Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 1 of 26 PageID #: 3720
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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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`)))))))))
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`v.
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`ACTIVISION BLIZZARD, INC.,
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`Defendant.
`
`OPENING BRIEF IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS WITH
`PREJUDICE AND FOR MONETARY SANCTIONS FOR VIOLATION OF RULE 11
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`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
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`Attorneys for Defendant
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`OF COUNSEL:
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`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`David P. Enzminger
`WINSTON & STRAWN LLP
`275 Middlefield Road
`Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`
`Daniel K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
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`February 15, 2017
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`REDACTED -
`PUBLIC VERSION
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`- Original Filing Date
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`February 22, 2017 - Redacted Filing Date
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`

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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 2 of 26 PageID #: 3721
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`I.
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`II.
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`III.
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`IV.
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`Page
`NATURE AND STAGE OF THE PROCEEDINGS..........................................................1
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`TABLE OF CONTENTS
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`SUMMARY OF ARGUMENT...........................................................................................1
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`LEGAL STANDARDS. ......................................................................................................3
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`STATEMENT OF FACTS..................................................................................................3
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`A.
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`B.
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`The Asserted Patents. ..............................................................................................3
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`Extensive Discovery Confirmed CoD And WoW Do Not Infringe........................4
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`V.
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`ARGUMENT. .....................................................................................................................5
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`Acceleration Failed to Conduct a Reasonable Pre-Suit Inquiry..............................5
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`Acceleration Knew CoD and WoW Do Not Infringe the Five
`Topology Patents. ....................................................................................................6
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`A.
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`B.
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`C.
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`D.
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`E.
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`F.
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`G.
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`H.
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`1.
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`2.
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`The Topology Patents Require a Non-Complete M-Regular
`Graph...................................................................................................................6
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`...............................................7
`3. Acceleration’s Charts Are Devoid of Evidence of Infringement........................9
`4. Acceleration’s Infringement Allegations Directly Contradict Its
`Validity Arguments...........................................................................................11
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`...................................................................................................................12
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`5.
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`Acceleration Knew CoD and WoW Do Not Infringe the Broadcast
`Patents....................................................................................................................12
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`Acceleration Knew CoD and WoW Do Not Infringe the Add or Drop
`Patents....................................................................................................................15
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`Acceleration Knew CoD and WoW Do Not Infringe the Portal
`Patent. ....................................................................................................................17
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`Acceleration Has No Basis To Accuse Destiny ....................................................18
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`Acceleration Filed Its Complaint for an Improper Purpose. .................................18
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`Dismissal and an Award of Fees Is Warranted......................................................19
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`i
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 3 of 26 PageID #: 3722
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`VI.
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`CONCLUSION. ................................................................................................................20
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`ii
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 4 of 26 PageID #: 3723
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`Cases
`
`TABLE OF AUTHORITIES
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`Page(s)
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`Antonious v. Spalding & Evenflo Companies, Inc.,
`275 F.3d 1066 (Fed. Cir. 2002) ........................................................................................3, 12
`
`Doering v. Union Cty. Bd. of Chosen Freeholders,
`857 F.2d 191 (3d Cir. 1988) .................................................................................................19
`
`Eltech Sys. Corp. v. PPG Indus., Inc.,
`903 F.2d 805 (Fed. Cir. 1990) ....................................................................................9, 10, 19
`
`Eon-Net LP v. Flagstar Bancorp,
`653 F.3d 1314 (Fed. Cir. 2011) ..............................................................................................3
`
`Garr v. U.S. Healthcare, Inc.,
`22 F.3d 1274 (3d Cir. 1994) ...................................................................................................3
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`Judin v. United States,
`110 F.3d 780 (Fed. Cir. 1997) ............................................................................................6, 7
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`Lieb v. Topstone Indus., Inc.,
`788 F.2d 151 (3d Cir. 1986) .............................................................................................5, 20
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`Lincoln Ben. Life Co. v. AEI Life, LLC,
`800 F.3d 99 (3d Cir. 2015) .....................................................................................................3
`
`Mercury Air Group, Inc. v. Mansour,
`237 F.3d 542 (5th Cir. 2001) ................................................................................................19
`
`Micromesh Tech. Corp. v. Am. Recreation Prod., Inc.,
`2007 WL 2501783 (N.D. Cal. Aug. 30, 2007) .....................................................................11
`
`Parallel Iron LLC v. NetApp Inc.,
`70 F. Supp. 3d 585 (D. Del. 2014) .................................................................................10, 11
`
`Phonometrics, Inc. v. Econ. Inns of Am.,
`349 F.3d 1356 (Fed. Cir. 2003) ........................................................................................5, 20
`
`Refac Int’l, Ltd. v. Hitachi, Ltd.,
`141 F.R.D. 281 (C.D. Cal. 1991)............................................................................................3
`
`Simmerman v. Corino,
`27 F.3d 58 (3d Cir. 1994) .......................................................................................................3
`
`Vehicle Operation Techs. LLC v. Am. Honda Motor Co. Inc.,
`67 F. Supp. 3d 637 (D. Del. 2014) .........................................................................2, 6, 13, 19
`
`iii
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 5 of 26 PageID #: 3724
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`View Eng’g,Inc. v. Robotic Vision Sys., Inc.,
`208 F.3d 981 (Fed. Cir. 2000) ..............................................................................................19
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`Other Authorities
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`Fed. R. Civ. P. 11 ................................................................................................................passim
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`Fed. R. Civ. P. 11(b).....................................................................................................................1
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`Fed. R. Civ. P. 11(b)(1) ..............................................................................................................18
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`Fed. R. Civ. P. 11(b)(2) ..............................................................................................................18
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`Fed. R. Civ. P. 11(b)(3) ..............................................................................................................18
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`Fed. R. Civ. P. 11(c)(1) ..............................................................................................................19
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`Fed. R. Civ. P. 30(b)(6) .......................................................................................................passim
`
`iv
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 6 of 26 PageID #: 3725
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`I.
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`NATURE AND STAGE OF THE PROCEEDINGS.
`Defendant Activision|Blizzard Inc. (“Activision”) moves under Fed. R. Civ. P. 11 for
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`dismissal with prejudice of the complaint and monetary sanctions against Plaintiff Acceleration
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`Bay LLC and each of its law firms and lawyers of record (collectively, “Acceleration”).
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`Acceleration’s first suit against Activision was dismissed on June 20, 2016, because Acceleration
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`lacked standing. C.A. No. 15-228-RGA, D.I. 153. Acceleration alleged that each of four
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`games—Call of Duty: Advanced Warfare; Call of Duty: Black Ops III (collectively, “CoD”);
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`World of Warcraft (“WoW”); and Destiny—infringed six different patents. Before dismissal,
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`Acceleration took months of discovery, particularly as to CoD and WoW, which confirmed that
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`there was no plausible case for infringement. Ignoring that record, Acceleration filed this case,
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`accusing the same products of infringing the same patents. The complaint includes charts that
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`are substantially identical to those provided in the prior suit and includes allegations contrary to
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`facts Acceleration knew when it filed this complaint. Acceleration has refused to withdraw these
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`pleadings.
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`II.
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`SUMMARY OF ARGUMENT.
`Rule 11 requires a reasonable inquiry into the law and facts, as well as certification that
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`the allegations are “warranted” and “have evidentiary support.” Fed. R. Civ. P. 11(b). Yet
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`Acceleration failed to conduct a reasonable pre-suit inquiry, completely ignored all it learned in
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`prior discovery, and filed an objectively baseless complaint. No reasonable attorney would have
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`concluded that the allegations were legally warranted or supported by evidence.
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`The complaint alleges that the four games each infringe six different patents.
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`Acceleration was required to have a reasonable basis to support each of its 24 infringement
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`claims. Some of these patents require the use of specific “m-regular, non-complete” network
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`1
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 7 of 26 PageID #: 3726
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`topologies and broadcast techniques using that topology, and others require specific processes
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`for joining or leaving the network in order to maintain the claimed network topology.
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` If Acceleration had acted reasonably on the
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`information it already had or could have obtained easily, it would not have sued.
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`Acceleration’s infringement allegations are objectively baseless and do not articulate a
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`reasonable claim for infringement. Despite their volume, the charts do not identify a single
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`network that allegedly infringes any of the patents. With respect to the critical network topology
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`claimed by the patents, Acceleration fails entirely to identify the two things that define that
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`topology—the participants and the connections. The charts do nothing more than recite the
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`claim language, assert muddled speculation about how the products might work, and rely on
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`inferences that are plainly unreasonable. For example, the chart alleges that WoW uses the
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`claimed “m-regular network” simply “because [WoW] operates many servers,” is “stable,” and
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`has “flexibility.” Tomasulo Decl. Exs. (“TDExs.”) 11A-D. But many networks are stable and
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`flexible, and the incantation of those words is no substitute for an actual disclosure of a plausible
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`infringement claim. Nowhere does Acceleration state how the games are alleged to infringe.
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`Rule 11 demands more.
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`2
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 8 of 26 PageID #: 3727
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`Acceleration had a duty to “stop, look, and listen” before filing suit. Vehicle Operation
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`Techs. LLC v. Am. Honda Motor Co. Inc., 67 F. Supp. 3d 637, 649 (D. Del. 2014). It did not.
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`The parties have already wasted millions of dollars litigating these claims. Rather than
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`continuing to waste the Court’s time and Activision’s resources on additional discovery and
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`motion practice, the case should be dismissed with prejudice, and monetary sanctions should be
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`imposed on Acceleration and its lawyers to deter them from future baseless filings.
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`III.
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`LEGAL STANDARDS.
`Rule 11 provides that an attorney who fails to “make a reasonable inquiry into the factual
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`and legal legitimacy of the pleading . . . shall be sanctioned.” Simmerman v. Corino, 27 F.3d 58,
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`62 (3d Cir. 1994). Conduct violates Rule 11 if it is not “objectively reasonable under the
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`circumstances.” Id. Attorneys in a patent suit must conduct “a reasonable presuit investigation”
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`that includes “an objective evaluation of the claim terms when reading those terms on the
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`accused device.” Eon-Net LP v. Flagstar Bancorp, 653 F.3d 1314, 1329 (Fed. Cir. 2011); Garr
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`v. U.S. Healthcare, Inc., 22 F.3d 1274, 1279 (3d Cir. 1994) (analysis must be done before filing).
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`Before alleging a fact, “a plaintiff should consult the sources at its disposal.” Lincoln Ben. Life
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`Co. v. AEI Life, LLC, 800 F.3d 99, 108 (3d Cir. 2015). If those sources are not “sufficient to
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`permit a reasonable inference that all the accused products infringe,” then the allegations would
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`be violations of Rule 11. Antonious v. Spalding & Evenflo Companies, Inc., 275 F.3d 1066, 1075
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`(Fed. Cir. 2002). The pre-suit investigation must also be technologically sufficient—typically, if
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`practicable, a plaintiff must perform reverse engineering or its equivalent directly on the accused
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`products. E.g., Refac Int’l, Ltd. v. Hitachi, Ltd., 141 F.R.D. 281, 286 (C.D. Cal. 1991).
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`IV.
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`STATEMENT OF FACTS.
`A.
`The Asserted Patents.
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`3
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 9 of 26 PageID #: 3728
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`There are six asserted patents (“Asserted Patents”).1 Five (“Topology Patents”) are
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`generally directed to a “network” or “broadcast channel” having a specific network “topology.”
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`Three Topology Patents are directed to broadcasting information across a network with the
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`claimed topology (“Broadcast Patents”), and two are directed to adding or dropping a computer
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`from the claimed network (“Add Patent” and “Drop Patent”). The sixth is directed to locating a
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`computer through which a computer seeking to join the network may connect (“Portal Patent”).
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`B.
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`Extensive Discovery Confirmed CoD And WoW Do Not Infringe.
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` Having received no plausible infringement contentions, Activision
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`successfully moved to compel answers to its infringement interrogatories (TDEx. 20A at 4-5 and
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`TDExs. 20B-C),
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` At
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`that discovery hearing, Acceleration admitted it had done no direct testing of noninfringement.
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`See TDEx. 20A at 4 (Special Master recommendation; “Plaintiff represented that there had been
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`no testing by it for its infringement claims and contentions.”).
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`1 The Asserted Patents are: U.S. Pat. Nos. 6,701,344, 6,714,966, 6,829,634, 6,910,069,
`6,732,147, and 6,920,497. The “Topology Patents” are the ’344, ’966, ’634, ’069, and ’147
`patents, of which the ’344, ’966, and ’634 patents are the “Broadcast Patents,” the ’069 patent is
`the “Add Patent,” and the ’147 patent is the “Drop Patent.” Finally, the ’497 patent is the “Portal
`Patent.”
`2 Regarding Destiny, Acceleration was still seeking additional discovery from third-party
`developer, Bungie, Inc., when the first case was dismissed.
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`4
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 10 of 26 PageID #: 3729
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`V.
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`ARGUMENT.
`A.
`Acceleration Failed to Conduct a Reasonable Pre-Suit Inquiry.
`Rule 11 “imposes on counsel a duty to look before leaping,” but Acceleration never
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`looked at the obvious pitfalls in its case. Lieb v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir.
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`1986). Acceleration had much to look at; it not only had the ability to analyze the four games,
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`along with voluminous publicly available information, but it also had extensive discovery
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`regarding WoW and CoD in the prior case.
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`At each instance, Acceleration had “not merely the opportunity, but the obligation, to
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`reconsider the viability of [its] claims in light of the evidence, and to refrain from further
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`prosecution.” Phonometrics, Inc. v. Econ. Inns of Am., 349 F.3d 1356, 1365 (Fed. Cir. 2003)
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`(“appropriate to consider” counsel’s involvement in prior related cases when imposing
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`sanctions).
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 11 of 26 PageID #: 3730
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` Vehicle Operation Techs., 67 F. Supp. 3d at 651; Judin v.
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`United States, 110 F.3d 780, 784 (Fed. Cir. 1997).
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`B.
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`Acceleration Knew CoD and WoW Do Not Infringe the Five Topology
`Patents.
`The Topology Patents Require a Non-Complete M-Regular Graph.
`1.
`The topology of a computer network refers to how computers in that network are
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`connected. This can be envisioned as a graph, where the participants (e.g., computers) are
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`represented with dots and the connections are represented by lines connecting those dots. A
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`network’s topology requires at least an explanation of what it means to be a “participant” (so that
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`the non-participants are not included in the graph) and what it means to be “connected.” The
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`five Topology Patents are all directed to a specific topology referred to as an “m-regular, non-
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`complete graph” and operations performed within that topology. See, e.g., DI 1-1 (’344 patent),
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`Fig. 1 (below). A network, or broadcast channel, is m-regular if each node of the graph is
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`connected to the exact same number (“m”) of other nodes. It is non-complete if any node is not
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 12 of 26 PageID #: 3731
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`connected to every other node. The Topology Patents require a very specific topology where the
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`network is both m-regular and non-complete, that m is at least three, and that the total number of
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`nodes is at least two greater than m—thus resulting in a non-complete graph where each node has
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`the same m number of connections (the “Topology Limitations” or “Claimed Topology”).
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`Acceleration agrees that the Topology Patents are limited in this way. See, e.g., TDEx. 5A-E.
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`To obtain the patents, the applicants argued that “[i]t is the combination of having a
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`computer network that is m-regular and that is not a complete graph that is patentable.” TDEx.
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`4A-B. Applicants also confirmed that m—the number of “neighbors”—must be “set at a
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`predetermined number” of three or greater, and that networks that only “coincidentally” acquire
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`the Claimed Topology are outside the scope of the claims. Id. Instead, the claims require that
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`“each participant in the network connects to and forms a neighbor bond to exactly an m number
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`of neighbors,” and that “the computer network be m regular at substantially all times where
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`there are not new nodes entering or leaving the network.” Id. (emphasis added). The applicants
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`specifically disclaimed networks that only meet the Topology Limitations by chance or in a
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`transient way.
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`2.
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`Fig. A – Complete Full
`Mesh
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`Claimed Topology
`m-regular non-complete (m is 4)
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`Fig. B – Client-Server
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 13 of 26 PageID #: 3732
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`The chart above compares the prior art topologies to the Claimed
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`Topology. TDEx. 6A-C.
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`Moreover, neither a client-server topology nor a full mesh network could meet the
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`Topology Limitations. In a client-server network, the server is connected to all of the clients,
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`and the clients are only connected to the server. Thus, the network is not m-regular and each
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`client is not connected to “at least three neighbor participants,” as required by the claims.
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`Although a full mesh topology is m-regular, it is also complete because each participant is
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`connected to all of the other participants and, therefore, does not meet the Topology Limitations.
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 14 of 26 PageID #: 3733
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` just ten days later, Acceleration filed the complaint in this action,
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`which repeats the baseless and debunked infringement theories alleged in the prior case. Cf.
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`Eltech Sys. Corp. v. PPG Indus., Inc., 903 F.2d 805, 810–11 (Fed. Cir. 1990) (where “the
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`patentee is manifestly unreasonable in assessing infringement, while continuing to assert
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`infringement in court, an inference is proper of bad faith”).
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`Acceleration’s Charts Are Devoid of Evidence of Infringement.
`3.
`Acceleration’s charts themselves show it has no basis for asserting the Topology Patents.
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`D.I. 1-7 and 1-9. The charts are misleading, confusing, and demonstrate the baselessness of
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`Acceleration’s contentions. Id. Acceleration fails to identify the most basic elements of the
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 15 of 26 PageID #: 3734
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`accused networks. Id. Each chart accuses apparently multiple topologies but never explains how
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`any one of them could meet the claimed limitations. Id. They do not identify the nodes (or
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`neighbors), the connections between those nodes that define the topology, or what “m” is for any
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`of the accused networks. Id. For those key limitations, Acceleration’s allegation boils down to:
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`(1) for CoD: “the Accused Products create m-regular topologies of players when setting up
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`logical, overlay, and physical network topologies for the Accused Products using different
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`networking libraries, SDKs and APIs” (TDEx. 10A-D), and (2) for WoW: “the m-regular
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`network is present because [WoW] operates many servers on many different networking levels,
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`on both the logical, physical, and overlay layers” (TDEx. 11A-D). But the charts do not identify
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`what networks are accused or how they supposedly meet the Topology Limitations, a failure
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`made more noteworthy because the Special Master ordered Acceleration to provide this very
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`information in response to Interrogatory No. 9 in the prior case. TDEx. 20A at 4-5; TDEx. 20B-
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`C.
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`Instead of a credible or coherent infringement theory supported by any evidence, the
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`charts are indecipherable and offer at most muddled speculation that the Topology Limitations
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`could be met. For instance, as to CoD, the charts state that “m-regular can indicate that each of
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`the players is optimally connected to other players in an optimized manner.” TDEx. 14A-D
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`(emphasis added). The charts also speculate that a non-complete graph can occur by “chance”
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`when players attempting to form a full mesh network cannot establish a connection. TDEx.
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`15A-D (“The chance of a non-complete graph grows with the total number of players added to
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`the game . . . .”). And the charts state that WoW allegedly uses the claimed “m-regular network”
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`simply “because [WoW] operates many servers,” is “stable,” and has “flexibility.” TDEx. 11A-
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`10
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 16 of 26 PageID #: 3735
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`D. Such baseless speculation is sanctionable.3 Cf. Parallel Iron LLC v. NetApp Inc., 70 F. Supp.
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`3d 585, 593 (D. Del. 2014) (sanctions where plaintiff could “not cite to any location within [its]
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`claim charts” showing accused product “actually implemented” the patent).
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`Moreover, the charts sever the m-regular and non-completeness requirement into two
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`separate elements. See, e.g., elements 1-e and 1-f of the ’344 and ’966 patents (D.I. 1-7 and 1-9).
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`They then suggest that some networks can be m-regular at some times, while some networks can
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`be non-complete at other times. This sleight of hand attempts to disguise the total absence of an
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`allegation or evidence that any network is both m-regular and non-complete, even though
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`Acceleration has repeatedly affirmed that property as the foundational requirements of its claims.
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`See supra at V.B.1-2.
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`Acceleration’s charts are boilerplate, even for different defendants and different products.
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`E.g. TDEx. 17A-I (highlighting shows commonality among exhibits). These charts are evidence
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`that Acceleration did not conduct a reasonable pre-suit inquiry and lacks an objective basis for
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`the allegations of infringement. Cf. Micromesh Tech. Corp. v. Am. Recreation Prod., Inc., 2007
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`WL 2501783, at *6 (N.D. Cal. Aug. 30, 2007) (“generality of plaintiff’s claim chart” favored the
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`award of attorneys’ fees). None of the 18 charts identify and explain how even a single network
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`used by the various games can infringe the patents. This is further evidence Acceleration had no
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`reasonable basis for its allegations. Cf. Parallel Iron LLC, 70 F. Supp. 3d at 593.
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`4.
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`Acceleration’s Infringement Allegations Directly Contradict Its
`Validity Arguments.
`Acceleration’s infringement allegations directly contradict its validity arguments and are,
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`therefore, unreasonable. Acceleration repeatedly accuses “physical” network topologies of
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`3 Even if Acceleration’s speculation were correct, there still would be no infringement because
`Acceleration disclaimed networks that only meet the limitations by chance or in a transient way.
`E.g., TDExs. 4A-B.
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`11
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 17 of 26 PageID #: 3736
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`infringement. TDExs. 12A-D (CoD) (“[T]he Accused Products create m-regular topologies of
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`players when setting up logical, overlay, and physical network topologies for the Accused
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`Products using different networking libraries, SDKs and APIs.”) and 13A-D (WoW)
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`(similar). Yet, before both this Court and the PTAB, Acceleration alleged that the Asserted
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`Patents have nothing to do with the “physical” network: “[t]he broadcast claims require the use
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`of an overlay network . . . rather than the physical components that communicate at the network
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`level such as physical computers.” TDEx. 9A; see also TDEx. 22 at 50-51 (differentiating
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`application layer from physical layer). This is a violation of Rule 11 and an independent basis
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`for sanctioning Acceleration. See Antonious v. Spalding & Evenflo Companies, Inc., 275 F.3d
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`1066, 1075 (Fed. Cir. 2002) (“[S]anctions may be based on a single invalid legal or factual
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`theory, even if other asserted theories are valid.”).
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`5.
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`too is independently sanctionable and further confirms the unreasonableness of the complaint.
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`Acceleration Knew CoD and WoW Do Not Infringe the Broadcast Patents.
`C.
`Three of the Topology Patents—the Broadcast Patents—are directed to a method of
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`broadcasting data, called “flooding,” through an m-regular non-complete network of participants.
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 18 of 26 PageID #: 3737
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`D.I. 1-1, 1-2, 1-4. Flooding requires at least two steps of broadcasting data: first, a participant
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`sends data to each of its at-least-three neighbor participants; and second, each of those neighbor
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`participants forwards the data to each of its “other” neighbor participants (which must be at least
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`two) (the “Flooding Steps”).4 Because the Claimed Topology is both m-regular and non-
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`complete, no participant can send messages directly to every other participant. Thus, the
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`Broadcast Patents use the Flooding Steps to attempt to broadcast the messages because the
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`Claimed Topology does not allow direct communication between all participants.
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` In a full mesh network, “[t]he interconnection of all participants” makes a
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`multi-step broadcasting method unnecessary—each participant is connected to (and can
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`broadcast data to) every other participant directly. D.I. 1-1 at 1:44-57. In a “client/server”
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`network, all data is broadcast between, and only between, each client and the server. Id. at 2:9-
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`11.
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`Acceleration had no basis to assert the Broadcast Patents. Moreover, it even more plainly lacks
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`any basis to allege both in combination, i.e., that a network that meets the Topology Limitations
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`performs the Flooding Steps. In short, Acceleration flouted its obligation to “stop, look, and
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`listen” repeatedly. Vehicle Operation Techs., 67 F. Supp. 3d at 649.
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`Acceleration has designated the Flooding Steps as elements 1-c and 1-d in the ’344, ’966, and
`’634 patent charts (D.I. 1-7 and 1-9).
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 19 of 26 PageID #: 3738
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` This plainly cannot satisfy the Flooding Steps.5
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`The cited evidence includes only screenshots relating to servers communicating with one
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`another, screenshots relating to communications across “realms,” and evidence relating to
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`communications the chart describes as used to “send data to other peers through peer
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`connections.” E.g., D.I. 1-7 at 69. None of this shows that any alleged participant in WoW
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`5 Acceleration’s only cited evidence supporting the flooding limitations shows only that CoD
`uses Demonware, that Demonware can support “Peer-to-peer / Star topology,” and that
`participants are connected to a network that, like all networks, may have “lag.” E.g., D.I. 1-9 at
`25. None of this shows that any participant in any accused CoD product sends data it receives
`from a neighbor participant to its other neighbor participants as required by the claims.
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 20 of 26 PageID #: 3739
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`sends data it receives from a neighbor participant to its at least three other neighbor participants,
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`or that the messages are then forwarded to all at least two other participants as required by the
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`claims.
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`Acceleration Knew CoD and WoW Do Not Infringe the Add or Drop Patents.
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`The Add and Drop Patents are directed to maintaining the non-complete m-regular graph
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`of the Claimed Topology; but, as Acceleration knew before it filed suit, CoD and WoW do not
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`use non-complete m-regular networks and do not perform the steps of the Add and Drop Patents.
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`See supra at V.B. When a participant is added or dropped from a non-complete m-regular
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`network, connections between other participants must be broken and new connections with other
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`participants must be formed to maintain the network’s required non-complete m-regular
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`topology.6 But in client-server topologies, clients leave or join the network by simply
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`disconnecting or connecting to the server. Similarly, in full mesh networks, each participant
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`connects to every other participant and no reconfiguration is required to maintain m-regularity
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`and incompleteness.
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`In addition to requiring the breaking of connections and forming of new connections, the
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`claims of the Add and Drop Patents require the use of specific messaging techniques to facilitate
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`the process of maintaining the m-regular, incomplete nature of the network when a participant
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`either joins or leaves the network. For the Add Patent, the claims use a specific messaging
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`technique to add a participant: a “seeking participant” contacts a “fully connected portal
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`computer, which in turn sends an edge connection request to a number of randomly selected
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`6 These elements are 1-b (the disconnect step) followed by 1-c (the connect step) in the Drop
`Patent in Acceleration’s charts (DI 1-7 and 1-9). And elements 1-e (the disconnect step)
`followed by 1-f (the connect step) in the Add Patent.
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`Case 1:16-cv-00453-RGA Document 56 Filed 02/22/17 Page 21 of 26 PageID #: 3740
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`neighboring participants to which the seeking participant is to connect.” D.I. 1-5 (’069 patent)
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`claim 1. For the Drop Patent, the claims use a specific messaging technique to drop a
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`participant: “when the second computer receives the disconnect message from the first computer,
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`the second computer broadcasts a connection port search message on the broadcast channel to
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`find a third computer to which it can connect in order to maintain an m-regular graph, said third
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`computer being one of the neighbors on said list of neighbors.” D.I. 1-3 (’147 patent) claim 1.
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`Acceleration’s charts also are devoid of any evidence of infringement. They fail to
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`identify the participants of the network, fail to explain how they are connected in a manner that
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`forms an m-regular and non-complete graph, and fail to explain what connections are broken and
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`formed to maintain an m-regular, non-complete graph when a participant joins or leaves. See
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`generally D.I. 1-7 and 1-9 (’147 and ’069 charts). They also fail to explain how the network
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`performs the messaging limitations. Id.
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` As just one example, they fail to explain what
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`constitutes the “edge connection request” that is sent “to a number of randomly selected
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`neighboring participants.”