Case 1:16-cv-00455-RGA Document 244 Filed 08/29/17 Page 1 of 16 PageID #: 18936
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`f I ~
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`Civil Action No. 16-453-RGA
`
`Civil Action No. 16-454-RGA
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.
`
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ELECTRONIC ARTS INC.
`
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC., AND 2K
`SPORTS, INC.
`
`Defendants.
`
`Civil Action No. 16-455-RGA
`
`MEMORANDUM OPINION
`
`Philip A. Rovner, Jonathan A. Choa, POTTER ANDERSON & CORROON LLP, Wilmington,
`DE; Paul J. Andre, Lisa Kobialka, Hannah Lee, KRAMER LEVIN NAFTALIS & FRANKEL
`LLP, Menlo Park, CA; Aaron Frankel, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New
`York, NY.
`
`

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`Case 1:16-cv-00455-RGA Document 244 Filed 08/29/17 Page 2 of 16 PageID #: 18937
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`Attorneys for Plaintiff.
`
`Jack B. Blumenfeld, Stephen J. Kraftschik, MORRIS, NICHOLS, ARSHT & TUNNEL LLP,
`Wilmington, DE; Michael A. Tomasulo, Gino Cheng, David K. Lin, Joe S. Netikosol,
`WINSTON & STRAWN LLP, Los Angeles, CA; David P. Enzminger, WINSTON & STRAWN
`LLP, Menlo Park, CA; Dan K. Webb, Kathleen B. Barry, WINSTON & STRAWN LLP,
`Chicago, IL.
`
`Attorneys for Defendants.
`
`August.2:'1._, 201 7
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`2
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`Case 1:16-cv-00455-RGA Document 244 Filed 08/29/17 Page 3 of 16 PageID #: 18938
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`AN»REW~s~
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`Presently before me is the issue of claim construction of multiple terms in U.S. Patent
`
`No. 6,701,344 (the '"344 patent"), U.S. Patent No. 6,714,966 (the "'966 patent"), U.S. Patent
`
`No. 6,829,634 (the "'634 patent"), U.S. Patent No. 6,910,069 (the "'069 patent"), U.S. Patent
`
`No. 6,732,147 (the '"147 patent"), and U.S. Patent No. 6,920,497 (the "'497 patent"). I have
`
`considered the parties' Joint Claim Construction Brief (D .I. 186) 1 and supplemental letters. (D .I.
`
`220; D.I. 222; D.I. 225; D.I. 237; D.I. 240). I issued an order limiting the issues to the eight
`
`means-plus-function terms and the three "m" terms found on pages 1-23 and 26-51 of the Joint
`
`Claim Construction Brief. (D.I. 206). I held oral argument on July 10, 2017. (D.I. 219 ("Tr.")).
`
`I.
`
`LEGAL STANDARD
`
`"It is a bedrock principle of patent law that the claims of a patent define the invention to
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`which the patentee is entitled the right to exclude." Phillips v. AWH Corp., 415 F.3d 1303, 1312
`
`(Fed. Cir. 2005) (en bane) (internal quotation marks omitted). "'[T]here is no magic formula or
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`catechism for conducting claim construction.' Instead, the court is free to attach the appropriate
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`weight to appropriate sources 'in light of the statutes and policies that inform patent law."'
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`Soft View LLC v. Apple Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4, 2013) (quoting Phillips,
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`415 F.3d at 1324) (alteration in original). When construing patent claims, a court considers the
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`literal language of the claim, the patent specification, and the prosecution history. Markman v.
`
`Westview Instruments, Inc., 52 F.3d 967, 977-80 (Fed. Cir. 1995) (en bane), aff'd, 517 U.S. 370
`
`(1996). Of these sources, "the specification is always highly relevant to the claim construction
`
`analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term."
`
`Phillips, 415 F.3d at 1315 (internal quotation marks omitted).
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`1 Citations to "D.I.
`
`" are to the docket in C.A. No. 16-453 unless otherwise noted.
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`3
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`Case 1:16-cv-00455-RGA Document 244 Filed 08/29/17 Page 4 of 16 PageID #: 18939
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`"[T]he words of a claim are generally given their ordinary and customary meaning ....
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`[Which is] the meaning that the term would have to a person of ordinary skill in the art in
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`question at the time of the invention, i.e., as of the effective filing date of the patent application."
`
`Id. at 1312-13 (citations and internal quotation marks omitted). "[T]he ordinary meaning of a
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`claim term is its meaning to [an] ordinary artisan after reading the entire patent." Id. at 1321
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`(internal quotation marks omitted). "In some cases, the ordinary meaning of claim language as
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`understood by a person of skill in the art may be readily apparent even to lay judges, and claim
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`construction in such cases involves little more than the application of the widely accepted
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`meaning of commonly understood words." Id. at 1314.
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`When a court relies solely upon the intrinsic evidence-the patent claims, the
`
`specification, and the prosecution history-the court's construction is a determination oflaw.
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`See Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015). The court may also
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`make factual findings based upon consideration of extrinsic evidence, which "consists of all
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`evidence external to the patent and prosecution history, including expert and inventor testimony,
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`dictionaries, and learned treatises." Phillips, 415 F .3d at 1317-19. Extrinsic evidence may assist
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`the court in understanding the underlying technology, the meaning of terms to one skilled in the
`
`art, and how the invention works. Id. Extrinsic evidence, however, is less reliable and less
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`useful in claim construction than the patent and its prosecution history. Id.
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`"A claim construction is persuasive, not because it follows a certain rule, but because it
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`defines terms in the context of the whole patent." Renishaw PLC v. Marposs Societa 'per
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`Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows that "a claim interpretation that would
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`exclude the inventor's device is rarely the correct interpretation." Osram GMBH v. Int'l Trade
`
`Comm 'n, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (citation omitted).
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`4
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`Case 1:16-cv-00455-RGA Document 244 Filed 08/29/17 Page 5 of 16 PageID #: 18940
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`II.
`
`BACKGROUND
`
`The following claims are the most relevant for the purposes of this Markman.
`
`Claim 1 of the '344 Patent
`
`1. A computer network for providing a game environment for a plurality of
`participants, each participant having connections to at least three neighbor
`participants, wherein an originating participant sends data to the other participants
`by sending the data through each of its connections to its neighbor participants
`and wherein each participant sends data that it receives from a neighbor
`participant to its other neighbor participants, further wherein the network ism(cid:173)
`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.
`
`(D.I. 117-2, Exh. A-1 ('"344 patent"), claim 1).
`
`Claim 13 of the '344 Patent
`
`13. A distributed game system comprising:
`
`a plurality of broadcast channels, each broadcast channel for playing a game, each of the
`broadcast channels for providing game information related to said game to a plurality of
`participants, each participant having connections to at least three neighbor participants,
`wherein an originating participant sends data to the other participants by sending the data
`through each of its connections to its neighbor participants and wherein each participant
`sends data that it receives from a neighbor participant to its neighbor participants, further
`wherein the network ism-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;
`
`means for identifying a broadcast channel for a game of interest; and
`
`means for connecting to the identified broadcast channel.
`
`('344 patent, claim 13).
`
`Claim 9 of the '497 Patent
`
`9. A component in a computer system for locating a call-in port of a portal computer,
`comprising:
`
`means for identifying the portal computer, the portal computer having a dynamically
`selected call-in port for communicating with other computers;
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`Case 1:16-cv-00455-RGA Document 244 Filed 08/29/17 Page 6 of 16 PageID #: 18941
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`means for identifying the call-in port of the identified portal computer by repeatedly
`trying to establish a connection with the identified portal computer through contacting a
`communications port or communications ports until a connection is successfully
`established;
`
`means for selecting the call-in port of the identified portal computer using a port ordering
`algorithm; and
`
`means for re-ordering the communications ports selected by the port ordering algorithm.
`
`(D.I. 117-2, Exh. A-6 ("' 497 patent"), claim 9).
`
`III.
`
`TERMS FOR CONSTRUCTION
`
`1. Term 4: "means for connecting to the identified broadcast channel" (claim 13 of the
`'344 patent; claim 13 of the '966 patent)
`
`a. Plaintiff's proposed construction:
`
`Function: Connecting a participant to an identified broadcast channel
`
`'966 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 18:3-19:22
`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
`connected state
`
`'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 '344 Patent at 17:67-18:47
`or Figures 3A and 3B and described in the '344 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
`connected state
`
`b. Defendants' proposed construction:
`
`Function: Connecting to the identified broadcast channel
`
`Structure: Indefinite because no/insufficient algorithm disclosed
`
`c. Court's construction:
`
`Function: Connecting to the identified broadcast channel
`
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`Case 1:16-cv-00455-RGA Document 244 Filed 08/29/17 Page 7 of 16 PageID #: 18942
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`'966 Structure: A processor programmed to perform at least one of the algorithms
`disclosed in steps 801 to 809 in Figure 8 and described in the '966 Patent at 18:3-20:9,
`20:41-21:19, 21:46-22:28,23:37-24:49, and Figures 9, 11, 13, 14, 17 and 18, 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 connected
`state
`
`'344 Structure: A processor programmed to perform at least one of the algorithms
`disclosed in steps 801 to 809 in Figure 8 and described in the '344 Patent at 17:67-19:34,
`19:66-20:44, 21:4-53, 22:61-24:6, and Figures 9, 11, 13, 14, 17 and 18, or Figures 3A
`and 3B and described in the '344 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 connected
`state
`
`The claims require a "means for connecting to the identified broadcast channel." (See,
`
`e.g., '344 patent, claim 13). Plaintiff provides no basis for its proposed function language. (D.I.
`
`186 at p. 32). Plaintiff further agrees with using "the." (Tr. 106:9-12). Thus, I adopt
`
`Defendants' function including the "the" language.
`
`The specification describes Figure 8 as a "flow diagram[] illustrating the processing of
`
`the broadcaster component in one embodiment." (See, e.g., D.I. 117-2, Exh. A-2 ("'966 patent"),
`
`18:2-3). It "illustrat[es] the processing of the connect routine .... " (See, e.g., '966 patent,
`
`18:3-5). Thus, the specification describes all of Figure 8 as the structure for "connecting to the
`
`identified broadcast channel." The algorithm in Figure 8 is further fleshed out by Figures 9, 11,
`
`13, 14, 17 and 18 and their corresponding descriptions in the specification. (See, e.g., '966
`
`patent, 18:3-20:9, 20:41-21 :19, 21 :46-22:28, 23:37-24:49). Block 806 is therefore relevant to
`
`the connecting function that is claimed. I think Figure 8, considered as a whole, and its
`
`accompanying disclosures, are "integral to performing the stated function." See Gemstar-TV
`
`Guide Int'l, Inc. v. Int'! Trade Comm 'n, 383 F.3d 1352, 1362 (Fed. Cir. 2004).
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`Case 1:16-cv-00455-RGA Document 244 Filed 08/29/17 Page 8 of 16 PageID #: 18943
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`The specification describes Figures 3A and 3B as "illustrat[ing] the process of a new
`
`computer Z connecting to the broadcast channel." (See, e.g., '966 patent, 5:62-63). The
`
`specification also provides a description of the process. (See, e.g., '966 patent, 5:32-52). Thus,
`
`this portion of the specification also serves as structure for the function. Overall, the
`
`specification adequately discloses structure for the function, and thus, the claims are not
`
`indefinite.
`
`2. Term 1: "means for identifying a broadcast channel for a game of interest" (claim 13 of
`the '344 patent)
`
`a. Plaintiff's proposed construction:
`
`Function: Identifying a broadcast channel for a game of interest
`
`Structure: A processor programmed to perform the algorithm disclosed in steps described
`in the '344 Patent at 16:57-17:1, which involves connecting to a web server and
`downloading a broadcaster component that identifies the broadcast channel for the game
`of interest
`
`b. Defendants' proposed construction:
`
`Function: Identifying a broadcast channel for a game of interest
`
`Structure: Indefinite because no/insufficient algorithm disclosed
`
`c. Court's construction:
`
`Function: Identifying a broadcast channel for a game of interest
`
`Structure: A processor programmed to perform the algorithm disclosed in steps described
`in the '344 Patent at 16:57-17:1, which involves connecting to a web server and
`downloading a broadcaster component that identifies the broadcast channel for the game
`of interest
`
`Plaintiffs citation to column 16, line 57 to column 17, line 1 of the '344 patent provides
`
`adequate structure for the function of"identifying a broadcast channel for a game of interest."
`
`This structure teaches that the game environment can provide a game web site through which
`
`players can view the state of current games and register new games. ('344 patent, 16:57-59). It
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`Case 1:16-cv-00455-RGA Document 244 Filed 08/29/17 Page 9 of 16 PageID #: 18944
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`teaches that using the game web server maps each game with the broadcast channel on which the
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`game is to be played. ('344 patent, 16:59-61). It teaches that using the web server generates the
`
`channel type and channel instance associated with the game and the identification of the portal
`
`computers for the game. ('344 patent, 16:65-17:1). This structure specifically provides a way to
`
`identify a broadcast channel for a game of interest.
`
`3. Term 2: "means for identifying a game of interest includes accessing a web server that
`maps games to corresponding broadcast channel" (claim 14 of the '344 patent)
`
`a. Plaintiff's proposed construction: "Means for identifying a game of interest" is construed
`in Term 1. No further construction necessary.
`
`b. Defendants 'proposed construction:
`
`Function: Identifying a game of interest includes accessing a web server that maps
`games to corresponding broadcast channel
`
`Structure: Indefinite because no/insufficient algorithm disclosed
`
`c. Court's construction:
`
`Function: Identifying a game of interest includes accessing a web server that maps games
`to corresponding broadcast channel
`
`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 component that identifies the broadcast channel for the game
`of interest
`
`Defendant's proposed function accurately captures that the function requires accessing a
`
`web server that maps games to a corresponding broadcast channel. As discussed above in Part
`
`III.2, column 16, line 57 to column 17, line 1 provides sufficient structure to perform this
`
`function. This structure teaches that the game environment can provide a game web site through
`
`which players can view the state of current games and register new games. (' 344 patent, 16:57-
`
`59). It teaches that using the game web server maps each game with the broadcast channel on
`
`which the game is to be played. ('344 patent, 16:59-61).
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`Case 1:16-cv-00455-RGA Document 244 Filed 08/29/17 Page 10 of 16 PageID #: 18945
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`4. Term 3: "means for identifying a broadcast channel for a topic of interest" (claim 13 of
`the '966 patent)
`
`a. Plaintiff's proposed construction:
`
`Function: Identifying a broadcast channel for a topic of interest
`
`Structure: A processor programmed to 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 component that identifies the broadcast channel for a topic of interest
`
`b. Defendants' proposed construction:
`
`Function: Identifying a broadcast channel for a topic of interest
`
`Structure: Indefinite because no/insufficient algorithm disclosed
`
`c. Court's construction:
`
`Function: Identifying a broadcast channel for a topic of interest
`
`Structure: A processor programmed to 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 component that identifies the broadcast channel for a topic of interest
`
`The analysis here is similar to that discussed in Part III.2. The '966 patent provides:
`
`The information delivery service may provide a directory web site where
`consumers can locate and subscribe to broadcast channels of interest. The
`directory may provide a hierarchical organization of topics of the various
`broadcast channels. 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 may be downloaded to the subscriber's computer.
`
`('966 patent, 16:41-51). This structure specifically provides a way to identify a
`
`broadcast channel for a topic of interest.
`
`5. Term 5: "means for identifying the portal computer" (claim 9 of the '497 patent)
`
`a. Plaintiff's proposed construction:
`
`Function: Identifying a portal computer using a dynamically selected call-in port
`
`10
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`Case 1:16-cv-00455-RGA Document 244 Filed 08/29/17 Page 11 of 16 PageID #: 18946
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`Structure: A processor programmed to perform the algorithm described in the '497 Patent
`at 12:34-36 and 12:49-52, which involves performing the steps of the seeking computer
`having a list of portal computers to connect to and selecting the port number of the portal
`computer using a port-ordering algorithm
`
`b. Defendants' proposed construction:
`
`Function: Identifying the portal computer
`
`Structure: Indefinite because no/insufficient algorithm disclosed
`
`c. Court's construction:
`
`Function: Identifying a portal computer
`
`Structure: A processor programmed to perform the algorithm described in the '497 Patent
`at 12:34-36 and 12:49-52, which involves performing the steps of the seeking computer
`having a list of portal computers to connect to and selecting the port number of the portal
`computer using a port-ordering algorithm
`
`Defendant's proposed function more accurately reflects the claim language, which does
`
`not require that the portal computer use its dynamically selected call-in port, but merely requires
`
`that the portal computer have a dynamically selected call-in port. (' 497 patent, claim 9 ("means
`
`for identifying the portal computer, the portal computer having a dynamically selected call-in
`
`port for communicating with other computers")). Plaintiffs citations to column 12, lines 34-36
`
`and column 12, lines 49-52 of the '497 patent provide structure that adequately corresponds to
`
`Defendants' function. Column 12, lines 34-36 provides, "Each computer that can connect to the
`
`broadcast channel has a list of one or more portal computers through which it can connect to the
`
`broadcast channel." ('497 patent, 12:34-36). Column 12, lines 49-52 provides that a computer
`
`can select a port number according to an algorithm and dial each portal computer at that port
`
`number. ('497 patent at 12:49-52). It is readily apparent that these citations provide a specific
`
`way for a computer to select a port number of the portal computer from that list, and thus,
`
`11
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`Case 1:16-cv-00455-RGA Document 244 Filed 08/29/17 Page 12 of 16 PageID #: 18947
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`"identify" the portal computer. I think these disclosures, considered as a whole, are "integral to
`
`performing the stated function." See Gemstar-TV, 383 F.3d at 1362.
`
`6. Term 6: "means for identifying the call-in port of the identified portal computer by
`repeatedly trying to establish a connection with the identified portal computer through
`contacting a communications port or communications ports until a connection is
`successfully established" (claim 9 of the '497 patent)
`
`This term is resolved. (D.I. 213).
`
`7. Term 7: "means for selecting the call-in port of the identified portal computer using a
`port ordering algorithm" (claim 9 of the '497 patent)
`
`a. Plaintiff's proposed construction:
`
`Function: Selecting the call-in port of the identified portal computer using a port ordering
`algorithm
`
`Structure: A processor programmed to perform the algorithm described in the '497 Patent
`at 11:60-12:12, which involves performing the steps of using a port ordering algorithm
`for selecting the call in port of the identified portal computer by using an algorithm that
`provides a sequence of port numbers
`
`b. Defendants' proposed construction:
`
`Function: Selecting the call-in port of the identified portal computer using a port ordering
`algorithm
`
`Structure: Indefinite because no/insufficient algorithm disclosed
`
`c. Court's construction:
`
`Function: Selecting the call-in port of the identified portal computer using a port ordering
`algorithm
`
`Structure: A processor programmed to perform the algorithm described in the '497 Patent
`at 11:60-12:12, which involves performing the steps of using a port ordering algorithm
`for selecting the call in port of the identified portal computer by using an algorithm that
`provides a sequence of port numbers
`
`Plaintiffs citation of column 11, line 60 to column 12, line 12 of the '497 patent provides
`
`structure that adequately corresponds to the function. The cited portion of the specification
`
`provides that the computer uses a port ordering algorithm to identify the port number order when
`
`12
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`Case 1:16-cv-00455-RGA Document 244 Filed 08/29/17 Page 13 of 16 PageID #: 18948
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`a portal computer is finding an available port for its call-in port. (' 497 patent, 11 :60-64). This
`
`algorithm may be a hashing algorithm. ('497 patent, 11 :64-65). The specification teaches that
`
`the algorithm preferably randomly distributes the port number ordering throughout the user port
`
`number space and only selects each port number once. ('497 patent, 11 :65-12:1). The algorithm
`
`may be "seeded" with channel type and channel instance in order to make unique orderings of
`
`the port numbers. ('497 patent, 12:7-9). These citations provide a specific way to select the
`
`call-in port of the identified portal computer using a port ordering algorithm.
`
`8. Term 8: "means for re-ordering the communications ports ... " (claim 9 of the '497
`patent)
`
`a. Plaintiff's proposed construction:
`
`Function: Re-ordering the communications ports selected by the port ordering algorithm
`
`Structure: A processor programmed to perform the algorithm described in the '497 Patent
`at 12:18-12:28, which involves performing the steps of using the call-in port number
`generated by the port ordering algorithm, and if the connection is unsuccessful,
`reordering the communication ports
`
`b. Defendants' proposed construction:
`
`Function: Re-ordering the communications ports selected by the port ordering algorithm
`
`Structure: Indefinite because no/insufficient algorithm disclosed
`
`c. Court's construction:
`
`Function: Re-ordering the communications ports selected by the port ordering algorithm
`
`Structure: A processor programmed to perform the algorithm described in the '497 Patent
`at 12:18-12:28, which involves performing the steps of using the call-in port number
`generated by the port ordering algorithm, and if the connection is unsuccessful,
`reordering the communication ports
`
`Plaintiffs citation to column 12, line 18 to column 12, line 28 provides structure that
`
`adequately corresponds to the function. This citation provides that in one embodiment, seeking
`
`computers may reorder the first few port numbers created by a hashing algorithm. (' 497 patent,
`
`13
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`Case 1:16-cv-00455-RGA Document 244 Filed 08/29/17 Page 14 of 16 PageID #: 18949
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`12:18-20). This could be implemented through a weighted method. ('497 patent, 12:24-26).
`
`These citations allow a computer to re-order the communications ports selected by the port
`
`ordering algorithm.
`
`9. Term 17: "m-regular" and "m-regular network" (claims 1, 13, 18 of the '344 patent;
`claims 1 and 13 of the '966 patent; claims 1 and 19 of the '634 patent; claims 1 and 11 of
`the '147 patent)
`
`a. Plaintiff's proposed construction: A network where each participant has m neighbor
`participants in a steady state
`
`b. Defendants' proposed construction:
`
`For the '344, '966, and '634 patents: A state that the network seeks to maintain at all
`times, where each participant is connected to exactly m neighbor participants
`
`For the ' 14 7 patent: A state that the network seeks to maintain at all times, where each
`computer is connected to exactly m neighbor computers
`
`c. Court's construction:
`
`For the '344, '966, and '634 patents: A state that the network is configured to maintain,
`where each participant is connected to exactly m neighbor participants
`
`For the '147 patent: A state that the network is configured to maintain, where each
`computer is connected to exactly m neighbor computers
`
`Plaintiffs only concern with my construction is that it seeks clarification that it would not
`
`read out a configuration which allows states where the network is not in a "steady state." (Tr.
`
`70:14-72:13). Plaintiff argues that a network is not in a "steady state" when the network is not
`
`configured such that each participant is connected to exactly m neighbors. (Id.). This concern is
`
`resolved by taking out Defendants' language of "at all times." My construction does not require
`
`the network to have each participant be connected to m neighbors at all times; rather, the
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`network is configured (or designed) to have each participant be connected to m neighbors. In
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`other words, if the network does not have each participant connected to m neighbors, this is fine
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`so long as, when appropriate, it tries to get to that configuration.
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`Case 1:16-cv-00455-RGA Document 244 Filed 08/29/17 Page 15 of 16 PageID #: 18950
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`Defendants are largely in agreement with my construction although they prefer the "at all
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`times" language. Defendants concede that their intention with the "at all times" language is not
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`to indicate that the network had to be m-regular at all times. (Tr. 73:13-21). I am taking out the
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`"at all times" language because it could be misleading to a jury.
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`Defendants also prefer the word "seeks" over "configured." Defendants concede that
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`they do not seek to impose an intent requirement. (D.I. 186 at p. 22). I think that "seeks"
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`improperly connotes an intent element more so than the word "configured." Using the word
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`"configured" resolves Defendants' concerns about networks that appear m-regular by chance.
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`10. Term 16: "m" (claims 1and13 of the '344 patent; claims 1and13 of the '966 patent;
`claims 1 and 19 of the '634 patent; claims 1 and 11 of the '147 patent)
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`a. Plaintiff's proposed construction: No construction necessary. Plain and ordinary
`meanmg.
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`b. Defendants 'proposed construction:
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`For the '344, '966, '634, and '069 patents: A predetermined design parameter specifying
`the number of neighbors each participant should maintain
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`For the '14 7 patent: A predetermined design parameter specifying the number of
`neighbors each computer should maintain
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`c. Court's construction: No construction necessary. Plain and ordinary meaning.
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`The plain language of the claims provides a ready definition for the concept of "m" at
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`least when used in isolation. The claims expressly define "m" as "the exact number of neighbor
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`participants of each participant." (See, e.g., '344 patent, claim 1). A person of ordinary skill in
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`the art would understand that this is the plain meaning of the word "m." (See D.I. 157-1, Exh. F.
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`ii 44). The plain and ordinary meaning of "m" does not suggest that the word "m," at least when
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`used in isolation, is a "predetermined design parameter."
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`Ill
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`Case 1:16-cv-00455-RGA Document 244 Filed 08/29/17 Page 16 of 16 PageID #: 18951
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`11. Term 18: "m-connected" and "m-connected network" (claim 1and19, '634 patent)
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`a. Plaintiff's proposed construction: A network that may be divided into disconnected sub(cid:173)
`networks by the removal of m participants in a steady state
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`b. Defendants' proposed construction: A state that the network seeks to maintain at all
`times, where dividing the network into two or more separate parts would require the
`removal of at least m participants
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`c. Court's construction: A state that the network is configured to maintain, where the
`network may be divided into disconnected sub-networks by the removal of m participants
`in a steady state
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`Plaintiff objects to Defendants' proposed construction because it uses the words "seeks,"
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`"at all times," "parts," and "two or more." For the reasons given above in connection with the
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`previous term, I am changing "seeks" to "is configured" and striking "at all times" from
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`Defendants' proposed construction. Plaintiff argues, and Defendants do not dispute in their
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`briefing, that Defendants' usage of "parts" is less precise than "sub-networks" as proposed by
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`Plaintiff. (See D.I. 186 at p. 27). Plaintiff argues, and Defendants also do not dispute, that the
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`"two or more" language is superfluous. (See D.I. 186 at p. 27). Thus, I partially adopt Plaintiffs
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`proposed construction.
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`IV.
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`CONCLUSION
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`Within five days the parties shall submit a proposed order consistent with this
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`Memorandum Opinion.
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`16
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