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 IPR2015-019961
`U.S. Patent No. 6,829,634
`
`__________________________________________________________
`
`PATENT OWNER’S MOTION FOR OBSERVATIONS
`
`1 Bungie, Inc., who filed a Petition in IPR2016-00964, 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 IPR2015-019961
`U.S. Patent No. 6,829,634
`
`__________________________________________________________
`
`PATENT OWNER’S MOTION FOR OBSERVATIONS
`
`1 Bungie, Inc., who filed a Petition in IPR2016-00964, has been joined as a
`
`petitioner in this proceeding.
`
`
`
`
`
`Patent Owner’s Motion for Observations
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`
`Patent Owner Finjan, Inc. submits the following observations of the October
`
`30, 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. 74, line 16-Pg. 75, line 18, the witness
`
`testified:
`
`Q.· Do you see that claim 10 requires a broadcast channel?
`
`A.· Yes, I do.
`
`Q.· What's a broadcast channel?
`
`A.· It's a channel for broadcasting information.
`
`Q.· Can you elaborate what you mean by "channel"?
`
`A.· A channel is the thing which carries information.
`
`Q.· What do you mean by the thing that carries
`
`communication?
`
`A.· Well, again, channel is one of these plain and ordinary
`
`meaning terms.· It means a thing which carries things.· You often
`
`talk about communication channels. A broadcast channel is a
`
`communication channel that is used for broadcasting.
`
`Q.· My question was, what do you mean by the thing that
`
`carries communications?
`
`1
`
`
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`
`
`Patent Owner’s Motion for Observations
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`Q.· Can you elaborate what you mean by "the things"?
`
`A.· No.· That's just sort of an example of the plain and ordinary
`
`meaning of
`
`channel, right?· You're talking about the channel.· So the
`
`channel is a thing.
`
`This testimony is relevant because it shows that Dr. Karger cannot elaborate on his
`
`understanding of the claim terms, namely “broadcast channel.” At most, Dr.
`
`Karger used the non-descriptive term "thing" or "things" and cannot elaborate what
`
`he means by a "thing" or "things."
`
`2.
`
`In Exhibit 2109, Pg. 84, lines 2-12, the witness testified:
`
`Q.· Do you see that broadcast component has the term
`
`"component" in it?
`
`A.· Uh-huh.
`
`Q.· What does component mean?
`
`A.· That's a plain and ordinary meaning. A component is a part
`
`of something.
`
`Q.· Can you elaborate?· What do you mean by a component is a
`
`part of something?
`
`A.· Things are often made up of more than one component.·
`
`Each of those components are a part of the thing.
`
`2
`
`
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`
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`Patent Owner’s Motion for Observations
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`In Exhibit 2109, Pg. 86, line 15- Pg. 87, line 9, the witness testified:
`
`Q.· I'm trying to understand what you mean by something?
`
`A.· Yes.
`
`Q.· I'm asking, does something mean anything?
`
`A.· Again, these -- these are plain and ordinary meaning
`
`English terms.· They mean what we all understand them to
`
`mean.
`
`Q.· So sitting here today, can you elaborate what something
`
`means when you say a component is something that is part of
`
`something?
`
`A.· Just according to its plain and ordinary meaning.
`
`Q.· Can you elaborate beyond stating just according to its plain
`
`and ordinary meaning?
`
`A.· It means what it means.
`
`This testimony is relevant because it shows that Dr. Karger cannot elaborate on his
`
`understanding of the claim terms, namely “broadcast component." At most, Dr.
`
`Karger used the term "something" and cannot elaborate what he means by
`
`3
`
`"something."
`
`
`
`
`
`
`3.
`
`Patent Owner’s Motion for Observations
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`In Exhibit 2109, Pg. 132, line 23-Pg.133, line14, the witness
`testified:
`
`
`Q.· Do you see that claim 10 requires an indication of four
`
`neighbor participants of that participant?
`
`A.· Yes, I do.
`
`Q.· You cannot tell me the plain and ordinary meaning of
`
`"indication," correct?
`
`A.· Well, again, "indication" is another term with a plain and
`
`ordinary meaning.· It is something which indicates.
`
`Q.· So indication means something that indicates.· That's the
`
`definition you
`
`applied; is that correct?
`
`A.· Yes.· An indication is something that indicates.
`
`Q.· Can you elaborate, what do you mean by "something"?
`
`A.· Plain and ordinary meaning.
`
`In Exhibit 2109, Pg. 134, lines 3-9, the witness testified:
`
`
`Q.· Sitting here today, you cannot tell me what the plain and
`
`ordinary meaning of something that you apply, correct?
`
`A.· The plain and ordinary meaning of "something" is
`
`something.· People who know English understand what "something"
`
`means.
`
`4
`
`
`
`
`This testimony is relevant because it shows that Dr. Karger cannot elaborate on his
`
`Patent Owner’s Motion for Observations
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`understanding of the claim terms, namely “indication.” At most, Dr. Karger used
`
`the non-descriptive term "something" and cannot elaborate what he means by
`
`"something.”
`
`4.
`
`In Exhibit 2109, Pg. 135, line 24- Pg. 136, line 13, the witness
`testified:
`
`
`Q.· So other than counsel informing you, you have no
`
`knowledge of whether Shoubridge was presented at the IEEE
`
`international conference, correct?
`
`A.· I am relying on the information from counsel, yes.
`
`Q.· And you're not relying on your own personal experience or
`
`personal knowledge of whether Shoubridge was presented and
`
`published at this IEEE International Conference on Communications,
`
`correct?
`
`A.· I am relying on the information from counsel, that's right.
`
`Q.· And nothing else, correct?
`
`A.· Correct.
`
`This testimony is relevant because it shows that Dr. Karger has no
`
`personal knowledge of whether the Shoubridge reference was actually
`
`presented at an IEEE conference. Rather, Dr. Karger is solely relying
`
`on information from counsel for that opinion.
`
`5
`
`
`
`
`5.
`
`Patent Owner’s Motion for Observations
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`In Exhibit 2109, Pg. 104, lines 9-22, the witness testified:
`
`Q.· So just to be clear, placing sequence numbers on packets
`
`not only requires them to be rearranged but also queued, correct?
`
`A.· That's not what I said.
`
`Q.· Is that your opinion, "yes" or "no"?
`
`A.· Is what my opinion?
`
`Q.· That placing sequence numbers on packets necessarily
`
`requires these packets to be rearranged as well as queued?
`
`A.· Placing sequence numbers on packets allows them to be
`
`rearranged.· One may choose to queue packets.· Placing sequence
`
`numbers on packets by itself does not require anything else.
`
`This testimony is relevant because claim 1 of the '634 Patent requires the limitation
`
`of "wherein data is numbered sequentially so that data received out of order can be
`
`queued and rearranged." Here, Shoubridge does not disclose both queuing and
`
`rearranging data received out of order and Dr. Karger concedes that placing
`
`sequence numbers on packets by itself does not require such functionalities.
`
`6.
`
`In Exhibit 2109, Pg. 65, line 17 - Pg. 66, line 9, the witness
`
`testified:
`
`Q.· You understand what the term "flood search routing"
`
`means, don't you?
`
`6
`
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`
`
`
`Patent Owner’s Motion for Observations
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`A.· Well, I have a general understanding of -- of what it might
`
`mean.
`
`Q.· How is that different, how is flood search routing different
`
`from flooding?
`
`A.· Well, adding the term "search" just suggests that you're
`
`searching for
`
`something.
`
`And in flooding, I'm not searching.· I'm just delivering the
`
`information to where that -- where it needs to go.
`
`However, in the absence of a – of looking at a specific use of
`
`the term "flood
`
`search routing," I want to be cautious about over -- being over
`
`specific as to its meaning.
`
`This testimony is relevant because Shoubridge uses the term "flood search routing"
`
`and Dr. Karger acknowledges that "flood search routing" is different "flooding" in
`
`that "flood search routing" is searching for something rather than delivering
`
`information. See Ex. 1105 at 2 (“Flood search routing has been selected for its
`
`robustness in dynamic networks…”).
`
`7
`
`
`
`
`
`
`7.
`
`Patent Owner’s Motion for Observations
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`In Exhibit 2109, Pg. 70, lines 3-17, the witness testified:
`
`Q.· Would it be fair to say a P2P network is a continuously
`
`evolving system?
`
`A.· (Witness reviews document.) So you asked whether it
`
`would it be fair to say that peer-to-peer networks are a continually
`
`evolving system.· And I don't think that that is accurate.· I don't see
`
`evolution as a -- as an inherent aspect of all peer-to-peer systems. It is
`
`certainly possible to have peer-to-peer systems that are continuously
`
`evolving, but it is equally possible to have peer-to-peer systems that
`
`are not evolving. If we could take a break sometime soon that would
`
`be good.
`
`This testimony is relevant to Dr. Karger's credibility. When asked questions
`
`regarding his own publications, he provides answers regarding P2P network that
`
`contradicts quotes from his own publications. See Ex. 2035 at 1 (“Unfortunately,
`
`the approach described above ignores the fact that a P2P network is a
`
`continuously evolving system.”)(emphasis added).
`
`II. Mr. Grenier’s Cross-Examination
`8.
`In Exhibit 2110, Pg 14, lines 15 – 20, the witness testified:
`
`Q. And again the IEEE Digital Library when was that first made
`
`available?
`
`8
`
`
`
`Patent Owner’s Motion for Observations
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`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
`
`(Case No. IPR2015-01996)
`
`
`Respectfully submitted,
`
`
`
`
`
`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`jhannah@kramerlevin.com
`Michael Lee (Reg. No. 63,941)
`mhlee@kramerlevin.com
`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
`
`9
`
`
`
`
`
`Patent Owner’s Motion for Observations
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`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
`
`10
`
`
`
`Patent Owner’s Motion for Observations
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`
`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.
`
`
`
`11
`
`
`
`Patent Owner’s Motion for Observations
`IPR2015-01996 (U.S. Patent No. 6,829,634)
`
`
`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
`
`
`
`12
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