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., and
`BUNGIE, INC.,
`Petitioner,
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`
`____________________
`
`Case IPR2015-019721
`U.S. Patent No. 6,701,344
`
`__________________________________________________________
`
`PATENT OWNER’S MOTION FOR OBSERVATIONS
`
`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., and
`BUNGIE, INC.,
`Petitioner,
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`
`____________________
`
`Case IPR2015-019721
`U.S. Patent No. 6,701,344
`
`__________________________________________________________
`
`PATENT OWNER’S MOTION FOR OBSERVATIONS
`
`1 Bungie, Inc., who filed a Petition in IPR2016-00934, has been joined as a
`
`petitioner in this proceeding.
`
`
`
`
`
`Patent Owner’s Motion for Observations
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`
`Patent Owner Finjan, Inc. submits the following observations of the October
`
`27, 2016 cross-examination of David Karger (Ex. 2109) and October 27, 2016
`
`cross-examination of Mr. Gerard Grenier (Ex. 2110):
`
`I.
`
`Dr. Karger’s Cross-Examination
`1. In Exhibit 2109, Pg. 18, line 11–Pg. 19, line 1, the witness testified:
`
`Q.· Okay.· And would a person of skill in the art have known about
`these models in the years 2000?
`
`A.· Yes, I believe so.
`
`Q.· Would a person of skill in the art who was designing software to
`run on the Internet have known about the OSI and TCP/IP models in
`2000?
`
`A.· Yes.
`
`Q.· And would a person of skill in the art who was designing routers
`have known about these models in 2000?
`
`A.· Yes.
`
`Q.· So these models were familiar to a person of skill in the art in the
`year 2000?
`
`A.· Yes.
`
`This testimony is relevant because it contradicts Petitioner’s implication that a
`
`POSITA reading the ‘344 Patent would not have understood the OSI model. See
`
`Pet. Reply, pg. 8 (“Because ’344 never refers to the “OSI” model or “layer,” let
`
`1
`
`
`
`
`alone an “application layer,” PO improperly relies on POSITA’s supposed
`
`Patent Owner’s Motion for Observations
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`understandings to fabricate this limitation.”).
`
`2. In Exhibit 2109, Pg. 48, line 15– Pg. 49, line 12, the witness testified:
`
`"What is a neighbor participant in the context of the '344 patent?")
`
`A.· So "neighbor participants" is a term that's used in some of the
`claims of the '344 patent, and "participant" is a term that has a plain
`and ordinary meaning. With regard to "neighbors," column 4, line --
`where did it go? -- line 27 of the patent states that "in one embodiment
`each computer is connected to four other computers referred to as
`neighbors." So the interpretation is that "neighbors" here is a name for
`the computers to which the -- a particular computer is connected.
`
`Q.· Can you read the next sentence in parentheses after the one you
`just read?
`
`A.· Yes.· "Actually a process executing on a computer is connected to
`four other processes executing on this or four other computers."
`
`This testimony is relevant because it reveals that Petitioner ignored clarifying text
`
`in the specification in arriving at its proposed constructions for the terms
`
`“participant” and “connection”. See Pet. Reply, pg. 2 (“But the specification
`
`doesn’t limit a network “participant” this way (e.g., Ex1101 1:44-49, 1:40-43,
`
`1:54-67; 2:14-20; 2:31-38), referring instead to connections between computers
`
`(e.g., id. 4:24-25, 4:51-57).).”).
`
`
`
`2
`
`
`
`
`3. In Exhibit 2109, Pg. 75, line 15–Pg. 76, line 4, the witness testified:
`
`Patent Owner’s Motion for Observations
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`"So whether or not the '344 patent describes a flooding algorithm per
`your definition, does that necessarily mean that a person reading this
`document would be using it to design a network layer protocol?")
`
`A.· So as I assert in my declaration, flooding is a process of relaying
`packets from node to node in order to broadcast them through the
`network, and the OSI model does characterize this as a network layer
`functionality….
`
`and
`
`In Exhibit 2109, Pg. 65, lines 13–17, the witness testified:
`
`Q.· Does the '344 patent mention packets?
`
`A.· (Witness reviews document.) So I don't recall whether the word
`"packet" appears in the patent, if that's what you're asking.
`
`This testimony is relevant because contradicts Petitioner’s argument that the
`
`invention of the ‘344 Patent is not limited to the application layer. See Pet. Reply,
`
`pgs. 2, 8.
`
`4. In Exhibit 2109, Pg. 80, line 12 - pg. 81, line 10, the witness testified:
`
`Flooding is a particular -- or is a class of protocols that distribute
`information broadly by forwarding it and having each node that
`receives a packet forwarded further to its other neighbors.
`
`3
`
`
`
`Patent Owner’s Motion for Observations
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`
`Q.· Do you understand the '344 patent to describe a technique wherein
`that network layer functionality is abstracted away?
`
`MR. DAVIS:· Objection.· Form.
`
`A.· You're asking if the patent describes the technique of abstracting
`away layers?
`
`Q.· No.· I'm asking whether the '344 patent describes a technique
`wherein that particular network layer functionality is abstracted away?
`
`MR. DAVIS:· Objection.· Form.
`
`A.· (Witness reviews document.) So I would say that the patent is
`making use of an abstraction of functionality when it talks about
`sending messages between neighbors without describing all of the
`details of how that sending of messages between neighbors actually
`takes place.
`
`This testimony is relevant because contradicts Petitioner’s argument that the
`
`invention of the ‘344 Patent is not limited to the application layer. See Pet. Reply,
`
`pgs. 2, 8.
`
`5. In Exhibit 2109, Pg. 97, line 6 - pg. 98, line 6, the witness testified:
`
`"So would it be fair to say that you could have a point-to-point
`connection between processes that are implemented through a point-
`to-point network protocol?")
`
`A.· So as we've discussed before, I think, a connection is a general
`plain and ordinary meaning term, and so it is certainly legitimate to
`talk about a connection between a pair of processes, and one could
`
`4
`
`
`
`Patent Owner’s Motion for Observations
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`
`refer to the implementation of that connection through a point-to-point
`communication protocol.
`
`This testimony is relevant because it contradicts Petitioner’s that the recitation of
`
`TCP/IP connections in dependent claim 8 “belies PO’s repeated attempts to limit
`
`the claimed network to OSI’s application layer.” Pet. Reply at 2.
`
`6. In Exhibit 2109, Pg. 139, line 19- pg. 140, line 14, the witness testified:
`
`Q.· So in the context of the '344 patent, could a game environment be
`a football field?
`
`A.· Yes, that certainly is an environment for playing a game.
`
`Q.· Would a person of ordinary skill in the art reading the '344 patent
`understand a game environment to include a football field?
`
`A.· As I just said, they would understand that the plain and ordinary
`meaning of "game environment" encompasses something like a
`football field.
`
`Q.· Could a… football field be implemented using broadcast
`channels?
`
`A.· Well, megaphones are pretty popular in football games, and
`they're used to broadcast sound.· So you could certainly include a
`broadcast channel in your implication of a football field.
`
`This testimony is relevant because it calls into question Dr. Karger’s credibility
`
`and shows that Petitioner’s proposed construction of the term “game environment”
`
`was not informed by the specification.
`
`5
`
`
`
`
`7. In Exhibit 2109, Pg. 146, line 6–Pg. 147 line 2, the witness testified:
`
`Patent Owner’s Motion for Observations
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`"The proposed construction of claim 1 of 'game environment,' which
`would be in claim 1, is 'a logical broadcast channel in which a game is
`played.' Is that the same limitation that is recited in claim 12?)"
`
`MR. DAVIS:· Objection.· Form.
`
`A.· Well, they're not the same, because they use different words.·
`They -- in fact, claim 12 seems to cover more than just a logical
`broadcast channel on which a game is played, because it could also --
`it -- it's tough.· I have to think.
`
`Claim 12 certainly encompasses a logical broadcast channel on which
`a game is played.· Any instance of a logical broadcast channel on
`which a game is played would be covered by the limitation of claim
`12.
`
`This testimony is relevant because it contradicts Petitioner’s argument the
`
`recitation of the term “broadcast channel” raises “a presumption that the limitation
`
`in question is not found in [cl.1].” Pet. Reply, pg. 2.
`
`8. In Exhibit 2109, Pg. 149, lines 12-19, the witness testified:
`
`Q.· Okay.· Does the construction proposed by patent owner indicate
`how the logical broadcast channel is formed?
`
`A.· The construction of patent owner simply construes a logical
`broadcast channel on which a game is played and does not construe
`anything about how that logical broadcast channel is formed.
`
`6
`
`
`
`
`This testimony is relevant because it contradicts Petitioner’s argument the
`
`Patent Owner’s Motion for Observations
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`recitation of the term “broadcast channel” raises “a presumption that the limitation
`
`in question is not found in [cl.1]” because claim 12 indicates how the broadcast
`
`channel is “form[ed]” for a “game of interest.” Pet. Reply, pg. 2.
`
`9. In Exhibit 2109, Pg. 171, line 2 - pg. 172, line 7, the witness testified:
`
`Q.· Does the term "game environment" have any bearing on what the
`participants of this computer network are?
`
`A.· (Witness reviews document.) So, no, the presence of the term
`
`"game environment"
`"participants."
`
`there doesn't affect my
`
`interpretation of
`
`Q.· What is the effect of the term "game environment" on the meaning
`of claim 1?
`
`A.· Well, it indicates that claim 1 is directed toward providing a game
`environment.
`
`Q.· And does the term "game environment" have any bearing on any
`of the other claim terms?
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`A.· Which claim terms?· Where?
`
`Q.· Any of them.
`
`A.· In the whole patent?
`
`Q.· In the claim 1.
`
`MR. DAVIS:· Same objection.
`
`7
`
`
`
`Patent Owner’s Motion for Observations
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`
`A.· No, I don't think that it does.
`
`This testimony is relevant because it calls into question Dr. Karger’s credibility
`
`and shows that Petitioner’s proposed construction of the term “participant” was not
`
`informed by the specification or the claims.
`
`10. In Exhibit 2109, Pg. 176, line 21–Pg. 177 line 14, the witness testified:
`
`Q.· If a computer network could not provide a football field, which is
`an example of a game environment according to your plain and
`ordinary meaning, does that mean your plain and ordinary meaning is
`too broad in the context of claim 1?
`
`MR. DAVIS:· Objection.· Form.
`
`A.· I don't think so, in the sense that a game environment has a plain
`and ordinary meaning.· Certain game environments might not fulfill
`the limitations of claim 1.
`
`Q.· Is it your opinion that your plain and ordinary meaning of the term
`"game environment" is consistent with the specification of the '344
`patent?
`
`A.· Yes.
`
`Q.· Even though your plain and ordinary meaning encompasses a
`football field?
`
`A.· Yes.
`
`8
`
`
`
`
`This testimony is relevant because it calls into question Dr. Karger’s credibility
`
`Patent Owner’s Motion for Observations
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`and shows that Petitioner’s proposed construction of the term “participant” was not
`
`informed by the specification.
`
`11. In Exhibit 2109, Pg. 183, line 22- pg. 184, line 2, the witness testified:
`
`Q.· Are IP multicast networks examples of point-to-multipoint
`networks?
`
`MR. DAVIS:· I object to form.
`
`A.· I would characterize "IP multicast" as an IP -- as a point-to-
`multipoint protocol.
`
`In Exhibit 2109, Pg. 189, lines 9–15, the witness testified:
`
`Q.· What is IP multicast in the context of Gautier?
`
`A.· (Witness reviews document.) As we were just discussing with
`McCanne, IP multicast is a protocol for distributing information from
`a single sender to an arbitrary number of recipients.
`
`This testimony is relevant because it contradicts Petitioner’s argument that
`
`“MBone is an overlay network built on top of the Internet’s generic point-to-point
`
`communication capability.” Pet. Opp. to Mot. To Amend, pg. 9.
`
`12. In Exhibit 2109, Pg. 191, lines 5-10, the witness testified:
`
`Q.· Okay.· Thank you. Does figure 2 show a complete network or a
`noncomplete network?
`
`9
`
`
`
`Patent Owner’s Motion for Observations
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`
`A.· (Witness reviews document.) It's not really clear that figure 2
`shows a network at all.
`
`This testimony is relevant because it contradicts Petitioner’s argument that
`
`Gautier’s Fig. 2 shows a “game environment [] provided by at least one game
`
`application program executing on each computer of the dynamic, overlay computer
`
`network that interacts with a broadcast channel.” Pet. Opp. to Mot. To Amend, pg.
`
`22.
`
`II. Mr. Grenier’s Cross-Examination
`13.
`In Exhibit 2110, Pg 14, lines 15 – 20, the witness testified:
`
`Q. And again the IEEE Digital Library when was that first made
`
`available?
`
`A: It was first put online in June 2000 – in 2000.
`
`This testimony is relevant to whether the additional references submitted by
`
`Petitioner in its Reply to the Patent Owner Response were publicly available in
`
`1999. Mr. Grenier indicates that IEEE was not online until June 2000.
`
`
`
`Dated: November 10, 2016
`
`Respectfully submitted,
`
`
`
`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`jhannah@kramerlevin.com
`Michael Lee (Reg. No. 63,941)
`mhlee@kramerlevin.com
`
`
`
`10
`
`
`
`
`
`(Case No. IPR2015-01972)
`
`
`Patent Owner’s Motion for Observations
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Tel: 650.752.1700 Fax: 650.752.1800
`
`Shannon Hedvat (Reg. No. 68,417)
`shedvat@kramerlevin.com
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Tel: 212.715.9185 Fax: 212.715.8000
`
`Attorneys for Patent Owner
`
`11
`
`
`
`
`
`Patent Owner’s Motion for Observations
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that a true and
`
`correct copy of the foregoing Patent Owner’s Motion for Observations was served
`
`on November 10, 2016, by filing this document through the Patent Review
`
`Processing System as well as delivering via electronic mail upon the following
`
`counsel of record for Petitioner:
`
`
`
`J. Steven Baughman
`Ropes & Gray LLP
`2099 Pennsylvania Ave., NW
`Washington D.C. 20006-6807
`steven.baughman@ropesgray.com
`Activision_Blizzard_PTAB_Service@ropesgray.com
`
`Andrew Thomases
`Daniel W. Richards
`James L. Davis, Jr.
`ROPES & GRAY LLP
`1900 University Ave., 6th Floor
`East Palo Alto, CA 94303
`andrew.thomases@ropesgray.com
`Daniel.w.richards@ropesgray.com
`james.l.davis@ropesgray.com
`
`Matthew R. Shapiro
`Joseph E. Van Tassel
`ROPES & GRAY LLP
`1211 Avenue of the Americas
`New York, NY 10036
`matthew.shapiro@ropesgray.com
`joseph.vantassel@ropesgray.com
`
`Mike Tomasulo
`WINSTON &STRAWN LLP
`333 S. Grand Avenue, 38th Floor
`
`12
`
`
`
`Patent Owner’s Motion for Observations
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`
`Los Angeles, CA 90071
`mtomasulo@winston.com
`
`Michael M. Murray
`WINSTON &STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`mmurray@winston.com
`
`Andrew R. Sommer
`WINSTON &STRAWN LLP
`1700 K. Street, N.W.
`Washington D.C. 20006-3817
`asommer@winston.com
`
`Counsel for Petitioner Activision Blizzard, Inc.,
`Electronic Arts Inc., Take-Two Interactive Software,
`Inc., 2K Sports, Inc., and Rockstar Games, Inc.
`
`
`
`13
`
`
`
`Patent Owner’s Motion for Observations
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`
`Michael T. Rosato
`Andrew S. Brown
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`mrosato@wsgr.com
`asbrown@wsgr.com
`
`Jose C. Villarreal
`Eric C. Arnell
`WILSON SONSINI GOODRICH & ROSATI
`900 South Capital of Texas Hwy
`Las Cimas IV, Fifth Floor
`Austin, TX 78746-5546
`jvillarreal@wsgr.com
`earnell@wsgr.com
`
`Counsel for Petitioner Bungie, Inc.
`
`
`
`
`
`
`
`
`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road,
`Menlo Park, CA 94025
`(650) 752-1700
`
`
`
`14
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