Case 1:16-cv-00453-WCB Document 852 Filed 05/02/24 Page 1 of 4 PageID #: 56706
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 16-453-WCB
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`)))))))))
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`Plaintiffs,
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`v.
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`ACCELERATION BAY LLC,
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`ACTIVISION BLIZZARD INC.,
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`Defendants.
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`ACCELERATION BAY LLC’S LETTER BRIEF REGARDING
`THE CONSTRUCTION OF “M-REGULAR” IN CLAIM 1 OF THE ’147 PATENT
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`POTTER ANDERSON & CORROON LLP
`Philip A. Rovner (#3215)
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
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`Attorneys for Acceleration Bay LLC
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`OF COUNSEL:
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`Paul J. Andre
`Lisa Kobialka
`James R. Hannah
`Christina Finn
`Aakash Jariwala
`Melissa Brenner
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`333 Twin Dolphin Dr., Suite 700
`Redwood Shores, CA 94065
`(650) 752-1700
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`Aaron M. Frankel
`Cristina Martinez
`Marcus Colucci
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
` (212) 715-9100
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`Dated: May 2, 2024
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`Case 1:16-cv-00453-WCB Document 852 Filed 05/02/24 Page 2 of 4 PageID #: 56707
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`The Court should reject Activision’s eleventh-hour request to import into “m-regular” a
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`requirement that the network be incomplete. The Court already construed “m-regular” without
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`requiring that it be incomplete. D.I. 275 at 14-15. Activision did not previously request a
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`construction that “m-regular” must be incomplete and, therefore, waived the argument.1
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`Claim 1 of the ’147 Patent requires a broadcast channel that forms an “m-regular graph,”
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`but does not require that the graph is incomplete:
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`A method of disconnecting a first computer from a second computer, the first
`computer and the second computer being connected to a broadcast channel, said
`broadcast channel forming an m-regular graph where m is at least 3, the method
`comprising:
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`In contrast, Claim 1 of the ’344 Patent includes a clause specifically requiring a network
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`that is both “m-regular” and “non-complete”:
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`further wherein the network is m-regular, where m is the exact number of neighbor
`participants of each participant and further wherein the number of participants is
`at least two greater than m thus resulting in a non-complete graph.
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`The inventors’ use of both “m-regular” and “non-complete” confirms their awareness of
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`that the two concepts are distinct. Their decision not to include an “incomplete graph” limitation
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`in the claims of the ’147 Patent should be credited. Comark Commc’ns, Inc. v. Harris Corp.,
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`156 F.3d 1182, 1186-87 (Fed. Cir. 1998) (noting the starting point of claim construction is the
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`“asserted claim itself” and there is a presumed “‘difference in meaning and scope when different
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`words or phrases are used in separate claims.’”) (citation omitted). Moreover, the use of the
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`“further wherein” language in Claim 1 of the ’344 Patent confirms that m-regular and non-
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`complete have distinct meanings to a person of ordinary skill in the art. Otherwise there would
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`1 Activision contends that O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., requires that the
`Court address this issue. 467 F.3d 1355 (Fed. Cir. 2006). O2 Micro does not apply because the
`m-regular claim term was already construed as part of the Court’s extensive claim construction
`process. There is no new development that requires reconsideration of the prior construction.
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`Case 1:16-cv-00453-WCB Document 852 Filed 05/02/24 Page 3 of 4 PageID #: 56708
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`be no need to include the modifier in Claim 1 of the ’344 Patent that the m-regular network must
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`also be non-complete. Indeed, Activision’s technical expert, Dr. Wicker, confirmed that an “m-
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`regular” network can be either “complete” or “incomplete,” confirming that an m-regular
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`network should not be limited to only incomplete networks. 5/1/24 Draft Trial Tr. at 224:2-3 (“I
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`showed you an m-regular graph that was also incomplete.”), 213:1-2 (“So not only is this m-
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`regular, or, in this case, 4-regular, it's also complete.”) (emphasis added).
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`Activision’s proposed construction also should be rejected because it would render as
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`mere surplusage the “further wherein …. Thus resulting in a non-complete graph” clause in
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`Claim 1 of the ’344 Patent. “[I]nterpretations that render some portion of the claim language
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`superfluous are disfavored.” Power Mosfet Techs., L.L.C. v. Siemens AG, 378 F.3d 1396, 1410
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`(Fed. Cir. 2004). Instead, terms should be “construe[d] . . . with an eye toward giving effect to
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`all of their terms” lest it “undermine[]” the essential notice function of patent claims.
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`Haemonetics Corp. v. Baxter Healthcare Corp., 607 F.3d 776, 781 (Fed. Cir. 2010).
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`There is no basis to import into Claim 1 of the ’147 Patent a requirement that the graph
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`be incomplete. Indeed, the words “incomplete” or “non-complete” do not appear anywhere in
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`the specification of the ’147 Patent. It would be improper to import limitations from another
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`patent, such as the ‘344 Patent, into the ’147 Patent. Aventis Pharms. Inc. v. Amino Chems. Ltd.,
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`715 F.3d 1363, 1373 (Fed. Cir. 2013) (Courts should “look to the words of the claims themselves
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`. . . to define the scope of the patented invention.”). The ’344 and ’147 Patents are not related
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`and have different specifications.
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`Finally, the file history further confirms that “m-regular” should not be construed to be
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`incomplete. During the prosecution of the ’147 Patent, the “m-regular” limitation was originally
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`set forth in a dependent claim. Ex. 1 (12/11/03 Amendment) at 11. In order to overcome a prior
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`2
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`Case 1:16-cv-00453-WCB Document 852 Filed 05/02/24 Page 4 of 4 PageID #: 56709
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`art rejection, the inventors reformed that dependent claim into an independent claim including
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`the “m-regular” limitation. Id. at 4-6, 11. Their accompanying argument to overcome the
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`rejection was limited to the claimed network being m-regular, and made no reference to the
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`network being incomplete. Id. at 8-13.2
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`Activision suggests that the Court’s prior rulings in the Take-Two summary judgment
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`order found Claim 1 of the ’147 Patent to require an incomplete network. Neither party
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`presented that issue to the Court in connection with the summary judgment briefing because
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`most of the asserted claims at issue in that case expressly recited networks that were both m-
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`regular and incomplete. Thus, the Court’s passing reference in the background section of the
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`summary judgment order to the claims being directed to networks that are m-regular and
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`incomplete was not a claim construction decision. See Acceleration Bay LLC v. Take-Two et al,
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`1:16-cv-00455-RGA, D.I. 492 at 2 (D. Del. Mar. 23, 2020).
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`Accordingly, the Court’s prior construction for “m-regular” should not be changed to
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`include an “incomplete” network requirement.
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`Respectfully submitted,
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`/s/ Philip A. Rovner
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`Philip A. Rovner (#3215)
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`cc: All counsel of Record (Via ECF Filing, Electronic Mail)
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`2 IPR 2016-00747 does not support importing into Claim 1 of the ’147 Patent a limitation that the
`network be incomplete. Activision appears to be relying on some general characterizations of
`the art that were not used in Acceleration Bay’s response to any of the specific grounds at issue
`(which was based on m-regularity) and were not argued as claim construction. The PTAB’s
`decision not to institute on Claim 1 did not depend on or even refer to the asserted references
`failing to disclose an incomplete network. Ex. 2 at 15-16. Thus, there was no “clear and
`unmistakable disclaimer” to support a disavowal of claim scope and there is no claim
`construction from the PTAB for the Court to consider adopting. Cont’l Circuits LLC v. Intel
`Corp., 915 F.3d 788, 796-97 (Fed. Cir. 2019).
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`3
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