Trials@uspto.gov Paper 8
`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 IPR2015-01972
`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
`
`
`
`
`
`
`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 IPR2015-01972
`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
`
`
`
`
`
`
`
`IPR2015-01972
`Patent 6,701,344 B1
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`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. 1101, “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 1–11 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
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`partes review filed by Petitioner challenging the ’344 patent and similar
`
`patents:
`
`2
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`
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`IPR2015-01972
`Patent 6,701,344 B1
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`IPR2015-01951
`IPR2015-01953
`IPR2015-01964
`IPR2015-01996
`IPR2015-01970
`
`U.S. Patent No. 6,714,966 B1
`
`U.S. Patent No. 6,829,634 B1
`
`U.S. Patent No. 6,701,344 B1
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`Pet. 4–5; Paper 5, 1.
`
`B. The ’344 Patent
`
`The ’344 patent relates to a “broadcast technique in which a broadcast
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`channel overlays a point-to-point communications network.” Ex. 1101, 4:3–
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`5. The broadcast technique overlays the underlying network system with a
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`graph of point-to-point connections between host computers or nodes
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`through which the broadcast channel is implemented. Id. at 4:23–26.
`
`Figure 1 of the ’344 patent is reproduced below:
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`
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`3
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`IPR2015-01972
`Patent 6,701,344 B1
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`Figure 1 illustrates a broadcast channel represented by a “4-regular,
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`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
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`4-regular graph can only be disconnected if all four of the connections to its
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`neighbors fail. Id. at 4:39–42. Moreover, the graph of Figure 1 is
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`“4-connected” because it would take the failure of four nodes to divide the
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`graph into two separate sub-graphs (i.e., two broadcast channels). Id. at
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`4:42–47.
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`To broadcast a message over the network, an originating computer
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`sends the message to each of its four neighbors using the point-to-point
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`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
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`computer in the network. Id. at 4:32–38. The minimum number of
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`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
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`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
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`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
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`played. Id. at 16:31–36. Each time a player takes an action in the game, a
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`IPR2015-01972
`Patent 6,701,344 B1
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`message representing that action is broadcast on the game’s broadcast
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`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 19:26–37.
`
`D. Asserted Grounds of Unpatentability
`
`Petitioner asserts that claims 1–19 are unpatentable based on the
`
`following grounds (Pet. 6–7):
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`IPR2015-01972
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`Reference(s)
`
`Basis
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`Challenged Claims
`
`DirectPlay1 and Shoubridge2
`Shoubridge3
`
`§ 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. 14 (citing Ex. 1101, 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. 1103) (“DirectPlay”).
`2 Peter J. Shoubridge & Arek Dadej, Hybrid Routing in Dynamic Networks,
`3 IEEE INT’L CONF. ON COMMS. CONF. REC. 1381–86 (1997) (Ex. 1105)
`(“Shoubridge”).
`3 Petitioner articulates this ground as obviousness “in view of Shoubridge
`and the knowledge of a POSITA.” Pet. 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 Shoubridge.
`
`6
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`IPR2015-01972
`Patent 6,701,344 B1
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`Owner does not offer a construction of this term. Prelim. Resp. 13. 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. 1101, 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. 14 (citing Ex. 1101, 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
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`non-complete graph.” Ex. 1101, 29:35–37. Patent Owner does not offer a
`
`construction of this term. Prelim. Resp. 13. 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. 14 (citing
`
`Ex. 1101, 4:42–46). Patent Owner does not offer a construction of this term.
`
`Prelim. Resp. 13. 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 subgraphs.
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`IPR2015-01972
`Patent 6,701,344 B1
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`Ex. 1101, 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. 1101, 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
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`site through which players can view the state of current games and register
`
`new games’ or equivalents thereof.” Id. (citing Ex. 1101, 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.
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`IPR2015-01972
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`one exemplary embodiment provided by the game environment.” Prelim.
`
`Resp. 13. Instead, Patent Owner contends, the structure associated with this
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`limitation is the “game application program (which provides a game
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`environment).” Id. (citing Ex. 1101, 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
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`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
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`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,
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`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
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`disclosed in the specification.” Aristocrat Techs. Austl. Pty Ltd. v. Int’l
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`Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008) (quoting Harris Corp. v.
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`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’
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`without providing some detail about the means to accomplish the function is
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`not enough.” Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1340–41
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`(Fed. Cir. 2008); see also Blackboard, Inc. v. Desire2Learn, 574 F.3d 1371,
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`1382 (Fed. Cir. 2009) (holding disclosed “access control manager”
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`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,
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`whether in prose, flow chart, or any other manner, that provides sufficient
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`structure for identifying broadcast channels. See Finisar, 523 F.3d at 1340.
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`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
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`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.”)).
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`5. “means for connecting to the identified broadcast channel”
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`Claim 13 further recites “means for connecting to the identified
`
`broadcast channel.” Ex. 1101, 30:25. Petitioner contends this is a
`
`means-plus-function limitation pursuant to 35 U.S.C. § 112, sixth paragraph.
`
`Pet. 14–15. 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. Id. (citing Ex. 1101, 15:30–32, 16:61–63). Patent
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`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. 13.
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`We agree with Petitioner’s position that the recited function of this
`
`limitation is “connecting to the identified broadcast channel” and the
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`corresponding structure is at least the “broadcaster component.” The
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`Specification discloses a broadcaster component as being connected to the
`
`broadcast channel. Ex. 1101, 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 Shoubridge
`
`Petitioner contends claims 1–11 and 16–19 are unpatentable under
`
`35 U.S.C. § 103(a) as obvious over Shoubridge in view of the knowledge of
`
`a person having ordinary skill in the art. Pet. 19–22, 28–59. Relying on the
`
`testimony of Dr. David R. Karger, Petitioner explains how Shoubridge
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`allegedly teaches or suggests all of the claim limitations when considered in
`
`view of the knowledge of a person having ordinary skill in the art. Id.
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`(citing Ex. 1119).5 Patent Owner counters that Shoubridge does not render
`
`the challenged claims obvious. Prelim. Resp. 25–31, 35–36, 39–43.
`
`1. Summary of Shoubridge
`
`Shoubridge describes techniques for routing messages to all the
`
`participants in a communications network. Ex. 1105, 1.6 Specifically,
`
`Shoubridge models a communication network as a graph in which “[e]ach
`
`node functions as a source of user traffic entering the network where traffic
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`can be destined to all other nodes within the network.” Id. at 2. In a specific
`
`example (not depicted in a figure), Shoubridge describes a “64 node network
`
`with connectivity of degree 4” modeled as a “large regular graph forming a
`
`manhattan grid network that has been wrapped around itself as a torus.”
`
`Id. at 3. Shoubridge describes a routing protocol called “constrained
`
`flooding, the most efficient way to flood an entire network.” Id. at 2. In
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`constrained flooding, a packet received at a node is rebroadcast on all links
`
`except the link it was received on, and packets are numbered such that if a
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`“packet[] revisit[s] a node with the same sequence number, [it is] discarded.”
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`
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`5 Patent Owner argues Petitioner improperly incorporates Dr. Karger’s
`declaration by reference and contends we should deny trial on that basis.
`Prelim. Resp. 37–39 (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 37–38. Accordingly, we decline to deny institution of an
`inter partes review on this basis.
`6 We refer to exhibit pagination, rather than the original document
`pagination.
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`Id. at 3. Shoubridge describes simulations using both constrained flooding
`
`and minimum hop algorithms that use routing tables. Id. at 2–4. Ultimately,
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`a hybrid routing model is proposed in which constrained flooding is used if
`
`routing tables are unable to provide a next node entry for forwarding user
`
`traffic, but minimum hop is used if a valid next node entry exists. Id. at 4–5.
`
`2. Analysis
`
`Petitioner asserts that independent claim 1 would have been obvious
`
`over Shoubridge in view of the knowledge of a person of ordinary skill in
`
`the art. Pet. 28–34, 58. The preamble of claim 1 recites “[a] computer
`
`network for providing a game environment for a plurality of participants.”
`
`Ex. 1101, 29:26–27. Petitioner contends that Shoubridge discloses a
`
`computer network for providing data (such as game data, for example) to a
`
`plurality of participants by broadcasting messages to multiple participants in
`
`a network. Pet. 29, 57; see Ex. 1105, 1; Ex. 1119 ¶¶ 103, 105. Because
`
`Shoubridge is directed to a generic computer communications network,
`
`Petitioner submits that, to the extent the preamble is considered a limitation,
`
`it would have been obvious to a person of ordinary skill in the art that
`
`computer gaming is among the various uses for Shoubridge’s disclosed
`
`network. Pet. 57 (citing Ex. 1119 ¶¶ 223–25).
`
`Claim 1 also recites “each participant having connections to at least
`
`three neighbor participants.” Ex. 1101, 29:27–28. Petitioner directs us to
`
`Shoubridge’s 64 node manhattan grid network with connectivity of degree
`
`four as disclosing connections to at least three neighbor participants. Pet. 30
`
`(citing Ex. 1105, 3). Claim 1 further recites “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
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`participant sends data that it receives from a neighbor participant to its other
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`neighbor participants.” Ex. 1101, 29:28–33. For this limitation, Petitioner
`
`cites Shoubridge’s description of constrained flooding in which a packet is
`
`broadcast to all other participants on outgoing links (i.e., all links except for
`
`the one it received the packet on). Pet. 31–32 (citing Ex. 1105, 2–3).
`
`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. 1101, 29:33–37. Here again, Petitioner relies on Shoubridge’s
`
`64 node Manhattan grid network with connectivity of degree 4 as disclosing
`
`this limitation. Pet. 32–34 (citing Ex. 1105, 3). Petitioner also relies on
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`Dr. Karger’s testimony that a person of ordinary skill would have
`
`understood this description to disclose a non-complete graph that is m-
`
`regular (i.e., each participant has exactly 4 neighbor participants) and in
`
`which the number of participants is at least two greater than m (i.e., 64 is at
`
`least two greater than 4). Ex. 1119 ¶¶ 89–91, 116, 120.
`
`For purposes of this Decision, we are persuaded Petitioner has shown
`
`sufficiently that Shoubridge would have taught or suggested the subject
`
`matter of claim 1 to a person having ordinary skill in the art. First, with
`
`regard to the preamble, we observe that the language “for providing a game
`
`environment” appears to describe a purpose or intended use of the invention,
`
`which weighs in favor of the preamble being non-limiting. See, e.g.,
`
`Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed.
`
`Cir. 2002). For purposes of this Decision, however, we need not determine
`
`whether the preamble of claim 1 is limiting. On the record before us, we are
`
`persuaded Petitioner has made an adequate showing that it would have been
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`obvious to a person of ordinary skill in the art that a game environment for a
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`plurality of participants is one use of the network with constrained flooding
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`taught in Shoubridge. Patent Owner argues that Dr. Karger’s testimony on
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`this point consists only of unsupported conclusory statements. Prelim.
`
`Resp. 35–36. At this early stage, however, we are persuaded Dr. Karger has
`
`provided sufficient support for his statement that a person of ordinary skill in
`
`the art would have been motivated to implement networked computer games
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`on the network disclosed in Shoubridge to improve the reliability of gaming
`
`sessions, so the failure of a participating computer or a link between
`
`computers would not cause the entire network to fail and cause the game to
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`crash. Ex. 1119 ¶ 225.
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`On the present record, we also are unpersuaded by Patent Owner’s
`
`arguments that Shoubridge fails to teach a non-complete graph and a
`
`network in which every node sends data to all of its neighbors, as recited in
`
`claim 1. See Prelim. Resp. 25–31, 39–43. Patent Owner argues, for
`
`example, that “Shoubridge proposes a hybrid strategy, where constrained
`
`flooding is appropriate only temporarily, in certain emergency situations, at
`
`an individual network node. At all other nodes, minimum hop routing is the
`
`default procedure.” Id. at 28 (emphasis omitted). Petitioner, however, does
`
`not rely on Shoubridge’s proposed hybrid routing scheme for teaching the
`
`claim limitations. See Pet. 31–34. Rather, Petitioner relies on the portion of
`
`Shoubridge that describes a simulation in which “constrained flooding, the
`
`most efficient way to flood an entire network” is selected. Ex. 1105, 2.
`
`Shoubridge further states “all nodes [in the 64 node grid] are visited at least
`
`once.” Ex. 1105, 3. The results of the simulation of constrained flooding
`
`are shown in Figure 1 of Shoubridge. Id. at 3–4.
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`15
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`Patent 6,701,344 B1
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`Patent Owner further argues that a “POSITA having studied
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`Shoubridge would never implement a network wide algorithm such as
`
`described and claimed in the ’344 patent.” Prelim. Resp. 44. For purposes
`
`of this decision, we are not persuaded by Patent Owner’s contention.
`
`Although Shoubridge discusses a hybrid strategy, it does not suggest a
`
`network-wide flooding algorithm would never have been implemented. In
`
`fact, in proposing its hybrid strategy based in part on constrained flooding,
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`Shoubridge states that network-wide flooding was known and “often used in
`
`very dynamic networks.” Ex. 1105, 1; id. at 2 (“[C]onstrained flooding [is]
`
`the most efficient way to flood an entire network.”).
`
`We also have reviewed Petitioner’s remaining arguments and
`
`evidence, and, for purposes of this Decision, we are persuaded Shoubridge
`
`sufficiently teaches or suggests the limitations of claims 2–11, which depend
`
`directly from claim 1. For example, Petitioner contends the 64 node,
`
`connectivity of degree 4 network of Shoubridge teaches the limitation of
`
`claim 2, requiring 4 connections, and the limitation of claim 3 requiring an
`
`even number of connections. Pet. 34. Claims 4 and 5 recite the additional
`
`limitation that the network of claim 1 be m-connected.7 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.” Petitioner
`
`contends Shoubridge’s description of a 64 node Manhattan grid network that
`
`has been wrapped around itself discloses an m-connected graph topology,
`
`where m=4. Id. at 35–36. Petitioner relies on Dr. Karger’s testimony that
`
`such a topology would necessarily require at least 4 nodes to be removed to
`
`
`
`7 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. 1101, 29:45–47.
`
`16
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`IPR2015-01972
`Patent 6,701,344 B1
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`disconnect the graph, as the construction of the term “m-connected”
`
`requires. Ex. 1119 ¶¶ 90–93, 129.
`
`Claims 6 and 7 respectively require all the participants be peers and
`
`the connections be peer-to-peer connections. Ex. 1101, 29:48–51.
`
`Petitioner contends, and we are persuaded for purposes of this Decision, that
`
`these limitations are disclosed by Shoubridge’s network topology and
`
`statement that the “total load entering (and leaving) the network . . . is
`
`evenly distributed across all N nodes.” Pet. 36–37 (quoting Ex. 1105, 3); see
`
`Ex. 1119 ¶ 134. Claim 8 requires a TCP/IP connection. Ex. 1101, 29:52–
`
`53. For purposes of this Decision, we are persuaded by Petitioner’s
`
`contention that it would have been obvious to implement the communication
`
`network disclosed in Shoubridge with TCP/IP connections because TCP/IP
`
`was the dominant Internet protocol. Pet. 58; Ex. 1119 ¶¶ 230–34. See KSR
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`Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 421 (2007) (“When there is a design
`
`need or market pressure to solve a problem and there are a finite number of
`
`identified, predictable solutions, a person of ordinary skill has good reason
`
`to pursue the known options within his or her technical grasp.”).
`
`Claim 9 requires that “each participant is a process executing on a
`
`computer.” Ex. 1101, 29:54–55. We are persuaded by Petitioner’s
`
`contention that in view of Shoubridge’s discussion of constrained flooding
`
`as the most efficient way to flood an entire network (Ex. 1105, 3), it would
`
`have been obvious that the processors disclosed in Shoubridge are
`
`computers and the disclosed flooding protocol would comprise a process on
`
`a computer. Pet. 58; Ex. 1119 ¶¶ 235–39; see also Ex. 1105, 1 (discussing
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`computing processing power and memory within network nodes). As to the
`
`requirement of claim 10 that a computer host more than one participant, we
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`17
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`IPR2015-01972
`Patent 6,701,344 B1
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`credit Dr. Karger’s testimony that Shoubridge’s disclosure of a simulation
`
`would have taught or suggested to a person of ordinary skill in the art a
`
`computer hosting more than one participant. Pet. 58–59; Ex. 1119 ¶¶ 240–
`
`44.
`
`With respect to claim 11, Petitioner relies on the following passage
`
`from Shoubridge: “Constrained flooding uniquely identifies packets . . . . If
`
`any packets revisit a node with the same sequence number, they are
`
`discarded instead of being further broadcast to neighbours.” Pet. 41 (quoting
`
`(Ex. 1105, 2). For purposes of this Decision, we agree this teaches that “a
`
`participant sends to each of its neighbors only one copy of the data,” as
`
`claim 11 requires.
`
`Independent claims 16 and 18 contain limitations similar to those in
`
`independent claim 1, with claim 16 limited to a computer network with
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`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.
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`Accordingly, Petitioner’s analysis for claims 16–19 refers to its claim charts
`
`for claims 1, 2, and 10. Pet. 54–57. Thus, for reasons similar to those
`
`discussed above, we are persuaded Shoubridge sufficiently teaches or
`
`suggests the subject matter of claims 16–19.
`
`For the foregoing reasons, we determine the information presented
`
`shows a reasonable likelihood that Petitioner would prevail in establishing
`
`that claims 1–11 and 16–19 would have been obvious over Shoubridge in
`
`view of the knowledge of a person having ordinary skill in the art.
`
`18
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`C. Asserted Obviousness over DirectPlay and Shoubridge
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`Petitioner contends claims 1–19 are unpatentable under 35 U.S.C.
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`§ 103(a) as obvious over DirectPlay and Shoubridge. Pet. 16–57; see
`
`Ex. 1119 ¶¶ 79–220. Patent Owner responds that a person of ordinary skill
`
`in the art would not have combined DirectPlay and Shoubridge. Prelim.
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`Resp. 14–35.
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`1. Summary of DirectPlay
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`DirectPlay describes an application program interface (“API”) for
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`providing medium-independent communications for multiplayer games over
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`computer networks. Ex. 1103, 15, 19.8 Figure 18-3 of DirectPlay is
`
`reproduced below:
`
`Figure 18-3 depicts two network topologies that may be used for a
`
`multiplayer gaming session. Ex. 1103, 23. Figure 18-3(a) represents a
`
`
`
`
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`8 We refer to the Exhibit pagination, rather than the original document
`pagination.
`
`19
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`Peer-to-Peer gaming session, in which Player #1 creates the session and
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`becomes the session host for the session. Id. Players #2, #3, and #4 may
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`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
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`session host. So the resulting session is peer-to-peer . . . .” Id. Figure 18-
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`3(b) represents an alternative network topology relying on a client-server
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`configuration. Id. at 24.
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`
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