Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 1 of 17 PageID #: 13801
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY, LLC, a Delaware
`Limited Liability Corporation,
`
`Plaintiff,
`
`V.
`
`AMAZON WEB SERVICES, INC., a
`Delaware Corporation,
`
`Defendant.
`
`Civil Action No. 22-904-RGA
`
`MEMORANDUM OPINION
`
`Jonathan A. Choa, Philip A. Rovner, POTTER ANDERSON & CORROON LLP, Wilmington,
`DE; Paul J. Andre, Christina M. Finn, James R. Hannah (argued), Kristopher B. Kastens, Lisa
`Kobialka, Michael H. Lee, KRAMER LEVIN NAFTALIS & FRANKEL LLP, Redwood Shores,
`CA; Marcus Colucci, Aaron M. Frankel (argued), KRAMER LEVIN NAFTALIS & FRANKEL
`LLP, New York, NY,
`
`Attorneys for Plaintiff.
`
`Jack B. Blumenfeld, Jennifer Ying, MORRIS NICHOLS ARSHT & TUNNELL LLP,
`Wilmington, DE; Alan M. Fisch, Andrew Ramos (argued), Lisa Phillips, Jeffrey M. Saltman, R.
`William Sigler, FISCH SIGLER LLP, Washington, DC,
`
`Attorneys for Defendant.
`
`October Jt, 2023
`
`1
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`

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`Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 2 of 17 PageID #: 13802
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`Before me is the issue of claim construction of multiple terms in U.S. Patent Nos.
`
`6,701 ,344 ("the '344 patent"), 6,714,966 ("the ' 966 patent"), 6,732, 147 ("the ' 147 patent"),
`
`6,829,634 ("the '634 patent"), and 6,910,069 ("the ' 069 patent"). The parties submitted a Joint
`
`Claim Construction Brief (D.I. 65) and Appendix (D.I. 66). Defendant submitted an additional
`
`letter. (D.I. 72). I heard oral argument on October 4, 2023.1
`
`I.
`
`BACKGROUND
`
`On July 6, 2022, Plaintiff Acceleration Bay filed a complaint against Defendant Amazon
`
`Web Services, alleging infringement of the ' 344, ' 966, ' 147, ' 634, and ' 069 patents. (D.I. 1).
`
`These patents disclose networking technologies that promote reliable, efficient broadcast of data
`
`through large networks. (D.I. 65 at 6-7). The ' 344 patent discloses "systems for an effective
`
`broadcast technique using a regular network." (D.I. 1 , 10). The '966 patent discloses "systems
`
`for providing an information delivery service using a regular network." (Id. , 14). The ' 147
`
`patent discloses "methods and systems for leaving a broadcast channel." (Id., 18). The ' 634
`
`patent discloses "methods and systems for broadcasting data across a regular network." (Id. ,
`
`22). The '069 patent discloses "methods for adding a participant to a network without placing a
`
`high overhead on the underlying network." (Id. , 25).
`
`II. LEGAL ST AND ARD
`
`"It is a bedrock principle of patent law that the claims of a patent define the invention to
`
`which the patentee is entitled the right to exclude." Phillips v. AWH Corp., 415 F.3d 1303, 131 2
`
`(Fed. Cir. 2005) ( en bane) ( cleaned up). '" [T]here is no magic formula or catechism for
`
`1 Citations to the transcript of the argument, which is not yet docketed, are in the format
`"Markman Tr. at
`"
`
`2
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`

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`Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 3 of 17 PageID #: 13803
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`conducting claim construction.' Instead, the court is free to attach the appropriate weight to
`
`appropriate sources ' in light of the statutes and policies that inform patent law."' SoftView LLC
`
`v. Appl~ Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4, 2013) (alteration in original) (quoting
`
`Phillips, 415 F.3d at 1324). When construing patent claims, a court considers the literal
`
`language of the claim, the patent specification, and the prosecution history. Markman v.
`
`Westview Instruments, Inc., 52 F.3d 967, 977- 80 (Fed. Cir. 1995) (en bane), aff'd, 517 U.S. 370
`
`(1996). Of these sources, "the specification is always highly relevant to the claim construction
`
`analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term."
`
`Phillips, 415 F.3d at 1315 (cleaned up). "While claim terms are understood in light of the
`
`specification, a claim construction must not import limitations from the specification into the
`
`claims." Deere & Co. v. Bush Hog, LLC, 703 F.3d 1349, 1354 (Fed. Cir. 201 2) (citing Phillips,
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`415 F.3d at 1323).
`
`"[T]he words of a claim ' are generally given their ordinary and customary meaning.' . . .
`
`[It is] the meaning that the term would have to a person of ordinary skill in the art in question at
`
`the time of the invention, i.e., as of the effective filing date of the patent application." Phillips,
`
`415 F.3d at 1312- 13 (citations omitted). " [T]he ' ordinary meaning' of a claim term is its
`
`meaning to [an] ordinary artisan after reading the entire patent." Id. at 1321. "In some cases, the
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`ordinary meaning of claim language as understood by a person of skill in the art may be readily
`
`apparent even to lay judges, and claim construction in such cases involves little more than the
`
`application of the widely accepted meaning of commonly understood words." Id. at 1314.
`
`When a court relies solely on the intrinsic evidence-the patent claims, the specification,
`
`and the prosecution history-the court's construction is a determination of law. See Teva
`
`Pharms. USA, Inc. v. Sandoz, Inc., 574 U.S . 318, 331 (2015). The court may also make factual
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`3
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`

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`Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 4 of 17 PageID #: 13804
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`findings based on consideration of extrinsic evidence, which "consists of all evidence external to
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`the patent and prosecution history, including expert and inventor testimony, dictionaries, and
`
`learned treatises." Phillips, 415 F.3d at 1317- 19 (quoting Markman , 52 F.3d at 980). Extrinsic
`
`evidence may assist the court in understanding the underlying technology, the meaning of terms
`
`to one skilled in the art, and how the invention works. Id. Extrinsic evidence, however, is less
`
`reliable and less useful in claim construction than the patent and its prosecution history. Id.
`
`III. CONSTRUCTION OF AGREED-UPON TERMS
`
`I adopt the following agreed-upon constructions (D.I. 65 at 2-5):
`
`Claims
`' 344 patent, claims 13, 21
`
`Construction
`These preambles are limiting
`
`' 966 patent, claim 1
`
`' 634 patent, claims 10, 25
`
`' 14 7 patent, claim 6
`
`' 069 patent, claim 1
`
`Claim Term
`"A distributed game system
`comprising:";
`
`"A computer network for
`providing a game
`environment for a plurality of
`gaming participants, each
`gaming participant having
`connections to at least three
`neighbor gaming
`participants,"/ "A computer
`network for providing an
`information delivery service
`for a plurality of participants,
`each participant having
`connections to at least three
`neighbor participants,";
`
`"A non-routing table based
`broadcast channel for
`participants, comprising" I "A
`non-routing table based
`computer network having a
`ph.rrality of participants, each
`participant being an
`application program, and
`each participant having
`connections to at least three
`neighbor participants,";
`
`4
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`

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`Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 5 of 17 PageID #: 13805
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`"A method for healing a
`disconnection of a first
`computer from a second
`computer, the computers
`being connected to a
`broadcast channel, said
`broadcast channel being an
`m-regular graph where mis at
`least 3, the method
`comprising:";
`
`"A computer-based, non-
`routing table based, non-
`switch based method for
`adding a participant to a
`network of participants, each
`participant being connected to
`three or more other
`participants, the method
`comprising:"
`"network is m-regular"
`
`"in a manner as to maintain
`an m-regular graph"
`
`"wherein an originating
`participant sends data to the
`other participants by sending
`the data through each of its
`connections to its neighbor
`participants"
`
`"wherein an originating
`participant sends gaming data
`to the other gaming
`participants by sending the
`gaming data through each of
`its connections to its neighbor
`gaming participants"
`
`"a broadcast component that
`receives data from a neighbor
`participant using the
`
`' 344 patent, claims 13, 21
`
`' 966 patent, claims 1, 19
`
`' 634 patent, claims 10, 25
`
`' 14 7 patent, claim 6
`' 344 patent, claims 13, 25
`
`' 966 patent, claims 1, 19
`
`' 634 patent, claims 10, 25
`
`A state that the network is
`configured to maintain, where
`each participant is connected
`to exactly m neighbor
`participants.
`
`Data is sent from an
`originating participant to the
`other participants by
`broadcasting data through
`each of its connections to its
`neighbor participants.
`
`5
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`

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`Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 6 of 17 PageID #: 13806
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`communications network and
`that sends the received data to
`its other neighbor
`participants"
`"thus resulting in a non-
`complete graph"
`
`' 344 patent, claims 13, 21
`
`'966 patent, claims 1, 19
`
`The graph is configured to
`maintain a non-complete
`state.
`
`"m-connected"
`
`' 634 patent, claims 10, 25
`'634 patent, claims 10, 25
`
`'069 patent, claim 1
`
`"sends an edge connection
`request to a number of
`randomly selected
`neighboring participants to
`which the seeking participant
`is to connect"
`
`"broadcast channel"
`
`' 344 patent, claims 13, 21
`
`' 966 patent, claims 12, 19
`
`' 634 patent, claims 10, 11 ,
`15-18, 25
`
`' 14 7 patent, claims 6, 9
`'344 patent, claims 13 , 21
`
`'966 patent, claim 1
`
`' 634 patent, claims 10, 25
`
`' 069 patent, claim 1
`' 344 patent, claim 21
`
`'966 patent, claims 1, 19
`
`"participants"
`
`"computer network"
`
`A state that the network is
`configured to maintain, where
`the network may be divided
`into disconnected
`subnetworks by the removal
`of m participants in a steady
`state.
`Sends a message through a
`number of randomly selected
`connections until fully
`connected participants are
`identified to which the
`seeking participant is to
`connect.
`An overlay network of
`interconnected
`computers/participants where
`each computer/participant
`receives all data broadcasted
`on the network.
`
`Computers or computer
`processes that are connected
`by a network.
`
`A group of connected
`computers or computer
`processes.
`
`"each participant having
`connections to at least three
`neighbor participants"
`
`'634 patent, claim 25
`'344 patent, claims 13, 15, 21 Each participant being
`connected to the same
`number of other participants
`
`'966 patent claims 1, 19
`
`6
`
`

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`Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 7 of 17 PageID #: 13807
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`"player computers that are
`each interconnected to at least
`three other computers"
`
`'634 patent, claim 25
`
`' 14 7 patent, claim 9
`
`in the network, where the
`number is three or more.
`
`"each gaming participant
`having connections to at least
`three neighbor gaming
`participants"
`
`"each computer connected to
`the broadcast channel is
`connected to at least three
`other computers"
`"healing a disconnection of a
`first computer from a second
`computer"
`
`' 14 7 patent, claim 6
`
`Plain and ordinary
`meaning/no construction
`required, i.e., restoring the
`state of the network after the
`disconnection of a first
`computer from a second
`computer.
`
`IV. CONSTRUCTION OF DISPUTED TERMS
`
`The parties agree that claim 1 of the ' 069 patent and claim 21 of the ' 344 patent are
`
`representative for the purpose of claim construction. Those claims state:
`
`1. A computer-based, non-routing table based, non-switch based method for
`adding a participant to a network of participants, each participant being
`connected to three or more other participants, the method comprising:
`
`identifying a pair of participants of the network that are connected wherein a
`seeking participant contacts a fully connected portal computer, which in turn sends
`an edge connection request to a number of randomly selected neighboring
`participants to which the seeking participant is to connect;
`
`disconnecting the participants of the identified pair from each other; and
`
`connecting each participant of the identified pair of participants to the seeking
`participant.
`
`('069 patent at 28:49-62 (disputed terms bolded and italicized)).
`
`7
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`

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`Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 8 of 17 PageID #: 13808
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`21. A computer network for providing a game environment for a plurality of
`gaming participants, each gaming participant having connections to at least
`three neighbor gaming participants,
`
`wherein an originating gaming participant sends gaming data to the other
`gaming participants by sending the gaming data through each of its connections to
`its neighbor gaming participants and wherein each gaming participant sends
`gaming data that it receives from a neighbor gaming participant to its other neighbor
`gaming participants;
`
`further wherein the network ism-regular, where mis the exact number of
`neighbor gaming participants of each gaming participant,
`
`further wherein the number of gaming participants is at least two greater than
`m thus resulting in a noncomplete graph,
`
`further wherein the connections between the gaming participants are peer-to(cid:173)
`peer connections,
`
`further wherein the network is formed through a broadcast channel that overlays
`an underlying network,
`
`further wherein the game environment is provided by at least one game
`application program executing on each computer of the computer network that
`interacts with the broadcast channel, and
`
`further wherein gaming participants can join and leave the network using the
`broadcast channel.
`
`('344 patent Inter Partes Review Certificate at 1 :8-2: 17 ( disputed terms bolded and italicized)).
`
`1. "network of participants, each participant being connected to three or more other
`participants" ('069 patent, claim 1)
`
`a. Plaintiff's proposed construction: plain and ordinary meaning/no construction
`required, i.e., participants that are connected by a network where each participant
`must be connected to at least three other participants, but there is no requirement
`that each participant is connected to the same number of other participants
`b. Defendant 's proposed construction: a network configured to maintain a state
`where each participant is connected to the same number of other participants,
`where the number is at least three
`c. Court 's construction: a network configured to maintain a state where each
`participant is connected to the same number of other participants, where the
`number is at least three
`
`8
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`

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`Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 9 of 17 PageID #: 13809
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`The parties dispute whether this term requires each participant to be connected to the
`
`same number of other participants.
`
`Plaintiff argues that the plain language of claim 1 of the ' 069 patent neither precludes nor
`
`requires an m-regular network. (D.I. 65 at 16). Plaintiff contends that Defendant' s proposed
`
`construction would import an m-regular network limitation into the claim. (Id. at 17-18).
`
`Plaintiff argues that the specification discloses m-regular networks but does not limit claim 1 's
`
`scope to those networks only. (Id. at 18). Plaintiff also contends that Defendant's proposed
`
`construction would exclude embodiments, as the ' 069 patent describes embodiments that are not
`
`m-regular. (Id. at 21 , 23-24). Plaintiff further argues that construing claim 1 as requiring an m(cid:173)
`
`regular network is unnecessary "to obtain a meaningful invention" because both m-regular and
`
`non-m-regular networks address the problem of "elongation," which is the focus of claim 1. (Id.
`
`at 17; see also Markman Tr. at 11 :21- 12:25).
`
`Relying on claim differentiation principles, Plaintiff argues the inventors made a drafting
`
`choice to exclude an m-regular limitation from claim 1. (D.I. 65 at 34-35; see also Markman Tr.
`
`at 7:9-11 , 7:16-19). Plaintiff points out that other claims in the ' 069 patent and claims in the
`
`other patents include clear express m-regular network limitations. (D.I. 65 at 18; see also
`
`Markman Tr. at 7:6-9). Plaintiff points out that claim 14 of the '069 patent, claim 19 of the ' 634
`
`patent, and claim 13 of the '344 patent all include express m-regular network limitations. (D.I.
`
`65 at 19-20). Plaintiff contends that comparing claim 1 to these claims shows that the inventors
`
`"demonstrated a clear intention to vary the scope of their claims." (Id. at 20).
`
`9
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`

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`Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 10 of 17 PageID #: 13810
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`In response, Defendant argues that Plaintiff raises many of the same arguments it argued
`
`in an earlier case, where I adopted the construction Defendant now proposes.2 (Id. at 26, 37-38).
`
`Defendant also contends that all asserted claims of the ' 344, ' 966, ' 634, ' 147, and ' 069 patents
`
`"include substantially similar limitations requiring ' at least three,' or 'three or more,' directly
`
`connected participants." (Id. at 25). Defendant points out that Plaintiff agreed these limitations
`
`should be construed as "each participant being connected to the same number of other
`
`participants in the network, where the number is three or more," for the ' 344, '966, ' 634, and
`
`'14 7 patents. (Id.). Defendant argues that because all five patents "have nearly identical
`
`disclosures," I should adopt its proposed construction for the disputed term in claim 1 of the
`
`' 069 patent. (Id. at 26). At oral argument, for the first time, Defendant argued that its proposed
`
`construction requires participants to be m-connected, but that m-regularity is not required.
`
`(Markman Tr. at 21: 1-3, 21: 17-19).3
`
`Defendant further contends that Plaintiff's claim differentiation argument lacks merit.
`
`Defendant argues that "claim differentiation is most relevant where a dependent claim includes a
`
`limitation missing from the independent claim from which it depends." (D.I. 65 at 38).
`
`2 Defendant suggests that the Federal Circuit affirmed my previous construction of the disputed
`term. (See Markman Tr. at 20:3-13). The Federal Circuit did not. See Acceleration Bay LLC v.
`2K Sports, Inc., 15 F .4th 1069, 1077 (Fed. Cir. 2021) ("[ Appellee] points out that the district
`court did not only construe the term 'fully connected portal computer' to include the limitation,
`but it also construed the term ' each participant being connected to three or more other
`participants' to include it. Because Acceleration Bay does not challenge the district court's latter
`construction, [Appellee] argues that the appeal necessarily fails . We agree." (citations omitted)).
`Since Acceleration Bay did not challenge the construction, the Federal Circuit had no occasion to
`decide whether it was correct.
`
`3 The parties agree that the term "network is m-regular" should be construed as "[a] state that the
`network is configured to maintain, where each participant is connected to exactly m neighbor
`participants." (See D.I. 65 at 3). The parties also agree that the term "m-connected" should be
`construed as " [a] state that the network is configured to maintain, where the network may be
`divided into disconnected sub-networks by the removal of m participants in a steady state." (Id.) .
`
`10
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`

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`Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 11 of 17 PageID #: 13811
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`Defendant points out that none of the dependent claims that depend on claim 1 of the ' 069 patent
`
`recite m-regular limitations, and the only claim in the '069 patent that includes such a limitation
`
`is claim 14, an independent claim. (Id. at 29- 30).
`
`Defendant also relies on the specification to support its position. For example, Defendant
`
`contends that the figures in the specification show that participants have the same number of
`
`connections. (Id. at 31 ). Even if some participants temporarily have fewer than m connections,
`
`Defendant argues that a network may still qualify as m-regular when all participants are
`
`configured to maintain a designated number of connections. (Id. at 31- 3 3 ).
`
`The plain language of the claim-"each participant being connected to three or more
`
`other participants"-is ambiguous. On the one hand, this language could be read to mean that
`
`each participant is connected to "x" participants, where "x" is three or more. On the other hand,
`
`the same language could be read to mean that each participant is connected to at least three
`
`participants, where the number of connections may vary greatly. Because this claim language is
`
`subject to more than one interpretation, I turn to the surrounding claim language and the
`
`specification to construe the term.
`
`I agree with Defendant that the language of claim 1 indicates each participant must be
`
`connected to the same number of other participants. One limitation of claim 1 recites that a
`
`participant contacting a fully connected portal computer "sends an edge connection request to a
`
`number of randomly selected neighboring participants to which the seeking participant is to
`
`connect." ('069 patent at 28:53-58). This limitation refers to a random walk. (Id. at 13:36-43).4
`
`4 Plaintiff agrees that claim 1 of the '069 patent requires a random walk but contends that a
`random walk does not require each participant to have the same number of connections.
`(Markman Tr. at 42:9-15).
`
`11
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`

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`Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 12 of 17 PageID #: 13812
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`The random walk is only present in a "large regime." (Id. ; see also id. at 19:60--65). A large
`
`regime requires m-regularity (see id. at 5:26-32), and m-regularity requires each participant to be
`
`connected to the same number of participants. The specification supports this construction. 5
`
`Plaintiffs reli~ce on claim differentiation is unpersuasive. At oral argument, Plaintiff
`
`stated that the five patents-in-suit are not legally related. (Markman Tr. at 7:20-8 :4). Therefore
`
`the '344, '966, ' 147, and '634 patents are not intrinsic evidence, and arguments based on them
`
`and their claims are irrelevant. They do not support Plaintiffs position. The remainder of
`
`Plaintiffs claim differentiation argument rests on a comparison between independent claim 1
`
`and independent claim 14 of the '069 patent. ('069 patent at 28:49--62, 30:3-18). The intrinsic
`
`evidence-the comparison of the language in the two independent claims-is insufficient to
`
`show that claim 1 has different scope than claim 14. See Hormone Rsch. Found. , Inc. v.
`
`Genentech, Inc. , 904 F.2d 1558, 1567 n.15 (Fed. Cir. 1990) ("It is not unusual that separate
`
`claims may define the invention using different terminology, especially where (as here)
`
`independent claims are involved." ( citation omitted)).
`
`I therefore reject Plaintiffs proposed construction, and I adopt Defendant' s proposed
`
`construction. I construe "network of participants, each participant being connected to three or
`
`more other participants" to mean "a network configured to maintain a state where each
`
`participant is connected to the same number of other participants, where the number is at least
`
`three."
`
`2. "each participant being connected to three or more other participants" ('069 patent,
`claim 1)
`
`5 This construction is consistent with my previous construction of "each participant being
`connected to three or more other participants." See Acceleration Bay LLC v. Take-Two
`Interactive Software, Inc., No. 16-455 (D. Del. Dec. 20, 2017), D.I. 345 at 14-15.
`
`12
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`Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 13 of 17 PageID #: 13813
`
`a. Plaintiff's proposed construction: plain and ordinary meaning/no construction
`required, i.e., each participant must be connected to at least three other
`participants, but there is no requirement that each participant is connected to the
`same number of other participants
`b. Defendant's proposed construction: each participant is connected to the same
`number of other participants in the network, where the number is at least three
`c. Court 's construction: each participant is connected to the same number of other
`participants in the network, where the number is at least three
`
`For the same reasons as above, I reject Plaintiffs proposed construction and adopt
`
`Defendant's proposed construction.
`
`3. "peer-to-peer connections" ('344 patent, claim 21; '966 patent, claim 19; '634
`patent, claim 25)
`
`a. Plaintiff's proposed construction: peer-to-peer connections are connections
`between peer participants; peers are participants that are equally able to send and
`receive information
`b. Defendant 's proposed construction: connections between participants forming a
`point-to-point graph through which participants both transmit and relay
`information
`c. Court's construction: peer-to-peer connections are connections between peer
`participants; peers are participants that are equally able to send and receive
`information
`
`The parties dispute whether this term requires participants to both send and receive
`
`information or merely to be able to both send and receive information. The parties also dispute
`
`whether the connections at issue must form a point-to-point graph.
`
`Plaintiff contends that the term "peer-to-peer connections" should be given its plain and
`
`ordinary meaning. (D.I. 65 at 42). At oral argument, Plaintiff argued that "peer-to-peer" is a
`
`commonly understood term with a well-known definition. (Markman Tr. at 51 :2-5). Plaintiff
`
`contends that the specification of the '344 patent does not "ascribe any special meaning" to this
`
`term. (D.I. 65 at 42). Plaintiff therefore contends that the term simply refers to connections
`
`between peers. (Id.).
`
`Plaintiff argues that construing the term to include "point-to-point graph" would
`
`impermissibly import a limitation into the claim. Relying on the specification, Plaintiff contends
`
`13
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`Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 14 of 17 PageID #: 13814
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`that adding "point-to-point graph" to the construction would exclude embodiments. The
`
`specification states: " [t]he peer-to-peer rniddleware communications systems rely on a
`
`multicasting network protocol or a graph of point-to-point network protocols." (' 344 patent at
`
`2:23-25). Plaintiff thus argues that Defendant' s proposed construction excludes a multicasting
`
`network. (See, e. g. , Markman Tr. at 56:12-2 1).
`
`Plaintiff also argues that construing the term to include "both transmit and relay
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`information" would make other limitations superfluous. (D.I. 65 at 42--43). At oral argument,
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`Plaintiff argued that claim 21 of the ' 344 patent does not require all participants to send and
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`receive information. (Markman Tr. at 52: 11- 20). Part of claim 21 recites that "an originating
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`gaming participant sends gaming data to the other gaming participants by sending the gaming
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`data through each of its connections to its neighbor gaming participants .... " Plaintiff contends
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`that this limitation relates to sending and receiving information, making it unnecessary to import
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`"both transmit and relay information" to the construction of "peer-to-peer connections." (D.I. 65
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`at 42--43).
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`In response, Defendant contends that "the patents repeatedly describe the claimed
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`connections using graph theory." (Id. at 44). Defendant cites to several parts of the
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`specification, including language that "[a] broadcast technique in which a broadcast channel
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`overlays a point-to-point communications network is provided." (Id.). Defendant further
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`contends that the "point-to-point" language is "consistent with how the patents describe peer-to(cid:173)
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`peer networks." (Id.).
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`Defendant argues that the claim requires participants to transmit and relay information.
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`(Id. at 45). Defendant contends that the prosecution history supports its position because
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`Plaintiff added '" peer-to-peer connections' and other amended language to overcome rejections"
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`Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 15 of 17 PageID #: 13815
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`during inter partes review ("IPR"). (Id. at 45, 49). Defendant argues that Plaintiffs proposed
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`construction "does not seem to exclude client-server systems, or otherwise resolve any dispute
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`between the parties." (Id. at 46).
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`I agree with Plaintiff that the claim and specification do not require "peer-to-peer
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`connections" to be construed as requiring a point-to-point graph or requiring participants to both
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`transmit and relay information. Claim terms are "generally given their ordinary and customary
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`meaning as understood by a person of ordinary skill in the art when read in the context of the
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`specification and prosecution history." Thorner v. Sony Comput. Ent. Am. LLC, 669 F.3d 1362,
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`1365 (Fed. Cir. 2012) (citing Phillips, 415 F.3d at 1313). Two exceptions apply: (1) when
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`patentees act as their own lexicographers by setting out definitions, and (2) when patentees
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`disavow a claim term's full scope during prosecution or in the specification. Id. (citing Vitronics
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`Corp. v. Conceptronic, Inc. , 90 F.3d 1576, 1580 (Fed. Cir. 1996)). The use of the term "peer-to(cid:173)
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`peer connections" does not meet either exception.
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`A patentee acts as its own lexicographer only if it "clearly set forth a definition of the
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`disputed claim term" in the specification. Id. ( quoting CCS Fitness, Inc. v. Brunswick Corp., 288
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`F.3d 1359, 1366 (Fed. Cir. 2002)). The patentee must "clearly express an intent" to provide a
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`definition other than the plain and ordinary meaning; disclosing one embodiment or using a word
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`in the same way in all embodiments is insufficient. Id. ( quoting Helmsderfer v. Bobrick
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`Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008)). The '344 patent's specification
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`does not provide a definition of "peer-to-peer connections" that differs from the term's plain and
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`ordinary meaning. (See generally '344 patent). In other words, the specification does not
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`redefine "peer-to-peer connections" to require a point-to-point graph or the transmittal and
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`Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 16 of 17 PageID #: 13816
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`receipt of information. I thus find that the lexicography exception does not apply here. (See
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`Markman Tr. at 64:18-24).
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`Disavowal, meanwhile, requires the specification to clearly show that the "invention does
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`not include a particular feature. " SciMed Life Sys. , Inc. v. Advanced Cardiovascular Sys. , Inc. ,
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`242 F.3d 1337, 1341 (Fed. Cir. 2001). The specification must be "both so clear as to show
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`reasonable clarity and deliberateness, and so unmistakable as to be unambiguous evidence of
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`disclaimer." Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1322 (Fed. Cir. 2012) (internal citation
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`omitted). To find disavowal of claim scope through disparagement of a particular feature, I must
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`determine whether "the specification goes well beyond expressing the patentee' s preference ...
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`[such that] its repeated derogatory statements about [a particular embodiment] reasonably may
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`be viewed as a disavowal." Chicago Bd. Options Exch. , Inc. v. lnt 'l Sec. Exch. , LLC, 677 F.3d
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`1361 , 1372 (Fed. Cir. 2012). A patentee' s statements during an IPR may also support a finding
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`of disavowal. See Aylus Networks, Inc. v. Apple Inc., 856 F.3d 1353, 1359 (Fed. Cir. 2017).
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`Neither the '344 patent's specification nor the statements made during IPR proceedings
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`rise to the level of clear and unmistakable disclaimer. Defendant did not dispute this at oral
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`argument. (See Markman Tr. at 65:2- 5 ("We're not arguing there's disclaimer here .... ")).
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`Defendant instead argued that Plaintiff"described [its] own patents in a way that goes at odds with
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`the ordinary meaning" of the disputed term. (Id.) . Given the lack of lexicography or disavowal,
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`however, there is insufficient evidence in the patent to deviate from the plain and ordinary meaning
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`of "peer-to-peer connections."
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`I thus find that Defendant's proposed construction would import limitations into claim 21.
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`Such a construction would contradict the claim's plain language. See Renishaw PLC v. Marposs
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`Societa'per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998) ("The construction that stays true to the
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`Case 1:22-cv-00904-RGA-SRF Document 77 Filed 10/19/23 Page 17 of 17 PageID #: 13817
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`claim language and most naturally aligns with the patent's description of the invention will be, in
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`the end, the correct construction."). I therefore reject Defendant' s proposed construction, and I
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`adopt Plaintiff's proposed construction. The term "peer-to-peer connections" has its plain and
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`ordinary meaning, which is "connections between peer participants." Peers are "participants that
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`are equally able to send and receive information."
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`V. CONCLUSION
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`Within five days the parties shall submit a proposed order consistent with this
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`Memorandum Opinion.
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`17
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