Case 1:16-cv-00453-WCB Document 853 Filed 05/02/24 Page 1 of 3 PageID #: 56754
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`M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P
`1201 NORTH MARKET STREET
`P.O. BOX 1347
`WILMINGTON, DELAWARE 19899-1347
`
`(302) 351-9291
`(302) 425-3012 FAX
`
`JACK B. BLUMENFELD
`(302) 351-9291
`(302) 425-3012 FAX
`jblumenfeld@morrisbichols.com
`
`
`
`The Honorable William C. Bryson
`United States District Court
` for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
`
`May 2, 2024
`
`VIA ELECTRONIC FILING
`
`Re:
`
`Acceleration Bay LLC v. Activision Blizzard Inc., C.A. No. 16-453
`
`Dear Judge Bryson:
`
`Acceleration Bay admitted years ago that asserted claim 1 of the ‘147 requires a network that is
`both m-regular and incomplete. Now that Acceleration Bay has identified this issue of claim scope
`as disputed,1 O2 Micro prevents allowing the jury to decide whether this patent is limited to
`incomplete networks by intrinsic evidence. 521 F.3d 1351 (Fed. Cir. 2008).
`
`IPR Representations. Acceleration Bay’s own representations in its June 27, 2016 Patent Owner
`Preliminary Response in IPR proceedings on the ‘147 Patent (Ex. 1), which are now part of that
`intrinsic record, repeatedly acknowledge that the ‘147 patent is limited to networks that are both
`m-regular and incomplete in order to overcome prior art:
`
`
` Pages 4-5: “More particularly, the ‘147 Patent describes using a broadcast channel
`that overlays a point-to-point network where each node, or participant, is connected
`to some—but not all—neighboring participants.” (emph. added).
`
` Page 6: “The ‘147 Patent also describes a computer network in which the number of
`network participants N is greater than the number of connections m to each participant.
`This network topology, where no node is connected to every other node, is known as an
`incomplete graph.” (internal cites omitted).
`
`
`1 Activision proposed adding this construction to the jury instructions on April 22, 2024. (D.I.
`827). Acceleration Bay did not respond to this position in its April 25, 2024 “Re[s]ponse to
`Activision’s Proposed Claim Construction Chart” (D.I. 834), and did not indicate it objected to
`this proposal until the end of the trial day on May 1, 2024.
`
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`

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`Case 1:16-cv-00453-WCB Document 853 Filed 05/02/24 Page 2 of 3 PageID #: 56755
`
`The Honorable William C. Bryson
`May 2, 2024
`Page 2
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` P. 6: “The incomplete graph topology relies on participants to disseminate information to
`other participants. See [‘147 Patent] at 1:60-2:15.”
`
` P. 25: “Rufino does not cure the deficiencies of Denes as Rufino does not address
`receiving disconnect messages in the context of maintaining an m-regular non-complete
`topology, as required by claim 1(b).”
`
`Claim Language. Even if Acceleration Bay had not made these binding admissions to save the
`validity of the ‘147 Patent, the claim language of Claim 1 of the ‘147 Patent mandates this
`conclusion for at least three reasons.
`
`First, the Court’s December 20, 2017 construction of “connection port search method” as it appears
`in Claim 1 of the ‘147 Patent, is a “message sent to locate a computer with less than m neighbors.”
`(D.I. 386, p. 17). If a network is fully complete, then by definition there can be no computer with
`“less than m neighbors,” as every computer is connected to every other computer.
`
`Second, when a first computer decides to leave the network, the claim requires the second
`computer to send a message “to find a third computer to which it can connect in order to maintain
`an m-regular graph.” If the claim covered a complete (or full-mesh) network as m-regular, there
`would be no need to take any of these steps. When a player leaves a complete network, the network
`remains fully complete; there would be no need to perform any additional steps “to maintain an
`m-regular graph,” as shown below. It is only when a player leaves an m-regular, incomplete
`network that these steps accomplish the goal of returning a network from not m-regular to m-
`regular.
`
`
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`One Player Leaves
`
`
`
`
`Network is Still Complete
`Without the Need for Any Steps
`
`
`Third, Claim 1 of the ‘147 Patent requires a second computer to take certain steps “to find a third
`computer to which it can connect,” but if the network were already complete this could not occur
`because every computer would already be connected.
`
`Specification. The ‘147 specification is fully aligned on this point, disparaging complete
`networks. See ‘147 Patent at 1:48-59 (“The interconnection of all participants using point-to-point
`connections, while theoretically possible, does not scale well as a number of participants grows.”).
`
`
`
`Complete Network With 5
`Connections Each
`
`
`
`

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`Case 1:16-cv-00453-WCB Document 853 Filed 05/02/24 Page 3 of 3 PageID #: 56756
`
`The Honorable William C. Bryson
`May 2, 2024
`Page 3
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`This case. It is unsurprising that, as Activision explained in its April 26, 2024 letter brief on claim
`construction issues, the parties in this case appear to have long operated under the understanding
`that the ‘147 patent is limited to incomplete networks (D.I. 838, p. 1); see also Acceleration Bay
`LLC v. Take-Two Interactive Software, Inc., 612 F. Supp. 3d 408, 413 (D. Del. 2020) (“While the
`‘069 and ‘147 patent claims describe methods, they are also limited to ‘incomplete’ and ‘m-
`regular’ networks.”), aff’d in part, appeal dismissed in part sub nom., Acceleration Bay LLC v. 2K
`Sports, Inc. 15 F. 4th 1069 (Fed. Cir. 2021).
`
`Conclusion. Activision respectfully submits that the Court should therefore enter Activision’s
`proposed constructions adding “incomplete” to Claim 1 of the ‘147 patent (see D.I. 827, p. 4), or
`otherwise construe this claim to include a limitation that the network must be “incomplete.”
`
`
`Respectfully,
`
`/s/ Jack B. Blumenfeld
`
`Jack B. Blumenfeld (#1014)
`
`
`
`Clerk of Court (Via Hand Delivery)
`All Counsel of Record (Via Electronic Mail)
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`
`cc:
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