Case 1:16-cv-00453-WCB Document 788 Filed 09/20/23 Page 1 of 5 PageID #: 55064
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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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`Plaintiff,
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`v.
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`ACTIVISION BLIZZARD INC.,
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`Defendant.
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`Civil Action No. 16-453-WCB
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`SUPPLEMENTAL CLAIM CONSTRUCTION ORDER
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`On July 19, 2023, I ordered the parties to provide briefing regarding a single claim
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`construction dispute that had come to light in a pair of letters that the parties submitted to the court.
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`Dkt. No. 781. Specifically, I ordered the parties to brief the question whether “there is a distinction,
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`for 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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`Id. at 5. This order provides my resolution of that question.
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`I.
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`Background
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`Plaintiff Acceleration Bay LLC (“Acceleration”) alleges that certain multiplayer video
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`games sold by defendant Activision Blizzard Inc. (“Activision”) infringe the claims of
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`Acceleration’s patents.1 As relevant here, each of the asserted claims requires a network that is
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`“m-regular” and “incomplete.” Dkt. No. 778 at 1. During the claim construction proceedings in
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`this case, Judge Andrews construed “m-regular” to mean “[a] state that the network is configured
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`1 The patents asserted by Acceleration are U.S. Patent Nos. 6,701,344 (“the ’344 patent”);
`6,714,966 (“the ’966 patent”); 6,829,634 (“the ’634 patent”); and 6,910,069 (“the ’069 patent”).
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`Case 1:16-cv-00453-WCB Document 788 Filed 09/20/23 Page 2 of 5 PageID #: 55065
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`to maintain, where each participant is connected to exactly m neighbor participants.” Dkt. No.
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`275 at 14.
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`In a related case involving the same patents, Judge Andrews clarified his construction of
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`“m-regular,” noting that a network is not “configured to maintain” m-regularity when “the players’
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`actions determine how connections are formed.” Acceleration Bay LLC v. Take-Two Interactive
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`Software, Inc., No. 16-455, Dkt. No. 492 at 15 (D. Del. Mar. 23, 2020). In my July 19 order, I
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`agreed with Judge Andrews’ construction and concluded that in this case, a network will similarly
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`“not be considered ‘m-regular’ if the players’ actions determine how connections are formed.”
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`Dkt. No. 781 at 2.
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`In a letter filed on July 14, 2023, Activision argued that it should be permitted to file an
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`additional summary judgment motion directed to the “voice chat” feature of one of the accused
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`games, Call of Duty (“CoD”). Dkt. No. 778 at 2–3. In Activision’s view, any m-regularity in the
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`CoD voice chat network is determined entirely “by player actions,” and thus that network falls
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`outside the scope of the asserted claims. Dkt. No. 731 at 10. The specific player action, Activision
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`contended, would be a player “enter[ing] high enough security settings on their network
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`hardware.” Dkt. No. 778 at 3.
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`My July 19 order was issued in response to Activision’s July 14 letter and a responsive
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`letter from Acceleration. In that order, I reiterated that a network is not “m-regular” if “the players’
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`actions determine how connections are formed.” Dkt. No. 781 at 2. The point that remained
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`unresolved, however, was whether the “actions” referred to in that statement are limited to the
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`player’s in-game actions (as was the case in Take-Two, see Dkt. No. 743 at 10), or whether they
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`include actions taken by the player both during gameplay and before the game has started. I
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`therefore ordered the parties to brief that issue.
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`Case 1:16-cv-00453-WCB Document 788 Filed 09/20/23 Page 3 of 5 PageID #: 55066
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`II.
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`Discussion
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`The parties have now filed competing briefs outlining their positions with respect to this
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`claim construction dispute. Dkt. Nos. 784, 785, 787. Activision argues that there is no distinction
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`between pre-game player actions and in-game player actions for purposes of determining m-
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`regularity. Dkt. No. 784 at 1. Acceleration, on the other hand, argues that pre-game player actions
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`may “impact[] how particular connections are formed, so long as the network itself is configured
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`to form an m-regular network as a whole.” Dkt. No. 785 at 1.
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`A close examination of Judge Andrews’ order in the Take-Two case provides considerable
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`insight on this issue. In that order, Judge Andrews explained that “a network is not m-regular if
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`the participants just happen to connect to the same number of other participants occasionally.”
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`Take-Two, Dkt. No. 492 at 14. Rather, the network must be “configured (or designed) to have
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`each participant connected to m neighbors.” Id. Judge Andrews clarified that Acceleration need
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`not show “that the accused networks are m-regular 100 percent of the time,” but must show “that
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`if the network falls out of the m-regular state, the network responds by immediately trying to return
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`to that configuration.” Id. at 15. In a case in which the players’ in-game actions determine whether
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`the network is m-regular, Judge Andrews explained, “the network is not ‘configured to maintain’
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`any particular state.” Id.
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`Judge Andrews’ analysis in Take-Two is consistent with a disclaimer made by Acceleration
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`during prosecution of the application that became the ’344 patent. During prosecution,
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`Acceleration sought to distinguish its claims over a prior art reference, “Alagar,” and argued that
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`Alagar did not disclose an m-regular network because the reference “coincidentally show[ed] a 4-
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`regular network” even though that was “not the typical situation” of the configuration described
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`in Alagar. Dkt. No. 784-1 at 10. What the claims required, Acceleration explained, was that “the
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`Case 1:16-cv-00453-WCB Document 788 Filed 09/20/23 Page 4 of 5 PageID #: 55067
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`computer network be m-regular at substantially all times when there are not new nodes entering
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`or leaving the network.” Id.
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`In support of its position, Acceleration argues that adopting Acceleration’s view would
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`exclude certain preferred embodiments from the claims. For example, the specification of the ’069
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`patent describes an example in which there are an odd number of computers connected to the
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`network. ’069 patent, col. 14, line 52, through col. 15, line 6. In that situation, the specification
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`explains that when an odd number of computers are connected, “one of the computers will have
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`less than that odd number of internal connections,” and thus “the broadcast network is neither m-
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`regular nor m-connected.” Id. at col. 14, line 64, through col. 15, line 2. The specification adds,
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`however, that “[w]hen the next computer connects to the broadcast channel, it can again become
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`m-regular and m-connected.” Id. at col. 15, ll. 2–4. That is, “the broadcast channel toggles
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`between being and not being m-regular.” Id. at col. 15, ll. 5–6. That embodiment is not
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`inconsistent with Judge Andrews’s discussion above, which requires merely that the network
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`“immediately try[] to return” to an m-regular configuration when one no longer exists. See Take-
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`Two, Dkt. No. 492 at 15.
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`In view of Judge Andrews’s order in Take-Two and the intrinsic record, it is clear that the
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`operative distinction for purposes of determining m-regularity is not whether a player’s actions
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`were taken during the game or prior to the start of gameplay. Instead, the operative question is
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`how the network behaves when it falls out of an m-regular state. If the network “responds by
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`immediately trying to return to [an m-regular] configuration,” then it is likely configured to
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`maintain m-regularity. See id. at 15. If not, the network is not “‘configured to maintain’ any
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`particular state.” See id.
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`Case 1:16-cv-00453-WCB Document 788 Filed 09/20/23 Page 5 of 5 PageID #: 55068
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`As noted above, Activision suggests that m-regularity occurs in the CoD voice chat feature
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`only when the players use certain security settings on their network devices. In the situation in
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`which a player does not use those certain settings, presumably the network is not m-regular and
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`makes no effort to become m-regular. But if those settings are used, in Activision’s view the
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`network is m-regular. That arrangement suggests a network that is not “configured to maintain”
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`any particular state, and therefore would not be “m-regular” as that term is used in the asserted
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`claims.
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`In its brief, Acceleration suggests that the factual scenario presented by this case is
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`somewhat more complex than it is characterized by Activision. For example, Acceleration
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`suggests that regardless of the players’ actions, “so long as there are a sufficient number of
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`participants, the ultimate network that Call of Duty assembles will be m-regular.” Dkt. No. 785 at
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`6. Accordingly, in Acceleration’s view, “Call of Duty is configured to create an m-regular network
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`and does not depend on any specific pre-game actions to do so.” Id. If Acceleration is able to
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`establish that proposition as a factual matter at trial, my disposition of the present claim
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`construction dispute would not preclude a finding of infringement.
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`IT IS SO ORDERED.
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`SIGNED this 20th day of September, 2023.
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`______________________________
`WILLIAM C. BRYSON
`UNITED STATES CIRCUIT JUDGE
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