Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 1 of 26 PageID #: 16729
`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 1 of 26 PagelD #: 16729
`
`EXHIBIT L
`EXHIBIT L
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`

`

`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 2 of 26 PageID #: 16730
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`ACTIVISION BLIZZARD, INC.,
`
`
`Plaintiff,
`
`v.
`
`Defendant.
`
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`ELECTRONIC ARTS INC.,
`
`
`Plaintiff,
`
`v.
`
`Defendant.
`
`Plaintiff,
`
`v.
`
`
`ACCELERATION BAY LLC,
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`
`
`
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC., and 2K
`SPORTS, INC.,
`
`
`
`C.A. No. 16-453 (RGA)
`
`
`
`
`JURY TRIAL DEMANDED
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`
`
`C.A. No. 16-454 (RGA)
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`
`
`JURY TRIAL DEMANDED
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`
`
`C.A. No. 16-455 (RGA)
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`JURY TRIAL DEMANDED
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`Defendant.
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`SUR-REPLY DECLARATION OF DR. JOHN P.J. KELLY
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`

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`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 3 of 26 PageID #: 16731
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`TABLE OF CONTENTS
`
`Page
`
`
`INTRODUCTION .............................................................................................................. 1
`PRINCIPLES OF INTERPRETATION OF MEANS PLUS FUNCTION
`TERMS ............................................................................................................................... 1
`TERMS 1-4: MEANS PLUS FUNCTION TERMS FOR THE '344 AND
`'966 PATENTS ................................................................................................................... 2
`Terms 1 and 2: “Means for Identifying a Broadcast Channel for a
`
`Game of Interest;” “Means for Identifying a Game of Interest
`Includes Accessing a Web Server that Maps Games to
`Corresponding Broadcast Channel” (’344 Patent) .................................................. 2
`Term 3: “Means for Identifying a Broadcast Channel for a Topic of
`Interest” (’966 Patent) ............................................................................................. 7
`Term 4: “Means for Connecting to the Identified Broadcast
`Channel” (’344; ’966 Patents) .............................................................................. 12
`TERM 5: “MEANS FOR IDENTIFYING THE PORTAL COMPUTER”
`(’497 PATENT) ................................................................................................................ 16
`TERM 20: DATA ............................................................................................................. 19
`TERM 27: COMPUTER READABLE MEDIUM .......................................................... 20
`
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`- i -
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`I.
`II.
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`III.
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`IV.
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`V.
`VI.
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`

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`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 4 of 26 PageID #: 16732
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`I, John Kelly, hereby declare as follows:
`
`I. INTRODUCTION
`
`
`
`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.
`
`
`
`This Declaration is further to my May 19, 2017 Declaration in support of
`
`Defendants’ Responsive Claim Construction Brief. I incorporate by reference the discussion of
`
`my qualifications, materials reviewed, person of ordinary skill in the art, and overview of the
`
`technology from my May 19, 2017 Declaration.
`
`II. PRINCIPLES OF INTERPRETATION OF MEANS PLUS FUNCTION TERMS
`
`
`
`I understand that an element in a claim may be expressed as a means or step for
`
`performing a specified function without the recital of structure, material, or acts in support
`
`thereof, and that such claims shall be construed to cover the corresponding structure, material, or
`
`acts described in the specification and equivalents thereof. I further understand that a structure in
`
`the specification can qualify as a “corresponding structure” only if the specification clearly links
`
`that structure to the function specified in the claim. I understand that if a corresponding structure
`
`for a means-plus-function element cannot be identified in the specification, then the claim is
`
`indefinite.
`
`
`
`I am further informed that in the context of computer-implemented inventions
`
`(such as claims that recite processes that are performed by software running on a computer), the
`
`“corresponding structure” in the specification cannot simply be a general purpose computer or
`
`microprocessor; instead, the specification must also disclose a specific algorithm for performing
`
`the claimed function(s). I am further informed that even where a specification discloses a
`
`physical structure that is essentially a general purpose processor for performing the function, the
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`- 1 -
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`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 5 of 26 PageID #: 16733
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`claim will be invalid as indefinite if the specification fails to disclose the algorithm for
`
`performing the recited claim function.
`
`
`
`I note that Dr. Medvidovic does not state the principles for interpreting means
`
`plus functions terms in his declaration, and thus it is unclear what standard he applied.
`
`III. TERMS 1-4: MEANS PLUS FUNCTION TERMS FOR THE '344 AND '966
`PATENTS
`
`
`
`TERMS 1 AND 2: “MEANS FOR IDENTIFYING A BROADCAST CHANNEL FOR A
`GAME OF INTEREST;” “MEANS FOR IDENTIFYING A GAME OF INTEREST
`INCLUDES ACCESSING A WEB SERVER THAT MAPS GAMES TO
`CORRESPONDING BROADCAST CHANNEL” (’344 PATENT)
`
`Defendants’ Proposed Constructions
`Plaintiff’s Proposed Constructions
`Term 1: “means for identifying a broadcast channel for a game of interest”
`Governed by 35 U.S.C. § 112(6):
`This term is indefinite.
`Function: identifying a broadcast channel for
`Function: identifying a broadcast channel for
`a game of interest
`a game of interest
`Structure: a processor programmed to perform
`Structure: Indefinite because no/insufficient
`the algorithm disclosed in steps described in
`algorithm disclosed
`‘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
`Term 2: “means for identifying a game of interest includes accessing a web server that
`maps games to corresponding broadcast channel”
`“Means for identifying a game of interest” is
`This term is indefinite.
`construed above. No further construction
`Function: identifying a game of interest
`necessary.
`includes accessing a web server that maps
`games to corresponding broadcast channel
`Structure: Indefinite because no/insufficient
`algorithm disclosed
`
`
`
`I understand that the parties agree on the functions for Terms 1 and 2. Thus, I
`
`turn to whether the specification discloses a corresponding structure and algorithms that are
`
`clearly linked to the recited functions. As I noted above, I understand that for a computer-
`
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`- 2 -
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`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 6 of 26 PageID #: 16734
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`implemented function the specification must disclose a specific algorithm for performing the
`
`claimed functions.
`
`
`
`Dr. Medvidovic quotes and emphasizes portions of the following passage for the
`
`“specific algorithm for performing the functions in Terms 1 and 2”:
`
`When joining a game, the user would download the broadcaster component and
`the game application program from the web server. The user would also
`download the description of the game, which may include the graphics for the
`game. 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 as in Medvidovic Decl. at ¶51).
`
`
`
`Dr. Medvidovic then states that “[t]his process is further described in the
`
`specification. See, e.g., Ex. A-1 (‘344 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).”
`
`
`
`Dr. Medvidovic provides no justification to support his opinion that the purported
`
`algorithm of the claimed functions has any relation to this part of the specification. Further, his
`
`citations do not disclose an algorithm to implement the claimed functions.
`
`
`
`The claimed function of Term 1 (“identifying a broadcast channel for a game of
`
`interest”), makes no reference to “joining a game,” “download[ing] the broadcaster component
`
`and the game application program from the web server,” or “[t]he web server […] provid[ing]
`
`the channel type and channel instance associated with the game and the identification of the
`
`portal computers for the game.” While Dr. Medvidovic provides no analysis as to how this part
`
`of the specification supposedly discloses an algorithm for Term 2 either, I note that the claimed
`
`function (“identifying a game of interest includes accessing a web server that maps games to
`
`
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`- 3 -
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`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 7 of 26 PageID #: 16735
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`corresponding broadcast channel”) does not reference those concepts either. Furthermore, Term
`
`2 relates to “accessing,” which is not the same as “downloading.”
`
`
`
`As explained in the specification, the portion of the specification Dr. Medvidovic
`
`relies on is the subject matter of Term 4, i.e., the process of joining a game is connecting to the
`
`identified broadcast channel:
`
`In one embodiment, a game environment is implemented using broadcast
`channels. The game environment is provided by a game application program
`executing on each player's computer that interacts with a broadcaster component.
`Each player joins a game (e.g., a first person shooter game) by connecting to
`the broadcast channel on which the game is played.
`
`A-1 (’344 patent) at 16:30-36 (emphasis added). Thus, the two distinct identifying functions
`
`(i.e., identifying a game of interest and then identifying a broadcast channel for the identified
`
`game of interest) must occur before a player actually joins a game. Plaintiff agrees that the
`
`connecting steps “flows from” the identifying steps. Reply at 8. Dr. Medvidovic is incorrect
`
`when he uses support for joining (i.e. connecting) for the claimed functions of identifying a game
`
`and identifying a broadcast channel for a game of interest.
`
`
`
`Further, the parties agree that “a game web site” or a “web server” is involved in
`
`the identifying function, i.e., the web site generates or retrieves the information provided when a
`
`player joins a game. Id. Plaintiff’s purported algorithm does not explain how the web site
`
`identifies a game of interest or identifies a broadcast channel for a game of interest.
`
`
`
`Furthermore, Plaintiff’s purported algorithm is not an algorithm at all. It only
`
`discloses the functions of downloading and receiving information.
`
`
`
`I have also reviewed the remainder of Dr. Medvidovic’s citations. Those citations
`
`are:
`
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`- 4 -
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`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 8 of 26 PageID #: 16736
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`A-1 (’344 patent) at Fig. 8.
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`
`
`FIG. 8 is a flow diagram illustrating the processing of the connect routine in one
`embodiment. This routine is passed a channel type (e.g., application name) and
`channel instance (e.g., session identifier), that identifies the broadcast channel to
`which this process wants to connect. The routine is also passed auxiliary
`information that includes the list of portal computers and a connection callback
`routine. When the connection is established, the connection callback routine is
`invoked to notify the application program. When this process invokes this routine,
`it is in the seeking connection state. When a portal computer is located that is
`connected and this routine connects to at least one neighbor, this process enters
`the partially connected state, and when the process eventually connects to four
`neighbors, it enters the fully connected state. When in the small regime, a fully
`connected process may have less than four neighbors. In block 801, the routine
`opens the call-in port through which the process is to communicate with other
`processes when establishing external and internal connections. The port is
`selected as the first available port using the hashing algorithm described above. In
`block 802, the routine sets the connect time to the current time. The connect time
`is used to identify the instance of the process that is connected through this
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`- 5 -
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`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 9 of 26 PageID #: 16737
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`external port. One process may connect to a broadcast channel of a certain
`channel type and channel instance using one call-in port and then disconnects, and
`another process may then connect to that same broadcast channel using the same
`call-in port. Before the other process becomes fully connected, another process
`may try to communicate with it thinking it is the fully connected old process. In
`such a case, the connect time can be used to identify this situation. In block 803,
`the routine invokes the seek portal computer routine passing the channel type and
`channel instance. The seek portal computer routine attempts to locate a portal
`computer through which this process can connect to the broadcast channel for the
`passed type and instance. In decision block 804, if the seek portal computer
`routine is successful in locating a fully connected process on that portal computer,
`then the routine continues at block 805, else the routine returns an unsuccessful
`indication. In decision block 805, if no portal computer other than the portal
`computer on which the process is executing was located, then this is the first
`process to fully connect to broadcast channel and the routine continues at block
`806, else the routine continues at block 808. In block 806, the routine invokes the
`achieve connection routine to change the state of this process to fully connected.
`In block 807, the routine installs the external dispatcher for processing messages
`received through this process' external port for the passed channel type and
`channel instance. When a message is received through that external port, the
`external dispatcher is invoked. The routine then returns. In block 808, the routine
`installs an external dispatcher. In block 809, the routine invokes the connect
`request routine to initiate the process of identifying neighbors for the seeking
`computer. The routine then returns.
`
`A-1 (’344 Patent) at 17:65-18:56.
`
`
`
`This figure and passage also do not disclose any algorithm providing a step-by-
`
`step process for performing either the function of “identifying a broadcast channel for a game of
`
`interest” or “identifying a game of interest includes accessing a web server that maps games to
`
`corresponding broadcast channel.” Instead, these disclosures relate to initiating the connection to
`
`an already identified broadcast channel. E.g., A-1 (’344 Patent) at 18:53-56 (“In block 809, the
`
`routine invokes the connect request routine to initiate the process of identifying neighbors for
`
`the seeking computer.”) (emphasis added). In other words, Plaintiff’s purported algorithm is
`
`about downloading the broadcaster component and the channel type and instance after
`
`identification. Figure 8, on the other hand, relates to a function after the broadcaster component
`
`is downloaded. This figure also fails to disclose how the broadcast channel’s identifying
`
`information (e.g. channel type and instance) is generated or retrieved by the web site.
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`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 10 of 26 PageID #: 16738
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`
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`In my opinion, the patent specification discloses no sufficient corresponding
`
`algorithm for the two claimed functions.
`
`
`
`TERM 3: “MEANS FOR IDENTIFYING A BROADCAST CHANNEL FOR A TOPIC
`OF INTEREST” (’966 PATENT)
`
`Plaintiff’s Proposed Constructions
`Governed by 35 U.S.C. § 112(6):
`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
`
`Defendants’ Proposed Constructions
`This term is indefinite.
`Function: identifying a broadcast channel for
`a topic of interest
`Structure: Indefinite because no/insufficient
`algorithm disclosed
`
`
`
`I understand that the parties agree on the function for Term 3. Thus, I turn to
`
`whether the specification discloses a corresponding structure and algorithms that are clearly
`
`linked to the recited functions. As I noted above, I understand that for a computer-implemented
`
`function the specification must disclose a specific algorithm for performing the claimed
`
`functions.
`
`
`
`Dr. Medvidovic quotes and emphasizes portions of the following passage for the
`
`“algorithm for performing” the function of Term 3:
`
`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.
`
`A-2 (’966 Patent) at 16:41-51 (emphasis as in Medvidovic Decl. at ¶54).
`
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`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 11 of 26 PageID #: 16739
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`
`
`Dr. Medvidovic then states: “[t]he 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).” Id.
`
`
`
`Dr. Medvidovic provides no justification to support his opinion that the
`
`specification supposedly discloses an algorithm for the claimed function. Further, the above
`
`citations do not disclose an algorithm to implement the claimed function.
`
`
`
`For instance, the claimed function of Term 3 (“identifying a broadcast channel for
`
`a topic of interest”), makes no reference to “[w]hen 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,” or “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.” I note that claim 14 depends on claim 13 and so further limits Term 3. Claim 14
`
`further specifies that the function of Term 3 includes “accessing a web server that maps topics to
`
`corresponding broadcast channel.” A-2 (’966 Patent) at 30:58-61. I note that Plaintiff’s
`
`purported algorithm does not include this concept because the function of downloading occurs
`
`after the function of accessing. Moreover, the passage Dr. Medvidovic relies on relates to the
`
`subject matter of Term 4, i.e., the process of subscribing to a broadcast channel is connecting to
`
`the identified broadcast channel. The directory web site provides a list of topics to which the
`
`user may subscribe. The user then “decides” to subscribe to one of the topics. A-2 (’966 Patent)
`
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`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 12 of 26 PageID #: 16740
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`at 16:45-48. Thus, the identifying function must occur before a player subscribes to a broadcast
`
`channel. Plaintiff agrees that the connecting steps “flows from” the identifying step. Reply at 8.
`
`
`
`Further, the parties agree that a “web site” can generate or retrieve the information
`
`provided when a consumer can subscribe to a topic of interest. Id. Plaintiff’s purported
`
`algorithm does not explain how the web site identifies a broadcast channel for a game of interest.
`
`
`
`Indeed, Plaintiff’s purported algorithm is not an algorithm at all. It only discloses
`
`the functions of downloading and receiving information.
`
`
`
`I have also reviewed the remainder of the Dr. Medvidovic’s citations. Those
`
`citations are:
`
`
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`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 13 of 26 PageID #: 16741
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`A-2 (’966 Patent) at Fig. 8.
`
`
`
`FIG. 8 is a flow diagram illustrating the processing of the connect routine in one
`embodiment. This routine is passed a channel type (e.g., application name) and
`channel instance (e.g., session identifier), that identifies the broadcast channel to
`which this process wants to connect. The routine is also passed auxiliary
`information that includes the list of portal computers and a connection callback
`routine. When the connection is established, the connection callback routine is
`invoked to notify the application program. When this process invokes this routine,
`it is in the seeking connection state. When a portal computer is located that is
`connected and this routine connects to at least one neighbor, this process enters
`the partially connected state, and when the process eventually connects to four
`neighbors, it enters the fully connected state. When in the small regime, a fully
`connected process may have less than four neighbors. In block 801, the routine
`opens the call-in port through which the process is to communicate with other
`processes when establishing external and internal connections. The port is
`selected as the first available port using the hashing algorithm described above. In
`
`
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`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 14 of 26 PageID #: 16742
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`
`block 802, the routine sets the connect time to the current time. The connect time
`is used to identify the instance of the process that is connected through this
`external port. One process may connect to a broadcast channel of a certain
`channel type and channel instance using one call-in port and then disconnects, and
`another process may then connect to that same broadcast channel using the same
`call-in port. Before the other process becomes fully connected, another process
`may try to communicate with it thinking it is the fully connected old process. In
`such a case, the connect time can be used to identify this situation. In block 803,
`the routine invokes the seek portal computer routine passing the channel type and
`channel instance. The seek portal computer routine attempts to locate a portal
`computer through which this process can connect to the broadcast channel for the
`passed type and instance. In decision block 804, if the seek portal computer
`routine is successful in locating a fully connected process on that portal computer,
`then the routine continues at block 805, else the routine returns an unsuccessful
`indication. In decision block 805, if no portal computer other than the portal
`computer on which the process is executing was located, then this is the first
`process to fully connect to broadcast channel and the routine continues at block
`806, else the routine continues at block 808. In block 806, the routine invokes the
`achieve connection routine to change the state of this process to fully connected.
`In block 807, the routine installs the external dispatcher for processing messages
`received through this process' external port for the passed channel type and
`channel instance. When a message is received through that external port, the
`external dispatcher is invoked. The routine then returns. In block 808, the routine
`installs an external dispatcher. In block 809, the routine invokes the connect
`request routine to initiate the process of identifying neighbors for the seeking
`computer. The routine then returns.
`
`A-2 (’966 Patent) at 18:2-19:31.
`
`
`
`This figure and passage also do not disclose any algorithm providing a step-by-
`
`step process for performing the function of “identifying a broadcast channel for a topic of
`
`interest.” Instead, these disclosures relate to connecting to an already identified broadcast
`
`channel. In other words, Plaintiff’s purported algorithm is about downloading the broadcaster
`
`component and the channel type and instance after identification. Figure 8, on the other hand,
`
`relates to a function after the broadcaster component has been downloaded and is operating. The
`
`disclosure also fails to disclose how the broadcast channel’s identifying information (e.g. channel
`
`type and instance) is generated or retrieved by the web site.
`
`
`
`In my opinion, the patent specification discloses no sufficient corresponding
`
`algorithm for the claimed function.
`
`
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`- 11 -
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`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 15 of 26 PageID #: 16743
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`
`
`TERM 4: “MEANS FOR CONNECTING TO THE IDENTIFIED BROADCAST
`CHANNEL” (’344; ’966 PATENTS)
`
`Defendants’ Proposed Constructions
`This term is indefinite.
`Function: connecting to the identified
`broadcast channel
`Structure: Indefinite because no/insufficient
`algorithm disclosed
`
`Plaintiff’s Proposed Constructions
`Governed by 35 U.S.C. § 112(6):
`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 at18:3-19:22 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 ‘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 connected state.
`
`
`
`The parties disagree on the function for Term 4. Defendants’ function reflects the
`
`claim language and concerns connecting to “the identified broadcast channel,” i.e., the broadcast
`
`channel identified in Terms 1-3. Dr. Medvidovic replaces “the” with “an.” Dr. Medvidovic
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`provides no reason for so doing. By changing the words of the claim (with no justification), Dr.
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`Medvidovic changes the function from connecting to the broadcast channel identified in Terms
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`1-3 to connecting to any broadcast channel. Accordingly, Dr. Medvidovic provides no analysis
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`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 16 of 26 PageID #: 16744
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`clearly linking or associating the claimed function of connecting to the broadcast channel
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`identified in Terms 1-3.
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`Also, the patent specification discloses no algorithm for connecting to the
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`identified broadcast channel. As I noted above, I understand that for a computer-implemented
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`function the specification must disclose a specific algorithm for performing the claimed
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`functions. Plaintiff’s purported algorithm for this term does not account for how to connect to
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`the identified broadcast channel.
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`Even if Dr. Medvidovic’s rewrite of the claimed function was accepted, the
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`specification discloses no algorithm for connecting to an identified broadcast channel.
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`First, Dr. Medvidovic asserts that the purported algorithm for “connecting a
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`participant to an identified broadcast channel” are portions of Figure 8; specifically blocks 801-
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`806 and their related disclosures.1 Medvidovic Decl. at ¶ 60. Dr. Medvidovic notes that step 806
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`is the “Achieve connection” step. However, the connection that has been achieved is to the
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`portal computer, not to the broadcast channel.
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`Dr. Medvidovic provides no reason for leaving out blocks 807-809 of Figure 8—
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`the steps relating to the “external dispatcher.” The specification calls Figure 8, as a whole, a
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`diagram “illustrating the processing of the connect routine in one embodiment.” A-1 (’344
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`Patent) at 3:8-9. Blocks 807-809 relate to the external dispatcher that initiates the process of
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`identifying neighbors in order for the seeking computer to connect to the identified broadcast
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`channel:
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`In block 807, the routine installs the external dispatcher for processing messages
`received through this process' external port for the passed channel type and
`channel instance. When a message is received through that external port, the
`external dispatcher is invoked. The routine then returns. In block 808, the routine
`installs an external dispatcher. In block 809, the routine invokes the connect
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`1 I have provided excerpts of these passages above in paragraphs 14 and 24.
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`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 17 of 26 PageID #: 16745
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`request routine to initiate the process of identifying neighbors for the seeking
`computer. The routine then returns.
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`A-1 (’344 Patent) at 18:47-56. In other words, blocks 801-806 are for locating a portal computer
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`that is connected, and blocks 807-809 are for initiating the process for connecting a seeking
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`computer to neighbors of the broadcast channel. See, e.g., A-1 (’344 patent) at 18:11-12 (“[A]
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`portal computer is located that is connected and this routine connects to at least one
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`neighbor…”). The exclusion of blocks 807-809 do not comport with Plaintiff’s purported
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`algorithm “which involves…connecting to the broadcast channel, connecting to a neighbor, and
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`connecting to a fully connected state.”
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`Blocks 807-809 do not disclose an algorithm for how to perform any of the
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`functions in order for a seeking computer to connect to an identified broadcast channel. The
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`related discussions only state that the external dispatcher performs unexplained functions.
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`Furthermore, even when step 809 completes, the process of identifying neighbors has just been
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`started; the neighbors still have to (somehow) be identified and (somehow) connections to the
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`neighbors have to be made.
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`Blocks 801-806 also do not provide details of steps that would have to be carried
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`out to implement each of the boxes. The related disclosure shows that each block has to be
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`programmed with algorithms to connect to an identified broadcast channel. See related
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`discussion of Fig. 8, Block 801 (“hashing algorithm”), Block 802 (“identify” algorithm), Blocks
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`803-805, 808 (“seek portal computer routine”), Block 806 (“achieve connection routine”).
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`Second, Dr. Medvidovic also asserts that Figures 3A and 3B “‘illustrate the
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`process of a new computer Z (sic) to the broadcast channel’ and the steps of this algorithm are
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`further detailed in the specification at 5:22-34.” Medvidovic Decl. at ¶ 58. I have reproduced
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`those sections below:
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`Case 1:16-cv-00455-RGA Document 164-8 Filed 06/29/17 Page 18 of 26 PageID #: 16746
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`A-2 (’966 Patent) at Figs 3A and 3B.
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`(This assumes that there are at least four computers already connected to the
`broadcast channel. When there are fewer than five computers connected, the
`broadcast channel cannot be a 4-regular graph. In such a case, the broadcast
`channel is considered to be in a "small regime." The broadcast technique for the
`small regime is described below in detail. When five or more computers are
`connected, the broadcast channel is considered to be in the "large regime." This
`description assumes that the broadcast channel is in the large regime, unless
`specified otherwise.) Thus, 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.
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`Id. at 5:22-34.
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`59. A person of ordinary skill in the art would understand that the