasonableness of Plaintiff’s position). Plaintiff’s latest attempt to salvage this claim is similarly
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`unreasonable and untimely, and therefore should be deemed waived.
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`Even if not waived, Plaintiff’s position should be rejected. The standard for judicial
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`correction is that the supposed error is so obvious that the proposed correction is beyond
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`reasonable debate. Plaintiff now says that “non-routing table based” modifies the word “method.”
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`Yet, up until now, Plaintiff’s principal position was that the phrase “non-routing table based”
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`modified a different part of the claim altogether, the “network.” See, e.g., D.I. 366 at 33, 58. For
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`example, at the December 18, 2017 hearing, Plaintiff forcefully argued that the claim was “clear”
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`on that point. Exh. C (December 18, 2017 Markman transcript) at 67:19-68:4 (“And when you
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`read it in the context of the claim itself and you read the entire phrase, it's clear that it's talking
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`about a non-routing table-based network. It doesn't use routing tables as part of the overlay
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`network. So I think it becomes very clear when you read it in context.”). Thus, even if the Court
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`were to accept Plaintiff’s unsupported assertion that there was a drafting “error” for claim 19 and
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`endeavor to rewrite the claim to fix the error, it is not at all “obvious” how claim 19 should be
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`2 Plaintiff’s prior positions are illustrated in the accompanying chart. See Exh. B.
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`Case 1:16-cv-00453-RGA Document 472 Filed 02/16/18 Page 4 of 14 PageID #: 39149
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`corrected. At the very least, it is open to reasonable debate whether “non-routing table based”
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`should define the network (as Plaintiff argued during Markman) or define the method (as Plaintiff
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`argues now).
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`If Plaintiff reasonably thought that the claim included an obvious error that could be
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`corrected by simply moving the phrase “non-routing table based” to precede “method,” it should
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`have advanced that position earlier, and it also should not have argued and agreed that it modified a
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`different part of the claim. Yet, Plaintiff proceeded with nearly 12 months of claim construction on
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`this issue and never once argued that there was an error in claim drafting, let alone an error that
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`was “obvious” to correct. This Court has already held that Term 24 is indefinite and that the Court
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`“cannot rewrite the patent” to correct the indefiniteness. D.I. 423 at 14, 17. That should be the end
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`of the inquiry.
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`II.
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`ARGUMENT
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`A. A District Court May Only Correct Obvious Errors and Only When There Is
`No Reasonable Debate About Claim Scope
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` “district court may correct an obvious error in a patent claim… ‘only if (1) the correction
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` A
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`is not subject to reasonable debate based on consideration of the claim language and the
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`specification and (2) the prosecution history does not suggest a different interpretation of the
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`claims.’” CBT Flint Partners, LLC v. Return Path, Inc., 654 F.3d 1353, 1358 (Fed. Cir. 2011)
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`(citing Novo Indus., L.P. v. Micro Molds Corp., 350 F.3d 1348, 1357 (Fed. Cir. 2003)). In CBT
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`Flint Partners, the Federal Circuit found that the claim contained an obvious error, which was
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`“confirmed by the fact that a person of skill in the art would find the claim to have the same
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`scope and meaning under each of the three possible [corrections] that the court found
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`reasonable.” Id. at 1358-59 (emphasis added). In Novo Indus., however, the Federal Circuit
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`Case 1:16-cv-00453-RGA Document 472 Filed 02/16/18 Page 5 of 14 PageID #: 39150
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`reversed a correction by the district court which merely changed the word “a” to “and” because
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`other possibilities for correction existed. Novo Indus., 350 F.3d at 1357.
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`As a general matter, the Federal Circuit has made it clear that “[c]ourts do not rewrite
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`claims; instead, [they] give effect to the terms chosen by the patentee.” K-2 Corp. v. Salomon
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`S.A., 191 F.3d 1356 (Fed. Cir. 1999); see also Chef Am., Inc. v. Lamb-Weston, Inc., 358 F.3d
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`1371, 1374 (Fed. Cir. 2004) (“This court, however, repeatedly and consistently has recognized
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`that courts may not redraft claims, whether to make them operable or to sustain their validity.”).
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`Indeed, judicial correction of a patent has been called a “nearly impossible standard.” LG Elecs.,
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`Inc. v. Quanta Computer Inc., 566 F. Supp.2d 910, 913 (W.D. Wis.2008); see also Smartflash
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`LLC v. Apple Inc., 77 F. Supp. 3d 535, 561 (E.D. Texas 2014) (court refused to correct an alleged
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`error “[b]ecause the purported error is more than a misspelling or a missing letter.”).
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` Furthermore, even in the case of an obvious error, correction is precluded if the
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`appropriate correction may be subject to reasonable debate. See, e.g., Fargo Electronics, Inc. v.
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`Iris, Ltd., Inc., 287 Fed. Appx. 96, 99-101 (2008) (declining to correct claims where different
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`reasonable ways to correct the error result in different claim scope.). For example, in Magnetar
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`Technologies Corp. v. Six Flags Theme Parks, Inc., Judge Stark found an obvious error in the
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`claim language, noting “’said wheels,’ ‘said rails,’ or ‘said track’ are plausible substitutions for
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`the erroneous recital of ‘said tracks.’” 61 F. Supp. 3d 437, 442-43 (D. Del. 2014). But the Court
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`refused to exercise its narrow discretion to redraft the claim because those different corrections
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`left the “scope of the claim subject to reasonable debate.” Id.
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`The standard for correction is a high bar because patent claims are not merely intended to
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`grant rights to a patentee, but also to inform the public as to the boundaries of those rights. See,
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`e.g., Exh. D (D. Del. Parallel Networks Opinion) at 7 (noting that “it is important to remember that
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`Case 1:16-cv-00453-RGA Document 472 Filed 02/16/18 Page 6 of 14 PageID #: 39151
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`the claims and specification of a patent serve an important public notice function, apprising others
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`of what is available to them.”). The correction of anything other than straightforward and obvious
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`errors would run afoul of this public notice function. Id.
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`B. Plaintiff Has Not Even Shown That There Is An Error In Claim 19
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`Plaintiff has provided no evidence, or even argument, that there is a drafting error
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`contained within claim 19, let alone an “obvious” error. See D.I. 438 at 2. The mere fact that the
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`Court found the claim, as written, to be nonsensical does not mean that there was an error in the
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`drafting of the claim. All indications are that the applicant intentionally wrote the claim to recite
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`a “non-routing table based computer readable medium.” The claims pending at the time when
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`the “non-routing table based” limitation was added included claim 1, directed to a “non-routing
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`table based computer network,” claim 13, directed to a “non-routing table based component,”
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`claims 19, 28 and 36, directed to a “non-routing table based broadcast channel,” and claim 44
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`(patent claim 19), directed to a “non-routing table based computer readable medium.” See, e.g.,
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`B-4 (’634 File History) May 4, 2004 Amendment at 6-12. Thus, applicant seems to have quite
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`deliberately placed “non-routing table based” as a modifier to various nouns in the preambles of
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`the pending claims. Id. The fact that one of these choices has resulted in the invalidation of the
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`claim as being indefinite does not evidence an error in the drafting.
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`Plaintiff’s utter failure to bring this “obvious” error to the attention of the Court earlier in
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`the case is even more telling. As described below, Plaintiff took a variety of positions regarding
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`the meaning of Term 24, yet never once indicated that there was an error that should be
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`corrected.
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`Case 1:16-cv-00453-RGA Document 472 Filed 02/16/18 Page 7 of 14 PageID #: 39152
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`C. Even If There Was an Error, There Is a Reasonable Debate About Claim
`Scope, Precluding Correction
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`Even if the Court concludes that there was an error in the drafting of claim 19, that error
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`cannot be corrected in this forum. Here, as in Magnetar, there are multiple ways the indefinite
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`claim language could be corrected, each resulting in different claim scope entirely. Exh. E
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`(Declaration of Dr. John P.J. Kelly) at 1-2. In fact, Plaintiff has made several contradictory
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`arguments regarding the scope of this limitation, particularly with respect to what “non-routing
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`table based” modifies.
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`Plaintiff initially took the position that the preamble should be given its plain and ordinary
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`meaning and that a person of ordinary skill in the art would understand that “the nature of the
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`network is that it is non-routing table based.” D.I. 186 at 94; see also Exh. B. Plaintiff next put
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`forward a construction of Term 24 that focused on the network, namely that the “instructions for
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`controlling communications [are] within a network that does not need routing tables….” D.I. 366
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`at 33 (emphasis added). Plaintiff similarly argued in its Markman briefing that “a POSITA would
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`understand that … the nature of the network is that it is non-routing table based.” Id at 54
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`(emphasis added). Plaintiff’s expert also argued that “non-routing table based” modified the
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`network itself, even arguing that “non-routing table based networks are well known.”
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`Medvidovic Decl. in support of Opening Br. ¶¶ 124, 126. No “obvious” error was mentioned
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`during the Markman briefing, and no indication provided that “non-routing table based” defined
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`the method, as opposed to the network.
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`At the Phase II Markman hearing, Plaintiff again never mentioned the alleged “obvious”
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`error, instead urging the Court to conclude that “non-routing table based” did, in fact, modify
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`“computer readable medium” and, indirectly, the network itself:
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`Case 1:16-cv-00453-RGA Document 472 Filed 02/16/18 Page 8 of 14 PageID #: 39153
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`The second, just from a technical point that I wanted to make is, your Honor
`pointed to the now non-routing table based computer media. And I absolutely
`agree that that is a modifier to the computer-readable medium limitation.
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`And in the briefing that we have coming up, we do specify that the non-routing
`table based does modify the computer-readable medium, because it controls what
`type of network that is.
`…
`You're not going to have a carrier wave that is a non-routing table based. And it
`just doesn't make any sense. From just addressing that point, I think your Honor
`hit the nail on the head saying that that is also a modifier for the computer-
`readable medium.
`…
`THE COURT: -- but a non-routing table based, that certainly seems like it's
`modifying computer-readable medium, not the containing clause.
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`MR. HANNAH: Correct. It's modifying the computer-readable medium. And then
`that specifies what type of network that is, if you follow the clause. But that's what
`this claim is claiming. It's claiming a non-routing table based computer-readable
`medium and what that does.
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`See Exh. A (Nov. 21, 2017 Markman Transcript) at 91:1-92:25 (emphasis added). Thus, during
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`the lengthy Markman process, Plaintiff argued forcefully that “non-routing table based” modifies
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`“computer readable medium” and that the Court should interpret that phrase to be an indication
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`of “what type of network that is.” Id. (emphasis added).
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`Then, at the December 2017 Markman Hearing, Plaintiff accepted Defendants’ proposed
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`construction, namely: that the preamble means “A computer-readable medium containing
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`instructions that control communications of a participant of a broadcast channel within a network
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`that does not use routing table(s).” Exh. C (Dec. 18, 2017 Markman transcript) at 8:3-9. Then, in
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`early January 2018, Plaintiff advanced yet another construction: that the preamble was not
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`limiting at all. D.I. 417 at 1-2.
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`Having failed to convince the Court at Markman that the claim is definite or, after
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`Markman, that the preamble is not limiting, Plaintiff now pivots to an interpretation of the claim
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`language that “non-routing table based” was really an obvious error all along, and clearly should
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`Case 1:16-cv-00453-RGA Document 472 Filed 02/16/18 Page 9 of 14 PageID #: 39154
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`modify “method.” D.I. 438 at 2. But the various possible interpretations of this claim produce
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`markedly different claim scope and meaning, precluding correction by the Court. See Fargo
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`Electronics, Inc., 287 Fed.Appx. at 99-101.
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`First, the Court agreed with one of Plaintiff’s earlier positions that “non-routing table
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`based” modified “computer readable medium,” which resulted in the ruling of indefiniteness. D.I.
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`423 at 14. If Plaintiff thought that the modification of “computer readable medium” was an
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`“obvious” error, it should have said so at the Markman hearing, instead of urging the Court to find
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`that “non-routing table based” modified the entire “computer readable medium” limitation. Exh. A
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`at 91:1-92:25. The fact that Plaintiff had the epiphany that “non-routing table based” should
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`“obviously” be corrected to modify “method” only after it lost at Markman and its claim was found
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`invalid should, by itself, establish that the correction to modify “method” is anything other
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`than “obvious.”
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`Second, even assuming that there is some error in the claim and that “non-routing table
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`based” should be moved such that it does not modify “computer readable medium,” there is at least
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`a “reasonable debate” about whether “non-routing table based” should modify “network” or
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`“method,” leaving the scope of the claim in question. Magnetar Technologies Corp., 61
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`F.Supp.3d at 442-43. If “non-routing table based” modifies “network,” i.e., if it describes “what
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`type of network that is” as Plaintiff argued at Markman (Exh. A at 91:1-92:25), then the claim
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`would be limited to networks that do not employ routing tables. Exh. E at 1-2.
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`If the claim is rewritten such that “non-routing table based” modifies “method” as Plaintiff
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`now urges, however, then the claim would be more broadly applicable to networks that include
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`routing tables, as long as the method itself does not employ such routing tables. Exh. E at 1-2. In
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`other words, there is a substantial difference in scope between the two possible corrections to the
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`Case 1:16-cv-00453-RGA Document 472 Filed 02/16/18 Page 10 of 14 PageID #: 39155
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`claim. It is clearly a broader scope if “non-routing table based” merely modifies a method used
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`within the network as opposed to the entire network. Id. And Plaintiff cannot credibly argue there
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`is not a reasonable debate about whether “non-routing table based” could be interpreted to modify
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`network as opposed to method, after having repeatedly argued for this very interpretation.3
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`Plaintiff argues that Term 24 is “similar” to Term 25, which addresses the preamble of
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`claim 1 of U.S. Patent No. 6,910,069, which was not found indefinite. D.I. 438 at 3. However,
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`there is no debate about what “non-routing table based” modifies in Term 25—the plain language
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`of that claim is directed to a “non-routing table based, non-switch based method.” ’069 Patent at
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`cl. 1. Furthermore, an error that needs to be resolved by looking to allegedly similar claims in an
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`entirely different patent would be one that “does not fall within the ambit of the district court’s
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`authority, for the nature of the error is not apparent from the face of the patent.” Novo Indus., 350
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`F.3d at 1357. Finally, there is no reason to assume that these different claims, from different
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`patents, should be interpreted to have the same scope. See, e.g., Smartflash LLC v. Apple Inc., 77
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`F.Supp.3d 535, 561 (2014) (refusing to correct an indefinite claim under the Novo test by adopting
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`language from another claim because the intent may be for some claims to have narrower scope
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`than others and as such, the Court cannot know what correction is appropriate).
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`Plaintiff’s arguments about the file history are also unavailing. The District Court can
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`rely on the file history in determining how to correct an error, but the “nature of the error” must
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`3 For example, Plaintiff argued that “Term 24 is definite in reciting a ‘non-routing table based
`computer-readable medium,’ and a POSA would understand that, when this claim is read as a
`whole and in the context of the specifications, the term makes clear that the computer-readable
`medium contains “instructions for controlling communications within a network,” and that the
`nature of the network is that it is non-routing table based. … Similarly, a POSA would
`understand Term 25 to require a network that is not based on routing tables or switch-based
`methods. See D.I. 366 (Phase 3 Joint Br.) at 34-35 (citing Medvidović Decl., ¶¶ 23-25)
`(emphasis added and internal citations omitted).
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`Case 1:16-cv-00453-RGA Document 472 Filed 02/16/18 Page 11 of 14 PageID #: 39156
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`be obvious “from the face of the patent.” Novo Indus., 350 F.3d at 1357 (“The present case does
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`not fall within the ambit of the district court’s authority, for the nature of the error is not apparent
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`from the face of the patent.”). As previously discussed, the “error” here is not apparent from the
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`face of the patent.
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`Furthermore, even if considered, Plaintiff’s file history argument undercuts its position
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`by arguing that the “prosecution history of the ’634 Patent is not to the contrary, and gives no
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`indication that ‘non-routing table based’ was intended to modify computer readable medium, as
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`opposed to modifying the nature of the subject network.” D.I. 438 at 3 (emphasis added). As
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`noted, there is a substantial difference in claim scope if “non-routing table based” modifies the
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`“network” as opposed to the “method” implemented on the network. Also, the portion of the file
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`history relied upon by Plaintiff falls far short of resolving any uncertainty about the scope of
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`claim 19. The full quote from the page cited by Plaintiff is: “In other words, claims 1, 13, 19, 28,
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`36, and 44 has [sic] been amended to recite, among other limitations, a ‘non-routing table based’
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`method for routing information.” B-4 (’634 File History) May 4, 2004 Amendment at 13. The
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`various claims being referred to by applicant include claim 1, directed to a “non-routing table
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`based computer network,” claim 13, directed to a “non-routing table based component,” claims
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`19, 28 and 36, directed to a “non-routing table based broadcast channel,” and claim 44 (patent
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`claim 19), directed to a “non-routing table based computer readable medium.” Id at 6-12. These
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`claims are clearly different in important respects, and applicant’s general statement that, “among
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`other limitations,” there is a non-routing table based method included in these claims, cannot
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`reasonably be viewed as a definitive statement regarding the preamble of one of these claims.
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`Thus, this single sentence from the file history does nothing to resolve the issue regarding the
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`scope of claim 19.
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`Case 1:16-cv-00453-RGA Document 472 Filed 02/16/18 Page 12 of 14 PageID #: 39157
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`III. CONCLUSION
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`Plaintiff’s shifting positions on the meaning of Term 24 make it clear that there is no
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`“obvious” error that can be properly corrected by the Court. Further, even if there was an error that
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`warranted correction, there is reasonable debate as to how claim 19 should be amended, with
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`different scope depending on what “non-routing table based” modifies, i.e., “network” or
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`“method.” In such a situation, it is not appropriate to redraft the claim in the district court. See
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`Novo Indus., L.P. at 1357. Plaintiff’s motion to correct the preamble of Claim 19 of the ’634
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`Patent should be denied.
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`
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`OF COUNSEL:
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`David P. Enzminger
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`
`
`/s/ Stephen J. Kraftschik
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`Attorneys for Defendants
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`Case 1:16-cv-00453-RGA Document 472 Filed 02/16/18 Page 13 of 14 PageID #: 39158
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`Michael M. Murray
`Anup K. Misra
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`
`Andrew R. Sommer
`Thomas M. Dunham
`Michael Woods
`Paul N. Harold
`Joseph C. Masullo
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`February 16, 2018
`11666859
`
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`Case 1:16-cv-00453-RGA Document 472 Filed 02/16/18 Page 14 of 14 PageID #: 39159
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`CERTIFICATE OF SERVICE
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`I hereby certify that on February 16, 2018, I caused the foregoing to be
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`electronically filed with the Clerk of the Court using CM/ECF, which will send notification of
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`such filing to all registered participants.
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`I further certify that I caused copies of the foregoing document to be served on
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`February 16, 2018, upon the following in the manner indicated:
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`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
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`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`Greg Proctor, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
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`Aaron M. Frankel, Esquire
`Marcus A. Colucci, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Attorneys for Plaintiff
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`/s/ Stephen J. Kraftschik
`Stephen J. Kraftschik (#5623)
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`- 13 -
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