Case 1:16-cv-00455-RGA Document 361-2 Filed 01/10/18 Page 1 of 5 PageID #: 24322
`Case 1:16-cv-00455-RGA Document 361-2 Filed 01/10/18 Page 1 of 5 PagelD #: 24322
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`EXHIBIT A
`EXHIBIT A
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`Case 1:16-cv-00455-RGA Document 361-2 Filed 01/10/18 Page 2 of 5 PageID #: 24323
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`IN THE UNITED STATES DISTRICT COURT
`IN AND FOR THE DISTRICT OF DELAWARE
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`CIVIL ACTION
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`NO. 16-0453-RGA
`CIVIL ACTION
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`NO. 16-0454-RGA
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`:::::::::::::::::::
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`ACCELERATION BAY, LLC,
`Plaintiff,
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`ACTIVISION BLIZZARD,
`Defendant.
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`ACCELERATION BAY, LLC,
`Plaintiff,
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`vs.
`ELECTRONIC ARTS INC.,
`Defendant.
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`Wilmington, Delaware
`Monday, December 18, 2017
`9:03 o'clock, a.m.
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`BEFORE: HONORABLE RICHARD G. ANDREWS, U.S.D.C.J.
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`Valerie J. Gunning
`Official Court Reporter
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`1 of 50 sheets
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`12/26/2017 09:00:42 AM
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` WINSTON & STRAWN LLP
` BY: THOMAS M. DUNHAM, ESQ.
` (Washington, D.C.)
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` Counsel for Defendant
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` THE COURT: All right. Good morning, everyone.
`Please be seated.
`This is Acceleration Bay versus Activision
`Blizzard, Inc., Civil Action No. 16-453, plus the two
`related cases.
`Mr. Silverstein?
`MR. SILVERSTEIN: Good morning, Your Honor.
`THE COURT: Good morning.
`MR. SILVERSTEIN: Good morning. Alan
`Silverstein, Potter Anderson. With me today is James
`Hannah.
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`MR. HANNAH: Good morning, Your Honor.
`MR. SILVERSTEIN: And Aaron Frankel from Kramer
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`Levin.
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`THE COURT: Good morning, gentlemen.
`Mr. Blumenfeld?
`MR. BLUMENFELD: Good morning, Your Honor. Jack
`Blumenfeld from Morris Nichols for the defendants along with
`Tom Dunham and Mike Tomasulo from Winston & Strawn, and
`Linda Zabriskie from Take-Two is a few rows back.
`THE COURT: All right. Good morning to you all.
`MR. TOMASULO: Good morning.
`THE COURT: All right. Mr. Hannah?
`
`2
`Case 1:16-cv-00455-RGA Document 361-2 Filed 01/10/18 Page 3 of 5 PageID #: 24324
`ACCELERATION BAY, LLC,
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`CIVIL ACTION
`APPEARANCES (Continued):
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`12/26/2017 09:00:42 AM
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`2 of 50 sheets
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` Plaintiff,
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`TAKE-TWO INTERACTIVE
`SOFTWARE, INC., ROCKSTAR :
`GAMES, INC. and 2K SPORTS,:
`INC.,
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` Defendants.
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`NO. 16-0455-RGA
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`APPEARANCES:
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` POTTER, ANDERSON & CORROON LLP
` BY: ALAN SILVERSTEIN, ESQ.
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` -and-
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` KRAMER LEVIN NAFTALIS & FRANKEL LLP
` BY: JAMES HANNAH, ESQ.
` (Menlo Park, California)
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` -and-
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` KRAMER LEVIN NAFTALIS & FRANKEL LLP
` BY: AARON M. FRANKEL, ESQ.
` (New York, New York)
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` Counsel for Plaintiff
` Acceleration Bay LLC
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` MORRIS, NICHOLS, ARSHT & TUNNELL LLP
` BY: JACK B. BLUMENFELD, ESQ.
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` -and-
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` WINSTON & STRAWN LLP
` BY: MICHAEL A. TOMASULO, ESQ.
` (Los Angeles, California)
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` -and-
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`Case 1:16-cv-00455-RGA Document 361-2 Filed 01/10/18 Page 4 of 5 PageID #: 24325
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`MR. HANNAH: Your Honor, we have some
`housekeeping issues that we can kind of take care of,
`take some terms off the table based on the recent
`submission.
`THE COURT: All right. Tell me about this happy
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`news.
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`MR. HANNAH: It's indeed happy, Your Honor.
`So, again, we reiterated our position that, you
`know, these terms and all of the terms in the subsequent
`briefing, the plain and ordinary meaning should apply and
`that would resolve the parties' dispute. However, to the
`extent the Court wishes to construe these terms, we've
`agreed to the construction of term -- for term 10.
`THE COURT: Ten, yes.
`MR. HANNAH: 13 of the '344 patent and claim 13
`of the '966 patent.
`And --
`THE COURT: Wait a second. These are not terms
`that are for today. Right?
`MR. HANNAH: Term 10.
`THE COURT: Term 10 is, yes.
`MR. HANNAH: Network. So network within the
`construct of claim 13 of the '344 patent we would agree
`would be each of the broadcast channels.
`THE COURT: Wait. Is term 13 on today's list?
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`channel within a network.
`THE COURT: Yes.
`MR. HANNAH: We would agree that defendant's
`proposed construction, which is a computer-readable medium
`containing instructions that control communications of a
`participant of a broadcast channel within a network that
`does not use routing tables, we would agree with that
`construction for claim, for term 24, which is claim 19 of
`the '634 patent.
`THE COURT: I'm sorry. Did the defendant's
`proposal change somewhere in the middle of the briefing?
`MR. HANNAH: Your Honor asked for supplemental
`briefing, I mean supplemental positions from the defendants,
`and to the extent that the term is not found.
`THE COURT: Okay.
`MR. HANNAH: And that was a submission on
`Friday. We haven't had a chance to respond to that and so
`we analyzed it over the weekend.
`THE COURT: All right. Yes. I'm not apparently
`sure I even saw that.
`All right. In any event, whatever is in
`defendant's letter, you agree with that?
`MR. HANNAH: Yes, which I just stated.
`THE COURT: Yes.
`MR. HANNAH: I mean, I say I agree to the
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`MR. HANNAH: I'm sorry if I misspoke. Term 10,
`and that only relates to claim 13 of the '344 patent.
`THE COURT: Oh, claim 13. Sorry. I'm getting
`claims and terms mixed up here. Okay.
`MR. HANNAH: I apologize Your Honor.
`THE COURT: All right. Term 10. I got that.
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`Network.
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`construction. I'm not agreeing to the positions that
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`THE COURT: All right. In any event, 24 is
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`resolved in your view?
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`MR. HANNAH: Correct. And then term 25. Now
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`I'm messing up claims and terms. Term 25, which is Claim 1
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`of the '069 patent. Again, defendants propose a
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`construction for the term, a computer-based, non-routing
`MR. HANNAH: Yes. So network within claim 13 of
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`table based, non-switched based method for adding a
`the '344 patent and claim 13 of the '966 patent. We would
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`participant to a network of participants. They proposed a
`agree that network, the plain and ordinary meaning is each
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`construction this last Friday, a computer-based method for
`of the broadcast channels that comports with Acceleration
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`adding a participant to a network of participants that does
`Based's understanding.
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`not use routing tables or switches. And we would agree to
`And then for term 24, that relates to claim 19
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`that construction for Claim 1 of the '069 patent.
`of the '634 patent.
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`THE COURT: Okay.
`THE COURT: Yes.
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`MR. HANNAH: But we met and conferred with the
`MR. HANNAH: We would agree that the preamble,
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`defendants and they were fine with taking these off the
`which is a computer based non-routing table based
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`table. However, they did wish me to inform the Court that
`non-switched based method for adding a participant to a
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`they preserve their indefiniteness arguments and would
`network of participants.
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`submit that on the briefing unless the Court had any
`THE COURT: All right. That's term 25.
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`questions regarding those terms this morning.
`MR. HANNAH: Term 25. I'm sorry. Let me go to
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`THE COURT: All right.
`term 24. Let's do this in order.
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`MR. HANNAH: And then with that, I believe the
`So term 24 is a non-routing table based
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`parties would just take the rest of the terms in order,
`computer-readable meaning controlling constructions for
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`controlling communications of a participant of abroad cast
`starting with term nine.
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`THE COURT: All right. Let me just check before
`you go. Mr. Dunham or Mr. Tomasulo, you are in agreement
`with what has been stated?
`MR. DUNHAM: We are, Your Honor. This is Tom
`Dunham for defendants. And we agree to the constructions
`that we submitted Friday for the three terms will apply, and
`then today, if the Court would like, I would be prepared to
`address the other issues we raised with respect to those
`terms, the 112 issues, the Beauregard issues, the printed
`matter issues.
`If the Court would like to hear that today, I
`would be happy to. If you'd like to defer to those
`validity-related issues --
`THE COURT: The only thing I think I might be
`interested in hearing -- hold on. Let me go back.
`Yes. The only out of those three I might be
`interested in hearing about would be for term 24, the
`indefiniteness issue. Okay?
`MR. DUNHAM: Absolutely. I will be prepared to
`address that then.
`THE COURT: All right. All right. So otherwise
`we have a game plan here.
`So we're starting with computer network. Is
`that right, Mr. Hannah?
`MR. HANNAH: I'm sorry, Your Honor. Mr. Frankel
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`have to be at least two computers.
`I will first address the physical versus process
`issue. I think the two computer issues are entirely
`hypothetical. I don't believe that's relevant to the
`infringement or validity issues in the case, but it's
`unnecessary, confusing, and incorrect.
`THE COURT: All right. Go ahead.
`MR. FRANKEL: The specification makes clear that
`the network includes computer processes. It says that the
`network is made up of participants. The parties agreed to
`the construction for participants, that it includes computer
`processes.
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`So term 13 was participant, and everyone has
`agreed that a participant is a computer and/or computer
`process that participates in a network. So if we go back to
`claim 12, which depends from claim 1, the computer network
`is connected participants, and the parties have already
`agreed that the participants can be computers and/or
`computer processes.
`If you look at our construction, it's just
`taking the definition of participants, which is already
`agreed.
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`THE COURT: Do I take it that claim 1 is not
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`asserted?
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`MR. FRANKEL: That's correct, your Honor. Claim
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`THE COURT: All right. Good enough.
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`MR. FRANKEL: Good morning, your Honor.
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`THE COURT: Good morning, Mr. Frankel.
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`MR. FRANKEL: Here we have the parties' proposed
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`constructions -- oh. Your Honor, may I approach to hand up
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`some copies of the presentation?
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`THE COURT: Sure, yes.
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`(Mr. Frankel handed slides to the Court.)
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`THE COURT: Mr. Frankel, can you just hold on a
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`second? Go ahead.
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`MR. FRANKEL: This is another term, Your Honor,
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`that we think does not require construction. Computer
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`network is a term that everyone would understand.
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`There's nothing in the patents or the file
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`history that gives --
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`THE COURT: But nevertheless, even though you
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`say that, you have a proposed construction.
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`MR. FRANKEL: As ordered by the Court to provide
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`a construction, we complied with that order, and our
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`construction we think is consistent with the plain and
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`ordinary meaning, that a computer network is computers or
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`computer processes that are connected.
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`The dispute between the parties is if there has
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`to be a physical computer in the construction and if there
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`12 is asserted, so it incorporates the limitations of claim
`1.
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`THE COURT: Right. Okay. I assumed that, but I
`just wanted to check.
`MR. FRANKEL: So we have an agreed upon
`definition that really should resolve this issue already.
`But turning to the specification, as we highlighted in our
`briefing and we pulled some excerpts out on the slides, it
`repeatedly refers to the network as connecting computer
`processes. For example, it says, each computer is connected
`to four other computers, and then parenthetically it says,
`actually, it's process executing on a computer that's
`connected to four other processes.
`If four people are driving around in cars and
`talking on their cellphones, in a sense you could say that
`the cars are communicating with each other, but in reality
`it's the people in the cars talking on the phones. Here, if
`we have four or more computers in a network, it's really the
`processes inside of the computers that are communicating
`with each other, as is made clear in the spec.
`THE COURT: So what is a -- I mean, I understand
`maybe you've stipulated to this and the construction is
`something else, but in more technical terms, what is meant
`by a computer process?
`MR. FRANKEL: Well, a computer process is
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