Paper 8
`Trials@uspto.gov
`571-272-7822 Entered: March 31, 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 IPR2015-01996
`Patent 6,829,634 B1
`____________
`
`Before SALLY C. MEDLEY, LYNNE E. PETTIGREW, and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`PETTIGREW, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822 Entered: March 31, 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 IPR2015-01996
`Patent 6,829,634 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
`
`
`
`
`
`
`
`
`
`IPR2015-01996
`Patent 6,829,634 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 1–18 of U.S.
`Patent No. 6,829,634 B1 (Ex. 1101, “the ’634 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 1–18 of the ’634 patent.
`
`A. Related Matters
`Petitioner and Patent Owner identify the following pending judicial
`matters as relating to the ’634 patent: Acceleration Bay LLC v. Activision
`Blizzard, Inc., Case No. 1:15-cv-00228-RGA (D. Del., filed Mar. 11, 2015);
`Acceleration Bay LLC v. Electronic Arts Inc., Case No. 1:15-cv-00282-RGA
`(D. Del., filed Mar. 30, 2015); and Acceleration Bay LLC v. Take-Two
`Interactive Software, Inc., Case No. 1:15-cv-00311-RGA (D. Del., filed
`Apr. 13, 2015). Pet. 4; Paper 5, 1.
`Petitioner and Patent Owner also identify five other petitions for inter
`partes review filed by Petitioner challenging the ’634 patent and similar
`patents:
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`2
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`IPR2015-01951
`IPR2015-01953
`IPR2015-01970
`IPR2015-01972
`IPR2015-01964
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`Pet. 4–5; Paper 5, 1.
`
`U.S. Patent No. 6,714,966 B1
`
`U.S. Patent No. 6,701,344 B1
`U.S. Patent No. 6,829,634 B1
`
`B. The ’634 Patent
`The ’634 patent relates to a “broadcast technique in which a broadcast
`channel overlays a point-to-point communications network.” Ex. 1101,
`4:29–30. The broadcast technique overlays the underlying network system
`with a graph of point-to-point connections between host computers or nodes
`through which the broadcast channel is implemented. Id. at 4:49–52.
`Figure 1 of the ’634 patent is reproduced below:
`
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`Figure 1 illustrates a broadcast channel represented by a “4-regular,
`4-connected” graph. Id. at 5:7–8. 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 4:64–65, 5:8–12. A node in a
`4-regular graph can only be disconnected if all four of the connections to its
`neighbors fail. Id. at 4:65–5:1. Moreover, the graph of Figure 1 is
`“4-connected” because it would take the failure of four nodes to divide the
`graph into two separate sub-graphs (i.e., two broadcast channels). Id. at 5:1–
`5.
`
`To broadcast a message over the network, an originating computer
`sends the message to each of its four neighbors using the point-to-point
`connections. Id. at 4:56–58. Each computer that receives the message sends
`the message to its other neighbors, such that the message is propagated to
`each computer in the network. Id. at 4:58–60. Each computer, however,
`only sends to its neighbors the first copy of the message that it receives and
`disregards subsequently received copies. Id. at 7:66–8:2. Each computer
`that originates messages numbers its own messages sequentially so that each
`computer that receives the messages out of order can queue the messages
`until it receives the earlier ordered messages. Id. at 2:52–53, 8:17–21, 30–
`35.
`
`C. Illustrative Claims
`Petitioner challenges claims 1–18 of the ’634 patent. Claims 1 and 10
`are independent and are illustrative of the claimed subject matter:
`1. A non-routing table based computer network having 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
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`data through each of its connections to its neighbor participants,
`wherein each participant sends data that it receives from a
`neighbor participant to its other neighbor participants, wherein
`data is numbered sequentially so that data received out of order
`can be queued and rearranged, further wherein the network is
`m-regular and m-connected, where m is the 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.
`10. A non-routing table based broadcast channel for
`participants, comprising:
`a communications network that provides peer-to-peer
`communications between the participants connected to the
`broadcast channel; and
`for each participant connected to the broadcast channel, an
`indication of four neighbor participants of that participant; and
`a broadcast component that receives data from a neighbor
`participant using the communications network and that sends the
`received data to its other neighbor participants to effect the
`broadcasting of the data to each participant of the . . . broadcast
`channel, wherein the network is m-regular and m-connected,
`where m is the number of neighbor participants of each
`participant, and further wherein the number of participants is at
`least two greater than m thus resulting in a non-complete graph.
`
`Id. at 29:12–25, 29:43–60.
`
`D. Asserted Grounds of Unpatentability
`Petitioner asserts that claims 1–18 are unpatentable based on the
`following grounds (Pet. 6):
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`Reference(s)
`DirectPlay1 and Shoubridge2
`Shoubridge
`Shoubridge3
`
`Basis
`§ 103(a)
`§ 102(b)
`§ 103(a)
`
`Challenged Claims
`1–18
`1–5, 8–11, 15, and 18
`1–18
`
`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 and 10, means “each node is connected to exactly m
`
`
`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. 6. 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.
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`other nodes.” Pet. 13 (citing Ex. 1101, 4:64–65, 15:32–41). Patent Owner
`does not offer a construction of this term. Prelim. Resp. 12. 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, 4:64–65.
`
`2. “non-complete graph”
`Petitioner proposes the term “non-complete graph,” recited in at least
`independent claims 1 and 10, be construed as a “graph in which at least two
`nodes are not connected to each other,” and cites the claims themselves as
`support. Pet. 13 (citing Ex. 1101, 29:23–25, 29:58–60). 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 m neighbor participants, “and further wherein the number of participants
`is at least two greater than m thus resulting in a non-complete graph.”
`Ex. 1101, 29:23–25. Patent Owner does not offer a construction of this
`term. Prelim. Resp. 12. 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
`independent claims 1 and 10, means “dividing the network into two or more
`separate parts would require the removal of at least m nodes.” Pet. 13 (citing
`Ex. 1101, 5:1–5). Patent Owner does not offer a construction of this term.
`Prelim. Resp. 12. The portion of the Specification cited by Petitioner
`describes the 4-connected graph as having the property that it would take the
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`failure of at least 4 nodes to divide the graph into disjoint subgraphs.
`Ex. 1101, 5:1–5. Consequently, we agree for purposes of this Decision that
`Petitioner’s proposed construction accords with the broadest reasonable
`construction consistent with the Specification.
`
`B. Asserted Anticipation by Shoubridge
`
`Petitioner contends claims 1–5, 8–11, 15, and 18 are anticipated by
`Shoubridge. Pet. 17–21, 26–37, 40–51, 54, 56. Relying on the testimony of
`Dr. David R. Karger, Petitioner provides analysis and claim charts showing
`how Shoubridge allegedly discloses all of the limitations of claims 1–5, 8–
`11, 15, and 18. Id. (citing Ex. 1119).4 Patent Owner counters that
`Shoubridge does not disclose the limitations of the challenged claims.
`Prelim. Resp. 23–29, 35–40. We begin our discussion with a brief summary
`of Shoubridge and then address the parties’ contentions.
`
`1. Summary of Shoubridge
`Shoubridge describes techniques for routing messages to all the
`participants in a communications network. Ex. 1105, 1.5 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
`
`4 Patent Owner argues Petitioner improperly incorporates Dr. Karger’s
`declaration by reference and contends we should deny trial on that basis.
`Prelim. Resp. 33–35 (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 34. Accordingly, we decline to deny institution of an
`inter partes review on this basis.
`5 We refer to exhibit pagination, rather than the original document
`pagination.
`
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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
`constrained flooding, packets are identified uniquely with sequence
`numbers, so that a packet received at a node is rebroadcast on all links
`except the link it was received on, and if a “packet[] revisit[s] a node with
`the same sequence number, [it is] discarded instead of being further
`broadcast to [neighbors].” Id. at 3. Shoubridge describes simulations using
`both constrained flooding and minimum hop algorithms that use routing
`tables. Id. at 2–4. Ultimately, 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. Claims 1–5, 8, and 9
`Independent claim 1 is directed to a “non-routing table based
`computer network having a plurality of participants” and recites, among
`other limitations, that “data is numbered sequentially so that data received
`out of order can be queued and rearranged.” Ex. 1101, 29:19–20. Petitioner
`contends that Shoubridge discloses this limitation because it describes
`constrained flooding in which nodes “store sequence numbers of packets
`already flooded,” so that “if any packets revisit a node with the same
`sequence number, they are discarded instead of being further broadcast to
`[neighbors].” Pet. 32 (quoting Ex. 1105, 2–3). Petitioner also relies on the
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`testimony of Dr. Karger, who asserts that a person of ordinary skill in the art
`“would have understood that these sequence numbers used to prevent
`retransmission of packets in a network employing a flooding algorithm
`could also be used to queue and rearrange any data received out of order.”
`Ex. 1119 ¶ 113 (emphasis added); see Pet. 32–33. To show this use of
`sequence numbers was known in the art, Dr. Karger cites another reference
`that expressly discloses the use of sequence numbers to queue and rearrange
`data packets received out of order. Ex. 1119 ¶ 113 (citing Ex. 1112,6 30).
`On this record, we are not persuaded the evidence supports
`Petitioner’s contention that Shoubridge discloses this limitation. Although
`we credit Dr. Karger’s testimony that a person of ordinary skill in the art
`would have understood Shoubridge discloses sequence numbers that could
`be used as recited in the claim, this is insufficient for anticipation. See
`Bettcher Indus., Inc. v. Bunzl USA, Inc., 661 F.3d 629, 639 (Fed. Cir. 2011).
`Accordingly, we determine the information presented does not demonstrate
`a reasonable likelihood that Petitioner would prevail in establishing that
`Shoubridge anticipates claim 1 and claims 2–5, 8, and 9, each of which
`depends directly from claim 1.
`
`3. Claims 10, 11, 15, and 18
`Relying on Shoubridge’s disclosures, Petitioner provides a proposed
`mapping of Shoubridge to independent claim 10 of the ’634 patent. Pet. 42–
`50.7 For example, Petitioner submits that Shoubridge’s description of a
`
`
`6 Dimitri Bertsekas & Robert Gallager, Data Networks (1992).
`7 Petitioner relies on the same claim chart for all of its asserted grounds.
`Petitioner, however, relies solely on Shoubridge’s disclosures for its
`contention that Shoubridge anticipates claims 10, 11, 15, and 18. Pet. 56.
`
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`communications network in which a flooding algorithm is used to broadcast
`information to every participant discloses the recited “non-routing table
`based broadcast channel for participants.” Pet. 42–43 (citing Ex. 1105, 1–3).
`Claim 10 also recites “a communications network that provides peer-to-peer
`communications between the participants connected to the broadcast
`channel.” Ex. 1101, 29:45–47. Petitioner contends this limitation is
`disclosed by Shoubridge’s network topology in which the “total load
`entering (and leaving) the network . . . is evenly distributed across all N
`nodes.” Pet. 45 (quoting Ex. 1105, 3); see Ex. 1119 ¶ 160.
`Claim 10 further recites “for each participant connected to the
`broadcast channel, an indication of four neighbor participants of that
`participant.” Ex. 1101, 29:48–50. For this limitation, Petitioner directs us to
`Shoubridge’s broadcast network having 64 nodes with connectivity of
`degree 4. Pet. 47 (citing Ex. 1105, 3; Ex. 1119 ¶ 164; Ex. 1102, 260–62,
`268, 274 (prosecution history of the ’634 patent cited in support of
`Petitioner’s contention that a figure showing a participant connected to
`neighbor participants discloses an “indication” of neighbor participants)).
`Claim 10 also requires that each participant include “a broadcast
`component that receives data from a neighbor participant using the
`communications network and that sends the received data to its other
`neighbor participants to effect the broadcasting of the data to each
`participant of the . . . broadcast channel.” Ex. 1101, 29:51–55. For this
`limitation, Petitioner relies on Shoubridge’s description of constrained
`flooding in which a packet transmitted from a node is copied and broadcast
`on all outgoing links except the one on which it received the packet. Pet. 49
`(citing Ex. 1105, 2–3).
`
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`Finally, claim 10 recites that “the network is m-regular and
`m-connected, where m is the 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.” Ex. 1101, 29:55–60.
`Here again, Petitioner relies on Shoubridge’s 64 node manhattan grid
`network with connectivity of degree 4. Pet. 49; see id. at 33–35 (citing
`Ex. 1105, 3). Petitioner also relies on 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 ¶¶ 121–22.
`Patent Owner argues that Shoubridge fails to disclose a non-routing
`table based network in which every node sends data to all of its neighbors
`using a non-complete graph, as required by claim 10. Prelim. Resp. 23–29,
`41–42. For example, Patent Owner contends that “Shoubridge proposes a
`hybrid routing strategy, where constrained flooding is appropriate only
`temporarily, in certain emergency situations, at an individual network node.
`At all other nodes, minimum hop routing [based on routing tables] is the
`default procedure.” Id. at 26 (emphasis omitted). Petitioner, however, does
`not rely on Shoubridge’s proposed hybrid routing scheme for disclosing the
`limitations of claim 10. See Pet. 44–50. Rather, Petitioner relies on the
`portion of Shoubridge that describes a simulation in which “constrained
`flooding, the most efficient way to flood a network,” is selected. Ex. 1105,
`2. Shoubridge further states “all nodes [in the 64 node grid] are visited at
`least once.” Id. at 3. The results of the simulation of constrained flooding
`are shown in Figure 1 of Shoubridge. Id. at 3–4. Thus, for purposes of this
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`Decision, Petitioner’s evidence sufficiently supports its contention that
`Shoubridge discloses the non-routing table based broadcast channel of
`claim 10.
`On the present record, we also are persuaded that Shoubridge
`sufficiently discloses the additional limitations of claims 11, 15, and 18,
`which depend directly from claim 10. Claim 11 recites “wherein the
`broadcast component disregards received data that it has already sent to its
`neighbors.” Ex. 1101, 30:1–3. For this limitation, 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. 50 (quoting (Ex. 1105, 3)). For claim 15, which requires
`each participant to be a computer, Petitioner relies on Dr. Karger’s testimony
`that a person of ordinary skill in the art would understand Shoubridge’s
`reference to “computer processing power and memory requirements within
`network nodes” to mean that the disclosed network nodes include
`computers. Pet. 54; Ex. 1119 ¶ 188. As for claim 18, which requires the
`participants to be peers, Petitioner cites the same disclosure from Shoubridge
`discussed above with respect to the “peer-to-peer communications”
`limitation of claim 10. Pet. 56; see id. at 36 (citing Ex. 1105, 3).
`For the foregoing reasons, we determine the information presented
`demonstrates a reasonable likelihood that Petitioner would prevail in
`establishing that Shoubridge anticipates claims 10, 11, 15, and 18 of the
`’634 patent.
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`C. Asserted Obviousness over Shoubridge
`
`Petitioner contends claims 1–18 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. 26–59. Relying on the testimony of
`Dr. Karger, Petitioner explains how Shoubridge 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. (citing Ex. 1119).
`As an initial matter, Patent Owner raises similar arguments as
`discussed above with respect to anticipation by Shoubridge. Specifically,
`Patent Owner argues that a “POSITA having studied Shoubridge would
`never implement a network-wide algorithm such as described and claimed in
`the ’634 patent.” Prelim. Resp. 40–41. 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, 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 turn now to Petitioner’s contentions regarding obviousness of
`claims 1–18 over Shoubridge. Independent claim 1 is directed to a “non-
`routing table based computer network having a plurality of participants,”
`which Petitioner asserts is taught by Shoubridge’s description of a
`communications network in which a flooding algorithm is used to broadcast
`information to network nodes. Pet. 26 (citing Ex. 1105, 1). Most of the
`limitations of claim 1 are similar to limitations of claim 10, and Petitioner
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`contends Shoubridge discloses those limitations for substantially the same
`reasons discussed above with respect to anticipation of claim 10 by
`Shoubridge. See Pet. 26–31, 33–35, 56.
`The remaining limitation of claim 1 recites that “data is numbered
`sequentially so that data received out of order can be queued and
`rearranged.” Ex. 1101, 29:19–20. As discussed above, Petitioner and
`Dr. Karger contend that a person of ordinary skill in the art would have
`understood that the sequence numbers described in Shoubridge could be
`used as recited in claim 1. See Pet. 32; Ex. 1119 ¶ 113. Petitioner further
`argues that using sequence numbers for queueing and rearranging received
`data was well-known in the field and would have been obvious to a person
`of ordinary skill. Pet. 57; Ex. 1119 ¶ 202–03. This argument is supported
`by Dr. Karger’s testimony that sequence numbers had been used at the time
`of the invention for this purpose, including, for example, as part of the
`TCP/IP protocol. Ex. 1119 ¶¶ 49, 202 (citing Ex. 1112, 30). On the present
`record, we are persuaded Petitioner has shown sufficiently Shoubridge
`would have suggested the subject matter recited in claim 1, including this
`limitation, to a person of ordinary skill in the art.
`We also have reviewed Petitioner’s contentions as to claims 2–9, each
`of which depends directly from claim 1, and we are persuaded on this record
`that Petitioner has shown sufficiently that Shoubridge teaches or suggests
`the additional limitations of those claims. For example, Petitioner submits
`that Shoubridge’s 64 node network with connectivity of degree 4 teaches the
`limitations of claim 2 (“each participant is connected to 4 other
`participants”) and claim 3 (“each participant is connected to an even number
`of other participants”). Pet. 35 (citing Ex. 1105, 3). For claims 4 and 5,
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`requiring the participants to be peers and the connections to be peer-to-peer
`connections, respectively, Petitioner asserts these limitations are taught or
`suggested by Shoubridge’s network topology in which the “total load
`entering (and leaving) the network . . . is evenly distributed across all N
`nodes.” Pet. 36, 57 (citing Ex. 1105, 3).
`Claim 6 requires the connections to be TCP/IP connections. 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 at least because
`“TCP/IP communications forms the backbone of such well-known networks
`as the Internet.” Pet. 57; Ex. 1119 ¶¶ 215–16. See KSR 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 7 requires that “each participant is a process executing on a
`computer.” Ex. 1101, 29:36–37. 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 ¶¶ 218–21; see also Ex. 1105, 1 (discussing
`computing processing power and memory within network nodes). As to the
`requirement of claim 8 that a computer host more than one participant, we
`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
`
`16
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`
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`IPR2015-01996
`Patent 6,829,634 B1
`
`computer hosting more than one participant. Pet. 58; Ex. 1119 ¶¶ 224–27.
`Finally, claim 9 requires each participant to send only one copy of the data
`to each of its neighbors, which is similar to the limitation of claim 11
`addressed above with respect to anticipation.
`As discussed above, independent claim 10 is directed to a “non-
`routing table based broadcast channel for participants,” and claims 11–18
`depend directly from claim 10. In addition to its contentions regarding
`anticipation by Shoubridge addressed above, Petitioner presents analysis
`directed to certain limitations of claims 10–18. Pet. 56–59. Having
`reviewed Petitioner’s arguments and evidence, we are persuaded, for
`purposes of this Decision, that Shoubridge in view of the knowledge of a
`person of ordinary skill in the art sufficiently teaches or suggests the
`limitations of these claims.
`With respect to the recitation in claim 10 of “a communications
`network that provides peer-to-peer communications,” Petitioner contends
`that even if Shoubridge does not disclose this limitation expressly or
`inherently, a person of ordinary skill in the art would have found it obvious
`to implement all the nodes disclosed in Shoubridge as peers, thus making the
`connections between them peer-to-peer connections. Id. at 57; Ex. 1119
`¶¶ 207–10, 228. Claim 12 recites that a “participant connects to the
`broadcast channel by contacting a participant already connected to the
`broadcast channel.” Ex. 1101, 30:3–6. Petitioner asserts that in view of
`Shoubridge’s disclosure of conveying topology updates to existing
`participants, a person of ordinary skill in the art would have found it
`advantageous to add new participants by having them contact already
`
`17
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`IPR2015-01996
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`
`connected participants. See Pet. 51–52, 58–59 (citing Ex. 1105, 1; Ex. 1119
`¶¶ 230–32).
`Claim 13 requires each participant to be a “computer process,” and
`claim 14 requires each participant to be a “computer thread.” Id. at 30:7–10.
`For these claims, Petitioner argues that it would have been obvious that the
`network nodes disclosed in Shoubridge comprise computers and the
`disclosed flooding protocol would be a computer process or computer
`thread. Pet. 58 (citing Ex. 1105, 1; Ex. 1119 ¶¶ 218–23).
`Finally, claim 16 requires the communications network to use TCP/IP
`protocol, and claim 17 requires the network to be the Internet. Ex. 1101,
`30:14–18. As addressed above with respect to claim 6, Petitioner contends it
`would have been obvious to implement the communications network
`disclosed in Shoubridge using the Internet (“the best-known example of a
`computer-based communications network”) and TCP/IP protocol (the
`dominant protocol of the Internet). Pet. 57–58; Ex. 1119 ¶¶ 215–16.
`Based on the parties’ arguments and our review of the record at this
`time, we determine the information presented shows a reasonable likelihood
`that Petitioner would prevail in establishing that claims 1–18 would have
`been obvious over Shoubridge in view of the knowledge of a person having
`ordinary skill in the art.
`
`D. Asserted Obviousness over DirectPlay and Shoubridge
`
`Petitioner contends claims 1–18 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over the combination of DirectPlay and Shoubridge.
`Pet. 15–56. In light of the grounds on which we have instituted review of
`the same claims, we exercise our discretion and decline to institute an inter
`
`18
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`IPR2015-01996
`Patent 6,829,634 B1
`
`partes review on this ground. See 35 U.S.C. § 314(a); 37 C.F.R.
`§ 42.108(a).
`
`III. CONCLUSION
`For the foregoing reasons, we determine that the information
`presented establishes a reasonable likelihood that Petitioner would prevail in
`showing that claims 1–18 of the ’634 patent are unpatentable. At this
`preliminary stage, we have not made a final determination with respect to
`the patentability of the challenged claims or any underlying factual and legal
`issues.
`
`IV. ORDER
`
`Accordingly, it is:
`
`ORDERED that pursuant to 35 U.S.C. § 314(a), an inter partes
`
`review is instituted as to claims 1–18 of the ’634 patent on the following
`grounds:
`(a) Claims 10, 11, 15, and 18 as anticipated under 35 U.S.C. § 102(b)
`by Shoubridge; and
`(b) Claims 1–18 as obvious under 35 U.S.C. § 103(a) over
`Shoubridge;
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(c) and
`
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial, which
`commences on the entry date of this Decision; and
`FURTHER ORDERED that the trial is limited to the grounds
`identified immediately above, and no other ground is authorized.
`
`
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`IPR2015-01996
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`
`FOR PETITIONER:
`J. Steven Baughman
`Andrew Thomases
`ROPES & GRAY LLP
`steven.baughman@ropesgray.com
`andrew.thomases@ropesgray.com
`
`
`
`FOR PATENT OWNER:
`James Hannah
`Michael Lee
`Shannon Hedvat
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`jhannah@kramerlevin.com
`mhlee@kramerlevin.com
`shedvat@kramerlevin.com
`
`20
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