UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`BUNGIE, INC.
`Petitioner,
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`
`
`
`Case IPR2017-01600
`Patent 6,910,069 B1
`
`
`Before SALLY C. MEDLEY, MARC S. HOFF, and
` LYNNE E. PETTIGREW, Administrative Patent Judges.
`
`HOFF, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`Paper 11
` Entered: January 10, 2018
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`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`BUNGIE, INC.
`Petitioner,
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`
`
`
`Case IPR2017-01600
`Patent 6,910,069 B1
`
`
`Before SALLY C. MEDLEY, MARC S. HOFF, and
` LYNNE E. PETTIGREW, Administrative Patent Judges.
`
`HOFF, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`Paper 11
` Entered: January 10, 2018
`
`
`
`
`
`
`
`
`
`
`
`
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`
`
`
`
`IPR2017-01600
`Patent 6,910,069 B1
`
`
`
`I. INTRODUCTION
`Bungie, Inc. (“Petitioner”) filed a Petition for inter partes review of
`
`claims 1–5, 7, 8, and 11–13 of U.S. Patent No. 6,910,069 B1 (Ex. 1001, “the
`’069 patent”). Paper 2 (“Pet.”). Acceleration Bay, LLC (“Patent Owner”)
`filed a Preliminary Response. Paper 6 (“Prelim. Resp.”). Petitioner filed a
`Reply to the Preliminary Response. Paper 10 (“Reply”).
`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 does not show there is a
`reasonable likelihood that Petitioner would prevail in establishing the
`unpatentability of any of claims 1–5, 7, 8, and 11–13 of the ’069 patent.
`
`A. Related Matters
`The parties identify the following pending judicial matters as relating
`to the ’069 patent: Acceleration Bay LLC v. Activision Blizzard, Inc., Case
`No. 1:16-cv-00453 (D. Del., filed June 17, 2016); Acceleration Bay LLC v.
`Electronic Arts Inc., Case No. 1:16-cv-00454 (D. Del., filed June 17, 2016);
`Acceleration Bay LLC v. Take-Two Interactive Software, Inc., Case No.
`1:16-cv-00455 (D. Del., filed June 17, 2016). Pet. 28; Paper 3, 1.
`Claims 1–17 of the ’069 patent were challenged previously by
`different petitioners in IPR2016-00726. The Board denied institution in
`that proceeding. IPR2016-00726, Paper 11 (PTAB Sept. 9, 2016).
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`B. The ’069 Patent
`The ’069 patent relates to a “broadcast technique in which a broadcast
`channel overlays a point-to-point communications network.” Ex. 1001, 4:5–
`6. The communication network consists of a graph of point-to-point
`connections between host computers or nodes. Id. at 4:25–28. Figure 1 of
`the ’069 patent is reproduced below:
`
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`Figure 1 illustrates a broadcast channel represented by a “4-regular
`and 4-connected” graph. Id. at 4:50–51. 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 4:40–41, 4:51–55. 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
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`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 connect to the broadcast channel, a seeking
`computer locates a computer that is connected to the broadcast channel and
`then establishes a connection with a number of computers connected to the
`broadcast channel. Id. at Abstract.
`Figures 3A and 3B of the ’069 patent are reproduced below.
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`
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`Figures 3A and 3B illustrate a process of connecting a new computer
`Z to the broadcast channel. Id. at 2:51–52. Figure 3A illustrates the
`broadcast channel of a 4-regular graph, where each of the computers is
`already connected to four computers. Id. at 5:55–57. Some of the
`connections between computers need to be broken so that the seeking
`computer can connect to four computers. In one embodiment, two pairs of
`computers that are connected to each other are identified. Id. at 5:57–61.
`Each of these pairs breaks the connection between them, and then each of
`the four computers (two from each pair) connects to the seeking computer.
`Id. at 5:61–64. The above figures show this concept, illustrating seeking
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`computer Z connecting to the broadcast channel. Computers B and E and
`computers C and D are the two identified pairs of computers that are
`identified as neighbors for new computer Z. Id. at 5:67–6:2. The
`connection between each of these pairs is broken, and a connection between
`computer Z and each of computers B, C, D, and E is established. Id. at 6:2–
`6:5.
`
`C. Illustrative Claim
`Petitioner challenges claims 1–5, 7, 8, and 11–13. Independent claim
`1 is illustrative of the claimed subject matter:
`1. A computer-based, non-routing table based, non-switch
`based method for adding a participant to a network of
`participants, each participant being connected to three or more
`other participants, the method comprising:
`identifying a pair of participants of the network that are
`connected wherein a seeking participant contacts a fully
`connected portal computer, which in turn sends an edge
`connection request
`to a number of randomly selected
`neighboring participants to which the seeking participant is to
`connect;
`disconnecting the participants of the identified pair from
`each other; and
`connecting each participant of the identified pair of
`participants to the seeking participant.
`Ex. 1001, 28:48–62.
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`D. Asserted Ground of Unpatentability
`Petitioner asserts that claims 1–5, 7, 8, and 11–13 are unpatentable
`based on the following ground (Pet. 32):
`References
`Francis1 and Gilbert2
`
`Challenged Claims
`1–5, 7, 8, and 11–13
`
`Basis
`§ 103(a)
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`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);
`Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016)
`(upholding the use of the broadest reasonable interpretation standard).
`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).
`Our decision does not turn on Petitioner’s or Patent Owner’s proposed
`construction of “fully connected.” See Pet. 34–36; Prelim. Resp. 11–15.
`Therefore, we determine that no claim terms require express construction, and
`
`
`1 Paul Francis, Yallcast: Extending the Internet Multicast Architecture, NTT
`Information Sharing Platform Laboratories (Sept. 30, 1999) (Ex. 1005)
`(“Francis”).
`2 U.S. Patent No. 6,490,247 B1, filed June 26, 1996, issued Dec. 3, 2002
`(Ex. 1021) (“Gilbert”).
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`we express no opinion regarding Petitioner’s or Patent Owner’s proposed
`construction.
`
`B. Asserted Obviousness over Francis and Gilbert
`Petitioner contends that independent claim 1 is unpatentable under 35
`U.S.C. § 103(a) as obvious over Francis and Gilbert, and that the remaining
`challenged claims that depend from claim 1 would have been obvious over the
`same art. Pet. 36–65. Relying on the testimony of Dr. Nicholas Bambos,
`Petitioner explains how the combined prior art allegedly teaches or suggests
`all of the claim limitations. Id. (citing Ex. 1003).
`
`Summary of Francis
`Francis describes an architecture for so-called “yallcast” multicasting
`that attempts to unify prior server-based and IP multicast approaches. Ex.
`1005, 2. Yallcast features a topology management protocol (YTMP) that
`allows a group of hosts to dynamically auto-configure into two topologies:
`(1) a tunneled, shared tree topology for efficient multicast distribution of
`application content; and (2) a tunneled mesh topology, for robust broadcast
`distribution of various information, including control information and,
`where appropriate, application content. Id. at 5. Each group has one or
`more rendezvous hosts associated with it. Rendezvous hosts are not
`attached to the tree-mesh – rather, they serve as a discovery or bootstrap
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`mechanism for allowing hosts joining a group to find other hosts already in
`the tree-mesh. Id.
`
`Summary of Gilbert
`
`Gilbert describes a ring-ordered dynamically reconfigurable computer
`
`network utilizing an existing communications system. Ex. 1021, Abstract.
`Each node is coupled to the existing communications system by two data
`channels and a control channel. Id. Gilbert’s network includes a network
`manager to establish the network, facilitate communication among the nodes,
`and dynamically reconfigure the network without disturbing communication
`among the nodes. Id.
`
`Analysis
`Based on the record before us, we determine that there is not a
`reasonable likelihood that Petitioner will prevail in showing that any of
`claims 1–5, 7, 8, and 11–13 are unpatentable on the grounds asserted.
`Claim 1 requires a participant seeking to join the network to contact “a
`fully connected portal computer, which in turn sends an edge connection
`request to a number of randomly selected neighboring participants” to
`which the seeking computer is to connect. Petitioner relies on Gilbert and
`Francis for different aspects of this limitation. First, Petitioner cites to
`Gilbert for disclosure of a portal computer sending a “connection request” to
`nodes existing on the network for the joining node. Pet. 51. In particular,
`Petitioner cites Gilbert’s disclosure of “two adjacent nodes dropping
`connection to one another” in favor of each establishing connections to the
`joining node. Id. (citing Ex. 1021, 7:10–19). In that example, according to
`Petitioner, Gilbert discloses that the connections may be initiated by one of
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`each adjacent node pair, not by the joining node. Id. (citing Ex. 1021, 7:19–
`20).
`
`Patent Owner argues, and we agree, that Petitioner admits that the
`“portal computer” of Gilbert never sends an edge connection request to a
`number of neighboring participants because the alleged portal computer is
`one of the nodes to which the additional node is to connect. Prelim. Resp.
`56–57 (citing Pet. 52 (“Gilbert discloses a node in an adjacent node pair
`functioning as a portal computer.”)). We agree with Patent Owner, because
`Gilbert discloses that the joining (“additional”) node “first contacts a
`[single] node it knows to be already connected on the network.” Ex. 1021,
`6:33–34. That “known” node then “provides information [to the joining
`node] regarding an adjacent node to the additional node.” Ex. 1021, 6:40–
`42. Gilbert thus discloses that a portal computer sends a connection request
`to at most one “neighboring” participant.
`Petitioner contends that Gilbert’s disclosed “alternative embodiment,”
`in which “the step of contacting two adjacent nodes . . . can be ‘executed by
`a joinder module within the network manager,’” meets the claim language
`concerning an edge connection request to a number of [randomly selected]
`neighboring participants. Pet. 52. We agree with Patent Owner that
`Petitioner’s contention mischaracterizes Gilbert’s disclosure, because
`Gilbert’s network manager is a functional component that is included within
`one or more nodes, including a node that wishes to join an existing network,
`rather than being a so-called “master node.” Prelim. Resp. 57. Gilbert
`discloses a network manager that is “contained within each node such that
`the nodes communicate in a peer-to-peer manner. Ex. 1021, 3:64–65. “In a
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`further embodiment, a port controller runs on each computer to perform the
`network manager function.” Ex. 1021, 3:65–67.
`Patent Owner further argues that no computer in Gilbert ever sends
`edge connection requests to any neighboring participants, let alone
`neighboring participants that have been randomly selected. Prelim. Resp.
`58. As Patent Owner explains, “[t]he additional node connects with each of
`the adjacent nodes, in the same manner as node N connects to node N+1 in
`step 48 of Figure 4.” Prelim. Resp. 58 (quoting Ex. 1021, 7:13–16). Once
`the additional node has unique address information for the two nodes, the
`switch causes a connection to be made. Prelim. Resp. 58 (citing Ex. 1021,
`4:57–67). Patent Owner contends, therefore, that there is no disclosure in
`Gilbert of a portal computer sending an edge connection request to
`neighboring participants because the switch is responsible for making
`connections. Id. We agree with Patent Owner.
`Petitioner concedes that Gilbert does not disclose sending a request to
`a number of randomly selected neighboring participants to which the
`seeking participant is to connect. Pet. 55. Petitioner cites to Francis for
`disclosure of ‘randomly selected’ nodes existing on the network.
`“[E]ach member M establishes a small number of other members
`– three or four – as mesh neighbors. These members are randomly
`selected . . . . [M]esh neighbors are randomly chosen . . . .
`Efficient random selection is achieved through a frame delivery
`mode called ‘mesh anycast’, whereby a discovery message takes a
`random walk along the mesh, randomly stopping at some
`member.”
`
`Pet. 51 (citing Ex. 1005, 14). Petitioner admits that no attempt is made to
`find mesh neighbors that are nearby (latency-wise). Ex. 1005, 14; see Pet.
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`55. “YDP anycast simply causes a frame to randomly walk the tree or mesh
`until it (randomly) decides to stop (or the hop count expires). Anycast is
`used by the Yallcast Tree Management Protocol (YTMP) for discoverying
`[sic] arbitrary members in the topology.” Ex. 1005, 17.
`Petitioner argues that “Francis provides for random selection of
`neighbors for every node, which necessarily includes a joining node, by
`performing a ‘random walk along the mesh.’” Pet. 55. Both the route’s path
`and its length are random. Id. According to Petitioner, “this type of
`selection – a ‘random walk’ – is the same type of random selection
`described in the ’069 Patent.” Pet. 55; Ex. 1001, 13:41–45 (“This sending of
`the [connection request] message corresponds to a random walk through the
`graph that represents the broadcast channel. Eventually, a receiving
`computer will decide that the message has traveled far enough to represent a
`randomly selected computer.”).
`Petitioner, however, has not sufficiently explained how or why a
`person having ordinary skill in the art would have combined Francis and
`Gilbert to achieve this claim element. Petitioner explains that Francis
`teaches rendezvous hosts that allow hosts joining a group to find other
`hosts already in the tree-mesh, and that Francis randomly selects
`“neighbors” (simply other network members) for every node. See Pet. 53–
`55. Petitioner further argues that Gilbert, like Francis, teaches the concept
`of multifunctional nodes that can execute the steps of adding a new node to
`the network. According to Petitioner, modifying Francis’s rendezvous host
`with the features of Gilbert’s portal computer would provide some
`messaging efficiencies. Pet. 55. In our view, however, Petitioner fails to
`explain sufficiently why it would have been obvious to combine Francis
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`and Gilbert to have a seeking participant contact a fully connected portal
`computer as claimed.
`Still further, the disputed phrase requires that the edge connection
`request be sent to a “number of randomly selected” neighboring
`participants to which the seeking participant is to connect. Petitioner asserts
`that Francis provides for random selection of neighbors for every node. Pet.
`55; Ex. 1005, 14. Merely choosing neighboring participants in a random
`manner to connect to, as Francis does here, is not the same as sending a
`request to a number of randomly selected neighboring participants.
`Petitioner has not explained how Francis and Gilbert would be combined to
`teach a portal computer “send[ing] an edge connection request to a number
`of randomly selected neighboring participants.”
`For all of the above reasons, we are not persuaded that Petitioner has
`established a reasonable likelihood that Petitioner would prevail in its
`challenge to independent claim 1, or to dependent claims 2–5, 7, 8, and
`11–13.
`
`B. Motion to Seal
`Patent Owner’s Preliminary Response (Paper 6) was accompanied by a
`Motion to Seal (Paper 7) its Preliminary Response and Exhibits 2004–2010,
`along with a redacted version of the Preliminary Response and redacted
`versions of Exhibits 2006–2010. As we do not rely on the material that Patent
`Owner seeks to seal, we decline to address the merits of the Motion to Seal.
`Patent Owner is authorized to file a motion to expunge any material that it
`seeks to keep confidential within thirty (30) days of this decision, or within
`thirty (30) days of a decision on rehearing if rehearing is requested.
`
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`III. CONCLUSION
`For the foregoing reasons, we determine that there is not a reasonable
`likelihood that Petitioner would prevail in showing that claims 1–5, 7, 8,
`and 11–13 of the ’069 patent are unpatentable.
`
`IV. ORDER
`For the foregoing reasons, it is
`ORDERED that the Petition is denied as to all challenged claims, and
`no trial is instituted.
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`FOR PETITIONER:
`
`Michael T. Rosato
`Andrew S. Brown
`Eric C. Arnell
`WILSON SONSINI GOODRICH & ROSATI
`mrosato@wsgr.com
`asbrown@wsgr.com
`earnell@wsgr.com
`
`FOR PATENT OWNER:
`
`James Hannah
`Jeffrey H. Price
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`jhannah@kramerlevin.com
`jprice@kramerlevin.com
`
`
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`13
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