`
`M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P
`1201 NORTH MARKET STREET
`P.O. BOX 1347
`WILMINGTON, DELAWARE 19899-1347
`
`(302) 658-9200
`(302) 658-3989 FAX
`
`STEPHEN J. KRAFTSCHIK
`(302) 351-9378
`(302) 498-6233 FAX
`skraftschik@mnat.com
`
`
`
`The Honorable Richard G. Andrews
`United States District Court
` for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
`
`January 10, 2018
`
`VIA ELECTRONIC FILING
`
`Re:
`
`Acceleration Bay LLC; C.A. Nos. 16-453 (RGA); 16-454 (RGA); and 16-455 (RGA)
`
`Dear Judge Andrews:
`On December 15, 2017, pursuant to the Court’s December 12, 2017 Order,
`Defendants submitted the attached claim constructions for Term 10 (network) and the two
`preamble terms: Terms 24 and 25 (the “Preamble Terms”). For the Preamble Terms, the
`constructions were:
`
` Term 24: “The preamble is limiting. ‘A non-routing table based computer readable
`medium containing instructions for controlling communications of a participant of a
`broadcast channel within a network;’” and
`
` Term 25 “The preamble is limiting. ‘A computer-based, non-routing table based, non-
`switch based method for adding a participant to a network of participants.’”
`
`At the hearing, Plaintiff agreed to Defendants’ constructions, including for the
`two Preamble Terms. Dec. 18, 2017 Markman Tr. at 8:3-9, 9:5-14 (Ex. A).
`
`Your Honor requested that the parties submit a joint agreed order. Plaintiff agrees
`with the construction for Term 10 (“network”) but is now unwilling to agree (fully) to
`Defendants’ constructions for the Preamble Terms. Even though Defendants’ December 15
`Constructions plainly state that the “The preamble is limiting,” Plaintiff’s position now seems to
`be that the preambles are not limiting and that Plaintiff did not agree to this aspect of
`Defendants’ constructions. This is not an issue that Plaintiff raised when it agreed to
`Defendants’ December 15 constructions. Nor did Plaintiff reserve any rights as to these
`constructions when it made that agreement. Plaintiff’s failure to timely raise this issue waives it.
`Moreover, from a substantive position, Plaintiff’s position makes no sense. The language of the
`preambles was substantively amended during prosecution to secure allowance of these claims.
`
`
`
`Case 1:16-cv-00455-RGA Document 361 Filed 01/10/18 Page 2 of 2 PageID #: 24319
`
`The Honorable Richard G. Andrews
`January 10, 2018
`Page 2
`
`
`Further, there would have no reason for Your Honor to construe or the parties to agree to a
`construction of the Preamble Terms if they were not limiting.
`
`Accordingly, Defendants request entry of their attached proposed order.
`
`Respectfully,
`
`/s/Stephen J. Kraftschik
`
`Stephen J. Kraftschik (#5623)
`
`
`
`
`SJK:ncf
`Enclosure
`cc:
`Clerk of Court (Via Hand Delivery; w/enclosure)
`
`All Counsel of Record (Via Electronic Mail; w/enclosure)
`
`
`
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