`
`__________________
`
`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 IPR2015-019961
`Patent 6,829,634
`
`__________________________________________________________
`
`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 IPR2016-00964, has been joined as a
`
`petitioner in this proceeding.
`
`
`
`
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`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
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`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
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`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 Reserved
`
`Exhibit-2041 Reserved
`
`Exhibit-2042 U.S. Patent No. 7,392,422 (“‘422 Patent”)
`
`Exhibit-2043 U.S. Patent No. 7,610,505 (“‘505 Patent”)
`
`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
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`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
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`Description
`
`
`
`
`
`Exhibit-2058 YouTube - Destiny - Party Crasher +1 XP - available at
`https://www.youtube.com/watch?v=dPcrmT0of5g
`
`Exhibit-2059 Reserved
`
`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 Reserved
`
`Exhibit-2062 Reserved
`
`Exhibit-2063 Reserved
`
`Exhibit-2064 Reserved
`
`Exhibit-2065 Claim chart created by Dr. Harry Bims regarding the ‘634 Patent
`and the technology in the Sony Computer Entertainment America
`Inc. ‘s (“Sony”) products
`
`Exhibit-2066
`
`Infringement charts regarding the ‘634 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-2067
`
`Infringement charts regarding the ‘634 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-2068
`
`Infringement charts regarding the ‘634 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-2069 Search results regarding patents that cite to the ‘634 Patent
`
`Exhibit-2070 Reserved
`
`- v -
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`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 Reserved
`
`Exhibit-2084 Reserved
`
`- vi -
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`Description
`
`
`
`
`
`Exhibit-2085 Claim chart created by Dr. Michael Goodrich regarding the ‘634
`Patent and the Boeing Invention Disclosure Form
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`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 Reserved
`
`Exhibit-2095 Reserved
`
`Exhibit-2096 Reserved
`
`Exhibit-2097 Reserved
`
`- vii -
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`Description
`
`
`
`
`
`Exhibit-2098 Declaration of Michael Goodrich, Ph.D. in Support of Patent
`Owner’s Contingent Motion to Amend U.S. Patent No. 6,829,634
`in IPR2015-01996
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`Exhibit-2099 Declaration of Michael Goodrich, Ph.D. in Support of Patent
`Owner’s Contingent Motion to Amend U.S. Patent No. 6,829,634
`in IPR2015-01996
`[CONFIDENTIAL - PROTECTIVE ORDER MATERIAL]
`
`Exhibit-2100 Reserved
`
`Exhibit-2101 Reserved
`
`Exhibit-2102 Reserved
`
`Exhibit-2103 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 IPR2015-01996
`
`Exhibit-2104 Reserved
`
`Exhibit-2105 Reserved
`
`Exhibit-2106 Claim chart created by Dr. Michael Goodrich regarding the
`amended claims of the ‘634 Patent and the Boeing Invention
`Disclosure Form
`
`Exhibit-2107 Reserved
`
`Exhibit-2108 Proposed Substitute Claims for U.S. Patent No. 6,829,634
`
`
`- viii -
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`I.
`
`INTRODUCTION
`Fred Holt and Virgil Bourassa, the inventors of United States Patent No.
`
`6,829,634 (“the ‘634 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 completely different architecture
`
`than what was known in the art. Exs. 2024, 2025.
`
`The novelty of the ‘634 Patent is highlighted in Petitioner’s Opposition,
`
`which fails to provide any art that reads on the claims as originally issued or as
`
`substituted. While Acceleration Bay, LLC, (“AB”) maintains that the ‘634
`
`Patent’s claims are valid as originally issued, there is no doubt that substitute
`
`claims 25, 26, and 27 are valid because they contain numerous limitations that are
`
`not addressed in Petitioner’s Opposition. Accordingly, if the Board determines in
`
`Case Nos. IPR2015-01951 and IPR2015-01953 that claims 10, 15 and/or 18 of the
`
`‘634 Patent are not valid, substitute claims 25, 26 and 27 found in Exhibit 2108
`
`should be entered. See also IPR2015-01964, Paper 31 (Consolidated Motion to
`
`1
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`Amend)2 (the “Motion”); IPR2015-01996, Paper 31.
`II. THE PROPOSED CLAIM CONSTRUCTIONS ARE PROPER
`The terms in AB’s proposed substitute claims 25–27 are supported by and
`
`disclosed in the ‘634 Patent specification. Specifically, as demonstrated in AB’s
`
`Motion, the proposed claim constructions are consistent with the ‘634 Patent
`
`specification and a POSITA’s understanding of the specification. Motion at 4–6.
`
`AB provides extensive support from the ‘634 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 4–6; 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.”
`
`IPR2015-01996 Mot. Opp. (“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 ¶¶ 196; 11
`
`(admitting that overlay can refer to an application layer overlay). Rather,
`
`Petitioner ignores the repeated disclosures in the ‘634 Patent specification that
`
`
`2 AB filed one Consolidated Motion to Amend for the ‘634 Patent and Petitioner
`
`filed two oppositions. The two oppositions are essentially the same with one
`
`having two additional grounds regarding Shoubridge that are addressed herein.
`
`2
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`support operation at the application layer. See e.g., ‘634 Patent at 4:23–30; 16:29–
`
`34; 16:45–52.
`
`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; Ex. 1125 at
`
`¶257; Toyota Motor Corp. v. American Vehicular Science, LLC, Case No. IPR
`
`2013-00422, (Paper No. 25 at 5). 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 5–14.
`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 25–27
`
`serve to clarify the context in which the ‘634 Patent operates” and how a POSITA
`
`would have known and understood the proposed terms. Motion at 7, 15–16. 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 6–7 with e.g. Dr. Karger Decl. (Ex. 1024) at ¶¶6, 15, 17 (discussing
`
`Tanenbaum). The substitute claims are also supported by the ‘634 Patent’s
`
`3
`
`
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`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`Invention Disclosure and thus reduced to practice no later than September 16,
`
`1999, predating Lin. Ex. 2103 Goodrich Decl. at ¶¶33–34 ; Ex. 2106.
`
`Consequently, 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. v. American Vehicular Science, LLC, Case No.
`
`IPR 2013-00422, (Paper No. 25 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 ‘634 Patent. Ex. 2103, 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 nor teach the substitute claims. Mot. Opp. at 4–5. 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
`
`4
`
`
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`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`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 (Goodrich Decl.) at ¶¶ 31, 33–
`
`34; Ex. 2103, Goodrich Decl. at ¶¶24–27. 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 14–15; see also Mot. Opp. at 4–5. The ‘277 Patent,
`
`therefore, does not teach an non-routing table based computer network using a
`
`dynamic m-regular incomplete graph application layer network as required under
`
`the ‘634 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 17–18. 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 footnotes 16 and 17 (citing Dr. Karger’s
`
`declarations Ex. 1124 at ¶245, Ex. 1125 ¶¶288–296, none of which address Lin or
`
`support Petitioner’s statement). Moreover, Lin does not teach a dynamic network
`
`in which participants can join and leave the broadcast channel. Motion at 18;
`
`Goodrich Decl. I ¶ 62. As such, Lin does not render obvious the substitute claims.
`C. DirectPlay in view of Lin - Ground 2
`A POSITA would not combine DirectPlay with Lin. Motion at 19. Lin is an
`
`underlying network that superimposes specific types of Harary graphs along with
`
`5
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`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 “flooding” of Lin because it would
`
`result in more congestion, higher queue delays and higher end-to-end delays. Ex.
`
`2037, Vu at 624–26, 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.
`
`1964 PO Response at 10–12; Goodrich Decl. I ¶ 76, 97, 120. Disregarding these
`
`damaging facts, Petitioner presents conclusory statements that it would have been
`
`obvious to combine Lin with DirectPlay without any analysis. See Mot. Opp. at 18
`
`(citing Dr. Karger’s conclusory statement Ex. 1124 ¶221). As such, 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 obvious. However, there is no support that POSITA would
`
`combine such disparate technologies. Ex. 2103 Goodrich Decl. at ¶¶28–29.
`
`Petitioner also failed to explain why a POSITA would modify Lin in view of
`
`Gautier given the differences between the two 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
`
`6
`
`
`
`Patent Owner’s Reply in Support of Motion to Amend
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`Gautier at Fig. 5 (showing non-m-regular network); Ex. 2103 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 17–18; Gautier 1–4. Petitioner has failed to
`
`show that a POSITA would be able to modify the protocol standards of Gautier to
`
`achieve an operable system, especially since Gautier requires a non-m-regular
`
`Mbone network to operate. Ex. 2103 Goodrich Decl. ¶¶28-29. There would be no
`
`motivation to combine the non-m-regular Mbone network of Gautier with the
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`“flooding” of Lin that results in more congestion, higher queue delays and higher
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`end-to-end delays. Ex. 2037, Vu at 624–26, Figs. 3, 4 and 5. Indeed, Gautier
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`emphasizes the need to achieve synchronization and low “interaction delay.”
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`Gautier at 2. As such, Petitioner has failed to show that Lin in view of Gautier
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`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 19–20; Mot. Opp. at 10.
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`Shoubridge is so deficient as a reference that Petitioner did not even argue it as
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`teaching the substitute claims in its 1964 Opposition. Moreover, Petitioner’s
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`citation to Dr. Karger’s declaration is unavailing because it only provides
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`conclusory statements that are not supported by any evidence. Indeed, Dr. Karger
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`testified that Shoubridge was limited to the networking layer. See also Motion at
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`19–20. By failing to show that Shoubridge applies to the application layer,
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`Petitioner has failed to show that Shoubridge would render anticipate or obvious
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`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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`Gautier, with its non-m-regular Mbone network using a modified DIS standard,
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`with Shoubridge. Ex. 2103 Goodrich Decl at ¶¶ 30–31. Moreover, a POSITA
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`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
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`through the use of flooding. Ex. 2037, Vu at 624–26, Figs. 3, 4 and 5. Indeed,
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`Gautier emphasizes the need to achieve synchronization and low “interaction
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`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, DIS, and RTP/UDP, whereas Shoubridge creates its own protocol that is
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`not compatible with any of those standards. As such, Petitioner has failed to show
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`that Shoubridge in view of Gautier would render obvious the substitute claims.
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`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 (citing Petition at 10–12). However, the Board has clarified that the “prior art of
`record” only extends to “material art” in the prosecution history, the current
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`proceeding, or another proceeding before the Office involving the patent.
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`MasterImage 3D Inc. et al. v. RealD Inc., IPR2015-00040, Paper 42 at 2
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`(precedential opinion) (emphasis added). Aside from Ex. 1016, which is discussed
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`IPR2015-01996 (U.S. Patent No. 6,829,634)
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`in § IV.A, supra Petitioner does not argue that any of these allegedly ignored
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`references are “material.” Mot. Opp. at 4. Indeed, Patent Owner’s review of these
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`references, which variously disclose aspects of “flooding” (see Ex. 1007, 1011,
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`1012, and 1018), non-complete, 4-regular networks (see Ex. 1008), m-regular
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`graphs (Ex. 1013), or graph theory in general (see Exs. 1015, 1008) had revealed
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`none of these references are material to patentability as they are devoid of any
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`disclosure of the dynamic overlay networks in which each participant is an
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`application program that 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
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`remarks regarding the alleged obviousness of the substitute claims, AB provides an
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`analysis herein of the limited claim elements identified in Petitioner’s Opposition.
`A.
`None of the grounds Petitioner relies upon renders this claim limitations of
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`“A dynamic, overlay” and “overlays an underlying network”
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`the substitute claims obvious because none of Petitioner’s references discloses or
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`teaches a dynamic overlay computer network at the application layer. Motion at 6,
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`14-16; Ex. 2103 Goodrich Decl. at ¶¶35–43.
`In particular, Lin relates solely to the transport layer and specifically, a
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`flooding protocol at the transport layer which neither teaches nor relates to
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`application programs. Motion at 17–18. A POSITA would not have been
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`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
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`IPR2015-01996 (U.S. Patent No. 6,829,634)
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`poor latency characteristics—concerns that Petitioner fails to address or
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`acknowledge. Mot. Opp. at 10, 13–19 (citing nothing discloses an m-regular
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`overlay network at the application layer). Petitioner makes the conclusory
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`statement that it would have been obvious to do so without citing any evidence and
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`ignoring that a POSITA would not have been motivated to modify Lin to apply at
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`the application layer. Mot. Opp. at 17 (citing Dr. Karger’s conclusory statement at
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`Ex. 1124 at ¶ 220); Motion at 18 (citing Lin at 24–25, Goodrich Decl. I ¶¶ 76, 97,
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`120).
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`Furthermore, neither DirectPlay nor Gautier remedy Lin’s insufficiencies.
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`Specifically, DirectPlay is directed to static environments and networks relying on
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`complete graphs. Gautier is not m-regular and requires the Mbone network to
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`operate in direct contrast to Lin and the ‘634 Patent. Gautier at 6. Moreover, a
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`POSITA would not have been motivated to combine Lin with either DirectPlay or
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`Gautier. Ex. 2103 Goodrich Decl. at ¶¶28–29, 40,43.
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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 19-20. Gautier does not resolve these insufficiencies as is not m-regular and
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`requires the Mbone network and, as discussed supra, there would be no motivation
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`to combine Shoubridge with Gautier.
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`B.
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`“[P]articipants 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” for Claims 25 and 27.
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`Mot. Opp. at 20–21. Ex. 2103 Goodrich Decl at ¶¶44-50. Indeed, Petitioner solely
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`relies on claim charts, which are not sufficient or allowed to contain arguments
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`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 “participants can join and
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`leave the network using the broadcast channel.” Specifically, Lin does not teach
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`the addition or removal of a node from a Harary graph. Goodrich Decl. I ¶¶ 76, 97,
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`120. Notwithstanding the lack of any motivation to combine Lin with DirectPlay
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`or Gautier, neither of these references render this claim element obvious because
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`DirectPlay requires a complete graph to operate in direct contradiction to the
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`dynamic environment and m-regular incomplete graph required under the
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`substitute claims and Gautier requires a non-m-regular Mbone network with a
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`modified DIS standard to operate. Similarly, Shoubridge operates solely at the
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`network layer and prioritizes robustness and reliability over latency which is
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`detrimental to participants being able to join and leave the network as the ‘’634
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`Patent requires. As such, Petitioner has failed to show Claims 25 or 27 is
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`anticipated or rendered obvious by any of the references.
`C.
`In addition to the above elements, Petitioner fails to show any of the prior art
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`“[E]ach participant being an application program”
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`teaches the proposed Claims 25–27 elements regarding “each participant being an
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`application program.” See Mot. Opp. at 21–25. Petitioner actually makes no
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`argument that these claim elements are taught by the alleged references, instead
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`improperly relying on claim charts. Neither Lin nor Shoubridge discusses
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`IPR2015-01996 (U.S. Patent No. 6,829,634)
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`participants being an application program as required by Claims 25–27, nor is it
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`obvious that a POSITA that they teach participants being application programs.
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`Ex. 2103 Goodrich Decl at ¶¶ 51–56. Nor has Petitioner explained how a POSITA
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`would be able to combine DirectPlay or Gautier with Lin or Shoubridge given the
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`differences in the networking standards. See Ex. 2103 Goodrich Decl at ¶¶ 28–31,
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`54, 56. As such, Petitioner has failed to show Claims 25–27 is anticipated or
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`rendered obvious by any of the references.
`D. Claim 25 is not Indefinite
`It is clear that from the plain language of the claim and easily ascertainable
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`by those skilled in the art that “the network” refers to the “non-routing table based
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`computer network” and is therefore not indefinite. Ex parte Porter, 25 USPQ2d
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`1144, 1145 (Bd. Pat. App. & Inter. 1992); Ex. 2103 Goodrich Decl at ¶¶57–58