Case 1:12-cv-10576-DJC Document 153 Filed 06/26/15 Page 1 of 40
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`_________________________________________
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`WORLDS, INC.,
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`Plaintiff,
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`v.
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` )
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`
` Civil Action No. 12-10576-DJC
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`
`ACTIVISION BLIZZARD, INC.,
`BLIZZARD ENTERTAINMENT, INC. and
`ACTIVISION PUBLISHING, INC.,
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`
`Defendants.
`_________________________________________
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`
`
`
`CASPER, J.
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`I.
`
`Introduction
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`MEMORANDUM AND ORDER
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`June 26, 2015
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`
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`Plaintiff Worlds, Inc., (“Worlds”) alleges that Activision Blizzard, Inc., Blizzard
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`Entertainment, Inc. and Activision Publishing, Inc. (collectively, the “Defendants”) infringe
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`certain claims of United States Patents Nos. 7,181,690 (“‘690”), 7,493,558 (“‘558”), 7,945,856
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`(“‘856”), 8,082,501 (“‘501”) and 8,145,998 (“‘998”) (collectively, the “Patents-In-Suit”). The
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`parties now seek construction of eleven disputed claims terms. After extensive briefing and a
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`Markman hearing, the Court’s claim construction follows.
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`Patents-in-Suit
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`This lawsuit involves patents that are directed to a client-server network that enables
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`II.
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`
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`large numbers of computer users to interact in a “virtual world” displayed on a computer screen.
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`D. 62-2, 62-3, 62-4, 62-5, 62-6. Worlds alleges that Defendants infringe the following patent
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`claims: ‘690 claims 1-20; ‘558 claims 4-9; ‘856 claim 1; ‘501 claims 1-8, 10, 12, 14-16; ‘998
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`claims 1-3, 7, 8, 11-20. See Worlds, Inc. v. Activision Blizzard, Inc., No. 12-cv-10576-DJC,
`1
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`Patent Owner's Exhibit 2006
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`Case 1:12-cv-10576-DJC Document 153 Filed 06/26/15 Page 2 of 40
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`2014 WL 972135, at *1 (D. Mass. Mar. 13, 2014). The Patents-in-Suit are all part of the same
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`patent family and share a common specification. D. 62-2, 62-3, 62-4, 62-5, 62-6.1 The ‘690
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`patent was filed on August 3, 2000 and issued on February 20, 2007. Worlds, Inc., 2014 WL
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`972135, at *1. The ‘558 patent was filed on November 2, 2006 and issued on February 17, 2009.
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`Id. The ‘856 patent was filed on January 13, 2009 and issued on May 17, 2011. Id. The ‘501
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`patent was filed on March 19, 2009 and issued on December 20, 2011. Id. at *2. The ‘998
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`patent was filed on March 19, 2009 and issued on March 27, 2012. Id.
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`Procedural History
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`Worlds instituted this action on March 30, 2012, D. 1, and later filed an amended
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`III.
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`complaint. D. 32. The Defendants moved for summary judgment on June 18, 2013. D. 83. The
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`Court subsequently allowed the Defendants’ motion for summary judgment, concluding that the
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`Patents-in-Suit were not entitled to claim priority to November 13, 1995, the filing date of
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`Worlds’s Provisional Application. D. 124. Worlds, however, has continued to allege
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`infringement as from the issuance of the certificates of correction by the PTO on September 24,
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`2013 for the ‘045 and ‘690 patents (of which the ‘558, ‘856, ‘501 and ‘998 are continuations)
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`through the lives of the Patents-in-Suit. D. 127. After claim construction briefing, the Court
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`held a Markman hearing and took the matter under advisement. D. 147.
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`Standard of Review
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`The construction of disputed claim terms is a question of law. Markman v. Westview
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`IV.
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`
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`Instruments, 517 U.S. 370, 372 (1996). For claim construction, a court must construe “the
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`meaning that the term would have to a person of ordinary skill in the art in question at the time of
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`. . . the effective filing date of the patent application.” Phillips v. AWH Corp., 415 F.3d 1303,
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`1 As all of the patents share a common specification, when citing the specification the
`Court will cite to the ‘690 patent, D. 62-2.
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`2
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`1313 (Fed. Cir. 2005). To do so, the Court must look to “the words of the claims themselves,
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`the remainder of the specification, the prosecution history, and extrinsic evidence concerning
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`relevant scientific principles, the meaning of technical terms, and the state of the art.” Id. at
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`1314 (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116
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`(Fed. Cir. 2004)).
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`
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`A.
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`The Claims
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`The analysis must always begin with the language of the claim, which “define[s] the
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`invention to which the patentee is entitled the right to exclude.” Id. at 1312 (citing Innova, 381
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`F.3d at 1115). “[T]he context in which a term is used in the asserted claim can be highly
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`instructive.” Id. at 1314. Courts may find that the claim itself provides the means for construing
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`the term where, for example, the claim term is used consistently throughout the patent. Id. In
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`that case, “the meaning of a term in one claim is likely the meaning of that same term in
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`another.” Abbott GmbH & Co., KG v. Centocor Ortho Biotech, Inc., No. 09-11340-FDS, 2011
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`WL 948403, at *3 (D. Mass. Mar. 15, 2011) (citing Phillips, 415 F.3d at 1314). Furthermore,
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`“the presence of a dependent claim that adds a particular limitation gives rise to a presumption
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`that the limitation in question is not present in the independent claim.” Phillips, 415 F.3d at
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`B.
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`The Specification
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`Nevertheless, the claims “do not stand alone” but “are part of a fully integrated written
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`1315.
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`
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`instrument, consisting principally of a specification,” which “is always highly relevant to the
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`claim construction analysis.” Id. “Usually, [the specification] is dispositive; it is the single best
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`guide to the meaning of a disputed term.” Id. (citing Vitronics Corp. v. Conceptronic, Inc., 90
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`F.3d 1576, 1582 (Fed. Cir. 1996)). “[T]he scope and outer boundary of claims is set by the
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`3
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`patentee’s description of his invention” and, therefore, “claims cannot be of broader scope than
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`the invention that is set forth in the specification.” On Demand Mach. Corp. v. Ingram Indus.,
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`Inc., 442 F.3d 1331, 1338-40 (Fed. Cir. 2006); see also Phillips, 415 F.3d at 1315–17, 1323
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`(noting that “the interpretation to be given a term can only be determined and confirmed with a
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`full understanding of what the inventors actually invented and intended to envelop with the
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`claim,” but “expressly reject[ing] the contention that if a patent describes only a single
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`embodiment, the claims of the patent must be construed as being limited to that embodiment”).
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`The Court must “us[e] the specification [only] to interpret the meaning of a claim,” and must be
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`careful not to “import[ ] limitations from the specification into the claim.” Phillips, 415 F.3d at
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`1323. This standard may “be a difficult one to apply in practice,” id., but “[t]he construction that
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`stays true to the claim language and most naturally aligns with the patent’s description of the
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`invention will be, in the end, the correct construction.” Id. at 1316 (citing Renishaw PLC v.
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`Marposs Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998)).
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`C.
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`The Prosecution History
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`After the claims themselves and the specification, “a court should also consider the
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`patent’s prosecution history, if it is in evidence.” Id. at 1317 (quoting Markman, 52 F.3d at 980)
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`(internal quotation mark omitted). “Like the specification, the prosecution history provides
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`evidence of how the [United States Patent and Trademark Office] and the inventor understood
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`the patent” and “can often inform the meaning of the claim language by demonstrating how the
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`inventor understood the invention and whether the inventor limited the invention in the course of
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`prosecution, making the claim scope narrower than it would otherwise be.” Id. (citing Vitronics,
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`90 F.3d at 1582–83). The prosecution history should be given less weight than the claims and
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`the specification, however, because “it often lacks [] clarity . . . and thus is less useful for claim
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`construction purposes.” Id.
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`
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`D.
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`Extrinsic Evidence
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`Courts may also consider extrinsic sources, which “can help educate the court regarding
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`the field of the invention and can help the court determine what a person of ordinary skill in the
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`art would understand claim terms to mean.” Id. at 1319. In particular, “dictionaries and treatises
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`can be useful in claim construction” as they may assist the court in understanding the underlying
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`technology and “can assist the court in determining the meaning of particular terminology to
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`those of skill in the art of the invention.” Id. at 1318. “[W]hile extrinsic evidence can shed
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`useful light on the relevant art,” however, “it is less significant than the intrinsic record in
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`determining the legally operative meaning of claim language.” Id. at 1317 (citations and internal
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`quotation marks omitted). In general, extrinsic evidence is viewed “as less reliable than the
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`patent and its prosecution history in determining how to read claim terms . . . .” Id. at 1318.
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`Therefore, extrinsic evidence is “unlikely to result in a reliable interpretation of patent claim
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`scope unless considered in the context of the intrinsic evidence.” Id. at 1319.
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`
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`E.
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`Indefiniteness
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`A patent claim is invalid for indefiniteness if its claims, when read in light of the
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`specification and the prosecution history, “fail to inform, with reasonable certainty, those skilled
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`in the art about the scope of the invention.” Nautilus, Inc. v. Biosig Instruments, Inc., ___ U.S.
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`___, 134 S. Ct. 2120, 2124 (2014). “The definiteness requirement must take into account the
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`inherent limitations of language, but at the same time, the patent must be precise enough to
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`afford clear notice of what is claimed, thereby apprising the public of what is still open to them.”
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`Fairfield Indus., Inc. v. Wireless Seismic, Inc., No. 4:14-CV-2972, 2015 WL 1034275, at *4
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`5
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`(S.D. Tex. Mar. 10, 2015) (quoting Nautilus, 134 S. Ct. at 2128–29). Patents are presumed to be
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`valid, 35 U.S.C. § 282, and indefiniteness must be proved by the more demanding standard of
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`clear and convincing evidence. Microsoft Corp. v. i4i Ltd. P’ship, ___ U.S. ___, 131 S. Ct.
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`2238, 2242 (2011).
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`Construction of Disputed Claims
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`The parties dispute the meaning of the following terms and the Court resolves these
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`V.
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`disputes as discussed below:
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`A.
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`“Position of Less than All of the Other Users’ Avatars”
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`Term
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`position of less than all of
`the other users’ avatars
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`Worlds’s Proposed
`Construction
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`No construction necessary
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`Activision’s Proposed
`Construction
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`positions for up to a set maximum
`number of the other users’ avatars,
`which is less than the total number
`of other users’ avatars
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`The phrase “position of less than all of the other users’ avatars,” or one of its eleven
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`variations, appears in all of the asserted claims. D. 71 at 5 n.2. For example, claim 1 of the ‘690
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`patent provides:
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`A method for enabling a first user to interact with other users in a virtual space,
`wherein the first user and the other users each have an avatar and a client process
`associated therewith, and wherein each client process is in communication with a
`server process, wherein the method comprises:
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`(a) receiving a position of less than all of the other users’ avatars from the
`server process; and
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`(b) determining, from the received positions, a set of the other users’
`avatars that are to be displayed to the first user,
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`wherein steps (a) and (b) are performed by the client process associated
`with the first user.
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`‘690, D. 62-2 at 17. In other words, subpart (a) describes a method of communication where a
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`client receives a “position of less than all of the other users’ avatars” from the server and subpart
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`(b) explains that after receiving “less than all of the other users’ avatars,” the client determines
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`which of the received avatars to display to the user. The Court focuses here on subpart (a),
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`which the parties agree should be construed in the same manner across all claims. D. 71 at 5 n.2.
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`To begin, Worlds emphasizes the “heavy presumption that claim terms carry their full
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`ordinary and customary meaning” that a person of ordinary skill in the art would understand,
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`Epistar Corp. v. Int’l Trade Comm’n, 566 F.3d 1321, 1334 (Fed. Cir. 2009), and argues that
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`Defendants are improperly “seek[ing] to import an entirely new limitation – up to a set
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`maximum number” into the claim language. D. 62 at 16 (internal quotations omitted). Worlds
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`argues that this limiting language “is untethered to (and in many ways, expressly contrary to)
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`language from the patents’ claims, specifications, or prosecution histories.” Id. In fact, Worlds
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`points out that “the specification never uses the phrase ‘up to a set maximum number of other
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`users’ avatars,’ never says ‘a set maximum number’ is the determining factor for positions the
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`server sends, and never focuses on a ‘set maximum number’ when describing how the server
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`sends client positions.” D. 68 at 9 (emphasis in original).
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`Worlds readily agrees with Defendants’ argument that under a plain reading of the claim
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`language “if a client receives positions for 999 out of 1000 other users, this would literally
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`constitute receiving a position of ‘less than all of the other users,’ even though the client has
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`received positions for the vast majority of other users.” Id. at 11 (quoting D. 63 at 16-17). In
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`fact, Worlds argues that Defendants’ argument itself shows that the ordinary meaning of “less
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`than all” is clear. Id. Further, Worlds contends that nothing in its patents or specifications
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`excludes the system from sending the positions of a “vast majority of the other users” if the
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`various factors allow and that these factors also prevent the claims from being too broad because
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`the claims are “defined (or confined) by proximity, orientation, filtering conditions, computing
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`resources, user selections, and other filtering factors disclosed in the Worlds Patents and claims.”
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`Id. at 12.
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`The Defendants argue, however, that “when the claims are read in light of the invention
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`described in the specification, it is apparent that ‘less than all’ must refer to the set maximum
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`number of other users that each client receives from the server.” D. 63 at 17. Noting that claims
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`“must be read in view of the specification, of which they are a part,” Philips, 415 F.3d at 1315,
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`Defendants point out that the specification never uses the term “less than all” and directs the
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`Court to several sections of the specification that they argue support their proposed construction.
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`D. 63 at 17 (noting, for example, that “[s]erver 61 maintains a variable, N, which sets the
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`maximum number of other avatars A will see”) (citing ‘690 patent, D. 62-2 at 10, 14-15).
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`At oral argument, Worlds did not deny that a maximum filter is one way that the server or
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`the client could filter avatars, but argued that the specification is not restrictive in what sorts of
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`filtering criteria can be applied. Worlds acknowledged that the invention is designed to
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`accomplish crowd control, but argued that this crowd control function can be accomplished in a
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`flexible and variable manner.
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`After review of the specification, the Court agrees that the specification discloses an
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`invention to solve the problem of “crowd control.” See, e.g., ‘690, D. 62-2 at 10, 14 (explaining
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`that “[w]hether another avatar is in range is determined a ‘crowd control’ function” and that
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`“[c]rowd control is one of the tougher problems solved by the present system”). Contrary to
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`Defendants arguments, however, the Court does not read the specification to require that this
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`“crowd control” function must be accomplished by sending the client positions for up to a set
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`8
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`maximum number of avatars. Indeed, the specification explains that at “a ‘crowd control’
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`function” is only “needed in some cases.” Id. at 10. For instance, the specification explains that
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`the server can set the “variable N, which sets the maximum number of other avatars” at a “very
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`high value.” Id. “If server 61 sets a very high value for N, then the limit set by client 60 is the
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`only controlling factor,” and “client 60” is not required to limit the view. Id. Therefore, the
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`specification makes clear that if “client 60 has not limited the view to less than N avatars” and
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`the server has set the variable N at a “very high value,” the client will in fact receive the position
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`for a vast majority of the other users (for example, 999 out of 1000). Id.
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`Moreover, the specification makes clear that the system contemplates proximity filters
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`that do not require a maximum number limit on the amount of other users that would be
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`displayed. See, e.g., id. (explaining that the “[r]emote avatar position table 112 contains the
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`current positions of the ‘in range’ avatars” and that “[w]hether another avatar is in range is
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`determined [by] a crowd control function” “needed in some cases,” but that “[i]n any case,
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`remote avatar position table 112 contains an entry for each neighboring avatar . . .”).
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`Consequently, filters applied to display only “neighboring” avatars, for example, may display
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`two avatars or twenty – there is no “set maximum.”
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`Accordingly, based on a review of patent record, the Court concludes that there is nothing
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`to suggest that the term “position of less than all of the other users’ avatars” was meant to carry
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`anything but its ordinary meaning and the Court concludes that no construction is necessary.
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`B.
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`“Determining, from the Received Positions, [a/the] Set of the Other Users’
`Avatars that are to be Displayed”
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`
`
`Worlds’s Proposed
`Construction
`
`No construction necessary
`
`Activision’s Proposed
`Construction
`
`selecting [a/the] set consisting of
`up to a set maximum number of
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`9
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`
`
`Term
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`determining, from the
`received positions, [a/the]
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`the other users’ avatars to be
`displayed based on the received
`positions
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`set of the other users’
`avatars that are to be
`displayed
`
`
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`The parties similarly dispute the meaning of the phrase “determining, from the received
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`positions, [a/the] set of the other users’ avatars that are to be displayed.” D. 62 at 10; D. 63 at
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`20. This term implicates client-side filtering, as opposed to the server-side filtering discussed
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`above, and the language, or a variation thereof, appears in a number of claims, including claim 1
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`of the ‘690 patent, quoted in full above, which provides, in part:
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`A method for enabling a first user to interact with other users in a virtual space,
`wherein the first user and the other users each have an avatar and a client process
`associated therewith, and wherein each client process is in communication with a
`server process, wherein the method comprises . . .
`
`
`(b) determining, from the received positions, a set of the other users’
`avatars that are to be displayed to the first user . . .
`
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`‘690, D. 62-2 at 17. As with the above, the parties agree the phrase should be construed in the
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`same manner across all claims. D. 71 at 6 n.4.
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`1.
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`Determining versus Selecting
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`The language at issue here provides that the client “determin[es]” from the positions that
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`
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`it has received from the server, which avatars to display. If the client receives twenty positions
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`from the server, the client will use criteria to decide which of those twenty avatars to display.
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`The Defendants first argue that the word “determining” should be replaced with “selecting.” D.
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`63 at 21. In support, Defendants point out that while claim 1 of ‘690 requires “determining, from
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`the received positions, a set of the other users’ avatars that are to be displayed to the first user,”
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`dependent claim 2 requires an additional step of “displaying the set of the other users’ avatars
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`from based on the orientation of the first user’s avatar . . . .” Id. (quoting ‘690, D. 64-1 at 18).
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`Therefore, the Defendants assert that “determining” and “displaying” must be distinct, and argue
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`that while the specification explains that “displaying” requires the “rendering engine” to read
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`“[1] register 114, [2] remote avatar position table 112, [3] rooms database 70 and [4] avatar
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`image databases” to “render[] a view of the virtual world from the view point (position and
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`orientation) of A’s avatar,” the specification discloses only one “determining” function – the
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`selection of the other user’s avatars to include in “remote avatar position table 112.” Id.
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`(quoting ‘690, D. 64-1 at 12). To support this reading, Defendants argue that because the
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`specification states that “[w]here N’ is less than N, the client also uses position data to select N’
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`avatars from the N avatars provided by the server,” ‘690, D. 62-2 at 10, that “determining”
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`necessarily means that the client is “selecting a set consisting of up to a set maximum number of
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`the other users’ avatars to be displayed based on the received positions.” D. 63 at 22.
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`Worlds argues, however, that the Defendants’ construction would require “selecting” in
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`every instance, while the specification requires selection to occur only in some instances, D. 62
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`at 11 (quoting ‘690, D. 62-2 at 10). As noted above, the specification details that the “remote
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`avatar position table 112” “contains the current positions of the ‘in range’ avatars near A’s
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`avatar” and “[w]hether another avatar is in range is determined [by] a ‘crowd control’ function,”
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`but “user A might have a way to filter out avatars on other variables in addition to proximity,
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`such as user ID.” ‘690, D. 62-2 at 10. In fact, the specification notes that the “remote avatar
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`position table 112” contains a number of entry data points, including position, orientation and
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`user identification, which the client uses to determine which avatar images to display. Id. So,
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`each entry in the “remote avatar position table” provides a variety of data points that may be
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`used in various combinations to determine which avatars will ultimately be displayed.
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`Furthermore, while the specification states that the client “also uses position data to select N’
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`avatars,” that phrasing necessarily implies that the client “also uses” other data to select the
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`avatars. If the client only considered one metric, such as position, to determine which avatars
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`would be displayed, then the Defendants’ construction might be more appropriate. Here,
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`however, it seems clear that the client considers a number of factors to determine the avatars to
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`display and therefore is not making necessarily making a simple selection, but is potentially
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`considering various information points and making a determination. Accordingly, without more,
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`the Court will not replace the word “determining” with the word “selecting.”
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`2.
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`Set Maximum Number
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`As discussed above, the specification provides that “[c]lient 60” maintains a variable N’
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`which represents the maximum number of avatars the client wants to view. ‘690, D. 62-2 at 10.
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`The specification allows for the possibility that the number N’ set by the client might be less than
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`N or greater than N. If N’ is greater than N, the number of avatars – N – will be used. If,
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`however, the server sets a very high value for N, the limit set by the client, N’, if lower, will be
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`the main controlling factor on the number of avatars displayed. See id. The question here is
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`whether N’ is a hard coded number – i.e., a set maximum – or whether N’ is variable. Based
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`upon a review of the specification, the Court concludes that N’ is intended to be flexible and user
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`specific.
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`Indeed, at oral argument the Defendants conceded that N’ is not a hard coded number for
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`all applications and can be user specific. Defendants further acknowledge that N’ is variable to
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`the extent that the number can be chosen from application to application. Nevertheless, the
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`Defendants argue that even though N’ is variable between applications, “for the system to work
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`N and N’ must at some point be assigned actual values (i.e., definable numbers, such as N = 2).”
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`D. 69 at 11. In essence, Defendants make a temporal argument – that the variable limit must at
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`some point become a specific number and, at that point, the system is necessarily selecting a “set
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`maximum number” when it determines “a set of the other users’ avatars that are to be displayed.”
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`
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`As Worlds argues, however, the Defendants’ construction would put the disputed claims
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`directly at odds with several of the Defendants’ claims, for example, dependent claim 4 of ‘690.
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`See ‘690, D. 62-2 at 17; see also ‘690 claims 8, 13, 16, D. 62-2 at 17-18. Indeed, “the presence
`
`of a dependent claim that adds a particular limitation gives rise to a presumption that the
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`limitation in question is not present in the independent claim.” Philips, 415 F.3d. at 1315. The
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`Defendants contend, however, that claim 4 merely provides a specific way of selecting a set
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`maximum number that involves comparison (of an actual and maximum number), and that
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`because claim 1 could be practiced without comparison at all, claim 1 is still broader than claim
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`4 even incorporating the set maximum number language. D. 69 at 10. Contrary to the
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`Defendants’ arguments that claim 4 “is in complete alignment” with Defendants’ construction,
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`however, the Court reads claim 4 as plainly providing for a narrower method of claim 1 that
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`explicitly requires the client to determine a maximum number limit. Claim differentiation must
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`apply where, as here, “there is a dispute over whether a limitation found in a dependent claim
`
`should be read into an independent claim, and that limitation is the only meaningful difference
`
`between the two claims.” Wenger Mfg., Inc. v. Coating Mach. Sys., Inc., 239 F.3d 1225, 1233
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`(Fed. Cir. 2001).
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`
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`Finally, the Defendants argue that its proposed construction is supported by the
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`prosecution history. D. 69 at 9. They contend that during the prosecution of the ‘045 patent,
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`unasserted here, “the applicants explained that ‘determining’ required limiting the number of
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`avatars displayed.” Id.; see also, D. 64-7 at 6 (providing that “claim 8 includes a ‘means for
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`determining from said list of avatars a set of avatars to be displayed at each client process,
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`wherein said means for determining is located at each client process.’ Thus, each target client
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`limits the number [of] avatars displayed at that target client based on, for example, target client
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`processing capacity”). The prosecution history cited by the Defendants does not use the “set
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`maximum number” language, however, and does not provide that the client is limiting the
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`number of avatars displayed to a “set maximum number.” The prosecution history also does not
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`clearly disavow an invention that omits the “set maximum” limit. See GE Lighting Solutions,
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`LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014) (noting that “[t]he standards for
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`finding lexicography and disavowal are exacting” and “[t]o act as its own lexicographer, a
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`patentee must ‘clearly set forth a definition of the disputed claim term,’ and ‘clearly express an
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`intent to define the term,’” while “disavowal requires that ‘the specification [or prosecution
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`history] make[] clear that the invention does not include a particular feature’” (citations
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`omitted)).
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`
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`Accordingly, the Court concludes that there is nothing in the patent record to suggest that
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`the phrase “determining, from the received positions, [a/the] set of the other users’ avatars that
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`are to be displayed” was meant to carry anything but its ordinary meaning and the Court
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`concludes that no construction is necessary.
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`C.
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`“A Participant Condition” / “A Condition”
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`Activision’s Proposed
`Construction
`
`A condition set by the client
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`Or, alternatively,
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`Indefinite under 35 U.S.C. § 112,
`¶ 2
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`Worlds’s Proposed
`Construction
`
`No construction necessary
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`Or, alternatively,
`
` A
`
` condition imposed on an
`avatar, its controlling user, or
`its associated client device that
`affects the status or display of
`an avatar
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`
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`Term
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`A participant condition
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`A condition
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`No construction necessary
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`Or, alternatively,
`
`An expression in a software
`program that affects the status
`or display of an avatar
`
`A condition set by the client
`
`Or, alternatively,
`
`Indefinite under 35 U.S.C. § 112,
`¶ 2
`
`
`
`
`The term “participant condition” appears in all of the claims of the ‘501 patent. For
`
`example, claim 1 of the ‘501 patent provides:
`
`A method for enabling a first user to interact with other users in a virtual space,
`each user of the first user and the other users being associated with a three
`dimensional avatar representing said each user in the virtual space, the method
`comprising the steps of:
`
`
`customizing, using a processor of a client device, an avatar in response to
`input by the first user;
`
`receiving, by the client device, position information associated with fewer
`than all of the other user avatars in an interaction room of the virtual
`space, from a server process, wherein the client device does not receive
`position information of at least some avatars that fail to satisfy a
`participant condition imposed on avatars displayable on a client device
`display of the client device;
`
`‘501, D. 62-5 at 22. The term “condition” appears in several of the claims of the ‘998 patent.
`
`For example, claim 1 of the ‘998 patent provides, in part:
`
`A method for displaying interactions of a local user avatar of a local user and a
`plurality of remote user avatars of remote users interacting in a virtual
`environment, the method comprising: receiving, at a client processor associated
`with the local user, positions associated with less than all of the remote user
`avatars in one or more interaction rooms of the virtual environment, wherein the
`client processor does not receive position information associated with at least
`some of the remote user avatars in the one or more rooms of the virtual
`environment, each avatar of the at least some of the remote user avatars failing to
`satisfy a condition imposed on displaying remote avatars to the local user;
`
`‘998, D. 62-6 at 22. The terms “participant condition” and “condition” do not appear in the
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`specification of the Patents-in-Suit. Nor do these terms appear in any of the claims of the earlier
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`filed patents.
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`
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`In brief, the parties’ dispute centers on whether “a condition” may be set by the server.
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`Worlds does not dispute that a condition may be set by the client, but argues that the condition
`
`may be set by the server as well. D. 68 at 17. Worlds contends that, contrary to the Defendants’
`
`proposed construction, nothing in the patents and specification suggests “that the client must
`
`‘set’ anything, or that any setting must be made ‘by th