Case 1:16-cv-00453-WCB Document 786 Filed 08/23/23 Page 1 of 10 PageID #: 55047
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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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`Plaintiff,
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`v.
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`C.A. No. 16-453 (WCB)
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`ACCELERATION BAY LLC’S
`RESPONSE BRIEF REGARDING JULY 19, 2023 ORDER (D.I. 781)
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`
`
`
`
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`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
`James Hannah
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`333 Twin Dolphin Drive, Suite 700
`Redwood Shores, CA 94065
`(650) 752-1700
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Date: August 21, 2023
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`
`
`PUBLIC VERSION
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`Public version dated: August 23, 2023
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`Case 1:16-cv-00453-WCB Document 786 Filed 08/23/23 Page 2 of 10 PageID #: 55048
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`INTRODUCTION
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`To answer the Court’s question: there is a distinction, for purposes of determining whether
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`a network is configured to maintain m-regularity, between actions taken by the player during the
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`game and actions taken by the player before the game starts. D.I. 781 at 5. Judge Andrews’ prior
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`orders require that a network be configured to try to get to an m-regular state. D.I. 275 at 14 (“if
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`the network does not have each participant connected to m neighbors, this is fine so long as, when
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`appropriate, it tries to get to that configuration”). However, neither Judge Andrews’ prior orders
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`nor anything in the intrinsic record preclude pre-game player actions from impacting how
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`particular connections are formed, so long as the network itself is configured to form an m-regular
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`network as a whole. Thus, a network that is designed to seek an m-regular state meets this
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`construction (as is the case for all of Activision’s accused products).
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`Activision’s submission goes beyond answering the Court’s straightforward question and
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`requests a new claim construction that would obscure this critical distinction by adding a confusing
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`and incorrect negative limitation. Specifically, Activision asks the Court to rule that so long as
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`players’ actions have any impact on “how connections are formed, then the network is not
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`configured to maintain an m-regular state.” D.I. 784 at 1. There is no basis to read such a negative
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`limitation into the claims. To the contrary, doing so would violate a fundamental canon of claim
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`construction by reading out preferred embodiments. Thus, the Court should reject Activision’s
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`request for a revised claim construction.
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`NATURE AND STAGE OF THE PROCEEDINGS
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`Acceleration Bay filed suit against Activision on March 11, 2015. Since then, the Court
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`held six hearings on claim construction issues (after Activision contended that more than 50 claim
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`terms required construction). See D.I. 206. Activision has already had numerous attempts to
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`Case 1:16-cv-00453-WCB Document 786 Filed 08/23/23 Page 3 of 10 PageID #: 55049
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`prevent this case from going to trial on the merits. Activision, its related parties, and defendants
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`in related actions collectively filed twenty petitions for inter partes review of Acceleration Bay’s
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`patents. Activision filed a fifty-page summary judgment motion (D.I. 442), a motion for leave to
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`file summary judgment on purported new facts (D.I. 654), and an additional summary judgment
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`motion based on the decision in Acceleration Bay LLC v. Take-Two Interactive Software, Inc.,
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`C.A. No. 16-455-RGA (“Take Two”) (D.I. 731).
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`Activision previously briefed the same claim construction question at issue now. D.I. 731
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`at 8 (“This Court’s un-appealed ruling in Take Two that a network cannot satisfy the m-regular
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`limitation if ‘the players’ actions determine how connections are formed,’ when applied to the
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`undisputed facts in this record, disposes of all infringement in this case.”). Judge Andrews rejected
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`Activision’s request for additional summary judgment briefing, finding Activision failed to meet
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`the standard for reconsideration as to the denial of summary judgment on this same issue. D.I. 743
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`at 15.
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`In response to Activision’s latest request for more summary judgment briefing, the Court
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`directed the parties “to submit briefs outlining their positions as to where there is a distinction, for
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`purposes of determining whether a network is configured to maintain m-regularity, between
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`actions taken by the player during the game and actions taken by the player before the game starts.
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`The parties briefs should address only that question.” D.I. 781 at 5 (emphasis added).
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`Activision’s submission exceeds this permitted scope and contends that the Court should
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`add to the construction of (1) “m-regular,” (2) “each participant being connected to three or more
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`other participants,” and (3) “fully connected portal computer” a negative limitation that “[i]f the
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`player’s actions, either before or during a game, determine how connections are formed, then the
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`network is not configured to maintain an m-regular state.” D.I. 784 at 1, 5. Activision’s new
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`Case 1:16-cv-00453-WCB Document 786 Filed 08/23/23 Page 4 of 10 PageID #: 55050
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`proposed limitation should be rejected for exceeding the scope of the Court’s order, being another
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`failed attempt to meet the standard for reconsideration, and as contrary to the intrinsic record.
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`ARGUMENT
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`Activision’s Proposed Construction is Overbroad and Inconsistent with the Take-
`Two Order
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`Activision’s proposed construction should be rejected because it is overbroad and
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`inconsistent with Judge Andrews’ decision in the Take-Two Order.1 The Take-Two Order was
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`based on the Court’s prior claim constructions that an m-regular network is a network that is
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`configured to seek an m-regular state (when conditions permit it to do so). D.I. 275 at 14-15.
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`Judge Andrews did not hold then, or at any other time, that player actions cannot have any impact
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`on the connections that are formed.
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`Specifically, Judge Andrews determined that because the accused Grand Theft Auto V
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`networks were only m-regular when players took actions during the game the network itself was
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`not configured to form an m-regular network. Take-Two Order, 612 F. Supp. 3d at 420. That
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`claim construction is not disputed for purposes of this briefing. Judge Andrews explained that
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`because player actions were necessary for the network to reach an m-regular state, the network
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`itself was not configured to maintain an m-regular state:
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`A reasonable jury could not find that the “proximity connection
`rules” make the networks m-regular. The players control their own
`avatars and choose where
`to move
`throughout
`the game
`environment. The fact that players share more data when they are
`near each other does not suggest that the network is m-regular.
`Instead, it suggests that the players’ actions determine how
`connections are formed, and the network is not “configured to
`maintain” any particular state. Dr. Mitzenmacher said at his
`deposition that the infringing state “just arises naturally [as] ... the
`players are moving throughout the game.” (Mitzenmacher Tr. at
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`1 The “Take-Two Order” refers to Judge Andrews’ decision in the matter Acceleration Bay LLC v.
`Take-Two Interactive Software, Inc., 612 F. Supp. 3d 408, 420 (D. Del. 2020), aff’d in part,
`dismissed in part sub nom, 15 F.4th 1069 (Fed. Cir. 2021).
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`Case 1:16-cv-00453-WCB Document 786 Filed 08/23/23 Page 5 of 10 PageID #: 55051
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`175:17-19). But if a system is designed to achieve a desired result,
`one would not normally say the result “just arises naturally.” The
`result would be designed, not natural.
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`Id. (emphasis added).
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`Activision focuses on Judge Andrews’ observation that “players’ actions determine how
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`connections are formed” but ignores his dispositive finding that because only the players’ actions
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`dictate if the network will or will not be m-regular the network itself is not “configured to
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`maintain” any particular state. Id. The key part of the finding was the network’s lack of
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`configuration to maintain an m-regular state without specific player actions. Id.
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`Judge Andrews did not broadly hold that a network cannot be “configured to maintain” an
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`m-regular state if player action at any time determines how connections are formed. D.I. 784 at 3.
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`To the contrary, Judge Andrews explicitly contemplated that there may be player actions that
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`impact how network connections are formed but that do not undermine that the network is
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`“configured to maintain” an m-regular state, such as when network connections are temporarily
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`disrupted when a player leaves a game. Take-Two Order, 612 F. Supp. 3d at 420 (“My construction
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`does not require Plaintiff to show that the accused networks are m-regular 100 percent of the time.
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`For example, if there is a split-second transition after a player disconnects from the game, that
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`would not be enough to make the network not m-regular.”). Thus, the Take-Two Order is limited
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`to holding that the network cannot depend on player actions post-formation to transform the
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`already existing network from a non-m-regular state into an m-regular state.
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`Such a game is therefore not “designed to achieve [the] desired result” of forming an m-
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`regular network, which was at the heart of Judge Andrews’ reasoning in the Take-Two Order that
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`gives rise to the instant claim construction issue. Specifically, Judge Andrews distinguished
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`between a game wherein players’ movements during gameplay may cause an m-regular state to
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`“naturally arise” as players move throughout the game, from a game that is “designed to achieve
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`Case 1:16-cv-00453-WCB Document 786 Filed 08/23/23 Page 6 of 10 PageID #: 55052
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`[the] desired result” of m-regularity. Id. (“But if a system is designed to achieve a desired result,
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`one would not normally say the result ‘just arises naturally.’ The result would be designed, not
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`natural.”). Thus, a game that takes into account a player’s actions (e.g., security settings) prior to
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`gameplay and forms an m-regular network in light of those conditions is fundamentally different
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`from the Take-Two scenario wherein m-regularity was impacted by player movement during
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`gameplay.
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`Judge Andrews’ reasoning highlights the very distinction at issue here—namely, whether
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`a game is “designed to achieve” a particular result, as opposed to a network (like that in Take-Two)
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`where player’s actions during the game determine the m-regular state. Take-Two Order, 612 F.
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`Supp. 3d at 420 (“if a system is designed to achieve a desired result, one would not normally say
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`the result ‘just arises naturally.’ The result would be designed, not natural.”) (emphasis added).
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`The Court’s current claim construction fully captures this concept by requiring that m-regular is
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`“A state that the network is configured to maintain . . . .” D.I. 275 at 14 (emphasis added). Thus,
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`the question for the jury will be the factual issue of whether Activision’s accused games are
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`themselves configured to maintain an m-regular state.
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`Activision’s Proposed Construction is an Attempt to Prejudge a Factual Dispute
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`Activision’s proposed claim construction is an attempt to resolve a genuine factual dispute.
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`Activision contends that it is “undisputed” how the Call of Duty networks operate and that these
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`networks are only m-regular when the players configure their security settings in a certain way.
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`D.I. 784 at 4. This is incorrect.
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`As Acceleration Bay has repeatedly shown in opposition to Activision’s multiple requests
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`for summary judgment, the accused Call of Duty games are designed to achieve the result of
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`creating a network that is m-regular at the time it is created. Specifically, when players join a
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`game session, their Call of Duty software attempts to contact other players through direct peer-to-
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`Case 1:16-cv-00453-WCB Document 786 Filed 08/23/23 Page 7 of 10 PageID #: 55053
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`peer connections to exchange QoS (Quality of Service) and VoIP (Voice over Internet Protocol)
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`messages and other gameplay data. D.I. 448 at 24-25, 26; see also D.I. 475 at 9-10. These peer-
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`to-peer connections form the accused “Connectivity Graph Network. D.I. 448 at 25.
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`Call of Duty is configured to create an m-regular network out of these peer-to-peer
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`connections. The Call of Duty games include
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`. D.I. 482, Ex. 78 (Griffith Tr.) at 87:24-88:25. To reduce the
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`total number of peer-to-peer connections each participant must maintain and to account for the fact
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`that not all participants will be able to connect to each other directly due to network configuration
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`issues, Call of Duty
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`. Id.
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`Because of the large number of connections needed to connect all of the players and t
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`once a sufficient number of players are in the game because
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`, the network becomes m-regular
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`. D.I. 448 at 26-27.
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`The players’ actions may influence which specific connections are formed because certain
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`security configurations will prevent connections from being formed directly between two
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`participants. For example, a player prior to game play may chose certain security settings that
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`impact whether Player A is connected to Player B or to Player C when the network is subsequently
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`configured. However, the evidence summarized above shows that, so long as there are a sufficient
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`number of participants, the ultimate network that Call of Duty assembles will be m-regular. Thus,
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`Call of Duty is configured to create an m-regular network and does not depend on any specific
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`pre-game actions by the players to do so.
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`Activision incorrectly contends that specific player actions in choosing their private
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`security settings are necessary for the network to be m-regular. That is a factual dispute for the
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`Case 1:16-cv-00453-WCB Document 786 Filed 08/23/23 Page 8 of 10 PageID #: 55054
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`jury to resolve. Activision’s request for a negative claim limitation that a network cannot be
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`regular “If the players’ actions, either before or during a game, determine how connections are
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`formed” is an improper attempt to resolve the pertinent factual question (if the network is
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`configured to seek an m-regular state) through claim construction (by finding that a network
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`categorically cannot be configured to seek an m-regular state if player actions impact how
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`connections are formed).
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`Accordingly, the Court should reject Activision’s proposed construction that adds a
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`negative limitation that is inconsistent with Judge Andrews’ Take-Two Order.
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` Activision’s Proposed Construction is Inconsistent with the Intrinsic Record
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`There also is no support in the record for Activision’s proposed construction that would
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`preclude user actions from having any impact on how network connections are formed. D.I. 784
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`at 5. The asserted patents confirm that a game that is designed to achieve an m-regular network
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`does not fall outside the scope of the asserted claims simply because any user action might impact
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`network connections.
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`Indeed, the specification of the asserted patents confirms that user actions (such as joining
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`and leaving a game) can take the network in and out of m-regular states. The asserted patents
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`describe broadcast networks that are sometimes regular and sometimes non-regular, such as where
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`m is an odd number. ’069 Patent at 15:1-6. The specification explains that “with an odd number
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`of internal connections, the broadcast channel toggles between being and not being m-regular”
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`where it will be m-regular when the total number of participants is even and not m-regular when
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`the total number of participants is odd. Id.
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`Thus, the actions of players can impact the state of the network without placing it outside
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`of the scope of the claimed m-regular network. Activision’s sweeping proposed construction
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`would arguably exclude these embodiments and, as a result, should be rejected. Verizon Servs.
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`Case 1:16-cv-00453-WCB Document 786 Filed 08/23/23 Page 9 of 10 PageID #: 55055
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`Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1305 (Fed. Cir. 2007) (“We normally do not
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`interpret claim terms in a way that excludes disclosed examples in the specification.”).
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`Nothing Activision cites from the intrinsic record is inconsistent with a network being
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`configured to end up with an m-regular network while also taking into account players’ pre-game
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`actions, such as security settings. For example, each of Acceleration Bay’s statements during
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`claim construction cited by Activision (D.I. 784 at 7-8) regarding a network maintaining a “steady”
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`m-regular state relate to the aforementioned distinction, confirmed by Judge Andrews, that a
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`temporary transition out of an m-regular state due to a player leaving a game does not mean that a
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`network is not configured to be m-regular. Take-Two Order, 612 F. Supp. 3d at 420 (Judge
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`Andrews finding that the transition after a player disconnects from a game is not enough to make
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`the network not m-regular.). The same goes for the Applicant’s statement during prosecution,
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`cited by Activision, that a reference did not teach a network configured to be m-regular because
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`“the number of neighbors is not set at a predetermined number, but rather based upon the particular
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`encountered terrain of the” participants. D.I. 784-1, Activision Ex. 1 at 10.
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`Thus, Activision’s proposed new negative limitation is contrary to the intrinsic record and
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`should be rejected.
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`CONCLUSION
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`For the reasons set forth above, Activision’s proposed additional negative claim
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`construction should be reject and the jury should determine if Activision’s accused products are
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`configured to maintain m-regular networks.
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`Case 1:16-cv-00453-WCB Document 786 Filed 08/23/23 Page 10 of 10 PageID #: 55056
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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
`James Hannah
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`333 Twin Dolphin Drive, Suite 700
`Redwood Shores, CA 94065
`(650) 752-1700
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Date: August 21, 2023
`
`10978270
`
`
`
`- 9 -
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`Public version dated: August 23, 2023
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