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.,
`ROCKSTAR GAMES, INC.,
`BUNGIE, INC.,
`Petitioners
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner
`____________________
`
`Case IPR2015-019721
`Patent 6,701,344
`__________________________________________________________
`
`PATENT OWNER’S CONSOLIDATED REPLY IN SUPPORT OF PATENT
`OWNER’S CONTINGENT MOTION TO AMEND
`UNDER 37 C.F.R. § 42.121
`
`
`1 Bungie, Inc., who filed a Petition in IPR2016-00934, has been joined as a
`petitioner in this proceeding.
`
`
`
`
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`ACTIVISION BLIZZARD, INC.,
`ELECTRONIC ARTS INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC.,
`ROCKSTAR GAMES, INC.,
`BUNGIE, INC.,
`Petitioners
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner
`____________________
`
`Case IPR2015-019721
`Patent 6,701,344
`__________________________________________________________
`
`PATENT OWNER’S CONSOLIDATED REPLY IN SUPPORT OF PATENT
`OWNER’S CONTINGENT MOTION TO AMEND
`UNDER 37 C.F.R. § 42.121
`
`
`1 Bungie, Inc., who filed a Petition in IPR2016-00934, has been joined as a
`petitioner in this proceeding.
`
`
`
`
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`PATENT OWNER’S EXHIBIT LIST
`
`
`
`Description
`
`Exhibit-2001 Boeing Invention Disclosure Document (cover page and page 6)
`
`Reserved
`
`Exhibit-2002
`to Exhibit-
`2004
`
`Exhibit-2005 CSE Technical Reports, available at
`http://csetechrep.ucsd.edu//dienst.html (Little 6/2/16 Deposition
`Ex. 4)
`
`Reserved
`
`Exhibit-2006
`to Exhibit-
`2021
`
`Exhibit-2022 Declaration of Michael Goodrich, Ph.D. in Support of Patent
`Owner’s Response with Appendix A (Curriculum Vitae of
`Michael Goodrich)
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`Exhibit-2023 Declaration of Dr. Harry Bims in Support of Patent Owner’s
`Response with Appendix A (Curriculum Vitae of Dr. Harry
`Bims)
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`Exhibit-2024 Declaration of Dr. Fred B. Holt in Support of Patent Owner’s
`Response
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`Exhibit-2025 Declaration of Virgil E. Bourassa in Support of Patent Owner’s
`Response
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`Exhibit-2026 Declaration of Robert Abarbanel in Support of Patent Owner’s
`Response
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Description
`
`
`
`
`
`Exhibit-2027 Reserved
`
`Exhibit-2028 Boeing Invention Disclosure Form (19 pages)
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`Exhibit-2029 Patent License Agreement between Boeing Management
`Company and Sony Computer Entertainment America Inc.
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`Exhibit-2030 Reserved
`
`Exhibit-2031 Deposition Transcript of Peter Shoubridge, Ph.D. for Case Nos.
`IPR2015-01953, IPR2015-01972, and IPR2015-01996, taken on
`June 15, 2016
`
`Exhibit-2032 Deposition Transcript of Dr. David R. Karger for Case Nos.
`IPR2015-01964 and IPR2015-01996, taken on July 6, 2016
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`Exhibit-2033 Deposition Transcript of Dr. David R. Karger for Case Nos.
`IPR2015-01970 and IPR2015-01972, taken on July 7, 2016
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`Exhibit-2034 Deposition Transcript of Dr. David R. Karger for Case Nos.
`IPR2015-01951 and IPR2015-01953, taken on July 8, 2016
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`Exhibit-2035 Nowell, Balakrishnan, and Karger, Analysis of the Evolution of
`Peer-to-Peer Systems, PODC ’02 Proceedings of the twenty-first
`annual symposium on Principles of distributed computing (July
`21, 2002)
`
`Exhibit-2036 Stoica, Morris, Nowell, Karger, et al., Chord: A Scalable Peer-to-
`Peer Lookup Protocol for Internet Applications, IEEE/ACM
`Transactions on Networking, Vol. 11, No. 1 (Feb. 2003)
`
`- ii -
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Description
`
`
`
`
`
`Exhibit-2037 Vu and Risner, Performance and Cost of Broadcast Routing
`Algorithms in the Strategic Defense System Terrestrial Network,
`Military Communications Conference, 1991. MILCOM '91,
`IEEE, pages 29.2.1 to 29.2.5 (Nov. 4-7, 1991)
`
`Exhibit-2038 Schollmeier, A Definition of Peer-to-Peer Networking for the
`Classification of Peer-to-Peer Architectures and Applications,
`Proceedings of the First International Conference on Peer-to-Peer
`Computing, IEEE (Aug. 2002), available at
`https://www.computer.org/csdl/proceedings/p2p/2001/1503/00/15
`030101.pdf
`
`Exhibit-2039 Merriam-Webster online dictionary - Definition of “indication”
`
`Exhibit-2040 U.S. Patent No. 7,792,968 (“‘968 Patent”)
`
`Exhibit-2041 U.S. Patent No. 8,396,984 (“‘984 Patent”)
`
`Exhibit-2042 Reserved
`
`Exhibit-2043 Reserved
`
`Exhibit-2044 Webster’s New World Computer Dictionary, Tenth Edition
`(2003) (Page 176)
`
`Exhibit-2045 The American Heritage Dictionary, Fourth Edition (2001) (Page
`615)
`
`Exhibit-2046 Tanenbaum, Computer Networks, Third Edition (1996) (Page 17,
`28-34, 37, 59-60, 339, 345-367)
`
`Exhibit-2047 Dr. Fred Holt’s handwritten notes, dated March 27, 1997
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`Exhibit-2048 Print-out of a source code C++ header file, dated April 22, 1997
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`- iii -
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Description
`
`
`
`
`
`Exhibit-2049 Printout of a source code C software module, dated June 8, 1999
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`Exhibit-2050 Demonware presentation - Erlang Factory London 2011, Erlang
`and First-Person Shooters - 10s of millions of Call of Duty Black
`Ops fans loadtest Erlang by Malcolm Dowse
`
`Exhibit-2051 Gamespot webpage - Networks: Peer to Peer vs. Client Servers -
`System Wars, available at
`http://www.gamespot.com/forums/system-wars-
`314159282/networks-peer-to-peer-servers-vs-client-servers-
`26276019/
`
`Exhibit-2052 Playstation webpage - Port Numbers, which do I need to open for
`the PlayStation and how do I do it? - available at
`http://community.eu.playstation.com/t5/PSN-Support/Port-
`Numbers-which-do-I-need-to-open-for-the-PlayStation-and-
`how/td-p/13390392
`
`Exhibit-2053 Playstation webpage - Test Internet Connection, PlayStation 4
`User’s Guide - available at
`http://manuals.playstation.net/document/en/ps4/settings/nw_test.h
`tml
`
`Exhibit-2054 Game Informer webpage - The Matchmaking Technology of
`Destiny- available at
`http://www.gameinformer.com/b/features/archive/2013/12/06/the-
`matchmaking-technology-of-destiny.aspx?PostPageIndex=1
`
`Exhibit-2055 Bungie presentation - Shared World Shooter - Destiny’s
`Networked Mission Architecture
`
`Exhibit-2056 VGBOX webpage - Destiny full size box cover - available at
`http://vgboxart.com/viewfullsize/66658/Destiny/
`
`Exhibit-2057 Bungie webpage - Voice Chat [Beta] in Destiny - available at
`https://www.bungie.net/en/News/Article/12376/7_voice-chat-
`beta-in-destiny
`
`- iv -
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Description
`
`
`
`
`
`Exhibit-2058 YouTube - Destiny - Party Crasher +1 XP - available at
`https://www.youtube.com/watch?v=dPcrmT0of5g
`
`Exhibit-2059 Claim chart created by Dr. Harry Bims regarding the ‘344 Patent
`and the technology in the Sony Computer Entertainment America
`Inc. ‘s (“Sony”) products
`
`Exhibit-2060 Sony Kabushiki Kaisha (“Sony Corporation”) Form 20-F filed
`with the U.S. Securities and Exchange Commission, for fiscal
`year ended March 31, 2008
`
`Exhibit-2061
`
`Infringement charts regarding the ‘344 Patent and products of
`Activision Blizzard, Inc., filed in Acceleration Bay LLC v.
`Activision Blizzard, Inc.., 16-cv-00453-RGA (D. Del.), June 17,
`2016
`
`Exhibit-2062
`
`Infringement charts regarding the ‘344 Patent and products of
`Electronic Arts Inc., filed in Acceleration Bay LLC v. Electronic
`Arts Inc., 16-cv-00454-RGA (D. Del.), June 17, 2016
`
`Exhibit-2063
`
`Infringement charts regarding the ‘344 Patent and products of
`Take-Two Interactive Software, Inc., Rockstar Games, Inc., and
`2K Sports, Inc., filed in Acceleration Bay LLC v. Take-Two
`Interactive Software, Inc., et al., 16-cv-00455-RGA (D. Del.),
`June 17, 2016
`
`Exhibit-2064 Search results regarding patents that cite to the ‘344 Patent
`
`Exhibit-2065 Reserved
`
`Exhibit-2066 Reserved
`
`Exhibit-2067 Reserved
`
`Exhibit-2068 Reserved
`
`Exhibit-2069 Reserved
`
`Exhibit-2070 Reserved
`
`- v -
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Description
`
`
`
`
`
`Exhibit-2071 Reserved
`
`Exhibit-2072 Reserved
`
`Exhibit-2073 Reserved
`
`Exhibit-2074 Reserved
`
`Exhibit-2075 CSE Technical Reports - Browse the Collection by Author,
`available at
`http://csetechrep.ucsd.edu/Dienst/UI/2.0/BrowseAuthors?authorit
`y=ncstrl.ucsd_cse
`
`Exhibit-2076 CSE Technical Reports - Browse the Collection by Year,
`available at
`http://csetechrep.ucsd.edu/Dienst/UI/2.0/BrowseYears?authority=
`ncstrl.ucsd_cse
`
`Exhibit-2077 CSE Technical Reports - Advanced Search Page, Fielded Search
`of the Collection, available at
`http://csetechrep.ucsd.edu/Dienst/UI/2.0/Search
`
`Exhibit-2078 CSE Technical Reports - Search Results for “rumor mongering”
`
`Exhibit-2079 CSE Technical Reports - Search Results for “gossip”
`
`Exhibit-2080 CSE Technical Reports - Search Results for “low message
`overhead”
`
`Exhibit-2081 OSI model, available at
`https://www.tes.com/lessons/AMRvJVl32tmEEQ/osi-model
`
`Exhibit-2082 Ko and Vaidya, Location-aided Routing (LAR) in Mobile Ad Hoc
`Networks, Wireless Networks 6, pages 307-321 (2000)
`
`Exhibit-2083 Claim chart created by Dr. Michael Goodrich regarding the ‘344
`Patent and the Boeing Invention Disclosure Form
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`- vi -
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Description
`
`
`
`
`
`Exhibit-2084 Reserved
`
`Exhibit-2085 Reserved
`
`Exhibit-2086 Source code written by Dr. Michael Goodrich - Message.java file
`
`Exhibit-2087 Source code written by Dr. Michael Goodrich - Network.java file
`
`Exhibit-2088 Federal Communications Commission (FCC) report - High-Speed
`Services for Internet Access: Subscribership as of December 31,
`2000, dated August 2001
`
`Exhibit-2089 Schaefer, et al., Subjective Quality Assessment for Multiplayer
`Real-Time Games, NetGames 2002, April 16-17, 2002
`
`Exhibit-2090 U.S. Patent No. 7,593,744
`
`Exhibit-2091 Bharambe et al., A Distributed Architecture for Online
`Multiplayer Games (Jan. 2006)
`
`
`Exhibit-2092 Yahyavi, et al., Peer-to-Peer Architectures for Massively
`Multiplayer Online Games: A Survey, ACM Computing Surveys,
`Vol. 46, No. 1, Article 9 (Oct. 2013)
`
`Exhibit-2093 Federal Communications Commission (FCC) report - Broadband
`Performance, OBI Technical Paper No. 4
`
`Exhibit-2094 Declaration of Michael Goodrich, Ph.D. in Support of Patent
`Owner’s Contingent Motion to Amend U.S. Patent No. 6,701,344
`in IPR2015-01972
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`Exhibit-2095 Declaration of Michael Goodrich, Ph.D. in Support of Patent
`Owner’s Contingent Motion to Amend U.S. Patent No. 6,701,344
`in IPR2015-01972
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`- vii -
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Description
`
`
`
`
`
`Exhibit-2096 Reserved
`
`Exhibit-2097 Reserved
`
`Exhibit-2098 Reserved
`
`Exhibit-2099 Reserved
`
`Exhibit-2100 Reserved
`
`Exhibit-2101 Reserved
`
`Exhibit-2102 Reserved
`
`Exhibit-2103 Reserved
`
`Exhibit-2104 Declaration of Michael Goodrich, Ph.D. in Support of Patent
`Owner’s Reply in Support of Patent Owner’s Contingent Motion
`to Amend Under 37 C.F.R. § 42.121 in IPR2015-01972
`
`Exhibit-2105 Reserved
`
`Exhibit-2106 Reserved
`
`Exhibit-2107 Claim chart created by Dr. Michael Goodrich regarding the
`amended claims of the ‘344 Patent and the Boeing Invention
`Disclosure Form
`
`Exhibit-2108 Reserved
`
`- viii -
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`I.
`
`INTRODUCTION
`
`Fred Holt and Virgil Bourassa, the inventors of United States Patent No.
`
`6,701,344 (“the ‘344 Patent”), approached the problem of massive, online
`
`collaboration from a completely different viewpoint than the conventional systems
`
`in the 1996 to 2000 timeframe. Instead of focusing on protocols to increase the
`
`distribution of packets at the network layer, the inventors took the opposite
`
`approach and envisioned a system in which applications formed an m-regular, non-
`
`complete network that was agnostic to the underlying communication protocols.
`
`Like most great inventions, the concept seems relatively straightforward in
`
`hindsight, but in reality took three years to come to fruition because it turned the
`
`conventional systems upside down and required a complete different architecture
`
`than what was known in the art. Exs. 2024, 2025.
`
`The novelty of the ‘344 Patent is highlighted in Petitioner’s Opposition
`
`which fails to provide any art which reads on the claims as originally issued or as
`
`substituted. While Acceleration Bay, LLC (“AB”) maintains that the ‘344 Patent’s
`
`claims are valid as originally issued, there is no doubt that substitute claims 20, 21,
`
`and 22 are valid because they contain numerous limitations that are not addressed
`
`in Petitioner’s Opposition. Accordingly, if the Board determines in Case Nos.
`
`IPR2015-01970 and IPR2015-01972 that claims 1, 7 and/or 8 of the ‘344 Patent
`
`are found not valid, substitute claims 20, 21 and 22 should be entered. IPR2015-
`
`1
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`01970, Paper 31 (Consolidated Motion to Amend)2 (the “Motion”); see also
`IPR2015-01972, Paper 32.
`II. THE PROPOSED CLAIM CONSTRUCTIONS ARE PROPER
`The terms in substitute claims 20-22 are supported by and disclosed in the
`
`‘344 Patent specification. Specifically, as demonstrated in the Motion, the
`
`proposed claim constructions are consistent with the ‘344 Patent specification and
`
`a POSITA’s understanding of the specification. Motion at 5-10. AB provides
`
`extensive support from the ‘344 Patent specification for its proposed constructions
`
`and explains in its Motion and Dr. Goodrich’s supporting declaration that these
`
`constructions, and the new terms, are consistent with a POSITA’s understanding at
`
`the time of the invention. Motion at 10-11; Toyota Motor Corp. v. American
`
`Vehicular Science, LLC, Case No. IPR 2013-00422, (Paper No. 25 at 4).
`
`Petitioner’s entire position is based on its contention that “PO seeks to
`
`improperly read in an ‘application layer’ limitation through each construction.”
`
`IPR2015-01972, Paper 57 (“Mot. Opp.”) at 1. However, neither Petitioner nor its
`
`expert, Dr. Karger, contest that an overlay network, as recited in the substitute
`
`claims, operates at the application layer. Dr. Karger Decl. (Ex. 1024) at ¶¶ 11, 269
`
`(admitting that overlay can refer to an application layer overlay). Rather,
`
`Petitioner ignores the repeated disclosures in the ‘344 Patent specification that
`
`support operation at the application layer. E.g., ‘344 Patent, 4:23–30; 16:30-46.
`
`
`2 This Reply addresses arguments in Petitioner’s two nearly identical oppositions.
`
`2
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Incredibly, Petitioner does not dispute AB’s explanation that the terms are
`
`clear in light of the specification nor that AB’s constructions were provided for
`
`terms that “reasonably can be anticipated as subject to dispute.” Toyota Motor
`
`Corp. at 5; Motion at 5. In fact, Petitioner states that the terms “should be given
`
`their plain and ordinary meaning” but then provides proposed constructions for
`
`each of the terms without any supporting evidence. Mot. Opp. at 3; Toyota Motor
`
`Corp. at 5 (“a statement that a certain term should be construed according to its
`
`plain and ordinary meaning is unhelpful . . . [t]hat plain and ordinary meaning
`
`should be provided in the motion, together with supporting evidence”).
`
`Nonetheless, even under the “plain and ordinary meaning,” as Petitioner proposes,
`
`the substitute claims are proper as they narrow the claims and do not enlarge the
`
`scope or introduce any new subject matter. See generally Motion at 2-4, 11-15.
`III. STATE OF THE ART
`AB’s Motion unquestionably provides “information regarding whether the
`
`features added to the Claims were previously known.” Mot. Opp. at 3.
`
`Throughout its Motion, AB explains how the “proposed substitute claims 20-22
`
`serve to clarify the context in which the ‘344 Patent operates” and how a POSITA
`
`would have known and understood the proposed terms. Motion at 10-11, 17. In
`
`fact, one of the primary foundational textbooks AB and Dr. Goodrich rely on is
`
`also cited by Petitioner’s expert Dr. Karger to explain the state of the art. Compare
`
`Motion at 10-11 with e.g. Dr. Karger Decl. (Ex. 1024) at ¶¶6, 15-17 (discussing
`
`Tanenbaum). The substitute claims are also supported by the ‘344 Patent’s
`
`Invention Disclosure and thus reduced to practice no later than September 16,
`
`3
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`1999. Ex. 2104 Goodrich Decl. ¶¶33-34; Ex. 2107. Thus, AB has provided a
`
`“discussion of the ordinary skill in the art, with a particular focus on the feature[s]
`
`added to provide the basis of patentable distinction.” Toyota Motor Corp. at 4.
`IV. THE ALLEGED PRIOR ART
`AB has “explain[ed] why the claims are patentable over the prior art of
`
`record” through “declaration testimony of a technical expert about the significance
`
`and usefulness of the feature(s) added by the proposed substitute claim, from the
`
`perspective of one with ordinary skill in the art, and also on the level of ordinary
`
`skill, in terms of ordinary creativity and the basic skill set.” Idle Free Systems, Inc.
`
`v. Bergstrom, Inc., Case No. IPR 2012-00027 (Paper No. 26 at 7) (emphasis
`
`added). Notably, Petitioner provides no evidence or declaration that supports that
`
`the Gautier reference (Ex. 1030/1130) was publically available prior to the priority
`
`date of the ‘344 Patent. Ex. 2104 Goodrich Decl. at ¶ 22.
`A. U.S. Patent No. 6,122,277
`U.S. Patent No. 6,122,277 (“the ‘277 Patent”), which Petitioner discusses
`
`solely in connection with what it deems the “highly material disclosure of
`
`applications communicating over its 4-regular network using flooding,” does not
`
`disclose or teach the substitute claims. Mot. Opp. at 5; Ex. 2104 Goodrich Decl. at
`
`¶¶16-21. The ‘277 Patent addresses routing – and in particular, a “routing
`
`mechanism [that] can return a status to a preceding routing mechanism” and that
`
`can provide for “an acknowledgement determination capability.” ‘277 Patent,
`
`4:41-46. This routing, however, occurs at the network layer and not at the
`
`application layer. ‘277 Patent, 6:12-34 (discussing networking protocol); Ex. 2022
`
`4
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`(Goodrich Decl.) at ¶¶ 31, 33-34; Ex. 2104 Goodrich Decl. at ¶17. As Petitioner
`
`admits, the substitute claims relate to the application layer and the claimed
`
`application layer’s broadcasting technique that is practiced on an m-regular, non-
`
`complete, overlay network. See e.g., Motion at 16-17; see also Mot. Opp. at 5.
`
`The ‘277 Patent, therefore, does not teach game environment using an m-regular
`
`incomplete graph application layer network or a broadcast channel as required
`
`under the ‘344 Patent substitute claims.
`B.
`Petitioner fails to address why a POSITA would use Lin at the application
`
`Lin – Ground 1
`
`layer or be motivated to combine Lin with other art given Lin’s teaching away
`
`from scalability. Motion at 18-20. Indeed, Petitioner solely makes conclusory
`
`statements that it would have been obvious to do so without any support or
`
`explanation as to why. See Mot. Opp. at 15-16. Moreover, Lin does not teach a
`
`dynamic network in which participants can join and leave the broadcast channel.
`
`Motion at 19; Goodrich Decl. I ¶¶ 87-88. Thus, Lin is not invalidating art.
`C. DirectPlay in view of Lin- Ground 2
`A POSITA would not combine DirectPlay with Lin. Motion at 20; 1970 PO
`
`Response at 50-54. Lin is an underlying network that superimposes specific types
`
`of Harary graphs along with numerous complex graph properties and does not
`
`apply to the application layer. Lin at 14, Fig. 4. DirectPlay is directed to static
`
`environments and networks replaying on complete graphs. DirectPlay at 00022.
`
`Lin and DirectPlay are two distinct “networks” and there would be no motivation
`
`to combine the functional complete graph topology of DirectPlay with the
`
`5
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`“flooding” of Lin because it would result in more congestion, higher queue delays
`
`and higher end-to-end delays. Ex. 2037, Vu at 624-626, Figs. 3, 4 and 5. Further,
`
`a POSITA would not be motivated to use Lin as an underlying network for
`
`flooding at the application layer because it could result in unnecessary delays and
`
`contrary to Petitioner’s representation, Lin does not disclose a scalable and reliable
`
`network topology and broadcast protocol. 1970 PO Response at 52-53.
`
`Disregarding these damaging facts, Petitioner presents conclusory statements that
`
`it would have been obvious to combine Lin with DirectPlay without any analysis.
`
`See e.g., 1972 Mot. Opp. at 16 (citing Ex. 1124 ¶289). Thus, DirectPlay in view of
`
`Lin does not render obvious the substitute claims.
`D. Lin in view of Gautier - Ground 3
`Petitioner also argues that the combination of Lin and Gautier would render
`
`the substitute claims as obvious. However, there is no support that POSITA would
`
`combine such disparate technologies. Ex. 2104 Goodrich Decl. at ¶¶28-29.
`
`Petitioner also failed to explain why a POSITA would modify Lin in view of
`
`Gautier given the differences in the two alleged references. For example, Gautier
`
`requires a non-m-regular Mbone, but Petitioner fails to address why a POSITA
`
`would abandon that requirement given that is a design principle of Gautier. See
`
`Gautier at Fig. 5 (showing non-m-regular network); Ex. 2104 Goodrich Decl. at
`
`¶¶24-27. In addition, Lin discusses changes to the transport layer, it does not
`
`address modifying Mbone, or modified DIS standard or RTP/UDP protocol
`
`standards used by Gautier. Motion at 17-19; Gautier 1-4. Petitioner has failed to
`
`show that a POSITA would be able to modify the protocol standards of Gautier to
`
`6
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
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`achieve an operable system, especially since Gautier requires a non-m-regular
`
`Mbone network to operate. Ex. 2104 Goodrich Decl. ¶¶22-29. As with
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`DirectPlay, there would be no motivation to combine the non-m-regular Mbone
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`network of Gautier with the “flooding” of Lin that results in more congestion,
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`higher queue delays and higher end-to-end delays. Ex. 2037, Vu at 624-626, Figs.
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`3, 4 and 5. Indeed, Gautier emphasizes the need to achieve synchronization and
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`low “interaction delay.” Gautier at 2. As such, Petitioner has failed to show that
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`Lin in view of Gautier would render obvious the substitute claims.
`E.
`Petitioner fails to rebut that Shoubridge only applies to the network layer
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`Shoubridge
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`identified in the Motion with any evidence. See Motion at 20-21; 1972 Mot. Opp.
`
`at 8. Shoubridge is so deficient as a reference that Petitioner did not even argue it
`
`as teaching the substitute claims in it 1970 Opposition. Moreover, Petitioner’s
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`citation to Dr. Karger’s declaration is unavailing because it only provides
`
`conclusory statements that are not supported by any evidence. Dr. Karger attempts
`
`to argue that he did not testify that Shoubridge was limited to the networking layer
`
`by confusingly citing the same part of the transcript where he identifies that
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`Shoubridge applies to the networking layer. See Motion at 20. By failing to show
`
`that Shoubridge applies to the application layer, Petitioner has failed to show that
`
`Shoubridge would render anticipate or obvious the substitute claims.
`F.
`Like the combination of Lin and Gautier, this combination should be
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`Shoubridge in view of Gautier
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`rejected because Petitioner fails to address how or why a POSITA would combine
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`7
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`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
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`Gautier, with its non-m-regular Mbone network using a modified DIS standard,
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`with Shoubridge. Ex. 2104 Goodrich Decl. at ¶¶30-31. Moreover, a POSITA
`
`would not have sought to combine the two because flooding would have created
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`significant latency and would have prevented a useful dissemination of information
`
`through the use of flooding. Ex. 2037, Vu at 624-626, Figs. 3, 4 and 5. Indeed,
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`Gautier emphasizes the need to achieve synchronization and low “interaction
`
`delay,” which would not be achievable with flood routing. Gautier at 2. In
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`addition, Petitioner does not address Gautier’s use of specific protocols like
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`Mbone, a modified DIS, and RTP/UDP, whereas Shoubridge creates its own
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`protocol that is not compatible with any of those standards. As such, Petitioner has
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`failed to show that Shoubridge in view of Gautier invalidates the substitute claims.
`
`G. References in the Petition’s “Overview of the Technical Field”
`Petitioner asserts that Patent Owner “ignores the 10 references in the
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`Petition’s ‘Overview of the Technical Field’ section” of the Petition. Mot. Opp. at
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`4. However, the Board has clarified that the “prior art of record” only extends to
`“material art” in the prosecution history, the current proceeding, or another
`
`proceeding before the Office involving the patent. MasterImage 3D Inc. et al. v.
`
`RealD Inc., IPR2015-00040, Paper 42 at 2 (precedential opinion) (emphasis
`
`added). Aside from Ex. 1016, which is discussed in § IV.A, supra Petitioner does
`
`not argue that any of these allegedly ignored references are “material.” Mot. Opp.
`
`at 4. Indeed, Patent Owner’s review of these references, which variously disclose
`
`aspects of “flooding” (see Ex. 1007, 1011, 1012, and 1018), non-complete, 4-
`
`regular networks (see Ex. 1008), m-regular graphs (Ex. 1013), or graph theory in
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`8
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`
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`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
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`general (see Exs. 1015, 1008) had revealed none of these references are not
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`material to patentability as they are devoid of any disclosure of the dynamic
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`overlay networks in which each participant is a gaming application program that
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`are recited in the proposed substitute claims.
`
`V. THE SUBSTITUTE CLAIMS ARE PATENTABLE OVER THE
`PRIOR ART OF RECORD
`While Petitioner fails to provide any analysis or support for its conclusory
`
`remarks regarding the alleged obviousness of the substitute claims, AB provides an
`
`analysis herein of the limited claim elements identified in Petitioner’s Opposition.
`
`A.
`
`“A dynamic, overlay computer network that overlays an
`underlying network”
`None of the grounds Petitioner relies upon renders this claim limitation of
`
`the substitute claims obvious because none of Petitioner’s references discloses or
`
`teaches an overlay network that operates at the application layer that overlays an
`
`underlying network in which participants can join and leave the overlay network
`
`using a broadcast channel. Motion at 7, 9-10; Ex. 2104 Goodrich Decl at ¶¶35-43.
`In particular, Lin relates solely to the transport layer and specifically, a
`
`flooding protocol at the transport layer which neither teaches nor relates to game
`
`application programs. Motion at 18-20. A POSITA would not have been
`
`motivated nor had any reason to modify Lin to operate at the application layer
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`because Lin’s modified rumor mongering protocol does not scale well and has
`
`poor latency characteristics – concerns that Petitioner fails to address or
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`acknowledge. PO Response at 11-13; Motion at 18-20. Furthermore, neither
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`DirectPlay nor Gautier remedy Lin’s insufficiencies. Specifically, DirectPlay is
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`9
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`
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`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
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`directed to static environments and networks relying on complete graphs. Gautier
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`requires a non-m-regular Mbone network to operate in contrast the ‘344 Patent.
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`Moreover, a POSITA would not have been motivated to combine Lin with either
`
`DirectPlay or Gautier because it would not create a workable system. Ex. 2104
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`Goodrich Decl. at ¶¶28-29, 40, 43; see also PO Response at 50-54.
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`Petitioner’s arguments relying on Shoubridge also fail. Specifically,
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`Shoubridge does not teach or disclose the requisite overlay network and instead is
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`directed to a simulation model that operates entirely at the network layer. Motion
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`at 20-21. Gautier does not resolve these insufficiencies as it requires a non-m-
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`regular Mbone network using a modified DIS standard and there would be no
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`motivation to combine Shoubridge with Gautier. Ex. 2104 Goodrich Decl. at ¶ 43.
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`B.
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`“[G]aming participants can join and leave the network using the
`broadcast channel”
`Petitioner fails to provide any argument or analysis for its blanket conclusion
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`that “Grounds 1-5 each renders obvious this limitation.” Mot. Opp. at 11. Indeed,
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`Petitioner solely relies on claim charts, which are not allowed to contain arguments
`
`when the motion is paged limited. See e.g., IPR2014-00587, Paper 3, Page 2.
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`Nonetheless, none of the references teach or disclose that “gaming participants can
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`join and leave the network using the broadcast channel.” Ex. 2104 Goodrich Decl.
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`at ¶¶44-50. Specifically, Lin does not teach the addition or removal of a node from
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`a Harary graph. Goodrich Decl. I ¶ 80. Notwithstanding the lack of any
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`motivation to combine Lin with DirectPlay or Gautier, neither of these references
`
`render this claim element obvious because DirectPlay requires a complete graph to
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`10
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`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
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`operate in direct contradiction to the dynamic environment and m-regular
`
`incomplete graph required under the substitute claims and Gautier requires a non-
`
`m-regular Mbone network with a modified DIS standard to operate. Similarly,
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`Shoubridge operates solely at the network layer and prioritizes robustness and
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`reliability over latency which is detrimental to gaming participants being able to
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`join and leave the network as the ‘344 Patent requires. As such, Petitioner has
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`failed to show Claim 21 is anticipated or rendered obvious by any of the art.
`C.
`In addition to the above elements, Petitioner fails to show any of the prior art
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`“[E]ach gaming participant being a gaming application program”
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`teaches the proposed Claims 20-22 elements related to the “participant” element
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`identified by Petitioner. See Mot. Opp. at 20-22. Petitioner actually makes no
`
`argument that these claim elements are taught by the alleged references, instead
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`improperly relying on claim charts that do not actually recite the substitute claim
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`language. None of Lin, Direct Play, Gautier, or Shoubridge discusses the use of
`
`gaming application programs as required by substitute claims and in particular,
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`none teach the requisite game participants exchanging data at the application level
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`applicable to the overlay network through the broadcast channel. Ex. 2104
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`Goodrich Decl at ¶¶51-56. As such, Petitioner has failed to show Claims 20-22 is
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`anticipated or rendered obvious by any of the references.
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`D.
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`“[G]aming data includes an action in the game broadcast on the
`broadcast channel”
`In addition to the above elements, Petitioner fails to show any of the prior art
`
`shows proposed Claim 20 element “gaming data includes an action in the game
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`11
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`
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`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01972 (U.S. Patent No. 6,701,344)
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`broadcast on the broadcast channel.” None of Lin, DirectPlay, Gautier, or
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`Shoubridge discusses the transmission of game application data sent on the
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`broadcast channel. Ex. 2104 Goodrich Decl. at ¶¶57-60. Petitioner disregards the
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`‘344 Patent’s identification of gaming data as game actions or messages broadcast
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`on the game’s broadcast channel and instead points to various portions of the prior
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`art relating to, for example, “user traffic” in Shoubridge, without any explanation
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`of their relevance. Mot. Opp. at 22-23. As such, Petitioner has failed to show
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`Claim 20 is anticipated or rendered obvious by any of the references.
`E.
`In addition to
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