Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 1 of 53 PagelD #: 16362
`
`EXHIBIT F
`
`

`

`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 2 of 53 PagelD #: 16363
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`Neeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD,INC.,
`
`Defendant.
`
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ELECTRONIC ARTSINC.,
`
`
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`Vv.
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC., and 2K
`SPORTS, INC.,
`
`Defendants.
`
`C.A. No. 16-453 (RGA)
`
`C.A. No. 16-454 (RGA)
`
`C.A. No. 16-455 (RGA)
`
`DECLARATION OF NENAD MEDVIDOVIC IN SUPPORT OF PLAINTIFF
`ACCELERATION BAY LLC’S OPENING CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 3 of 53 PagelD #: 16364
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`I, Nenad Medvidovié, declare:
`
`1.
`
`I make this Declaration based upon my own personal knowledge, information,
`
`and belief, and I would and could competently testify to the matters set forth herein if called
`
`upon to do so.
`
`2.
`
`I understand that
`
`| am submitting this Declaration to assist
`
`the Court
`
`in
`
`determining the proper construction of certain terms used in the claims of the patents
`
`Acceleration Bay LLC asserts in these actions.
`
`I.
`
`Qualifications
`
`3.
`
`I received a Bachelor of Science (“BS”) degree, Summa Cum Laude,
`
`from
`
`Arizona State University’s Computer Science and Engineering department.
`
`4,
`
`I received a Master of Science (“MS”) degree from the University of California at
`
`Irvine’s Information and Computer Science department.
`
`5.
`
`I received a Doctor of Philosophy (“PhD”) degree from the University of
`
`California at Irvine’s Information and Computer Science department. My dissertation was
`
`entitled, “Architecture-Based Specification-Time Software Evolution.”
`
`6.
`
`I am employed by the University of Southern California (“USC”) as a faculty
`
`memberin the Computer Science Department, and have been since January, 1999.
`
`I currently
`
`hold the title of Professor with tenure. Between January, 2009 and January 2013, I served as the
`
`Director of the Center for Systems and Software Engineering at USC. Between July, 2011, and
`
`July, 2015, I served as my Department’s Associate Chair for PhDAffairs.
`
`7.
`
`I teach graduate and undergraduate courses in Software Architecture, Software
`
`Engineering, and Embedded Systems, and advise PhD students.
`
`I have graduated 15 PhD
`
`students and advise 7 students currently pursuing a PhD.
`
`

`

`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 4 of 53 PagelD #: 16365
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`8.
`
`I served as Program Co-Chair for the flagship conference in my field—
`
`International Conference on Software Engineering (“ICSE”)—held in May 2011.
`
`I have served
`
`as Chair or Co-Chair for various other conferences in the Software Engineering field, including:
`
`the Fifth Working IEEE/IFIP Conference on Software Architecture, the Third IEEE International
`
`Conference on Self-Adaptive and Self-Organizing Systems, the Fifteenth International ACM
`
`SIGSOFT Symposium on Component Based Software Engineering,
`
`the IEEE/CSSE/ISE
`
`Workshop on Software Architecture Challenges for the 21st Century, and the Doctoral
`
`Symposium at the Sixteenth ACM SIGSOFTInternational Symposium on the Foundations of
`
`Software Engineering.
`
`9.
`
`I serve or have served as an editor of several peer-reviewed journals, including:
`
`“IEEE Transactions on Software Engineering,” “ACM Transactions on Software Engineering
`
`and Methodology”, “Journal of Software Engineering for Robotics,” “Elsevier Information and
`
`Software Technology Journal,” “Journal of Systems and Software,” “Journal of Software
`
`Engineering Research and Development,” and “Springer Computing Journal.” Additionally, I
`
`have served as a guest editor of several specialissues for different journals.
`
`10.
`
`Between September 2013 and September 2015 J served as Chair of the ICSE
`
`Steering Committee. I am currently a member of the Steering Committee of the European
`
`Conference on Software Engineering.
`
`I previously served as a member of the Steering
`
`Committees of ICSE and of the Working JEEE/IFIP Conference on Software Architecture.
`
`11.
`
`Since July, 2015, I have served as Chair of the Association for Computing
`
`Machinery’s Special Interest Group on Software Engineering (ACM SIGSOFT),
`
`the largest
`
`professional organization in myfield of work.
`
`

`

`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 5 of 53 PagelD #: 16366
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`12.
`
`I co-authored “Software Architecture: Foundations, Theory, and Practice,” a
`
`widely used textbookin the field of Software Systems’ Architecture.
`
`13.
`
`J have served as editor of various books in the Software Engineering field
`
`including: “Proceedings of the 3rd International Conference on Self-Adaptive and Self-
`
`Organizing Systems,” “Proceedings of the Warm-Up Workshop for the 32nd International
`
`Conference on Software Engineering,” and “Proceedings of the Sth Working DTEEE/IFIP
`
`Conference on Software Architecture.”
`
`14,
`
`I have authored or co-authored over 200 papers in the Software Engineeringfield.
`
`My most cited paper has been cited nearly 2,600 times. A paper I co-authored in the 1998
`
`International Conference on Software Engineering, my field’s flagship conference, was given ten
`
`years later, in 2008, that conference’s Most Influential Paper Award. Recently, a paper I co-
`
`authored in the 2017 International Conference on Software Architecture was given that
`
`conference’s Best Paper Award.
`
`15.
`
`I have served as referee or reviewer for over twenty peer-reviewed journals,
`
`including: “ACM Transactions on Software Engineering and Methodology,” “JEEE Transactions
`
`on Software Engineering,” “Journal of Software Engineering for Robotics,” “IEEE Software,”
`
`“TEEE Transactions on Industrial Informatics,” “Elsevier Information and Software Technology
`
`Journal,” “Journal of Systems and Software,” “Journal of Automated Software Engineering,”
`
`“IEEE Transactions on Parallel and Distributed Systems,” “IEEE Computer,” and “IEEE
`
`Proceedings — Software Engineering.”
`
`16.
`
`I have been named a Distinguished Scientist of the Association for Computing
`
`Machinery (“ACM”).
`
`I have been elected a Fellow the Institute of Electrical and Electronics
`
`

`

`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 6 of 53 PagelD #: 16367
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`Engineers (IEEE), IEEE’s highest grade that is granted to less than 0.1% of its membership
`
`annually.
`
`It.
`
`Materials Reviewed
`
`17.
`
`I reviewed in detail U.S. Patent Nos. 6,701,344 (the “’344 Patent ”) Ex. A-1;
`
`6,714,966 (the “’966 Patent ”) Ex. A-2; 6,732,147 (the “’147 Patent ”) Ex. A-3; 6,829,634 (the
`
`“°634 Patent ”) Ex. A-4; 6,910,069 (the “’069”) Ex. A-5; and 6,920,497 (“the ‘°497 Patent ”) Ex.
`
`A-6 (collectively,
`
`the “Asserted Patents”).
`
`I also reviewed the prosecution histories of the
`
`Asserted Patents (Exs. B-1 to B-6, respectively).
`
`18.
`
`| reviewed the Parties’ Joint Claim Construction Chart (E. 1), which I understand
`
`was submitted jointly by Plaintiff Acceleration Bay and Defendants Activision Blizzard, Inc.,
`
`Electronic Arts Inc., Take-Two Interactive Software, Inc., Rockstar Games,Inc., and 2K Sports,
`
`Inc. and their respective proposed claim construction and support thereof. [ reviewed each ofthe
`
`termsidentified as disputed.
`
`YU.~~Person of Ordinary Skill in the Art
`
`19.
`
`Counsel have informed me, and I understand, that the “person of ordinary skill in
`
`the art” is a hypothetical person who is presumed to be familiar with the relevant scientific field
`
`and its literature at the time of the invention. This hypothetical person is also a person of
`
`ordinary creativity, capable of understanding the scientific principles applicable to the pertinent
`
`field.
`
`20.
`
`I am informed by counsel and I understand that the level of ordinary skill in the
`
`art may be determined by reference to certain factors,
`
`including (1) the type of problems
`
`encountered in the art, (2) prior art solutions to those problems, (3) the rapidity with which
`
`innovations are made, (4) the sophistication of the technology, and (5) the educational level of
`
`

`

`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 7 of 53 PagelD #: 16368
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`active workers in the field.
`
`I further understand that the face of the Asserted Patents claim a
`
`priority date of July 31, 2000.
`
`21.
`
`My understanding of a person of ordinary skill in the art is a person with a
`
`bachelor’s degree in computer science or a related field, and either (1) two or more years of
`
`industry experience and/or (2) an advanced degree in computer scienceora related field.
`
`IV.
`
`Overview of the Technology
`
`22.
`
`The Asserted Patents are directed to novel computer network technology,
`
`developed by named inventors Fred Holt and Virgil Bourassa more than sixteen years ago. As
`
`discussed in more detail below, the Asserted Patents solved critical scalability and reliability
`
`problems associated with the real-time sharing of information among multiple widely distributed
`
`computers. This innovative technology enabled large-scale, unlimited online collaborations with
`
`numerousparticipants continually joining and leaving -- with applications ranging from aircraft
`
`design development to multi-player online games.
`
`23.
`
`Although each of the Asserted Patents focuses on different inventive aspects, the
`
`Asserted Patents share and incorporate the same disclosures in the Background of the Invention
`
`(the “Background”). The Background of the Asserted Patents provides an overview of point-to-
`
`point network protocols, such as UNIX pipes, TCP/IP, and UDP, that allow processes on
`
`different computers to communicate via point-to-point connections. Ex. A-1 (‘344 Patent) at
`
`1:44-46. Although the interconnection ofall participants to all other participants using point-to-
`
`point connections is theoretically possible, it does not scale well as the number ofparticipants
`
`grows. Jd. at 1:46-49. Because each participating process needs to manageits direct connections
`
`to all other participating processes, the number of possible participants is limited to the number
`
`of direct connections a given machine, or process, can support. Jd. at 1:49-55.
`
`

`

`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 8 of 53 PagelD #: 16369
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`24.
`
`The Asserted Patents are directed to computer network technology overlays these
`
`point-to-point networks. More particularly, the Asserted Patents describe using a broadcast
`
`channel that overlays a point-to-point network where each node (participant) is connected its
`
`neighboring network nodes. For example, Fig. 2 of the Asserted Patents, reproduced below,
`
`shows a network of twenty participants, where each participant is connected to four other
`
`participants:
`
`
`
`Fig. 2
`
`25,
`
`Such a network arrangement, where each node in the network, is connected to the
`
`same numberof other nodes, is known as an m-regular network. Jd. at 4:38-39.
`
`A.
`
`The ‘344 Patent
`
`26.
`
`The ‘344 Patent focuses on “a game environment” which “is provided by a game
`
`application program executing on each player’s computer.” Ex. A-1 (°344 Patent) at 16:30-34.
`
`In order to participate in the game environment, “[e]ach player joins a game(e.g., a first shooter
`
`

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`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 9 of 53 PagelD #: 16370
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`game) by connecting to the broadcast channel on which the gameis played.” Jd. at 16:34-36.
`
`The gaming application programs connected to the broadcast channel form an m-regular,
`
`incomplete network in order to ensure reliability and scalability of the network. See id. at Claims
`
`1, 13, 16, and 18; see also id. at 2:38-41.
`
`27.
`
`The broadcast channel
`
`is
`
`implemented through a “graph of point-to-point
`
`connections” that “overlays the underlying network.” Jd. at 4:19-26. The broadcast technique
`
`disclosed and claimed in the ‘344 Patent establishes a gaming environment that uses the
`
`broadcast channel for participants, or gaming applications, to communicate and participate in a
`
`game. Jd. at 16:30-34. Asaresult of implementing the gaming environment using a broadcast
`
`channel, each participant is connected to some—but not all—neighboring participants. See Ex.
`
`A-1 (344Patent) at Fig. 2; see also id. at 5:65-66.
`
`B.
`
`The ‘966 Patent
`
`28.
`
`The ‘966 Patent focuses on “an information delivery service application” which
`
`“allows participants to monitor messages as they are broadcast on the broadcast channel.” Ex.
`
`A-2 (‘966 Patent) at 16:25-28. A participant “may function as a producer of information, as a
`
`consumerof information, or both.” Jd. at 16:28-30. The information delivery service application
`
`“may be downloadedto the user’s computer if not already available on the user’s computer.” Jd.
`
`at 16:45-49.
`
`29.
`
`The information delivery service application connected to the broadcast channel
`
`forms an m-regular, incomplete network in order to ensure reliability and scalability of the
`
`network. See Ex. A-2 (966 Patent) at Claims 1, 13, 16; see also id. at 2:38-41 (describing the
`
`need for a fast and reliable communications network for a large number of widely distributed
`
`processes). In one example, “a graph that is 4-regular and 4-connected which represents the
`
`broadcast channel.” Jd. at 4:48—-49.
`
`

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`30.
`
`The broadcast technique disclosed and claimed in the ‘966 Patent uses the
`
`broadcast channel for participants, such as application programs, to communicate. Jd. at 16:25-
`
`30. As a result of the service using a broadcast channel, each participant is connected to some—
`
`but not all—neighboring participants. See id. at Fig. 2; see also id. at 5:63-6:7.
`
`31.
`
`The broadcast channel is “well suited for computer processes(e.g., applications
`
`programs) that execute collaboratively, such as network meeting programs. Each computer
`
`process can connect to one or more broadcast channels” and therefore executes on each player’s
`
`computer that interacts with a broadcast component. Ex. A-2 (‘966 Patent) at 15:13-17; 15:26-
`
`28; 16:21-23; 16:41-45.
`
`C.
`
`The ‘634 Patent
`
`32.
`
`The ‘634 Patent focuses on a novel, non-routing table based computer network
`
`and broadcast channel where participants are updated as to data broadcast on the network
`
`without the use of routing tables and without a complete graph topology. Ex. A-4 (‘634 Patent)
`
`at 2:46-53. A routing table is well known in the art to be a table which lists and keeps track of
`
`intended routes between nodes.
`
`D.
`
`The ‘147 Patent
`
`33.
`
`The ‘147 Patent focuses on the manner in which a nodeor participant is removed
`
`from a network, which involves a first computer sending a disconnect message to a second
`
`computer, which includesalist of the departing computer’s neighbors, and the second computer
`
`broadcasting a connection port search message to find one ofthe first computer’s neighbors to
`
`which it can connect in order to maintain an m-regular graph. Ex. A-3 (‘147 Patent) at Abstract;
`
`see also id. at 8:66-9:26.
`
`

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`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 11 of 53 PagelD #: 16372
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`E.
`
`The ‘069 Patent
`
`34.
`
`The ’069 Patent focuses on a process for adding nodes, or participants, to an
`
`existing network. In order to join an existing network, a seeking computer locates and contacts a
`
`portal computer that is fully connected to the network. Jd. at 5:20-24. The portal computer then
`
`identifies computers to which the seeking computer will connect.
`
`Jd. at 5:42-45. Once
`
`identified, the seeking computer joins the network by connecting to the identified computers
`
`using the ‘069 Patent’s edge pinning process.
`
`F.
`
`The ‘497 Patent
`
`35.
`
`The ‘497 Patent focuses on methods and systems for contacting a broadcast
`
`channel. See generally Ex. A-6 (‘497 Patent) at 1:30-2:45. One of the ways in which this is
`
`accomplished is through a seeking computer, which uses a selected call-in port to request that a
`
`portal computer coordinate the connection of the seeking computer.
`
`36.
`
`The ‘497 Patent describes how to connect to the broadcast channel. In particular,
`
`it describes how the computer seeking the connection first locates a computer that is currently
`
`fully connected to the broadcast channel. Ex. A-6 (‘497 Patent) at 5:20-24. Each computer is
`
`aware of one or more “portal computers” through which that given computer may locate the
`
`broadcast channel.
`
`Jd. at 5:37-39. Each computer connected to the broadcast channel contains
`
`communications ports for communicating with other computers. Jd. at 6:10-12. The “user ports
`
`cannot be statically allocated to an application program because other applications programs
`
`executing on the same computer may use conflicting port numbers.” Jd. at 11:36-39.
`
`

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`Vv.
`
`Construction of the Disputed Terms
`
`37.
`
`| understand that the parties disagree on the construction of the claim terms
`
`discussed below.
`
`A.
`
`Term 17: “M-Regular” and “M-Regular Network” (£344; ‘966; ‘634; ‘147
`Patents)
`
`| Plaintiff's ProposedConstructions
`| Defendants’ Proposed Constructions
`
`a network where each participant has m
`344, °966, °634: “a state that the network
`neighborparticipants in a steady state
`seeks to maintain at all times, where each
`participant is connected to exactly m
`neighborparticipants”
`
`°147: “a state that the network seeksto
`maintain atall times, where each computer
`is connected to exactly m neighbor
`computers”
`
`38.
`
`Based on my professional experience, a person of ordinary skill in the art would
`
`understand these terms, as it is used in the claims and intrinsic record, to mean “a network where
`
`each participant has m neighborparticipants in a steady state.”
`
`39.
`
`The specifications provide numerous examples of an m-regular network and,
`
`consistent with its customary usage, explain that it is a network where each computer (or node)
`
`in the network is connected to the same number of other computers in the network when the
`
`network is in a steady state. Ex. A-[ (‘344 Patent) at 14:53-15:7 (When the number of internal
`
`connectors is even, then the broadcast channel can be maintained as m-regular ... (in the steady
`
`state)’’) (emphasis added). For example, Figure 1 illustrates a network with nine computers (A —
`
`I) and each computer is connected to four other computers. Jd. at 4:38-53. The specifications
`
`explain that this as a 4-regular network (i.e., an m-regular network where m equals 4) because
`
`each computer is connected to 4 other computers.
`
`40.
`
`I disagree with Defendants’ proposed construction for this term because in my
`
`opinion it is inconsistent with intrinsic record. For example, as noted above, Figure 1 illustrates
`
`10
`
`

`

`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 13 of 53 PagelD #: 16374
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`a network with nine computers (A — J) where each computer is connected to four other
`
`computers. Ex. A-1 (‘344 patent) at 4:38-53. The specification explain that, in this steady state,
`
`the network is 4-regular network (i.e., an m-regular network where m equals 4) because each
`
`computer is connected to 4 other computers. /d. at 14:63-65.
`
`Al.
`
`The patents also discuss a “small regime,” when the numberofparticipants is too
`
`low for the network to be m-regular, and scenarios where the numberof internal connectionsis
`
`odd and the broadcast channel has an odd numberof participants and, therefore “one of the
`
`computers will have less than that odd number of internal connections [and] the broadcast
`
`network is neither m-regular nor m-connected.” Ex. A-1 (‘344 Patent) at 14:53-15:7.
`
`In such
`
`scenarios “the broadcast channel
`
`toggles between being and not being m-regular and m-
`
`connected.”
`
`Jd. at 15:5-7. The patents also describe scenarios where if a participant is
`
`disconnected and the total numberofparticipants is low, the network will cease to be m-regular
`
`for a period of time. Jd. at 9:55-10:2.
`
`42.
`
`The specification further explains that the network is m-regular in steady state
`
`because computers connect and disconnect from the network, and as a result, there will be
`
`periods of time where not every computer in the network will be connected to the same number
`
`of other computers. Ex. A-1 (‘344 patent) at 14:53-15:7.
`
`43.
`
`Acceleration Bay’s construction also comports with statements in the Patent
`
`Owner Response submitted in connection with the IPRs.x
`
`1]
`
`

`

`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 14 of 53 PagelD #: 16375
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`Term 16: “m” (‘344; ‘966; ‘634; ‘147 Patents)
`B.
`
`Plaintiff's Proposed Constructions
`| Defendants’ Proposed Constructions
`No construction necessary:
`“344,
`‘966,
`‘634, ‘069
`plain and ordinary meaning
`“a predetermined design parameter
`specifying the numberof neighbors each
`participant should maintain”
`
`
`
`
`
`‘147
`“a predetermined design parameter
`specifying the numberof neighbors each
`computer should maintain”
`
`44.
`
`Based on myprofessional experience, a person of ordinary skill in the art would
`
`understand the term “m’” to be consistent with its plain and ordinary meaning, and no
`
`construction is needed. This is especially true here where the usage in the claim language
`
`provides a clear and straightforward meaning: mis simply a numberof neighbors.
`
`45.
`
`I disagree with Defendants’ proposed construction for this term because the
`
`Asserted Patents contemplate a dynamic network, and in my opinion there is no basis to require
`
`(1) a predetermined numberof neighbors, and (2) no requirement the network should maintain
`
`that number. To the contrary, the number m can change as computers connect and disconnect
`
`from the network,as discussed with respect to Term 17.
`
`12
`
`

`

`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 15 of 53 PagelD #: 16376
`
`Cc,
`Term 18: “m-connected”; “m-connected network” (‘634 Patent)
`
`
`| Plaintiff's Proposed Constructions
`Defendants’ Proposed Constructions
`|
`a network that may be divided into
`“a state that the network seeks to maintain
`disconnected sub-networks by the removal of m|at all times, where dividing the network into
`participants in a steady state
`two or more separate parts would require
`the removalofat least m participants”
`
`46.
`
`Based on myprofessional experience, a person of ordinary skill in the art would
`
`understand this term to mean: “a network that may be divided into disconnected sub-networks by
`
`the removal of m participants in a steady state.”
`
`47.
`
`This construction is consistent with the usage of these terms in the intrinsic
`
`record. Ex. A-4 (‘634 Patent) at 4:64-5:8; 15:20-42. For example, the specifications state that,
`
`“Tt]he graph used by the broadcast technique also has the property that it would take a failure of
`
`[m] computers to divide the graph into disjoint sub-graphs,
`
`that is two separate broadcast
`
`channels.” Jd. at S:1-4.
`
`48.
`
`I disagree with Defendants’ proposed construction for this term because it
`
`includes (1)
`
`intent and (2) at-all-times requirements—the same problems as Defendants’
`
`construction “m-regular networks” (Term 17) without any support in the intrinsic record. See,
`
`e.g., Ex. A-1 (344 Patent) at 14:53-15:7 (“the broadcast channel toggles between being and not
`
`being m-regular and m-connected.”). Additionally, Defendants’ usage of “parts” is less precise
`
`than “‘sub-networks,” as proposed by Acceleration Bay, and Defendants’ proposed “two or more”
`
`languageis superfluous.
`
`13
`
`

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`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 16 of 53 PagelD #: 16377
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`Terms { and 2: “means for identifying a broadcast channel for a game of
`interest;” “means for identifying a gameof interest includes accessing a web
`server that maps games to corresponding broadcast channel” (‘344 Patent)
`
`
`
`Plaintiff's Proposed Constructions
`| Defendants’ Proposed Constructions
`
`Governed by 35 U.S.C. § 112(6):
`This term is indefinite.
`
`D.
`
`Function: identifying a broadcast channei for a
`game ofinterest
`
`identifying a broadcast channel
`Function:
`for a gameofinterest
`
`
`
` Z|
`
`Structure: a processor programmed to perform
`the algorithm disclosed in steps described in
`*344 Patent at 16:57-17:1, which involves
`connecting to a web server and downloading a
`broadcaster componentthat identifies the
`
`broadcast channel for the game ofinterest
`“Meansfor identifying a gameofinterest” is
`construed above. No further construction
`
`Structure: Indefinite because
`no/insufficient algorithm disclosed
`
`This term is indefinite.
`
`necessary.
`
`identifying a game of interest
`Function:
`includes accessing a web server that maps
`games to corresponding broadcast channel
`
`Structure: Indefinite because
`no/insufficient algorithm disclosed
`
`49.
`
`Based on my professional experience, a person of ordinary skill in the art would
`
`understand the function of the elements in Terms 1 and 2 based on the plain language of the
`
`claims.
`
`50.
`
`Defendants incorrectly argue they are indefinite because there is no algorithm
`
`disclosed.
`
`51.
`
`To the contrary, the ‘344 Patent sets forth a specific algorithm for performing the
`
`functions in Terms | and 2: “Whenjoining a game, the user would download the broadcaster
`
`component and the game application program from the web server.... The web server would
`
`also provide the channel
`
`type and channel instance associated with the game and the
`
`identification of the portal computers for the game.” Ex. A-1 (‘344 Patent) at 16:57-17:1
`
`(emphasis added). This process is further described in the specification. See, e.g., Ex. A-1 (‘344
`
`14
`
`

`

`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 17 of 53 PagelD #: 16378
`
`Patent) at 17:65-18:7; Fig. 8 (illustrating algorithm for processing the connect routine for a
`
`broadcast channel); 17:67-18:56 (describing steps in Fig. 8).
`
`52.
`
`In my opinion, a person of ordinary skill in the art would understand that, through
`
`this description, the ‘344 Patent discloses the steps to identify the broadcast channel for the game
`
`or a gameofinterest.
`
`E.
`
`Term 3: “meansfor identifying a broadcast channel for a topic of interest”
`(‘966 Patent)
`
`Plaintiff's Proposed Constructions =~
`| Defendants’ Proposed Constructions _
`
`Governed by 35 U.S.C. § 112(6):
`This term is indefinite.
`Function: identifying a broadcast channelfor a
`topic of interest
`
`identifying a broadcast channel
`Function:
`for a topic ofinterest
`
`
`
`
`Structure: a processor programmedto perform
`the algorithm disclosed in steps described in
`“966 Patent at 16:41-51, which involves
`connecting to a web server and downloading a
`broadcaster componentthat identifies the
`broadcast channel for a topic of interest
`
`Structure: Indefinite because
`no/insufficient algorithm disclosed
`
`53.
`
`Based on my professional experience, a person of ordinary skill in the art would
`
`understand the function of this element to be “identifying a broadcast channel for a topic of
`
`interest” based on the plain languageofthe claim.
`
`54.
`
`Defendants agree as to the function of this element, but incorrectly argue there is
`
`no algorithm disclosed. To the contrary, the ‘966 Patent specification sets forth an algorithm for
`
`performing this function: “The information delivery service may provide a directory website
`
`where consumers can locate and subscribe to broadcast channels of interest....When a user
`
`decides to subscribe to a broadcast channel,
`
`the broadcaster component and information
`
`delivery service application program may be downloaded to the user's computer if not already
`
`available on the user's computer. Also, the channel type and channel instance associated with
`
`that broadcast channel and the identification of the portal computers for that broadcast channel
`
`15
`
`

`

`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 18 of 53 PagelD #: 16379
`
`may be downloadedto the subscriber's computer.” Ex. A-2 (966 Patent) at 16:41-51 (emphasis
`
`added). The specification further describes the relevant steps.
`
`See, e.g.,
`
`id. at 16:30-40
`
`(describing different broadcast channels for topics of interest which may be selected); 16:55-
`
`17:10 (additional discussion of identifying relevant broadcast channels); Fig. 8 (flow chart of
`
`steps to connect to broadcast channel); 18:2-19:31 (describing steps in Fig. 8).
`
`55.
`
`Based on this disclosure, a person of ordinary skill in the art would understand
`
`that the specification explains the specific steps for performing the function of “identifying a
`
`broadcast channel for a topic of interest.” Accordingly, this term is not indefinite.
`
`16
`
`

`

`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 19 of 53 PagelD #: 16380
`
`FE.
`
`Term 4: “means for connecting to the identified broadcast channel” (344;
`‘966 Patents)
`
`Plaintiffs Proposed Constructions
`Defendants’ ProposedConstructions
`
`Governed by 35 U.S.C. § 112(6):
`This term is indefinite.
`Function: connecting a participant to an
`identified broadcast channel
`
`connecting to the identified
`Function:
`broadcast channel
`
`
`
`966:
`Structure: a processor programmed to perform|Structure: Indefinite because
`at least one of the algorithms disclosed in steps|no/insufficient algorithm disclosed
`801 to 806 in Figure 8 and described in the ‘966
`Patent at]8:3-19:22 or Figures 3A and 3B and
`described in the ‘966 Patent at 5:32-52, which
`involves invoking the connecting routine with
`the identified broadcast channel’s type and
`instance, connecting to the broadcast channel,
`connecting to a neighbor, and connecting to a
`fully connectedstate.
`
`344:
`Structure: a processor programmed to perform
`at least one of the algorithms disclosed in steps
`801 to 806 in Figure 8 and described in the ‘966
`Patent at 17:67-18:47 or Figures 3A and 3B and
`described in the ‘966 Patent at 5:33-55, which
`involves invoking the connecting routine with
`the identified broadcast channel’s type and
`instance, connecting to the broadcast channel,
`connecting to a neighbor, and connecting to a
`
`fully connectedstate.
`
`56.
`
`Based on myprofessional experience, a person of ordinary skill in the art would
`
`understand function of the element to be “connecting a participant to an identified broadcast
`
`channel” based on the plain language ofthe claims.
`
`57.
`
`This term is definite because the ‘966 and ‘344 Patent specifications sets forth an
`
`algorithm for performing the function.
`
`In particular, the ‘966 Patent describes that Figure 8
`
`(reproduced below) “is a flow diagram illustrating the processing of the connect routine in one
`
`embodiment.” Ex. A-2 (966 Patent) at 3:7-8. The ‘966 Patent further describes Figure 8 at
`
`17
`
`

`

`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 20 of 53 PagelD #: 16381
`
`17:55-18:44, including describing the specific steps that are performed. See id. at 17:55-18:44;
`
`(Chasse! Type,
`Shamed Drestarce,
`
`Similarly, the ‘966 Patent includes Figures 3A and 3B, which “illustrate the
`
`Cates. AuEnfo}
`A
`
`Fig.8.
`
`58.
`
`process of a new computer Z to the broadcast channel” and the steps of this algorithm are further
`
`detailed in the specification at 5:22-34. See id. at 5:22-34; Figs. 3A and 3B.
`
`Fig. 3A
`
`Fig. 3B
`
`59.
`
`A person of ordinary skill in the art would understand that the steps set forth in
`
`these figures and the related portions of the specification disclose the algorithms for performing
`
`the function of “connecting a participant to an identified broadcast channel.” See id. at Fig. 8
`
`(copied above).
`
`18
`
`

`

`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 21 of 53 PagelD #: 16382
`
`60.
`
`Further, Acceleration Bay’s proposed construction of Term 4. discloses a
`
`processor as a specific structure that is programed to carry out an algorithm that performs the
`
`function of “connecting a participant to an identified broadcast channel.” Both the ‘966 Patent
`
`and ‘344 Patent provide the relevant algorithm in steps 801 to 806 within Figure 8, which is “a
`
`flow diagram illustrating the processing of the connect routine”: (801) “Open call in port”; (802)
`
`“Set connect-time”; (803) “Seek portal — computer (channel type channel instance); (804) if the
`
`steps 801-3 fail then “Return”; (805) if the steps succeeded, then “Contact[]” and (806) “Achieve
`
`connection.” See id. at Fig. 8; see also Ex. A-1 (‘344 Patent) at 17:67-18:2; Ex. A-2 ((966
`
`Patent) at 18:3-5.
`
`61.
`
`Both the ‘966 and ‘344 Patents further disclose these steps of the algorithm in
`
`detail at Column 5: lines 33-55 (“the process of connecting to the broadcast channel includes
`
`locating the broadcast channel, identifying the neighbors for the connecting computer, and then
`
`connecting to each identified neighbor’) as well as Column 17: line 67 — Column 18: line 47
`
`(‘344 Patent) and Column5: lines 32-52 as well as Column 18: line 3 —- Column 19: line 22 (‘966
`
`Patent).
`
`19
`
`

`

`Case 1:16-cv-00455-RGA Document 164-1 Filed 06/29/17 Page 22 of 53 PagelD #: 16383
`
`Term 5: “means for identifying the portal computer” (‘497 Patent)
`G.
`
`
` Pla