Case 1:16-cv-00455-RGA Document 271-1 Filed 09/12/17 Page 1 of 7 PageID #: 19962
`Case 1:16-cv-00455-RGA Document 271-1 Filed 09/12/17 Page 1 of 7 PagelD #: 19962
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`EXHIBIT 1
`EXHIBIT 1
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`Case 1:16-cv-00455-RGA Document 271-1 Filed 09/12/17 Page 1 of 7 PagelD #: 19962
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`EXHIBIT 1
`EXHIBIT 1
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`Case 1:16-cv-00455-RGA Document 271-1 Filed 09/12/17 Page 2 of 7 PageID #: 19963
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`1
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`CA NO. 16-453-RGA,
`16-454-RGA, 16-455-RGA
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`July 10, 2017
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`9:04 o'clock a.m.
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`: : : : : : : : : :
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`v.
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`ACTIVISION BAY INC, et al.,
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`Defendants,
`.............................
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`TRANSCRIPT OF MARKMAN HEARING
`BEFORE THE HONORABLE RICHARD G. ANDREWS
`UNITED STATES DISTRICT JUDGE
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`APPEARANCES:
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`For Plaintiff:
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`POTTER, ANDERSON & CORROON
`BY: PHILIP A. ROVNER, ESQ
`BY: ALAN R. SILVERSTEIN, ESQ
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`Case 1:16-cv-00455-RGA Document 271-1 Filed 09/12/17 Page 3 of 7 PageID #: 19964
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`77
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`doesn't carry any weight?
`MR. ANDRE: I've not seen a case either way on that. I
`mean, it would lead to an amazing practice. The petitioners
`intentionally would not rely on the proper structure.
`So the PTAB would say, we can't construe them, and then
`they would argue in the District Court, ah, they're indefinite,
`because the PTAB couldn't construe them.
`You can't let them have control of the process and then
`do it poorly, and then punish the patent owner for doing that.
`THE COURT: The IPR procedure is only designed to
`address 102 and 103, right, and not 112?
`MR. ANDRE: That's correct.
`THE COURT: Okay.
`MR. ANDRE: So with that in mind, I think we're all on
`the same page.
`I think you've taken the breadth of my knowledge out at
`this point. I'm going to let Mr. Hannah start going through the
`terms and they can bounce through the terms very quickly that
`way.
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`THE COURT: All right.
`MR. HANNAH: Thank you, your Honor.
`We'll start with the means for connecting term.
`This is in the '344 and '966 patent. The parties
`agreed essentially with regards to the function here.
`And I think it's clear from the case law, what is
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`Case 1:16-cv-00455-RGA Document 271-1 Filed 09/12/17 Page 4 of 7 PageID #: 19965
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`78
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`required in the spec is that someone of skill in the art has to
`be able to recognize and identify the structure, so they can
`program a software program in order to perform the necessary
`steps of the algorithm.
`And then I think the easiest way is to just look at the
`means for connecting is to see what the patent talks about. It
`talks about the connect routine.
`I think that is the clearest example and it's provided
`out all throughout the '966 and the '344 patent.
`And it specifically says that Figure 8 is a flow
`diagram illustrating the process of the connect routine in one
`embodiment. It's talking exactly about the means for connecting
`and how that works.
`And it goes through what this routine is.
`If you look through this portion that we provided in
`the specification, it says this routine is perhaps a channel
`type or a channel instance. It identifies broadcast channel.
`Routine also has some additional information.
`When the connection is established, the callback
`routine is invoked to notify the application program.
`And when this process invokes a routine, it's in a
`connection seek state. I mean, it goes through the algorithm
`step-by-step in terms of what is required by the means for
`connecting. And it specifically calls it a connect routine in
`the specification.
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`Case 1:16-cv-00455-RGA Document 271-1 Filed 09/12/17 Page 5 of 7 PageID #: 19966
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`THE COURT: And, so, the structure -- so you're
`submission for structure has a lot of other stuff besides that
`portion of the specification?
`MR. HANNAH: Yes. And, your Honor, the reason we did
`this is because other judges have liked this. We proposed some
`means-plus-functions in unrelated cases.
`And, frankly, we had a judge come back to ask us, how
`am I supposed to just give these citations to the jury.
`Give me something that I can actually read to the jury
`and then put the citations in that.
`So that is why we adopted this format. We think it's a
`little cleaner and easier for a jury to understand, but the
`algorithm is what's in the citations that are provided.
`THE COURT: Well, so it's probably good for me, even if
`I decide to do what you're suggesting there, which sounds
`reasonable. What is good for me is, for you to be, I think,
`very specific about what the algorithm is, right?
`You've got a lot of verbiage here.
`And, so, for the connecting, are you saying that the
`portions that you just showed me, which I think that's in column
`-- whatever it is -- Column 18, Lines 3 to 18 of the '966
`patent, that is the algorithm?
`MR. HANNAH: Yes, your Honor.
`So, if you look at -- so I'm just going back to the
`construction on Slide 22 -- and you'll see for the '966 that's
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`Case 1:16-cv-00455-RGA Document 271-1 Filed 09/12/17 Page 6 of 7 PageID #: 19967
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`exactly what we've identified.
`So we go 18:3 through 19:22, because the connect
`routine and the connect algorithm actually spans that entire
`column.
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`And then we identified Figures 3 and 3B based on the
`case law that says that you can illustrate that algorithm and
`diagrams.
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`And then we have another citation to Column 5, Column
`32 through 50 -- I means Lines 32 through 52, which also
`describes the connect routine.
`So we tried to find where it described the connect
`routine. That's where the algorithm is discussed.
`The rest of it is just to be a summary, to make it more
`about jury friendly, that we found was helpful for the case.
`THE COURT: Can you just show me 3A and 3B?
`MR. HANNAH: Sure.
`So, if you look in the specification, and then to 3A
`and 3B, it is describing how the nodes are actually being
`connected.
`THE COURT: So is that Figure 3A or Figures 3A and 3B?
`MR. HANNAH: Yeah, 3A and 3B right here.
`And then the other citation that we have --
`THE COURT: Okay.
`So you would agree that 3A and 3B by themselves don't
`possibly give an algorithm.
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`Case 1:16-cv-00455-RGA Document 271-1 Filed 09/12/17 Page 7 of 7 PageID #: 19968
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`MR. HANNAH: No, the specification is describing 3A and
`3B, so we also identified those.
`THE COURT: Okay.
`MR. HANNAH: And then I would say if you want to look
`just to the figures, probably the best description is -- if I
`remember correctly from memory -- is 9 -- or, no, it's Figure 8.
`I believe this is describing the connect routine.
`As I was describing early, it talks about how it
`receives the channel type, the channel instance, and it's going
`to go through and it's going to apply the broadcast channel
`based on that. It's going to -- the columns -- the description
`of this figure shows the algorithm. This description of this
`figure and how it goes through.
`So I think it's just in combination. So we've we put
`everything in there that is describing this -- is describing the
`algorithm.
`In terms of the words to use, I would point to, as I
`did before, Column 18, and it goes up through 19, Line 2 I
`believe.
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`THE COURT: Okay. All right.
`I want to hear from other side.
`MR. HANNAH: Sure.
`MR. MURRAY: Your Honor, Michael Murray.
`So before I dig into this, I just want to respond to a
`couple of things that plaintiff's counsel talked about.
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`11:04:00
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