Paper 9
`Trials@uspto.gov
`571-272-7822 Entered: March 24, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ACTIVISION BLIZZARD, INC.,
`ELECTRONIC ARTS INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC., and
`ROCKSTAR GAMES, INC.,
`Petitioner,
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`____________
`
`Case IPR2015-01970
`Patent 6,701,344 B1
`____________
`
`
`
`Before SALLY C. MEDLEY, LYNNE E. PETTIGREW, and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`PETTIGREW, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822 Entered: March 24, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ACTIVISION BLIZZARD, INC.,
`ELECTRONIC ARTS INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC., and
`ROCKSTAR GAMES, INC.,
`Petitioner,
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`____________
`
`Case IPR2015-01970
`Patent 6,701,344 B1
`____________
`
`
`
`Before SALLY C. MEDLEY, LYNNE E. PETTIGREW, and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`PETTIGREW, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2015-01970
`Patent 6,701,344 B1
`
`I. INTRODUCTION
`
`Activision Blizzard, Inc., Electronic Arts Inc., Take-Two Interactive
`
`Software, Inc., 2K Sports, Inc., and Rockstar Games, Inc. (collectively,
`
`“Petitioner”) filed a Petition for inter partes review of claims 1–19 of U.S.
`
`Patent No. 6,701,344 B1 (Ex. 1001, “the ’344 patent”). Paper 2 (“Pet.”).
`
`Acceleration Bay, LLC (“Patent Owner”) filed a Preliminary Response.
`
`Paper 6 (“Prelim. Resp.”). Institution of an inter partes review is authorized
`
`by statute when “the information presented in the petition . . . and any
`
`response . . . shows that there is a reasonable likelihood that the petitioner
`
`would prevail with respect to at least 1 of the claims challenged in the
`
`petition.” 35 U.S.C. § 314(a); see 37 C.F.R. § 42.108. Upon consideration
`
`of the Petition and Preliminary Response, we conclude the information
`
`presented shows there is a reasonable likelihood that Petitioner would
`
`prevail in establishing the unpatentability of claims 1–12 and 16–19 of the
`
`’344 patent.
`
`A. Related Matters
`
`Petitioner and Patent Owner identify the following pending judicial
`
`matters as relating to the ’344 patent: Acceleration Bay LLC v. Activision
`
`Blizzard, Inc., Case No. 1:15-cv-00228-RGA (D. Del., filed Mar. 11, 2015);
`
`Acceleration Bay LLC v. Electronic Arts Inc., Case No. 1:15-cv-00282-RGA
`
`(D. Del., filed Mar. 30, 2015); and Acceleration Bay LLC v. Take-Two
`
`Interactive Software, Inc., Case No. 1:15-cv-00311-RGA (D. Del., filed
`
`Apr. 13, 2015). Pet. 4; Paper 5, 1.
`
`Petitioner and Patent Owner also identify five other petitions for inter
`
`partes review filed by Petitioner challenging the ’344 patent and similar
`
`patents:
`
`2
`
`
`
`IPR2015-01970
`Patent 6,701,344 B1
`
`IPR2015-01951
`IPR2015-01953
`IPR2015-01964
`IPR2015-01996
`IPR2015-01972
`
`U.S. Patent No. 6,714,966 B1
`
`U.S. Patent No. 6,829,634 B1
`
`U.S. Patent No. 6,701,344 B1
`
`Pet. 4; Paper 5, 1.
`
`B. The ’344 Patent
`
`The ’344 patent relates to a “broadcast technique in which a broadcast
`
`channel overlays a point-to-point communications network.” Ex. 1001, 4:3–
`
`5. The broadcast technique overlays the underlying network system with a
`
`graph of point-to-point connections between host computers or nodes
`
`through which the broadcast channel is implemented. Id. at 4:23–26.
`
`Figure 1 of the ’344 patent is reproduced below:
`
`
`
`3
`
`
`
`IPR2015-01970
`Patent 6,701,344 B1
`
`Figure 1 illustrates a broadcast channel represented by a “4-regular,
`
`4-connected” graph. Id. at 4:48–49. The graph of Figure 1 is “4-regular”
`
`because each node is connected to exactly four other nodes (e.g., node A is
`
`connected to nodes E, F, G, and H). Id. at 4:38–39, 4:49–53. A node in a
`
`4-regular graph can only be disconnected if all four of the connections to its
`
`neighbors fail. Id. at 4:39–42. Moreover, the graph of Figure 1 is
`
`“4-connected” because it would take the failure of four nodes to divide the
`
`graph into two separate sub-graphs (i.e., two broadcast channels). Id. at
`
`4:42–47.
`
`To broadcast a message over the network, an originating computer
`
`sends the message to each of its four neighbors using the point-to-point
`
`connections. Id. at 4:30–32. Each computer that receives the message sends
`
`it to its other neighbors, such that the message is propagated to each
`
`computer in the network. Id. at 4:32–38. The minimum number of
`
`connections needed to traverse any two computers in the network is known
`
`as the “distance” between them, while the maximum of the distances in the
`
`network is called the “diameter” of the broadcast channel. Id. at 4:57–5:3.
`
`In Figure 1, the diameter is 2 because a message originating at any node
`
`(e.g., A) traverses no more than 2 connections to reach every other node.
`
`Id. at 5:3–6.
`
`In one embodiment described in the ’344 patent, a distributed game
`
`environment is implemented using broadcast channels. Id. at 16:30–31.
`
`Each player’s computer executes a game application program, and a player
`
`joins a game by connecting to the broadcast channel on which the game is
`
`played. Id. at 16:31–36. Each time a player takes an action in the game, a
`
`4
`
`
`
`IPR2015-01970
`Patent 6,701,344 B1
`
`message representing that action is broadcast on the game’s broadcast
`
`channel. Id. at 16:36–38.
`
`C. Illustrative Claim
`
`Petitioner challenges all claims, i.e., claims 1–19, of the ’344 patent.
`
`Claims 1, 13, 16, and 18 are independent, and claim 1, reproduced below, is
`
`illustrative of the claimed subject matter:
`
`1. A computer network for providing a game environment
`for a plurality of participants, each participant having
`connections to at least three neighbor participants, wherein an
`originating participant sends data to the other participants by
`sending the data through each of its connections to its neighbor
`participants and wherein each participant sends data that it
`receives from a neighbor participant to its other neighbor
`participants, further wherein the network is m-regular, where m
`is the exact number of neighbor participants of each participant
`and further wherein the number of participants is at least two
`greater than m thus resulting in a non-complete graph.
`
`Id. at 29:26–37.
`
`D. Asserted Grounds of Unpatentability
`
`Petitioner asserts that claims 1–19 are unpatentable based on the
`
`following grounds (Pet. 6–7):
`
`5
`
`
`
`IPR2015-01970
`Patent 6,701,344 B1
`
`Reference(s)
`
`Basis
`
`Challenged Claims
`
`DirectPlay1 and Lin2
`Lin3
`
`§ 103(a)
`
`1–19
`
`§ 103(a)
`
`1–11 and 16–19
`
`II. DISCUSSION
`
`A. Claim Construction
`
`In an inter partes review, we construe claim terms in an unexpired
`
`patent according to their broadest reasonable construction in light of the
`
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b).
`
`Consistent with the broadest reasonable construction, claim terms are
`
`presumed to have their ordinary and customary meaning as understood by a
`
`person of ordinary skill in the art in the context of the entire patent
`
`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`
`2007).
`
`1. “m-regular”
`
`Petitioner proposes the term “m-regular,” recited in at least
`
`independent claims 1, 13, and 18, means “each node is connected to exactly
`
`m other nodes.” Pet. 13 (citing Ex. 1001, 4:38–39, 14:65–15:7). Patent
`
`
`
`1 Bradley Bargen & Peter Donnelly, Inside DirectX®: In-Depth Techniques
`for Developing High-Performance Multimedia Applications (1998)
`(Ex. 1003) (“DirectPlay”).
`2 Meng-Jang Lin, et al., Gossip versus Deterministic Flooding: Low
`Message Overhead and High Reliability for Broadcasting on Small
`Networks, Technical Report No. CS1999-0637 (Univ. of Cal. San Diego,
`1999) (Ex. 1004 (Exhibit B)) (“Lin”).
`3 Petitioner articulates this ground as obviousness “in view of Lin and the
`knowledge of a POSITA.” Pet. 6–7. Because obviousness is determined
`from the perspective of a person of ordinary skill in the art, we refer to this
`ground simply as obviousness over Lin.
`
`6
`
`
`
`IPR2015-01970
`Patent 6,701,344 B1
`
`Owner does not offer a construction of this term. Prelim. Resp. 13–14. For
`
`purposes of this Decision, we agree Petitioner’s proposed construction
`
`accords with the broadest reasonable construction consistent with the
`
`Specification, which, for example, describes a graph in which each node is
`
`connected to four other nodes as a 4-regular graph. Ex. 1001, 4:38–39.
`
`2. “non-complete graph”
`
`Petitioner proposes the term “non-complete graph,” recited in at least
`
`independent claims 1, 13, and 16, be construed as a “graph in which at least
`
`two nodes are not connected to each other,” and cites the claims themselves
`
`as support. Pet. 13 (citing Ex. 1001, 29:35–37, 30:21–22, 30:40–42).
`
`However, we observe that the claims define what a non-complete graph is.
`
`For example, in claim 1, a non-complete graph results when each participant
`
`is connected to exactly m neighbor participants, “and further wherein the
`
`number of participants is at least two greater than m thus resulting in a
`
`non-complete graph.” Ex. 1001, 29:35–37. Patent Owner does not offer a
`
`construction of this term. Prelim. Resp. 13–14. For purposes of this
`
`Decision, we are not persuaded the term “non-complete graph” requires any
`
`further definition beyond what is in the claims.
`
`3. “m-connected”
`
`Petitioner proposes the term “m-connected,” recited in at least
`
`dependent claims 4 and 5, means “dividing the network into two or more
`
`separate parts would require the removal of at least m nodes.” Pet. 13–14
`
`(citing Ex. 1001, 4:42–46). Patent Owner does not offer a construction of
`
`this term. Prelim. Resp. 13–14. The portion of the Specification cited by
`
`Petitioner describes the 4-connected graph as having the property that it
`
`would take the failure of at least 4 nodes to divide the graph into disjoint
`
`7
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`IPR2015-01970
`Patent 6,701,344 B1
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`subgraphs. Ex. 1001, 4:42–46. Consequently, we agree for purposes of this
`
`Decision that Petitioner’s proposed construction accords with the broadest
`
`reasonable construction consistent with the Specification.
`
`4. “means for identifying a broadcast channel for a game of interest”
`
`Claim 13 recites “means for identifying a broadcast channel for a
`
`game of interest.” Ex. 1001, 30:23–24. Petitioner contends this limitation is
`
`a means-plus-function limitation. Pet. 14. Under 37 C.F.R. § 42.104(b)(3),
`
`Petitioner must propose a construction under 35 U.S.C. § 112, sixth
`
`paragraph, “identify[ing] the specific portions of the specification that
`
`describe the structure, material, or acts corresponding to each claimed
`
`function.”4 Petitioner contends the recited function is “identifying a
`
`broadcast channel for a game of interest.” Pet. 14. As to the corresponding
`
`structure, Petitioner asserts that the Specification does not disclose structure
`
`for this limitation because it does not disclose an algorithm for carrying out
`
`the recited function. Id. For purposes of this Decision, however, Petitioner
`
`contends the structure for performing the recited function is “‘a game web
`
`site through which players can view the state of current games and register
`
`new games’ or equivalents thereof.” Id. (citing Ex. 1001, 16:57–59).
`
`Patent Owner does not dispute the “means for identifying a broadcast
`
`channel for a game of interest” is a means-plus-function limitation, but
`
`argues that Petitioner’s proposed construction “improperly zones in on only
`
`
`
`4 37 C.F.R. § 42.104(b)(3) refers to § 112(f). Section 4(c) of the Leahy-
`Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011)
`(“AIA”), re-designated 35 U.S.C. § 112, sixth paragraph, as 35 U.S.C.
`§ 112(f). Because the ’344 patent has a filing date before September 16,
`2012 (effective date of AIA), we use the citation § 112, sixth paragraph.
`
`8
`
`
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`IPR2015-01970
`Patent 6,701,344 B1
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`one exemplary embodiment provided by the game environment.” Prelim.
`
`Resp. 13. Instead, Patent Owner contends, the structure associated with this
`
`limitation is the “game application program (which provides a game
`
`environment).” Id. at 14 (citing Ex. 1001, 16:30–36).
`
`We agree with Petitioner’s contention that the “means for identifying
`
`a broadcast channel for a game of interest,” recited in claim 13, should be
`
`construed according to 35 U.S.C. § 112, sixth paragraph. See Williamson v.
`
`Citrix Online, LLC, 792 F.3d 1339, 1348 (Fed. Cir. 2015) (en banc) (“[T]he
`
`use of the word ‘means’ in a claim element creates a rebuttable presumption
`
`that § 112, para. 6 applies.”). We also agree, and Patent Owner does not
`
`dispute, that Petitioner has correctly identified the function as “identifying a
`
`broadcast channel for a game of interest.”
`
`However, Petitioner and Patent Owner dispute the structure
`
`corresponding to the recited function, though neither party provides much
`
`analysis in support of its respective position. Thus, as an initial matter, it is
`
`unclear to us which of, or whether either of, the parties’ proposed structures
`
`for the means for identifying a broadcast channel for a game of interest
`
`performs the recited function. See Atmel Corp. v. Info. Storage Devices,
`
`Inc., 198 F.3d 1374, 1382 (Fed. Cir. 1999) (“[T]he corresponding
`
`structure(s) of a means-plus-function limitation must be disclosed in the
`
`written description in such a manner that one skilled in the art will know and
`
`understand what structure corresponds to the means limitation. Otherwise,
`
`one does not know what the claim means.”).
`
`Moreover, it is well established that “the corresponding structure for a
`
`§ 112 ¶ 6 claim for a computer-implemented function is the algorithm
`
`disclosed in the specification.” Aristocrat Techs. Austl. Pty Ltd. v. Int’l
`
`9
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`IPR2015-01970
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`Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008) (quoting Harris Corp. v.
`
`Ericsson Inc., 417 F.3d 1241, 1249 (Fed. Cir. 2005)). Both Petitioner’s
`
`proposed structure (a game web site) and Patent Owner’s proposed structure
`
`(a game application program) are software, but “[s]imply reciting ‘software’
`
`without providing some detail about the means to accomplish the function is
`
`not enough.” Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1340–41
`
`(Fed. Cir. 2008); see also Blackboard, Inc. v. Desire2Learn, 574 F.3d 1371,
`
`1382 (Fed. Cir. 2009) (holding disclosed “access control manager”
`
`insufficient structure to perform “means for assigning a level of access to
`
`and control of each data file”). Neither party directs us to any description,
`
`whether in prose, flow chart, or any other manner, that provides sufficient
`
`structure for identifying broadcast channels. See Finisar, 523 F.3d at 1340.
`
`Nor is it enough that a hypothetical person of ordinary skill in the art would
`
`know how to design a web site or application that identifies broadcast
`
`channels for a game of interest. See Blackboard, 574 F.3d at 1385–86.
`
`Some type of algorithm would be required to complete the function of
`
`identifying broadcast channels, but neither party has identified such an
`
`algorithm in the Specification.
`
`For these reasons, the parties have not sufficiently identified a
`
`structure corresponding to the function recited in claim 13 or a
`
`corresponding algorithm as required for such a computer-implemented
`
`function. Thus, we are unable to construe claim 13, and dependent claims
`
`14 and 15, for purposes of this Decision. See In re Aoyama, 656 F.3d 1293,
`
`1298 (Fed. Cir. 2011) (quoting Enzo Biochem, Inc. v. Applera Corp., 599
`
`F.3d 1325, 1332 (Fed. Cir. 2010) (“If a claim is indefinite, the claim, by
`
`definition, cannot be construed.”)).
`
`10
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`5. “means for connecting to the identified broadcast channel”
`
`Claim 13 further recites “means for connecting to the identified
`
`broadcast channel.” Ex. 1001, 30:25. Petitioner contends this is a means-
`
`plus-function limitation pursuant to 35 U.S.C. § 112, sixth paragraph.
`
`Pet. 14. Petitioner contends the recited function is “connecting to the
`
`identified broadcast channel” and the corresponding structure is a “software
`
`‘broadcaster component,’” although here again Petitioner also contends there
`
`is no disclosed algorithm. Pet. 14–15 (citing Ex. 1001, 15:30–32, 16:61–
`
`63). Patent Owner does not dispute this construction but disagrees with
`
`Petitioner’s position that there is no disclosed algorithm corresponding to the
`
`recited function. Prelim. Resp. 14.
`
`We agree with Petitioner’s position that the recited function of this
`
`limitation is “connecting to the identified broadcast channel” and the
`
`corresponding structure is at least the “broadcaster component.” The
`
`Specification discloses a broadcaster component as being connected to the
`
`broadcast channel. Ex. 1001, 16:2–7. As discussed above, the Specification
`
`must disclose more than “software” as a means for accomplishing the recited
`
`function. See Finisar, 523 F.3d at 1340–41. In view of our inability to
`
`construe the “means for identifying,” however, it is unnecessary for us to
`
`determine whether the disclosure identified by Petitioner sufficiently
`
`describes an algorithm corresponding to the “means for connecting.”
`
`B. Asserted Obviousness over DirectPlay and Lin
`
`Petitioner contends claims 1–19 are unpatentable under 35 U.S.C.
`
`§ 103(a) as obvious over DirectPlay and Lin. Pet. 16–57. Relying on the
`
`testimony of Dr. David R. Karger, Petitioner provides analysis and claim
`
`charts showing how the combination of references allegedly teaches or
`
`11
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`suggests all of the claim limitations and contends a person having ordinary
`
`skill in the art would have been motivated to combine the teachings of the
`
`references. Id. (citing Ex. 1019).5 Patent Owner counters that Lin is not
`
`prior art, Prelim. Resp. 14–21, and that a person of ordinary skill in the art
`
`would not have combined DirectPlay and Lin in the manner asserted by
`
`Petitioner, id. at 21–37.
`
`1. Summary of DirectPlay
`
`DirectPlay describes an application program interface (“API”) for
`
`providing medium-independent communications for multiplayer games over
`
`computer networks. Ex. 1003, 15, 19.6 Figure 18-3 of DirectPlay is
`
`reproduced below:
`
`
`
`5 Patent Owner argues Petitioner improperly incorporates Dr. Karger’s
`declaration by reference and contends we should deny trial on that basis.
`Prelim. Resp. 42–44 (citing 37 C.F.R. § 42.24(a)(1)(i)). However, contrary
`to Patent Owner’s argument, we do not find it necessary to “sift through
`over 150 pages of Dr. Karger’s declaration to locate the specific arguments
`corresponding to the numerous paragraphs cited to support [Petitioner’s]
`assertions.” Id. at 43. Accordingly, we decline to deny institution of an
`inter partes review on this basis.
`6 We refer to the Exhibit pagination, rather than the original document
`pagination.
`
`12
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`
`
`Figure 18-3 depicts two network topologies that may be used for a
`
`multiplayer gaming session. Ex. 1003, 23. Figure 18-3(a) represents a Peer-
`
`to-Peer gaming session, in which Player #1 creates the session and becomes
`
`the session host for the session. Id. Players #2, #3, and #4 may connect to
`
`Player #1 and receive a list of the other DirectPlay objects (i.e., players). Id.
`
`“Because each DirectPlay object knows about the other objects, they route
`
`messages directly to one another rather than through the session host. So the
`
`resulting session is peer-to-peer . . . .” Id. Figure 18-3(b) represents an
`
`alternative network topology relying on a client-server configuration.
`
`Id. at 24.
`
`DirectPlay also provides a “matchmaking service” in which players
`
`gather to identify game sessions to which they want to connect. Ex. 1003,
`
`24, 98. Players use “lobby clients,” which could be web-based applications,
`
`to meet in a virtual lobby and set up networked game sessions. Id. at 24, 98–
`
`100. “Lobbies can offer a theme park environment . . . with features and
`
`games appropriate for children.” Id. at 100. Once players decide to play a
`
`13
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`game, the lobby launches the game application simultaneously on the
`
`players’ computers to form a networked gaming session. Id. at 24.
`
`2. Summary of Lin
`
`Lin describes broadcasting messages to all of the processors in a
`
`computer network. Ex. 1004, 8.7 Specifically, Lin discloses a protocol that
`
`superimposes a communications graph on top of the processors in the
`
`network. Id. at 9. Figure 2 of Lin is reproduced below:
`
`
`
`Figure 2 depicts Harary graphs Hn,t containing n nodes and t
`
`connections. Ex. 1004, 14. Using Lin’s “simple broadcast protocol,” one
`
`processor or node initiates the broadcast of a message by sending it to all of
`
`its neighbors, i.e., those nodes that share a link between them. Id. at 9. A
`
`node that receives the message for the first time sends it to all of its
`
`neighbors except the neighbor that forwarded the message. Id. This
`
`technique is called “flooding.” Id. The disclosure in Lin compares flooding
`
`with another broadcast protocol called gossiping. Id. Lin explains that
`
`
`
`7 We refer to the exhibit pagination. The Lin reference starts on page 8 of
`Exhibit 1004.
`
`14
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`flooding over a Harary graph provides most of the attractions of the gossip
`
`protocol, such as scalability, adaptability, and reliability, but with a
`
`substantially lower message overhead. Id. at 27.
`
`3. Analysis
`
`As a threshold matter, we address Patent Owner’s contention that Lin
`
`is not prior art. Prelim. Resp. 14–21. Patent Owner acknowledges
`
`Petitioner’s declaration of Glenn Little, who identifies November 23, 1999,
`
`as the publication date for Lin. Id. at 16–17; see also Ex. 1004, 1–3
`
`(testifying to the public availability of Lin at the University of California,
`
`San Diego, CSE Technical Reports Library no later than November 23,
`
`1999). For purposes of this Decision, we agree the foregoing evidence
`
`establishes Lin as § 102(a) prior art as of November 23, 1999. At this
`
`juncture, Patent Owner does not dispute this, but contends that an
`
`embodiment of the claimed invention, Small-World Wide Area Networking
`
`(“SWAN”), was actually reduced to practice as of September 16, 1999—the
`
`date SWAN was tested and fulfilled its intended use—and November 11,
`
`1999––the date SWAN was put to use at Boeing. Prelim. Resp. 17–18. In
`
`support, Patent Owner directs us to Exhibit 2001, a Boeing Invention
`
`Disclosure form, provided by the named inventors of the ’344 patent, Fred
`
`Holt and Virgil Bourassa. Id. at 18. In addition, Patent Owner directs us to
`
`a page from Exhibit 2001 that purportedly is an actual SWAN screen shot
`
`depicting an exemplary computer network topology, “which maps to the
`
`’344 patent claims.” Id. at 19–20. Based on Exhibit 2001, Patent Owner
`
`15
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`argues Boeing’s actual reduction to practice antedates Lin’s earliest prior art
`
`date. Id. at 21.
`
`We have reviewed Exhibit 2001 and, on this record, determine that it
`
`is insufficient evidence of actual reduction to practice of an embodiment of
`
`the claimed invention prior to November 23, 1999. Among other things, we
`
`note the page containing the SWAN screen shot purportedly demonstrating a
`
`computer topology in accordance with the claimed invention is dated
`
`December 23, 1999, which is after the proffered public availability date of
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`Lin. Moreover, although Exhibit 2001 does indicate “Date Satisfactorily
`
`Tested 9/16/99” and “In Production 11/11/99,” which is consistent with
`
`Patent Owner’s contentions, there is insufficient evidence linking the
`
`claimed invention to what was tested and what was put into use on those
`
`respective dates. Because the evidence is insufficient at this juncture to
`
`antedate Lin, we agree Lin is prior art under § 102(a) for purposes of this
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`Decision.
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`We turn now to Petitioner’s contention that the challenged claims,
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`which are directed to a computer network for providing a distributed game
`
`environment, would have been obvious over the combination of DirectPlay
`
`and Lin. Generally, Petitioner relies on DirectPlay for teaching a networked
`
`game environment and on both Lin and DirectPlay for teaching limitations
`
`relating to specific aspects of the claimed computer network. See Pet. 26–
`
`57. For example, independent claim 1 recites a “computer network for
`
`providing a game environment for a plurality of participants,” which
`
`Petitioner asserts is disclosed by DirectPlay. Id. at 27–28 (citing Ex. 1003,
`
`19, 22–23). Petitioner also relies on Lin’s disclosure of a computer network
`
`that broadcasts messages to all of the processors in a network. Id. at 27–28
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`16
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`IPR2015-01970
`Patent 6,701,344 B1
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`(citing Ex. 1004, 8, 10, 14). Claim 1 further recites “each participant having
`
`connections to at least three neighbor participants.” Ex. 1001, 29:27–28. As
`
`Petitioner contends, Figure 18-3(a) of DirectPlay illustrates a network in
`
`which each participant is connected to three neighbors. Pet. 29 (citing
`
`Ex. 1003, 19, 23, Fig. 18-3(a)). Moreover, Lin’s Harary network examples,
`
`such as the H8,4 graph in Figure 2, disclose a network in which each
`
`participant is connected to four neighbors. Pet. 29–30 (citing Ex. 1004, 14,
`
`24–25, Fig. 2).
`
`Claim 1 further recites “wherein an originating participant sends data
`
`to the other participants by sending the data through each of its connections
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`to its neighbor participants and wherein each participant sends data that it
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`receives from a neighbor participant to its other neighbor participants.”
`
`Ex. 1001, 29:28–33. For this limitation, Petitioner cites Lin’s description of
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`a “simple broadcast protocol,” in which “a processor initiate[s] the broadcast
`
`of [message] m, by sending m to all of its neighbors [and] a node that
`
`receives m for the first time sends m to all of its neighbors except for the one
`
`which forwarded it.” Pet. 31 (quoting Ex. 1004, 9). Petitioner also cites
`
`DirectPlay’s teaching that a player’s “turn” involves broadcasting a series of
`
`messages to other players. Id. at 30 (citing Ex. 1003, 72).
`
`Finally, claim 1 requires that the “network is m-regular, where m is
`
`the exact number of neighbor participants” and “wherein the number of
`
`participants is at least two greater than m, thus resulting in a non-complete
`
`graph.” Ex. 1001, 29:33–37. For this limitation, Petitioner relies on two
`
`graphs in Lin, the H8,4 graph of Figure 2 and the H22,4 graph of Figure 4,
`
`which disclose m-regular networks in which each participant has exactly 4
`
`neighbor participants, and the respective number of participants, 8 and 22, is
`
`17
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`
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`IPR2015-01970
`Patent 6,701,344 B1
`
`at least two times greater than m, which is 4. Pet. 32–33 (citing Ex. 1004,
`
`Figs. 2, 4).
`
`Turning to dependent claims 2–12, each of which depends directly
`
`from claim 1, Petitioner submits that the H8,4 graph of Figure 2 and the H22,4
`
`graph of Figure 4 of Lin also teach the limitation of claim 2 requiring 4
`
`connections for each participant, and the limitation of claim 3 requiring an
`
`even number of connections. Pet. 34–35. Claims 4 and 5 recite the
`
`additional limitation that the network of claim 1 be m-connected.8 As
`
`discussed above, we construe m-connected to mean “dividing the network
`
`into two or more separate parts would require the removal of at least m
`
`nodes.” As Petitioner contends, Lin discloses that the properties of the
`
`Harary graphs, such as those shown in Figures 2 and 4, include the property
`
`of being “t-node connected,” so that “[t]he removal of any subset of t – 1
`
`nodes will not disconnect the graph, but there are subsets of t nodes whose
`
`removal disconnects the graph.” Pet. 35 (quoting Ex. 1004, 14); see
`
`Ex. 1019 ¶ 121.
`
`Claims 6 and 7, respectively, require that all the participants be peers
`
`and the connections be peer-to-peer connections. Ex. 1001, 29:48–51.
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`Petitioner contends that DirectPlay’s disclosure of a peer-to-peer gaming
`
`session teaches these limitations. Pet. 36–37 (citing Ex. 1003, 22–23); see
`
`Ex. 1019 ¶ 127. Petitioner further contends that DirectPlay teaches the
`
`connections may be TCP/IP connections, as recited in claim 8. Pet. 38
`
`(citing Ex. 1003, 19–20). In addition, Petitioner contends that a person of
`
`ordinary skill in the art would have understood that the application running
`
`
`
`8 As Petitioner points out, Pet. 36, claim 5 also recites that the network be m-
`regular, which is already required by claim 1. See Ex. 1001, 29:45–47.
`
`18
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`
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`IPR2015-01970
`Patent 6,701,344 B1
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`on each player’s computer in DirectPlay teaches the limitation in claim 9
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`that “each participant is a process executing on a computer.” Id. at 39–41
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`(citing Ex. 1003, 24; Ex. 1019 ¶¶ 135–38). Petitioner also contends
`
`DirectPlay teaches “a computer hosts more than one participant,” as recited
`
`in claim 10, because a lobby client can support multiple applications (i.e.,
`
`participants) running on a single machine. Id. at 41 (citing Ex. 1003, 98–
`
`100, Fig. 21-2; Ex. 1019 ¶¶ 141–42).
`
`Claim 11 recites that “each participant sends to each of its neighbors
`
`only one copy of the data.” Ex. 1001, 30:1–3. For this limitation, Petitioner
`
`argues that Lin’s description of “a node that receives m for the first time
`
`sends m to all of its neighbors except for the one which forwarded it m,”
`
`Ex. 1004, 9 (emphasis added), would have taught or suggested to a person of
`
`ordinary skill in the art that a participant would send to each of its neighbors
`
`only one copy of the data. Pet. 41–42. As for claim 12, Petitioner contends
`
`that DirectPlay’s description of a game session for a game in progress
`
`teaches or suggests “the interconnections of participants form a broadcast
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`channel for a game of interest.” Id. at 42–43 (citing Ex. 1003, 21, 24, 99–
`
`100, 123); see Ex. 1019 ¶¶ 150–51.
`
`Independent claims 16 and 18 contain limitations similar to those in
`
`independent claim 1, with claim 16 limited to a computer network with
`
`exactly four connections for each participant, similar to claim 2. Claims 17
`
`and 19 depend from claims 16 and 18, respectively, and further recite that “a
`
`computer hosts more than one participant,” as also recited in claim 10.
`
`Accordingly, Petitioner’s analysis for claims 16–19 refers to its claim charts
`
`for claims 1, 2, and 10. Pet. 55–57.
`
`19
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`
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`IPR2015-01970
`Patent 6,701,344 B1
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`We have reviewed the evidence cited by Petitioner, including
`
`Dr. Karger’s declaration, and, for purposes of this Decision, we are
`
`persuaded the combination of DirectPlay and Lin sufficiently teaches or
`
`suggests the limitations of independent claims 1, 16, and 18, as well as
`
`dependent claims 2–12, 17, and 19. With respect to independent claim 13,
`
`as discussed above, we are unable to construe the “means for identifying”
`
`limitation. Consequently, we are unable to determine whether Petitioner has
`
`shown sufficiently that the combination of DirectPlay and Lin teaches or
`
`suggests the subject matter of claim 13 and dependent claims 14 and 15.
`
`Petitioner also sets forth several reasons why a person of ordinary
`
`skill in the art would have been motivated to combine the teachings of
`
`DirectPlay with those of Lin. Pet. 22–25. For purposes of this Decision, we
`
`are persuaded Petitioner has provided sufficient rationale for combining the
`
`references. DirectPlay teaches a network gaming environment, which
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`“embodies our vision of where the future of computer gaming lies—in a
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`networked world, with hundreds or even thousands of players participating
`
`in a single gaming universe.” Ex. 1003, 19. DirectPlay also states “there are
`
`many different ways to implement a networked application. We wanted to
`
`avoid making presumptions that would inflict a specific approach on the
`
`developer.” Id. at 20. Consequently, on this record, we agree DirectPlay
`
`does not require a certain network topology and teaches a need for a scalable
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`network to permit large numbers of users. See Pet. 24; Ex. 1019 ¶ 89. For
`
`purposes of this Decision, we also are persuaded Petitioner has shown
`
`sufficiently that a person of ordinary skill in the art would have been
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`motivated to apply the teachings of Lin, which describes Harary graph
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`flooding as scalable, reliable, and adaptable, Ex. 1004, 27, to the gaming
`
`20
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