Paper No. __
`Filed: April 22, 2016
`
`Filed on behalf of: Bungie, Inc.
`By: Michael T. Rosato (mrosato@wsgr.com)
`
`Andrew S. Brown (asbrown@wsgr.com)
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________________________
`
`
`
`BUNGIE, INC.,
`Petitioner,
`
`v.
`
`ACCELERATION BAY INC.,
`Patent Owner.
`
`_____________________________
`
`Case No. IPR2016-00933
`Patent No. 6,701,344
`
`_____________________________
`
`
`
`PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT NO. 6,701,344
`
`

`
`Case IPR2016-00933
`U.S. Patent No. 6,701,344
`
`TABLE OF CONTENTS
`
`Page
`
`I.
`
`INTRODUCTION ........................................................................................ 1
`
`II. MANDATORY NOTICES UNDER § 42.8 .................................................. 3
`
`III.
`
`PETITIONER HAS STANDING ................................................................. 6
`
`A. Grounds for Standing Under § 42.104(a) ............................................ 6
`
`B.
`
`Claims and Statutory Grounds Under §§ 42.22 and 42.104(b) ............ 6
`
`IV. SUMMARY OF THE ’344 PATENT AND ITS TECHNICAL FIELD ........ 7
`
`A. Overview of the ’344 Patent ............................................................... 7
`
`B.
`
`C.
`
`Overview of the Prosecution History .................................................. 9
`
`Overview of the Technical Field ....................................................... 10
`
`V.
`
`THERE IS A REASONABLE LIKELIHOOD THAT PETITIONER
`WILL PREVAIL WITH RESPECT TO AT LEAST ONE CLAIM ............ 12
`
`A.
`
`Claim Construction Under § 42.104(b)(3) ......................................... 12
`
`B.
`
`C.
`
`Level of Ordinary Skill in the Art and State of the Art ...................... 14
`
`Grounds for Unpatentability ............................................................. 14
`
`1.
`
`2.
`
`Ground 1: Claims 1-12 and 16-19 Are Obvious in View
`of the Teachings of DirectPlay and Lin ................................... 15
`
`Ground 2: Claims 1-11 and 16-19 Are Obvious in View
`of Lin and the Knowledge of a POSITA ................................. 46
`
`VI. CONCLUSION .......................................................................................... 48
`
`
`
`-i-
`
`
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`

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`Case IPR2016-00933
`U.S. Patent No. 6,701,344
`
`List of Exhibits
`
`
`Exhibit
`Ex. 1001
`
`Ex. 1002
`
`Ex. 1003
`
`Ex. 1004
`
`Ex. 1005
`
`Ex. 1006
`Ex. 1007
`
`Ex. 1008
`
`Ex. 1009
`
`
`
`Description
`U.S. Patent No. 6,701,344 to Fred B. Holt et al. (“’344 patent”).
`Retrieved from Activision Blizzard Inc. v. Acceleration Bay LLC,
`IPR2015-01970, Ex. 1001 (Sept. 25, 2015).
`Declaration of David K. Lin and the Certified File Wrapper
`for U.S. Patent No. 6,701,344. Retrieved from Activision
`Blizzard Inc. v. Acceleration Bay LLC, IPR2015-01970, Ex.
`1002 (Sept. 25, 2015).
`Bradley Bargen & Peter Donnelly, INSIDE DIRECTX, (Microsoft
`Press, 1998) (“DirectPlay”). Retrieved from Activision Blizzard
`Inc. v. Acceleration Bay LLC, IPR2015-01970, Ex. 1003 (Sept.
`25, 2015).
`Declaration of Glenn Little and, as Exhibit B, Meng-Jang Lin, et
`al., Gossip versus Deterministic Flooding: Low Message
`Overhead and High Reliability for Broadcasting on Small
`Networks, Technical Report No. CS1999-0637 (Univ. of Cal. San
`Diego, 1999) (“Lin”). Retrieved from Activision Blizzard Inc. v.
`Acceleration Bay LLC, IPR2015-01970, Ex. 1004 (Sept. 25,
`2015).
`Peter J. Shoubridge & Arek Dadej, Hybrid Routing in
`Dynamic Networks, in 3 IEEE INT’L CONF. ON COMMC’NS
`CONF. REC. 1381-86 (Montreal, 1997) (“Shoubridge”).
`Retrieved from Activision Blizzard Inc. v. Acceleration Bay
`LLC, IPR2015-01970, Ex. 1005 (Sept. 25, 2015).
`Reserved
`John M. McQuillan, et al., The New Routing Algorithm for the
`ARPANET, COM-28, No. 5 IEEE TRANSACTIONS ON
`COMMC’NS, 711-19 (1980) (“McQuillan”). Retrieved from
`Activision Blizzard Inc. v. Acceleration Bay LLC, IPR2015-
`01970, Ex. 1007 (Sept. 25, 2015).
`Yogen Kantilal Dalal, Broadcast Protocols in Packet Switched
`Computer Networks (Ph.D. Thesis, Stanford University 1977)
`and supporting (“Dalal”). Retrieved from Activision Blizzard
`Inc. v. Acceleration Bay LLC, IPR2015-01970, Ex. 1008 (Sept.
`25, 2015).
`S. Alagar, et al., Reliable Broadcast in Mobile Wireless
`Networks, Military Communications Conference, 1 IEEE
`
`ii
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`Case IPR2016-00933
`U.S. Patent No. 6,701,344
`
`Ex. 1010
`
`Ex. 1011
`
`Ex. 1012
`
`Ex. 1013
`
`Ex. 1014
`
`Ex. 1015
`
`Ex. 1016
`
`MILCOM ’95 CONF. REC., 236-40 (San Diego, Cal., 1995)
`(“Alagar”). Retrieved from Activision Blizzard Inc. v.
`Acceleration Bay LLC, IPR2015-01970, Ex. 1009 (Sept. 25,
`2015).
`Certificate of Authenticity (Activision Blizzard Inc. v.
`Acceleration Bay LLC, IPR2015-01970, Ex. 1010 at p. 1-2 (Sept.
`25, 2015)) and a Press Release, Microsoft Boosts Accessibility to
`Internet Gaming Zone with Latest Release (Apr. 27, 1998) (PR
`Newswire) (“IGZ”). Retrieved from Activision Blizzard Inc. v.
`Acceleration Bay LLC, IPR2015-01970, Ex. 1010 (Sept. 25,
`2015).
`Donald M. Topkis, Concurrent Broadcast for Information
`Dissemination, SE-11, No. 10 IEEE TRANSACTIONS ON
`SOFTWARE ENGINEERING, 1107-11 (1985) (“Topkis”). Retrieved
`from Activision Blizzard Inc. v. Acceleration Bay LLC, IPR2015-
`01970, Ex. 1011 (Sept. 25, 2015).
`Dimitri Bertsekas & Robert Gallager, DATA NETWORKS (Prentice
`Hall, 2d ed. 1992) (“Bertsekas”). Retrieved from Activision
`Blizzard Inc. v. Acceleration Bay LLC, IPR2015-01970, Ex. 1012
`(Sept. 25, 2015).
`Kuo-Jui Raymond Lin, Routing and Broadcasting in Two-
`dimensional Linear Congruential Graphs of Degree Four,
`Master’s Thesis (Concordia Univ. Montreal, Canada, 1994)
`(“Kuo-Jui Lin”). Retrieved from Activision Blizzard Inc. v.
`Acceleration Bay LLC, IPR2015-01970, Ex. 1013 (Sept. 25,
`2015).
`William S. Davis and David C. Yen, THE INFORMATION SYSTEM
`CONSULTANT’S HANDBOOK: SYSTEMS ANALYSIS AND DESIGN
`(CRC Press, 1998) (“Davis”). Retrieved from Activision
`Blizzard Inc. v. Acceleration Bay LLC, IPR2015-01970, Ex.
`1014 (Sept. 25, 2015).
`V. G. Cerf, et al., Topological Design Considerations in
`Computer Commc’n Networks, COMPUTER COMMC’N
`NETWORKS (R. L. Grims-dale et al. eds., 1975) (“Cerf”).
`Retrieved from Activision Blizzard Inc. v. Acceleration Bay
`LLC, IPR2015-01970, Ex. 1015 (Sept. 25, 2015).
`U.S. Patent No. 6,122,277 to Derrick Garmire et al. (“Garmire”).
`Retrieved from Activision Blizzard Inc. v. Acceleration Bay LLC,
`IPR2015-01970, Ex. 1016 (Sept. 25, 2015).
`
`iii
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`U.S. Patent No. 6,701,344
`
`U.S. Patent No. 5,181,017 to Alexander H. Frey, Jr. et al. (“Frey”).
`Retrieved from Activision Blizzard Inc. v. Acceleration Bay LLC,
`IPR2015-01970, Ex. 1017 (Sept. 25, 2015).
`Flaviu Cristian et al., Atomic Broadcast: From Simple Message
`Diffusion to Byzantine Agreement, 118 INFORMATION AND
`COMPUTATION 158-79 (Albert R. Meyer ed., 1995) (“Cristian”).
`Retrieved from Activision Blizzard Inc. v. Acceleration Bay
`LLC, IPR2015-01970, Ex. 1018 (Sept. 25, 2015).
`Expert Declaration of David R. Karger. Retrieved from Activision
`Blizzard Inc. v. Acceleration Bay LLC, IPR2015-01970, Ex. 1019
`(Sept. 25, 2015).
`Reserved
`SUPPORTING MICROSOFT WINDOWS 95, Vol. 1 (Microsoft Press
`1995) (“Supporting Windows 95”). Retrieved from Activision
`Blizzard Inc. v. Acceleration Bay LLC, IPR2015-01970, Ex.
`1021 (Sept. 25, 2015).
`Declaration of Matthew R. Shapiro. Retrieved from Activision
`Blizzard Inc. v. Acceleration Bay LLC, IPR2015-01970, Ex. 1022
`(Sept. 25, 2015).
`Declaration of Julian D. Moore. Retrieved from Activision
`Blizzard Inc. v. Acceleration Bay LLC, IPR2015-01970, Ex. 1023
`(Sept. 25, 2015).
`
`Ex. 1017
`
`Ex. 1018
`
`Ex. 1019
`
`Ex. 1020
`Ex. 1021
`
`Ex. 1022
`
`Ex. 1023
`
`
`
`iv
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`Case IPR2016-00933
`U.S. Patent No. 6,701,344
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`Bungie, Inc., (“Petitioner”) requests inter partes review of claims 1-12 and
`
`16-19 of U.S. Patent No. 6,701,344 to Holt et al. (“the ’344 patent”), and that these
`
`claims be canceled as unpatentable over the prior art. According to PTO records,
`
`the ’344 patent is assigned to Acceleration Bay, LLC (“Patent Owner”). A copy of
`
`the ’344 patent is provided as Exhibit 1001. Inter partes review of the ’344 patent,
`
`was instituted in IPR2015-01970 and IPR2015-01972 on March 24, 2016 based on
`
`petitions filed by Activision Blizzard, Inc. Electronic Arts Inc., Take-Two
`
`Interactive Software, Inc., 2K Sports, Inc., and Rockstar Games, Inc., (“2015
`
`Petitioners”). A motion for joinder with IPR2015-01970 is being filed concurrently
`
`with this Petition.
`
`I.
`
`INTRODUCTION
`
`The ’344 patent is directed to a computer network for providing a game
`
`environment in which information is broadcast from one participant to every other
`
`participant. See, e.g., Ex. 1001 at Abstract, Title. In particular, the ’344 patent
`
`claims the use of flooding to broadcast information in computer networks
`
`configured as non-complete, m-regular graphs. Id. at 1:27-29, 4:23-47; cl. 1. This
`
`purported invention, however, was disclosed in printed publications that predate its
`
`filing date of July 31, 2000.
`
`“Flooding” refers to a simple, reliable technique for broadcasting
`
`information, in which the sender of a message transmits it to each of its neighbors,
`
`
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`1
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`who in turn forward the message to each of their neighbors, who themselves
`
`forward it to each of their neighbors, and so on, until every participant has received
`
`the message. Karger ¶¶ 29, 48 (“Karger” will be used in this Petition to refer to
`
`Ex. 1019, the expert declaration of David R. Karger). This technique was well-
`
`known to persons of ordinary skill in the art (“POSITA”) for decades prior to the
`
`filing date of the ’344 patent. Karger ¶¶ 48-49; Ex. 1011 at 2; Ex. 1012 at 24-25;
`
`Ex. 1018 at 12.
`
`Similarly, long before July 2000, a POSITA would have understood that the
`
`topology of a network—the configuration of connections between its
`
`participants—could have a significant impact on the network’s characteristics,
`
`such as its performance, scalability, and reliability. Karger ¶ 52; Ex. 1015 at 6-7;
`
`Ex. 1014 at 6-12. As a result, many types of network topologies—including those
`
`based on non-complete, m-regular graphs—were well-known in the art. Karger ¶¶
`
`52-53; Ex. 1013 at 20. (An m-regular graph is one in which each node has exactly
`
`m connections to other nodes, i.e., its neighbors; a non-complete graph is one in
`
`which at least two nodes are not connected to each other. Karger ¶¶ 42-44.)
`
`Moreover, the use of flooding over this particular type of topology was also well
`
`known. Karger ¶ 53; Ex. 1004 at 9, 17 (flooding over 4-regular “Harary” graphs);
`
`Ex. 1008 at 8889, 157, 161 (“hot potato forwarding” for controlled flooding over a
`
`4-regular graph); Ex. 1005 at 2-4 (constrained flooding over a 4-regular graph);
`
`2
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`Case IPR2016-00933
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`Ex. 1016 at 1:59-66, 5:29-43, 6:62-66 (flooding over an m-regular “torus”
`
`network, an example of which is shown below in Section IV.C).
`
`The dependent claims of the ’344 patent add commonplace features that
`
`would also have been well-understood implementation choices to any POSITA.
`
`Indeed, the combined teachings of (1) a 1998 book by Bradley Bargen and Peter
`
`Donnelly, Inside DirectX (“DirectPlay”) (Ex. 1003), and (2) a 1999 paper
`
`published by Meng-Jang Lin et al., “Gossip versus Deterministic Flooding: Low
`
`Message Overhead and High Reliability for Broadcasting on Small Networks”
`
`(“Lin”) (Ex. 1004), render obvious claims 1-12 and 16-19. Neither of these two
`
`references was considered by the USPTO during prosecution, although a service
`
`related to DirectPlay was mentioned in a news article the Examiner considered (see
`
`Section IV.B.).
`
`These references render all of the claims unpatentable, and Petitioner
`
`respectfully requests that the Board find claims 1-12 and 16-19 obvious under
`
`§ 103 in view of the teachings of DirectPlay and Lin as Ground 1. Petitioner
`
`further respectfully requests that the Board find claims 1-11 and 16-19 obvious
`
`under § 103 by Lin in view of the knowledge of a POSITA as Ground 2.
`
`II. MANDATORY NOTICES UNDER § 42.8
`
`The Real Parties in Interest Under § 42.8(b)(1): Bungie, Inc. is the real
`
`party-in-interest.
`
`3
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`Case IPR2016-00933
`U.S. Patent No. 6,701,344
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`Related Matters Under Rule § 42.8(b)(2): Claims 1-12 and 16-19 of the ’344
`
`patent are currently subject to inter partes review in IPR2015-01970 and IPR2015-
`
`01972, both instituted on March 24, 2016, based on petitions filed by the 2015
`
`Petitioners. Review was similarly instituted against claims 1-12 and 16-17 of U.S.
`
`Patent Nos. 6,714,966 (IPR2015-01951 and IPR2015-01953, instituted March 24,
`
`2016) and claims 1-18 of U.S. Patent No. 6,829,634 (IPR2015-01964 and
`
`IPR2015-01996, instituted March 31, 2016) based on petitions filed by the 2015
`
`Petitioners. The 2015 Petitioners have also filed petitions challenging claims 19-24
`
`of U.S. Patent No. 6,829,634 (IPR2016-00727), claims 1-16 of U.S. Patent No.
`
`6,732,147 (IPR2016-00747), claims 1-17 of U.S. Patent No. 6,910,069 (IPR2016-
`
`00726), claims 1, 3-5, 7-9, and 16 of U.S. Patent No. 6,920,497 (IPR2016-00724),
`
`claim 12 of the ’344 patent (IPR2016-00931), and claim 12 of the ’966 patent
`
`(IPR2016-00932), which are all pending pre-institution.
`
`Patent Owner has asserted the ’344 patent against at least some of the 2015
`
`Petitioners in 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. et al, Case No. 1:15-
`
`cv-00311-RGA (D. Del., filed Apr. 13, 2015) (collectively, “the underlying
`
`litigations”). Bungie is not a party to the underlying litigations. Bungie received a
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`subpoena in connection with the underlying litigations, in response to which it has
`
`filed a motion to quash and for entry of a protective order, which is currently
`
`pending in the Western District of Washington as Case No. 2:15-MC-27.
`
`A motion for joinder with IPR2015-01970 is being filed concurrently with
`
`this petition. Additionally, Petitioner is filing concurrently herewith petitions for
`
`inter partes review of the ’966 patent (IPR2016-00935, IPR2016-00936) and
`
`another petition for inter partes review of the ’344 patent (IPR2016-00934). The
`
`’966 patent has the same substantive specification (with the exception of one
`
`section, see, e.g. Ex. 1101 at 16:29-17:11), filing date, and assignee as the ’344
`
`patent, and is also asserted in the aforementioned litigations. Claims 1-12 and 16-
`
`17 of the ’344 patent are identical to claims 1-12 and 16-17 of the ’966 patent,
`
`except that the ’344 patent claims are directed to game environments and systems,
`
`and the ’966 patent claims are directed to information delivery services.
`
`Lead and Back-Up Counsel (37 C.F.R. § 42.8(b)(3))
`
`Lead Counsel: Michael T. Rosato (Reg. No. 52,182)
`
`Back-Up Counsel: Andrew S. Brown (Reg. No. 74,177)
`
`Service Information – 37 C.F.R. § 42.8(b)(4). Petitioner hereby consents to
`
`electronic service. Email: mrosato@wsgr.com; asbrown@wsgr.com;
`
`Post: WILSON SONSINI GOODRICH & ROSATI, 701 Fifth Avenue, Suite 5100,
`
`
`
`Seattle, WA 98104-7036; Tel.: 206-883-2529; Fax: 206-883-2699
`
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`Case IPR2016-00933
`U.S. Patent No. 6,701,344
`III. PETITIONER HAS STANDING
`
`A. Grounds for Standing Under § 42.104(a)
`
`The undersigned and Petitioner certify that the ’344 patent is available for
`
`inter partes review and Petitioner is not barred or estopped from requesting an
`
`inter partes review of claims 1-12 and 16-19 of the ’344 patent. Petitioner has not
`
`filed a civil action challenging the validity of any claim of the ’344 patent. A
`
`complaint alleging infringement of the ’344 patent was not served on Petitioner
`
`more than a year before the date of this Petition and a motion for joinder has been
`
`filed to join IPR2015-01970 no later than 1 month after institution in accordance
`
`with 37 C.F.R. § 42.122(b) and 35 U.S.C. § 315(c). The ’344 patent issued more
`
`than nine months prior to the date of this Petition.
`
`B. Claims and Statutory Grounds Under §§ 42.22 and 42.104(b)
`
`Petitioner requests inter partes review of claims 1-12 and 16-19 of the ’344
`
`patent under 35 U.S.C. § 311 and AIA § 6 and asserts that these claims are
`
`unpatentable as follows:
`
`Ground
`
`Claims
`
`Obvious under 35 U.S.C. § 103 over
`
`1
`
`2
`
`1-12, 16-19
`
`DirectPlay and Lin
`
`1-11, 16-19
`
`Lin
`
`6
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`U.S. Patent No. 6,701,344
`IV. SUMMARY OF THE ’344 PATENT AND ITS TECHNICAL FIELD
`
`A. Overview of the ’344 Patent
`
`The ’344 patent describes a computer network for providing a game
`
`environment in which information is broadcast from one participant to every other
`
`participant. See, e.g., Ex. 1001 at Abstract, Title; Karger ¶ 26. Claims 1-12 and 16-
`
`19 each require that each participant be connected to the same (m) number of
`
`neighbors, so that the network is m-regular, where m is at least three. Ex. 1001, cls.
`
`1, 16, 18; Karger ¶ 27. Claim 1 is representative:
`
`1. A computer network for providing a game environment for 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 data through each
`
`of its connections to its neighbor participants and wherein each
`
`participant sends data that it receives from a neighbor participant to its
`
`other neighbor participants, further wherein the network is m-regular,
`
`where m is the exact 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. 1001 at 29:26-37.1 Karger ¶¶ 30, 65.
`
`
`1 All emphasis in quotations is added unless otherwise noted.
`
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`By mandating that the number of participants
`
`be at least two greater than m, the challenged claims
`
`also require that the network form a non-complete
`
`graph, where each node on the graph represents a
`
`participant, and two nodes connected by a line (edge)
`
`on the graph are neighbors. Ex. 1001 at Abstract; id.
`
`cl. 1; id. at 4:23-47; Karger ¶ 28. A complete graph is
`
`Ex. 1001: Fig. 1
`
`one that is fully connected, meaning that each node is connected to every other
`
`node, whereas in a non-complete graph, at least two nodes are not connected to
`
`each other. Karger ¶¶ 43-44. Some of the claims further require that the network
`
`is also m-connected. Ex. 1001, cls. 4, 5; Karger ¶ 27. A graph is m-connected
`
`when it would take the removal of at least m nodes to divide the graph into two or
`
`more separate parts. Ex. 1001 at 4:42-46; Karger ¶¶ 27, 45-47. Figure 1 of the
`
`’344 patent (above), for example, “illustrates a graph that is [both] 4-regular and 4-
`
`connected.” Ex. 1001, Fig. 1, 2:44-45; Karger ¶ 27.
`
`Finally, the challenged claims further require that the participants broadcast
`
`messages to each other using a technique whereby the originating participant sends
`
`the data to be transmitted to each of its neighbors, who then forward the data to
`
`each of their neighbors. See, e.g., Ex. 1001, cl. 1; Karger ¶ 29. This forwarding
`
`process is repeated until every participant has received the message. See Ex. 1001,
`
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`cl. 1; id. at 7:30-49; Karger ¶ 29. The message is thereby reliably broadcast across
`
`the entire network. Ex. 1001 at 7:30-41, 7:50-51; Karger ¶¶ 29, 48-49. Although
`
`the term is not expressly used in the specification, this technique (and its
`
`variations), are commonly referred to as “flooding.” Karger ¶ 29; Ex. 1004 at 9.
`
`B. Overview of the Prosecution History
`
`The application that led to the ’344 patent was filed July 31, 2000, and the
`
`Applicants did not claim priority to any earlier filing. During prosecution, the
`
`Examiner rejected original claims 1-13 as obvious over Alagar in view of IGZ.
`
`Ex. 1002 at 2092-96. The Examiner recognized a motivation to combine IGZ,
`
`which discloses a system (related to DirectPlay)2 that facilitates multi-player
`
`gaming via the Internet, with Alagar, which discloses a reliable mobile wireless
`
`network, stating: “Given the teachings of IGZ, a person having ordinary skill in the
`
`art would have readily recognized the desirability and the advantages of using the
`
`information delivery conferencing system taught by Alagar for an Internet gaming
`
`environment, to increase reliability of the Internet gaming environment and to
`
`
`2 IGZ refers to the Internet Gaming Zone, a.k.a. Microsoft Game Zone, which as
`
`discussed in the DirectPlay reference, is an example of a DirectPlay lobby server.
`
`See, e.g., Ex. 1003 at 98-100.
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`prevent games or particular players from ending or exiting prematurely.” Id. at
`
`2093-94-83.
`
`Applicants then “significantly” amended their claims by adding the m-
`
`regular and the non-complete graph limitations to all claims, as well as adding
`
`limitations directed to the number of participants and flooding broadcast
`
`techniques, to original claims 14-16, and new claims 17-20 requiring that the
`
`network be m-regular and incomplete Id. at 2330-34. (Applicants cancelled
`
`original claim 4, resulting in a net total of 19 issued claims). In their remarks, the
`
`Applicants argued that “[i]t is the combination of having a computer network that
`
`is m regular and that is not a complete graph that is patentable over the Alagar
`
`reference. This combination has been shown to produce an efficient and stable
`
`computer network.” Id. at 2340. After Applicants disclaimed the terminal portion
`
`of the ’344 patent over the application which resulted in the ’966 patent, id. at
`
`2343-44, the Examiner subsequently allowed the claims. See id. at 2349.
`
`C. Overview of the Technical Field
`
`The use of flooding to broadcast information over a computer network, in
`
`general, had been known for decades before the July 2000 filing date of the ’344
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`patent. Karger ¶¶ 48-51; see, e.g., Ex. 1007 at 5 (“We considered different
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`approaches for distributing the updates [8] and decided on ‘flooding,’ in which
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`each node sends each new update it receives on all its lines except the line on
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`which the update was received.”); see also, Ex. 1011 at 2; Ex. 1012 at 24-25; Ex.
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`1018 at 12. Moreover, the use of flooding in networks based on m-regular, non-
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`complete graphs, in particular, was also well known in the art. Karger ¶¶ 52-53.
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`For example, Lin (1999) discloses the use of flooding over m-regular, non-
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`complete “Harary” graphs, such as the graph in the (excerpted) figure (shown
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`below (left)). Karger ¶ 53; see Ex. 1004 at 9, 14 Fig. 2, 17, 24.
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` 1004: Fig. 2 Ex. 1017: Fig. 1
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`Similarly, papers by Yogen Dalal (1977) and Peter Shoubridge (1997) disclose the
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`
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`use of flooding over non-complete, 4-regular networks. Karger ¶ 53; see Ex. 1008
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`at 88-89, 157, 161; Ex. 1005 at 2-4. Flooding over a 4-regular “torus” network
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`(shown above (right)) is also disclosed in U.S. Patent No. 6,122,277 (Ex. 1016;
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`Karger ¶ 53) (which incorporates the disclosure of U.S. Patent No. 5,181,017 (Ex.
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`1017; Karger ¶ 53) by reference) and thus is prior art under § 102(e), as the filing
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`date is August 19, 1997. See Ex. 1016 at 1:59-66, 5:29-43, 6:62-66; Ex. 1017 at
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`Fig. 1.
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`Also, long before July 2000, a POSITA would have understood that the
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`topology of a network could have a significant impact on the network’s
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`characteristics, such as its performance, scalability, and reliability. Karger ¶¶ 52,
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`122; Ex. 1015 at 6-7; Ex. 1014 at 6-12. As a result, many types of network
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`topologies—including those based on non-complete, m-regular graphs—were well-
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`known in the art. Karger ¶ 52; Ex. 1013 at 20. These topologies were routinely
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`represented using graph theory (with computers as nodes, and connections as
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`edges), with mathematical proofs or simulations developed to model the
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`performance and reliability of the network. Karger ¶¶ 38-47; see, e.g., Ex. 1015 at
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`7 (“This paper presents a study of networks which are represented as linear graphs,
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`and it is assumed the reader is familiar with elementary notions of graph theory.”);
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`Ex. 1008 at 114 (“The various classes of networks are distinguished by certain
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`topological properties of the graphs that represent them, like the degree of the
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`nodes, or whether the graph is regular or not.”) (citation omitted).
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`V. THERE IS A REASONABLE LIKELIHOOD THAT PETITIONER
`WILL PREVAIL WITH RESPECT TO AT LEAST ONE CLAIM
`
`Petitioner submits there is at least “a reasonable likelihood that the petitioner
`
`would prevail with respect to at least one of the claims challenged in the petition.”
`
`§ 314(a). Indeed, they are all at least obvious under the stated Grounds.
`
`A. Claim Construction Under § 42.104(b)(3)
`
`Pursuant to § 42.100(b), for the purposes of this review, Petitioner construes
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`the claim language such that it is “given its broadest reasonable construction in
`
`light of the specification of the patent in which it appears” (“BRI”). Because the
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`standard for claim construction at the USPTO is different than that used in District
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`Court litigation, see In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364, 1369
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`(Fed. Cir. 2004), MPEP § 2111, Petitioner reserves the right to argue a different
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`claim construction in a different forum for any term in the ’344 patent as
`
`appropriate in that proceeding. For terms not specifically listed and construed
`
`below, Petitioner interprets them for purposes of this review with their plain and
`
`ordinary meaning consistent with the specification of the ’344 patent. Petitioner
`
`also reserves its right to assert in litigation that the claims are invalid for reasons
`
`other than the asserted grounds, including under §§ 101 and/or 112.
`
`As used in the challenged claims, for purposes of this review:
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`• “m-regular” (cls. 1, 5, 18) means “each node is connected to exactly m other
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`nodes.” See, e.g., Ex. 1001 at 4:38-39, 14:65-15:7.
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`• “non-complete graph” (cls. 1, 16) means “graph in which at least two nodes are
`
`not connected to each other.” See, e.g., id. at 29:35-37, 30:21-22, 30:40-42.3
`
`
`3 In the institution decisions (at page 7) for IPR Nos. 2015-01970 and 2015-01972,
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`the Board observed:
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`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
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`exactly m neighbor participants, “and further wherein the number of
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`participants is at least two greater than m thus resulting in a non-
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`• “m-connected” (cls. 4, 5) means “dividing the network into two or more
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`separate parts would require the removal of at least m nodes.” See, e.g., id. at
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`4:42-46.
`
`B.
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`Level of Ordinary Skill in the Art and State of the Art
`
`Petitioner submits that the applicable POSITA would have a minimum of:
`
`(1) a bachelor’s degree in computer science, computer engineering, applied
`
`mathematics, or a related field of study; and (2) four or more years of industry
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`experience relating to networking protocols or network topologies. Karger ¶¶ 16-
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`21. Additional graduate education could substitute for professional experience, or
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`significant experience in the field could substitute for formal education. Id.
`
`C. Grounds for Unpatentability
`
`The challenged claims of the ’344 patent are directed to a computer network
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`for providing a game environment. As discussed further below, DirectPlay
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`discloses an Application Program Interface for developing multiparticipant
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`(multiplayer) games (i.e., an information delivery service) that can run over a
`
`
`complete graph.” Ex. 1101, 29:35–37.
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`Petitioner submits that this Petition should prevail regardless of whether the
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`construction proposed in the Petition or the construction adopted by the
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`Board in IPR Nos. 2015-01970 and 2015-01972 is applied here.
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`variety of computer networks. See Section V.C.1.a. Lin discloses the claimed
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`computer network and some of the limitations relating to an information delivery
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`service. See Section V.C.1.b. The combination of the teachings of DirectPlay and
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`Lin renders obvious all of the Challenged Claims (Ground 1), and Lin in view of
`
`the knowledge of a POSITA renders obvious certain of those claims (1-11, 16-19)
`
`(Ground 2).
`
`1. Ground 1: Claims 1-12 and 16-19 Are Obvious in View of
`the Teachings of DirectPlay and Lin
`
`a. Overview of DirectPlay
`
`DirectPlay is prior art under at least § 102(b). Ex. 1003. DirectPlay
`
`discloses an Application Program Interface (“API”) for developing
`
`multiparticipant (multiplayer) games that can run over a wide variety of computer
`
`networks. Id. at 19; Karger ¶ 79. This was designed as a “flexible and open”
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`solution that avoided “inflict[ing] a specific approach” on developers, while
`
`providing “shared data and messaging mechanisms” that could be used, for
`
`example, to send messages to every player connected to a gaming “session.” Ex.
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`1003 at 20, 22; Karger ¶ 79.
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`DirectPlay discloses that this “allow[ed] the developer to provide
`
`multiparticipant capability without getting tangled up in the details of the specific
`
`transport media,” by abstracting aspects of this communication to a layer of
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`“service providers” that “plug[ged] in underneath.” Ex.1003 at 19; Karger ¶ 80. In
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`addition to shipping with several default providers that supported a variety of
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`communication protocols and transport media, the “specification for [custom]
`
`service providers” was “available to anyone who might be interested.” Ex. 1003 at
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`19-20; Karger ¶ 80. “Anyone [could] create special-purpose service providers ...
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`and if [a] game use[d] DirectPlay, it [could] automatically take advantage of these
`
`new communication channels.” Ex. 1003 at 27; Karger ¶ 80. The designers of
`
`DirectPlay “wanted to avoid making presumptions that would inflict a specific
`
`approach on the developer. And we wanted to create a standard that could be
`
`applied to many design scenarios, which meant that the solution had to be flexible
`
`and open.” Ex. 1003 at 20; see also, id. at 24, 119; Karger ¶ 80. The “primary goal
`
`of DirectPlay was ... [to] provide a consistent interface,” while recognizing that
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`“there are many different ways to implement a networked application.” Ex. 1003 at
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`20; id. at 15 (“what [DirectPlay] doesn’t do is attempt to impose a general-purpose
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`‘automatic’ communication model on the developer. A communication model that
`
`was great for a chess game would be completely inappropriate for a driving game,
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`and vice versa....This philosophy has the additional benefit of leaving plenty of
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`room for third-party tool vendors to add value to DirectX.”); Karger ¶ 80.
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`DirectPlay discloses the
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`use of both “peer-to-peer” and
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`“client-server” architectures.
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`Ex. 1003 at 23-24; Karger ¶
`
`81. As simple illustrations of
`
`each, Direct-Play presents one
`
`example in which four players
`
`are connected to each other using “peer-to-peer” links between each player; and
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`one in which four players are connected to each other via a single central server.
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`Ex. 1003 at 23 Fig. 18-3; id. at 22 (“You may be wondering whether the
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`DirectPlay communication architecture is peer-to-peer or client/server .... [T]he
`
`answer to this question is that DirectPlay can be a little bit of both.”); Karger ¶ 81.
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`Additionally, DirectPlay discloses a matchmaking service in which pl