Case 1:16-cv-00455-RGA Document 347 Filed 12/20/17 Page 1 of 3 PageID #: 24104
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`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., ROCKST AR
`GAMES, INC., AND 2K SPORTS,
`INC.
`
`Defendants.
`
`Civil Action No. 16-453-RGA
`
`Civil Action No. 16-454-RGA
`
`Civil Action No. 16-455-RGA
`
`ORDER
`
`In response to Defendants' Motion for Clarification to the Court's Claim Construction
`
`Opinion and Order (No. 16-453, D.I. 302; No. 16-454, D.I. 275, No. 16-455, D.I. 271) and
`
`

`

`Case 1:16-cv-00455-RGA Document 347 Filed 12/20/17 Page 2 of 3 PageID #: 24105
`
`Plaintiff's Opposition (No. 16-453, D.I. 318; No. 16-454, D.I. 286; No. 16-455, D.I. 281), I
`
`directed the parties to submit additional briefs (No. 16-453, D.I. 340, 345, 354; No. 16-454, D.I.
`
`307, 312, 321; No. 16-455, D.I. 302, 307, 316) on the issues of(l) whether there is a substantive
`
`difference between the algorithm/"process of a new computer Z connecting to the broadcast
`
`channel" of Figures 3A and 3B and corresponding specifications and the algorithm /"processing
`
`of the connect routine" of Figure 8 and corresponding specifications, and (2) if there is a
`
`difference, whether Figures 3A and 3B and corresponding specifications constitute a separate
`
`algorithm.
`
`As to issue (1 ), Defendants argue, "The specifications first broadly disclose various
`
`concepts, including how a new computer is added to the claimed network," in Figures 3A and 3B
`
`and corresponding specifications. (D.I. 340 at 2). 1 Then, Defendants argue, Figure 8 and
`
`corresponding specifications "provide details, including the components of such a computer in
`
`the network and the algorithms that can be used to implement the functions introduced earlier in
`
`the specification." (Id.). Plaintiff does not disagree that Figures 3A and 3B and corresponding
`
`specifications are a broader "embodiment" than the "more complex" Figure 8 and corresponding
`
`specifications, which add "additional steps" and "routines." (D.I. 345 at 6-7). Thus, the parties
`
`seem to agree that the Figure 3A/3B algorithm and the Figure 8 algorithm are describing the
`
`same algorithm, but at different levels of detail.
`
`The level of detail might matter. It might matter for infringement, but that is clearly an
`
`issue for another day. It might matter for invalidity. In essence, the increased level of detail for
`
`the Figure 8 algorithm might mean that it is not indefinite, while the lower level of detail for the
`
`Figure 3A/3B algorithm might mean that it is indefinite.
`
`1 Subsequent citations to "D.I. _"are to the docket in C.A. No. 16-453 only.
`
`

`

`Case 1:16-cv-00455-RGA Document 347 Filed 12/20/17 Page 3 of 3 PageID #: 24106
`
`That brings us to issue (2), where Defendants argue that Figures 3A and 3B and
`
`corresponding specifications are a "black box" and do not provide an independent algorithm for
`
`"connecting." (D.I. 340 at 4-6, D.I. 354 at 2-6). Plaintiff, on the other hand, argues that Figures
`
`3A and 3B and corresponding specifications do in fact provide an independent algorithm for
`
`"connecting," citing a new declaration from Dr. Medvidovic (D.I. 346). (D.I. 345 at 9-10).
`
`Federal Circuit "case law regarding special purpose computer-implemented means-plus-
`
`functions claims is divided into two distinct groups: First cases in which the specification
`
`discloses no algorithm; and second, cases in which the specification does disclose an algorithm
`
`but a defendant contends that disclosure is inadequate." Noah S:vs., Inc. v. Intuit Inc., 675 F.3d
`
`1302, 1313 (Fed. Cir. 2012). "Where no structure appears, the question is not whether the
`
`algorithm that was disclosed was described with sufficient specificity, but whether an algorithm
`
`was disclosed at all. ... When the specification discloses some algorithm, on the other hand, the
`
`question is whether the disclosed algorithm, from the viewpoint of a person of ordinary skill, is
`
`sufficient to define the structure and make the bounds of the claim understandable." Id. Here,
`
`Figures 3A and 3B and corresponding specifications disclose some structure. Thus, the issue is
`
`whether that structure is "sufficient," which "requir[ es] consideration of what one skilled in the
`
`art would understand from that disclosure, whether by way of expert testimony or otherwise."
`
`Id. at 1313-14.
`
`Accordingly, the parties are directed to produce expe1i witness testimony on this second
`
`issue at a hearing to be scheduled.
`
`IT IS SO ORDERED.
`
`Entered this ZIJ day of December, 2017.
`
`