Case 1:16-cv-00453-RGA Document 473 Filed 02/23/18 Page 1 of 9 PageID #: 39160
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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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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`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.,
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`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 REPLY BRIEF IN SUPPORT OF ITS
`MOTION TO CORRECT CLAIM 19 OF THE ‘634 PATENT
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`

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`Case 1:16-cv-00453-RGA Document 473 Filed 02/23/18 Page 2 of 9 PageID #: 39161
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`INTRODUCTION
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`The Court should grant the instant Motion because the intrinsic record confirms that
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`Claim 19 contains an obvious typographical error. Claim 19, as written, provides for a “non-
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`routing table based computer readable medium.” D.I. 117-2, Ex. A-4 (‘634 Patent) at Claim 19.
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`This is an obvious typographical error as the Applicant explicitly stated during prosecution that
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`Claim 19 was supposed to be amended to cover a “’non-routing table based’ method for routing
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`information. D.I. 118-2, Ex. B-4, ‘634 Patent File History (Response to Office Action dated
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`February 4, 2004) at Pg. 13. Because the error is clear on its face, the Court should correct
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`Claim 19 by moving the term "non-routing table based" to be placed directly before the term
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`“method” in the preamble in order to be consistent with the statements made in the prosecution
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`history record.
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`In addition to the prosecution history, the specification, as part of the intrinsic record,
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`also makes clear that Claim 19 should be corrected in the manner proposed by Acceleration Bay
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`because it supports the notion that Claim 19 was meant to cover a “non-routing table based
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`method,” not a non-routing table computer readable medium. See, e.g., D.I. 117-2, Ex. A-4
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`(‘634 Patent) at 2:45-52. For instance, the opening paragraph of the “Summary” section of the
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`specification makes clear that the intended meaning of Claim 19 provides a method for moving
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`data through the network that is not based on routing tables. Id.
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`Moreover, Acceleration Bay’s proposed correction provides consistency to the Court’s
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`current interpretation of the claims in the instant case. In particular, Claim 1 of the ‘069 Patent
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`covers “a computer-based, non-routing table based, non-switch based method for adding a
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`participant to a network of participants.” D.I. 117-2, Ex. A-5 (‘069 Patent) at Claim 1. As such,
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`there is no reason for the Court to treat terms that are parallel in nature any differently.
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`

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`Case 1:16-cv-00453-RGA Document 473 Filed 02/23/18 Page 3 of 9 PageID #: 39162
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`Furthermore, rather than addressing the statements made in the prosecution history,
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`Defendants’ response focuses on non-sequiturs and contains conclusory arguments that do not
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`address the merits of the instant Motion. However, when the evidence is fully considered, it
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`becomes readily apparent that Claim 19 contains a drafting error that the Court can correct.
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`Acceleration Bay’s Motion should, therefore, be granted.
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`ARGUMENT
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`I. Acceleration Bay Moves To Correct Term 24, Not For Reconsideration Of The Prior
`Construction.
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`Contrary to the Defendants’ assertions, there is nothing inconsistent with Acceleration
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`Bay’s Motion. D.I. 472 at 1-3. Acceleration Bay initially proposed that Term 24 in Claim 19 be
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`given its plain and ordinary meaning. D.I. 366 at 34. Subsequently, the Court ordered that
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`Acceleration Bay provide a construction for the term. D.I. 206. Acceleration Bay complied with
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`the Court’s Order and provided its construction. Then, in an effort to minimize the disputes
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`before the Court, Acceleration Bay agreed to the Defendants’ proposed claim construction of
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`Term 24 during the claim construction hearing because it was consistent with the plain and
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`ordinary meaning of the term.1 D.I. at 14. Following the hearing, the Court held that Claim 19
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`was indefinite as drafted and did not provide a construction for the term. D.I. 423 at 17. Based
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`on the Court’s ruling that claim construction was not the appropriate vehicle to correct the claim
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`as written, Acceleration Bay filed the instant motion to correct the typographical error under the
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`Court’s inherent power to correct such obvious errors, particularly in light of the prosecution
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`1 Notably, the fact that Defendants provided a construction for the term that is consistent with the
`plain and ordinary meaning highlights that the term contains an obvious drafting error, and that
`the claim is understandable when read in light of the intrinsic record as a whole.
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`2
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`

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`Case 1:16-cv-00453-RGA Document 473 Filed 02/23/18 Page 4 of 9 PageID #: 39163
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`history. Thus, Acceleration Bay’s position has not waivered that it is readily understood by
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`those of skill in the art in light of the intrinsic record.
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`Defendants’ attempt to frame the Motion as another claim construction dispute is a red
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`herring. The instant Motion requests the Court to correct Term 24 rather than give it a different
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`construction as it is drafted. The only “change” set forth by Acceleration Bay in this respect has
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`been where to move the “non-routing table based” modifier in the preamble of Claim 19. This
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`perceived “change” in no way alters the significance of the modifier because the intent behind
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`the use of the modifier has been consistently preserved by Acceleration Bay throughout case
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`proceedings.
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`For example, as Acceleration Bay proposed during claim construction proceedings, Term
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`24 should receive its “plain and ordinary” meaning because one skilled in the art would
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`recognize that Term 24 makes clear that (1) the computer-readable medium contains instructions
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`for controlling communications within a network and (2) the nature of the network is that it is
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`non-routing table based. D.I. 366 (Group III Claim Construction) at 34, (“Acceleration Bay
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`proposes constructions that are consistent with the specifications and their plain and ordinary
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`meaning”) (citing D.I. 367-1 (Medvidović Decl.), ¶ 20); see also id. at 55-57. Indeed, the
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`intention behind the use of the modifier “non-routing table based” was also emphasized in
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`Acceleration Bay’s claim construction brief when Acceleration Bay argued that “read as a whole
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`and in the context of the specifications, the term makes clear that the computer-readable medium
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`contains ‘instructions for controlling communications within a network’ and that the nature of
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`the network is that it is non-routing table based.” See, e.g., D.I. 366 at 34-35. In fact, as pointed
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`out by Acceleration Bay in the same excerpt, “[d]efendants had no trouble understanding this
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`limitation or arguing (incorrectly) that it is found in the prior art.” Id. Furthermore, during
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`3
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`

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`Case 1:16-cv-00453-RGA Document 473 Filed 02/23/18 Page 5 of 9 PageID #: 39164
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`Markman hearings, Acceleration Bay pointed out that its position with regards to Term 24 was
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`maintained despite its agreement with the Defendants regarding their proposed construction.
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`(Mr. Hannah: “I say I agree to the construction. I’m not agreeing to the positions that they’re
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`taking.”). Exhibit 1 attached hereto, 12/18/17 Markman Tr. at 8:25-9:2.
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` Thus, given that (1) Acceleration Bay never deviated throughout the case proceedings
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`from the intent behind Term 24 and (2) a non-routing table-based network is the same as a
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`network that does not use a routing-table based method, there are no inconsistencies between
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`Acceleration Bay’s prescribed correction and any of Acceleration Bay’s previous claim
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`constructions.
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`II. The Court Should Correct Term 24 Because The Error In The Preamble Is Obvious
`In View Of The Intrinsic Record.
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`Acceleration Bay’s proposed correction meets the standard for judicial correction. The
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`correction is not subject to any form of reasonable debate because the intrinsic evidence clearly
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`establishes the intended meaning of Claim 19.2 Defendants’ opposition is not to the contrary.
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`1. The File History In the Intrinsic Record Demonstrates An Obvious Error.
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`Defendants fail to rebut the fact that the prosecution history makes clear that Claim 19
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`was meant to cover a “non-routing table based method,” not a non-routing table computer
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`readable medium. The claim language, written description, and patent prosecution history form
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`2 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, 1357 (Fed. Cir. 2003)
`(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.).
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`4
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`Case 1:16-cv-00453-RGA Document 473 Filed 02/23/18 Page 6 of 9 PageID #: 39165
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`the intrinsic record, which is the most significant evidence when determining the proper meaning
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`of a disputed claim limitation. See, e.g., Finjan, Inc. v. Blue Coat Sys., Inc., No. 13-cv-03999-
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`BLF (“Finjan”), 2014 WL 5361976, at *2 (N.D. Cal. Oct. 20, 2014) (correcting a typographical
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`error apparent from the file history of the patent based on a person of ordinary skill in the art
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`recognizing the error after review of the file history). Similar to Finjan, a person of ordinary
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`skill in the art reading the file history of the ‘634 Patent would quickly recognize the inadvertent
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`typographical error in the instant case. In a response to an Office Action issued during
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`prosecution of the ‘634 Patent, the Applicant expressly stated that the amendment was intended
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`to disclose a “non-routing table based” method:
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`McCanne fails to disclose a non-routing table based method for
`routing information. Independent claims 1, 13, 19, 28, 36, and 44
`have been amended to clarify the inherent language of previously
`pending claims 1, 13, 19, 28, 36, and 44. In other words, claims 1,
`13, 19, 28, 36, and 44 has [sic] been amended to recite, among
`other limitations, a “non-routing table based” method for routing
`information. McCanne fails to disclose such a method for
`routing information. For at least this reason, claims 1, 13, 19, 28,
`36, and 44 are patentable over McCanne.
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`D.I. 118-2, Ex. B-4, ‘634 Patent File History (Response to Office Action dated February 4, 2004)
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`at Pg. 13 (emphasis added). This excerpt demonstrates that Term 24 includes a typographical
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`error because the Applicant explicitly referred to McCanne’s failure to disclose a non-routing
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`table based method for routing information as a basis for establishing the patentability of Claim
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`19, yet modified the “computer-readable medium” term with “non-routing table based” instead
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`of the term “method.”
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`2. The Specification In the Intrinsic Record Demonstrates An Obvious Error.
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`Defendants also fail to grapple with the specification which similarly makes clear that
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`Claim 19 was meant to cover a “non-routing table based method,” not a non-routing table
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`5
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`

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`Case 1:16-cv-00453-RGA Document 473 Filed 02/23/18 Page 7 of 9 PageID #: 39166
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`computer readable medium. For instance, one does not need to look any further than the opening
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`paragraph of the “Summary” section of the specification to confirm the intended meaning of
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`Term 24:
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`the
`SUMMARY OF THE INVENTION: Embodiments of
`invention deal with a non-routing table based method for
`broadcasting messages in a network. More specifically, a network
`in which each participant has at least three neighbor participants
`broadcasts data through each of its connections to neighbor
`participants, which in turn send the data that it receives to its other
`neighbor participants. The data is numbered sequentially so that
`data that is received out of order can be queued and rearranged.
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`D.I. 117-2, Ex. A-4 (‘634 Patent) at 2:45-52 (emphasis added).
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`This excerpt from the specification alone clearly establishes the Applicant’s intent that the ‘634
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`Patent provides a method for moving data through the network that is not based on routing
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`tables. Thus, as demonstrated by Acceleration Bay, both the specification and file history of the
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`‘634 Patent provide support from the intrinsic record for Acceleration Bay’s proposed correction.
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`III. The Error In The Preamble Of Claim 19 Is Even More Obvious When Viewed With
`Other Independent Claims in the ‘634 Patent.
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`Defendants incorrectly dismiss the significance of related claims. As illustrated in the
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`table below, when the preamble of Claim 19 is viewed in parallel with the preamble of other
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`independent claims of the ‘634 Patent, the placement of the term “non-routing table based”
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`directly before the term “computer-readable medium” is confirmed as erroneous. This
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`comparison highlights the asymmetrical nature of Term 24 because “non-routing table based”
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`should clearly modify the term “method” rather than “computer-readable medium.”
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`Claim 1 A non-routing table based computer network having…
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`Claim 10 A non-routing table based broadcast channel for participants, comprising:
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`6
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`Case 1:16-cv-00453-RGA Document 473 Filed 02/23/18 Page 8 of 9 PageID #: 39167
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`Claim 19
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`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:
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`Acceleration Bay’s proposed correction to Term 24 allows the Court to remedy this error
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`by simply moving the term “non-routing table based” to be placed directly before the term
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`“method” in the preamble. Placing the term “non-routing table based” before “network,” as
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`suggested by the Defendants, is completely arbitrary. See, e.g., D.I. 472 at 8-9. Defendants
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`failed to provide the Court with support in the intrinsic record to make their alleged “correction”
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`credible.
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`IV. The Court Should Correct Term 24 Based On Obvious Error Because The Court
`Has Already Interpreted Similar Terms That Have Been Held as Definite.
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`Defendants’ opposition also ignores that Acceleration Bay’s proposed correction
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`provides consistency to the Court’s interpretation of the claims in the instant case. For instance,
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`as conceded by Defendants, similar Term 25 uses essentially the same “non-routing table based
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`method” phrase that Acceleration Bay seeks as a correction for Term 24. D.I. 472 at 9. Indeed,
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`the Court provided a detailed basis as to why Term 25 should not be deemed “indefinite,” despite
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`including essentially the same phrasing. D.I. 423 at 18-19. Defendants do not identify any
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`reason for the Court to treat Term 24 any differently than Term 25.
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`CONCLUSION
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`For at least these reasons, Acceleration Bay’s motion to correct the preamble of Claim 19
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`of the ‘634 Patent should be granted.
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`7
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`

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`Case 1:16-cv-00453-RGA Document 473 Filed 02/23/18 Page 9 of 9 PageID #: 39168
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`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 23, 2018
`5653003
`
`8
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