Case 6:21-cv-00331-ADA Document 40 Filed 12/17/21 Page 1 of 22
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Plaintiffs,
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`v.
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`IGT and IGT CANADA SOLUTIONS ULC,
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`
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`ZYNGA INC.,
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`C.A. No. 6:21-CV-00331-ADA
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`Judge: Honorable Alan D. Albright
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`JURY TRIAL DEMANDED
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`)
`)
`)
`)
`)
`)
`)
`)
`)
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`
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`Defendant.
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`IGT’S SUR-REPLY CLAIM CONSTRUCTION BRIEF
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`Case 6:21-cv-00331-ADA Document 40 Filed 12/17/21 Page 2 of 22
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`TABLE OF CONTENTS
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`I.
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`The ’089 Patent Terms .........................................................................................................1
`
`A.
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`“software authorization agent” ................................................................................1
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`B.
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`C.
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`“gaming software” ...................................................................................................2
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`“gaming machine” ...................................................................................................3
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`II.
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`The ’473 Patent Terms .........................................................................................................5
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`A.
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`B.
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`“website server” .......................................................................................................5
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`“first gaming server” ................................................................................................7
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`III.
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`The ’212 Patent Terms .........................................................................................................8
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`A.
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`“publishing” .............................................................................................................8
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`B.
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`C.
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`“high-level function” .............................................................................................10
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`“node” ....................................................................................................................14
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`IV.
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`The ’791 Patent Terms .......................................................................................................15
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`A.
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`“determine instances of probable collusion between players” ..............................15
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`V.
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`The ’189 Patent Terms .......................................................................................................16
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`A.
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`“establishing” and “re-established” “communications link” .................................16
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`IV.
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`Conclusion .........................................................................................................................17
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`i
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`Case 6:21-cv-00331-ADA Document 40 Filed 12/17/21 Page 3 of 22
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`
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`Cases
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`Aylus Networks, Inc. v. Apple Inc.,
`856 F.3d 1353 (Fed. Cir. 2017)..................................................................................................1
`
`eCeipt, LLC v. Victoria’s Secret Stores, LLC,
`No. 6:20-CV-747-ADA, 2021 WL 4037599 (W.D. Tex. Sep. 3, 2021)..................................15
`
`Eon Corp. IP Holdings v. Silver Spring Networks,
`815 F.3d 1314 (Fed. Cir. 2016)..................................................................................................4
`
`Ethicon LLC v. Intuitive Surgical, Inc.,
`847 F. App’x 901 (Fed. Cir. 2021) ............................................................................................3
`
`Exmark Manufacturing Co. v. Briggs & Stratton Power Prods. Grp., LLC,
`879 F.3d 1332 (Fed. Cir. 2018)................................................................................................11
`
`Halliburton Energy Services, Inc. v. M-I LLC,
`514 F.3d 1244 (Fed. Cir. 2008)..........................................................................................11, 12
`
`Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc.,
`381 F.3d 1111 (Fed. Cir. 2004)..................................................................................................7
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) .................................................................................................................11
`
`Power Integrations, Inc. v. ON Semiconductor Corp.,
`396 F. Supp. 3d 851 (N.D. Cal. 2019) .......................................................................................1
`
`Pulse Elecs., Inc. v. U.D. Elec. Corp.,
`860 F. App’x 735 (Fed. Cir. 2021) ............................................................................................1
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`
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`
`
`ii
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`Case 6:21-cv-00331-ADA Document 40 Filed 12/17/21 Page 4 of 22
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`Zynga’s proposed constructions must be rejected. Zynga does not dispute that many of its
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`constructions improperly import limitations from the specification. Zynga also mischaracterizes
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`the intrinsic record throughout its Reply. The Court should reject Zynga’s contorted claim
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`constructions and adopt the plain and ordinary meanings, consistent with the intrinsic evidence.
`
`I.
`
`THE ’089 PATENT TERMS
`
`A.
`
`“software authorization agent”
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`IGT’s Construction
`No construction necessary
`(plain and ordinary meaning)
`
`Zynga’s Construction
`“a device that authorizes (that is approves or rejects) specific
`transfers of gaming software based on applicable rules, and
`monitors (that is tracks) these transfers”
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`Zynga does not dispute that its construction for this term improperly imports limitations
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`from
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`the specification,
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`including
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`the requirements
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`that
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`the agent authorize “specific
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`transfers … based on applicable rules” and “monitors (that is tracks) these transfers.” Dkt. 39
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`(“Reply”) at 1–2; Dkt. 33 at 4. Nor does it dispute that “authorizing” and “monitoring” are separate
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`functions, and that “monitoring” is merely optional. Reply at 1–2; Dkt. 33 at 5. This alone dooms
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`Zynga’s construction. Pulse Elecs., Inc. v. U.D. Elec. Corp., 860 F. App’x 735 (Fed. Cir. 2021).
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`Zynga instead incorrectly argues that its overly narrow construction must control because
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`IGT proposed it during the Interference. Reply at 1. IGT’s then-proposed definition is neither
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`binding on IGT nor informative to the term’s construction because the PTO expressly rejected it.
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`Power Integrations, Inc. v. ON Semiconductor Corp., 396 F. Supp. 3d 851, 864 (N.D. Cal. 2019).
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`The single case cited by Zynga, Aylus Networks, Inc. v. Apple Inc., does not hold differently.
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`While the court found a patentee’s definition of a claim term during an IPR binding, the PTO had
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`not rejected the patentee’s definition, as it did here. 856 F.3d 1353, 1360 (Fed. Cir. 2017).
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`Zynga also insists that the PTO never rejected IGT’s then-proposed definition. Reply at 1.
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`But Zynga is wrong. The PTO construed the claims in view of the ‘089 patent’s specification, and
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`Case 6:21-cv-00331-ADA Document 40 Filed 12/17/21 Page 5 of 22
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`specifically rejected IGT’s “too narrow” (i.e., Zynga’s current) definition. Dkt. 33-1 at 8; id. at 2–
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`8 (discussing “authorization agent” at length). Instead, acknowledging Zynga’s argument that
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`IGT’s definition improperly imported limitations into the claims, the PTO agreed with Zynga that
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`a broader construction should control (rather than the one Zynga proposes here).1 Id. at 2, 8.
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`Finally, Zynga fails to support its argument that there was a disclaimer that would require
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`a “software authorization agent” to be a standalone device. Zynga cites prosecution remarks
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`stating that the claims relate to “three devices,” but which state nothing about such devices being
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`“standalone,” or forbid the devices from being part of a larger machine or another device. Reply
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`at 2. Further, the only discussion about anything being “separate” is in the context of claim 28
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`(now claim 1). Dkt. 39-1 at 22; ‘089 patent at 41:21–23 (claim 1: “wherein the first gaming device
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`and the second gaming device are separate from the software authorization agent…”). No such
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`narrowing language exists in claims 84 or 103. Thus, the term should not be construed to mean a
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`device that is separate, let alone a separate “standalone” device from the first and second devices.
`
`B.
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`“gaming software”
`
`IGT’s Construction
`No construction necessary
`(plain and ordinary meaning)
`
`Zynga’s Construction
`“instructions that are executed to run a game or a component
`of a game, as distinct from stand-alone data”
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`Zynga does not dispute that its construction improperly limits “software” to “instructions.”
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`Reply at 2–3. Nor does Zynga dispute that the plain and ordinary meaning of “software”
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`encompasses programs, instructions, data, and code, which may be executed on a computer. Id.
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`IGT’s expert, Dr. Wills, explained that a POSITA would understand a “program” is a “set of data
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`and code [instructions] that manipulates it.” Dkt. No. 34 ¶ 32. Zynga’s construction must be
`
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`1 Zynga’s argument that the PTO did not address IGT’s definition as presented “in opposition to a
`Zynga motion,” Reply at 1, is irrelevant. Regardless of whether the PTO ruled on that particular
`motion, it addressed and rejected the definition in its final decision. Dkt. 33-1 at 2–8, 15.
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`2
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`Case 6:21-cv-00331-ADA Document 40 Filed 12/17/21 Page 6 of 22
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`rejected because it is improperly narrow by limiting “software” to “instructions.”
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`In an effort to save its doomed construction, Zynga proposes a new construction—i.e., that
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`“gaming software” only excludes “stand-alone” data. Reply at 2 n.2. But, as before, Zynga
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`identifies no disclaimer that would support such a negative limitation. Ethicon LLC v. Intuitive
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`Surgical, Inc., 847 F. App’x 901 (Fed. Cir. 2021). Instead, Zynga’s carve-out for “stand-alone
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`data” would only create confusion because neither Zynga nor the specification define “stand-alone
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`data.” Is it reserved for data that is offline or data that is unrelated to a computer’s operation? Or
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`does it include data that is stored as part of a “program”? Zynga’s Reply further confuses the issue
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`because, while the new construction seems to permit “software” to cover some data, Zynga
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`repeatedly argues to exclude all data. Reply at 2–3, 3 n.4. While Zynga seemingly argues that
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`data is not “executed,” this contradicts the ’089 patent and Dr. Wills’ testimony. ‘089 patent at
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`25:45–48; Dkt. 34 ¶¶ 32–33 (explaining that “replac[ing] a game executed on a gaming machine”
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`requires replacing all source code and data executed on that machine); Wills 2d Decl.2 ¶¶ 6–16.
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`Finally, Zynga regurgitates its unsupported argument that the specification contrasts
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`gaming software from gaming data. This is wrong, as the specification is clear that software can
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`execute programs that include both data and instructions. ’089 patent at 18:1–10; 27:4–10; 27:31–
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`36; 27:55–59; Dkt. 27-10 at 1; Dkt. 34 ¶ 40.
`
`C.
`
`“gaming machine”
`
`IGT’s Construction
`No construction necessary
`(plain and ordinary meaning)3
`
`Zynga’s Construction
`“a special purpose machine like a slot machine, not a general
`purpose computer”
`
`
`2 These citations refer to the Declaration of Dr. Craig E. Wills in Support of Plaintiffs’ Sur-Reply
`Claim Construction Brief, filed contemporaneously herewith.
`3 Zynga suggests that IGT proposed new constructions in its Response by including “Original”
`and “New” headers in its “IGT’s Construction” cells. But unlike Zynga, which changed its
`construction of “gaming software” above, IGT did no such thing. IGT maintains that each claim
`term should be given its plain and ordinary meaning, and that no construction is required. But
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`3
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`

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`Case 6:21-cv-00331-ADA Document 40 Filed 12/17/21 Page 7 of 22
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`Zynga misrepresents the record in an attempt to support its construction of “gaming
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`machine.” Despite Zynga’s contention, the specification does identify gaming machines that are
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`general purpose computers, such as mobile devices like cell phones and personal digital assistants.
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`’089 patent at 27:39–44 (“The fixed end point device may be a gaming machine located in a store
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`or located in a casino, such as gaming machine 54, as well as a mobile gaming device…”), 13:6-
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`24 (explaining that there are “a wide range of gaming machine designs on which the present
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`invention may be implemented … The remote gaming device may be a portable gaming device
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`such as but not limited to a cell phone, a personal digital assistant, and a wireless game player …
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`the present invention, as described below, can be deployed on most any gaming machine now
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`available or hereafter developed.”). Nor does the intrinsic record limit “gaming machine” to a
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`“special purpose computer.” Zynga again seeks to impose a negative limitation into the
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`construction of “gaming machine” without identifying any disclaimer that would justify it.
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`Zynga argues that a “gaming device” and “gaming machine” mean different things, but
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`IGT does not dispute this. The ’089 patent describes a “gaming device” as encompassing both
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`“gaming machines” and “game servers.” ’089 patent at Abstract (“The secure communication
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`methods may be used … between two gaming devices, such as between a game server and a
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`gaming machine.”). A gaming machine is a machine on which a device is played; a game server
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`is not necessarily a machine on which a game is played, but may simply be a server that transfers
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`gaming software to the gaming machine. Id. at 26:31–50. Thus, Zynga’s reliance on col. 27, ln.
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`43–44, which states that a “portable gaming device [] may be … used to play a game of chance,”
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`is misplaced. Reply at 4. That passage simply means that the portable gaming device can be a
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`because a “court’s duty at the claim construction stage is … to resolve a dispute about claim scope
`that has been raised by the parties,” IGT articulated the terms’ plain and ordinary meanings. Eon
`Corp. IP Holdings v. Silver Spring Networks, 815 F.3d 1314, 1319 (Fed. Cir. 2016).
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`4
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`

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`Case 6:21-cv-00331-ADA Document 40 Filed 12/17/21 Page 8 of 22
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`gaming machine-type of gaming device, as opposed to a game server, which is consistent with the
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`plain and ordinary meaning. Thus, the Court should reject Zynga’s unsupported argument for its
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`narrow construction to limit a “gaming machine” to a “special purpose machine.”
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`II.
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`THE ’473 PATENT TERMS
`
`A.
`
`“website server”
`
`IGT’s Construction
`No construction necessary
`(plain and ordinary meaning)
`
`Zynga’s Construction
`“a server that provides websites to other devices wherein said
`server
`is a separate device
`from
`the
`first gaming
`server/apparatus and the second gaming server/apparatus”
`
`For claim 36: “a server that provides websites to other devices
`wherein said server is a separate device from the gaming
`apparatus”
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`The term “website server” should be afforded its plain and ordinary meaning―i.e.,
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`hardware or software that services a website. Zynga’s Reply provides no basis to deviate from the
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`term’s ordinary meaning, let alone to inject limitations into the claims that have no support.
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`First, Zynga identifies no basis to limit every “website server” to “providing websites to
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`other devices.” Zynga offers no record citation that explains how to “provide” a website to a
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`device, or that identifies the “other devices” Zynga seeks to add to the claims. In fact, Zynga’s
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`Reply cites nothing regarding this part of its construction. Reply at 5.4 The only evidence Zynga
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`has ever cited explains that a website is “serviced by the website server.” See Dkt. 25 at 12 (citing
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`’473 patent at 5:23–26). But this supports IGT’s plain-meaning construction. Dkt. 33 at 14–15.
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`Second, Zynga fails to support its argument that “website server” must be a physically
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`4 Citing nothing, Zynga speculates that a spell-check program “might service a website” but “is in
`no way a website server.” Reply at 5 n.5. This is a straw man—IGT never suggested that a spell-
`check program is a website server. Nor would such an understanding be remotely consistent with
`the ’473 patent, which explains that the website server, for example, “may include a server
`operating system” or “may be programmed to allow the player to select a particular game or games
`from a menu that includes numerous games.” ’473 patent at 5:26–28, 6:53–56.
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`5
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`

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`Case 6:21-cv-00331-ADA Document 40 Filed 12/17/21 Page 9 of 22
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`“separate device” from the first and second gaming servers/apparatuses. Zynga cites no evidence
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`that the ’473 patent’s claims or specification require this limitation—nor could it. Indeed, Zynga
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`does not dispute the fact that, as IGT set forth in its Response, “the ’473 patent does not restrict
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`where the website and gaming servers are physically located in relation to each other, and even
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`notes that the servers may all be ‘at the same location.’” Dkt. 33 at 5 (citing ’473 patent at 4:62–
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`65); Reply at 5–7. Rather, Zynga relies exclusively on mischaracterizing IGT’s prosecution
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`statements. Zynga is wrong at least because there has been no clear and unmistakable disavowal.
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`At bottom, Zynga asserts that—because IGT distinguished a single prior art device
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`(Wiltshire’s “server/host computer 110”), which the examiner cited to meet three different claim
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`elements (“website server,” “first gaming server,” and “second gaming server”)—“IGT cannot
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`now argue its claimed servers need not be separate.” Reply at 5. But IGT is not arguing that the
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`servers “need not be separate.” Rather, IGT is arguing that the servers need not be physically
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`“separate devices,” (or standalone) as Zynga’s construction requires. In other words, Zynga’s
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`argument attempts to extend IGT’s prosecution statements about “separate servers” to prohibit the
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`servers from being part of a larger device or another server. But when IGT said “separate servers,”
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`it meant only that—i.e., that the claimed servers are separate from each other, unlike the
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`examiner’s citation to a single device in Wiltshire.5 This is entirely consistent with IGT’s
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`prosecution statements. See Dkt. 27-12 at 13 (“Nowhere in Wiltshire does it appear to disclose or
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`suggest a system that is configured to divide functionality between three or more separate servers
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`such as the system recited in claim 1.”); Dkt. 27-14 at 13 (same statement with respect to amended
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`claim 1); see also Dkt. 27-16 at 15. Because the examiner never suggested that a single Wiltshire
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`5 IGT notes that Zynga itself has recognized this distinction in Wiltshire. Ex. AA, ’473 Patent IPR
`at 28 (“Wiltshire does not disclose separate game and website servers….”) (italics removed).
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`6
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`

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`Case 6:21-cv-00331-ADA Document 40 Filed 12/17/21 Page 10 of 22
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`server/host computer 110 might be configured to run all three different servers from the same
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`physical device, there was no reason for IGT to address that possibility, let alone to disavow it.
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`Third, Zynga provides no basis to limit the “website server” to a hardware “device.” IGT’s
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`Response showed that the plain and ordinary meaning of a “server” includes both hardware and
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`software applications. Dkt. 33 at 15 (citing Exs. O, P, Q). Zynga’s Reply ignores this evidence.
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`Reply at 6–7. Instead, Zynga pivots to the claims, some of which require a “controller.” Reply at
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`6 (citing ’473 patent at cls. 1, 9, 16). But “controller” is not before the Court for construction.
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`And even if “controller” was limited to a physical component, 6 that does not mean that a “website
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`server,” a different claim element, could not comprise a mix of both hardware and software. See
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`Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1119 (Fed. Cir. 2004)
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`(“[A]ll claim terms are presumed to have meaning in a claim.”). For example, in a virtual
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`application, a server exists in software while sharing dedicated hardware resources with potentially
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`several other virtual servers. See Wills 2d Decl. ¶ 21. Such an example is consistent with the plain
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`and ordinary meaning of a “website server,” but not with Zynga’s hardware-bound construction.
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`Finally, Zynga’s reliance on IGT’s prosecution statements again is misplaced, at least because IGT
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`never mentioned “software” or Wiltshire’s “interface programs” in any of its responses or remarks.
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`Thus, no claim scope regarding software servers was “ceded during prosecution.” Reply at 7.
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`B.
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`“first7 gaming server”
`
`IGT’s Construction
`No construction necessary
`(plain and ordinary meaning)
`
`Zynga’s Construction
`“a first gaming server wherein said server is a separate device
`from the second gaming server and the website server/website
`computing apparatus”
`
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`6 Zynga’s wheeled-vehicle analogy assumes that the “website computing apparatus” of claim 33
`is “hardware.” Reply at 6. But, like “controller,” that term is not before the Court for construction,
`and Zynga offers no evidence supporting its assumption. Id. Moreover, Zynga does not identify
`any physical components required by claim 36’s “website server.” Id.
`7 These arguments apply equally to the “second gaming server,” which is omitted from this brief.
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`7
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`

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`Case 6:21-cv-00331-ADA Document 40 Filed 12/17/21 Page 11 of 22
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`The term “first gaming server” should be afforded its plain and ordinary meaning―i.e.,
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`hardware or software that facilitates play of a game. As with “website server,” Zynga’s Reply
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`provides no basis to deviate from this meaning, let alone to inject limitations into the claims that
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`have no intrinsic or extrinsic support. Again, Zynga does not dispute IGT’s evidence that the plain
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`meaning of a “server” includes hardware and software, or that the ’473 patent does not restrict the
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`physical location of its servers. Dkt. 33 at 17 (citing Exs. O, P, Q, and ’473 patent at 4:62–65).
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`Moreover, even under Zynga’s interpretation of a “controller” as hardware (which is not before
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`the Court), numerous independent claims do not require the gaming servers, gaming computers,
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`or gaming apparatuses to have controllers. E.g., ’473 patent at cls. 9, 16, 22, 27, 29.
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`Both of Zynga’s counterarguments fail. First, Zynga regurgitates IGT’s prosecution
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`statements. Reply at 7–8. But, for the reasons set forth above, and in IGT’s Response, there is no
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`inconsistency (or disclaimer) where IGT merely argued that Wiltshire’s sole server/host computer
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`device could not, by itself, satisfy all three “separate servers.” See Dkt. 33 at 17. There is nothing
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`for IGT to “recapture” (Reply at 7); for example, the examiner never suggested that it would have
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`been obvious for Wiltshire’s server/host computer to run separate software gaming servers, so IGT
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`never addressed that possibility. Second, Zynga’s additional intrinsic citations do not support its
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`construction. Reply at 7–8. The first cite (to ’473 patent at 6:64–7:4) describes hardware
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`components of “a controller 80,” which—as noted above—is not required by most claims. And
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`the second cite (to Fig. 2C) merely describes “one possible embodiment.” ’473 patent at 6:60–64.
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`III. THE ’212 PATENT TERMS
`
`A.
`
`“publishing”
`
`IGT’s Construction
`No construction necessary
`(plain and ordinary meaning)
`
`Zynga’s Construction
`“communicating information on a specific topic to one or more
`subscribers without needing to know any subscriber’s identity”
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`Zynga’s construction of “publishing” must be rejected. Zynga suggests that, under its
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`8
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`Case 6:21-cv-00331-ADA Document 40 Filed 12/17/21 Page 12 of 22
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`construction, “publishing can occur whether or not the publisher knows the subscriber’s identity.”
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`Reply at 9. But that is not what Zynga proposes. Rather, by limiting “publishing” to
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`“communicating … without needing to know any subscriber’s identity,” Zynga’s construction
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`explicitly excludes embodiments that need to know a subscriber’s identity in order to publish.
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`Zynga’s apparent motivation for doing so is a thinly veiled attempt to create a non-infringement
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`argument for accused systems that require the identities of subscribers to be known in order to
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`communicate with them. But there is no basis for reading this limitation into the claims.
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`At the outset, Zynga and its expert, Dr. Goodrich, have apparently abandoned the extrinsic
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`IEEE dictionary definition Zynga used “as the basis for its construction.” Dkt. 25 at 21; Reply at
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`8–10; Dkt. 39-2 ¶¶ 41–46. IGT previously explained that this definition was “irrelevant to the
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`technology at issue.” Dkt. 33 at 20. Zynga apparently agrees. Additionally, IGT cited extensive
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`intrinsic and extrinsic evidence demonstrating the plain meaning of “publishing”—i.e., providing,
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`exposing, or making a high-level function available to another device over a communication bus.
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`Dkt. 33 at 21–23. Zynga’s Reply does not address any of this evidence. See Reply at 8–10.
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`Instead, Zynga pivots to the possibility that a publish-and-subscribe architecture might be
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`implemented in an anonymous, broadcast topology. Reply at 9. IGT does not disagree. But the
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`fact that some embodiments may be implemented in such a way does not mean that all
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`embodiments, by definition, must be. Indeed, IGT and Dr. Wills showed that the ’212 patent’s
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`reference to the “IP protocol” would indicate to a POSITA that the network requires subscribers’
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`identities (e.g., their IP addresses). Dkt. 33 at 19 (citing Dkt. 34 ¶ 68). Now, Zynga and Dr.
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`Goodrich argue that the IP protocol may also support “multicast routing,” in which subscribers’
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`identities are unknown. Reply at 9 (citing Dkt. 39-2 ¶¶ 44–46). Even if this were true, Zynga still
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`has not provided any basis to exclude from “publishing” any network framework in which
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`9
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`subscriber identities must be known.8 Wills 2d Decl. ¶¶ 28–32.
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` Finally, Zynga argues that IGT “explained that the alleged invention used the publish-
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`and-subscribe model” during prosecution. Reply at 10 (citing Dkt. 39-4). But the interview
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`summary Zynga shows does not say any specific “model” is required; rather, it summarizes the
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`novel distributed system of the ’212 patent including “multiple nodes/gaming systems that
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`publishes [sic] network services” to subscribing nodes. Id. This is the very functionality that IGT
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`argued was not shown by the prior art, and Zynga cites no evidence to the contrary. Moreover, in
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`that same office action response, IGT cited a portion of the pending specification that precisely
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`supports IGT’s plain-meaning construction: “the term publishing a service (or services)
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`encompasses within its scope the functionality of providing a service (or services)…. The term
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`publishing a service (or services) includes within its scope the functionality of exposing a service
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`(or services).” Dkt. 27-21 at 33 (citing ¶ [0088] of the pending specification).
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`B.
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`“high-level function”
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`IGT’s Construction
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`Zynga’s Construction
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`Definite
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`Indefinite
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`The term “high-level function” is neither a term of degree nor indefinite. The intrinsic and
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`extrinsic evidence confirm that the term, as used in the ’212 patent, has a readily understood
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`meaning to a POSITA that is binary in nature: a “high-level function” is simply “a function that
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`may be used or consumed by devices from more than one vendor, as opposed to a low-level
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`function configured for one specific device.” See Wills 2d Decl. ¶¶ 18–19. Despite spending more
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`pages of its Reply on this term than on any other, Zynga’s arguments fail.
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`8 Zynga suggests that it “is not proposing a ‘negative limitation’” or “excluding embodiments.”
`Reply at 9. But Zynga does exactly that in excluding embodiments that do need to know a
`subscriber’s identity. If Zynga actually intends for its construction to cover both anonymous and
`address-based networks, then there is no reason to include Zynga’s limitation in the first place.
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`10
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`

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`Case 6:21-cv-00331-ADA Document 40 Filed 12/17/21 Page 14 of 22
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`First, Zynga argues that IGT proposed a construction in response to “compelling evidence”
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`(which Zynga does not identify) that the term is an indefinite term of degree. Reply at 10. Not so.
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`IGT showed that a POSITA would have understood the term’s meaning with reasonable certainty.
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`Dkt. 33 at 24–27. And Zynga has failed to cite any evidence that the term is actually one of degree.
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`It has never shown, for instance, where the ’212 patent discusses a so-called “‘medium-level’ or
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`just plain old ‘function.’” Dkt. 25 at 23. All Zynga has relied on is the fact that the patent provides
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`several examples of high-level functions (while ignoring the rest of the patent’s descriptions of
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`high- and low-level functions). See Dkt. 25 at 25. But this does not somehow transform the term
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`into one of degree. Indeed, the only “compelling evidence” is the evidence that IGT provided,
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`which shows that the term is neither one of degree nor indefinite. Dkt. 33 at 24–27.
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`Second, Zynga suggests that “IGT does not dispute that if the Court concludes ‘high-level
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`function’ is a term of degree, then it is indefinite.” Reply at 11. This also is wrong. As IGT
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`explained in its Response, “[a] patent need not provide an express definition of every claim term,
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`and the context in which a term is used may inform a skilled artisan as to its meaning.” Dkt. 33 at
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`24 (citing Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 909 (2014)). IGT proceeded to
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`cite three-and-a-half pages of evidence showing that a skilled artisan would have understood the
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`term’s meaning. Id. at 24–27. In such a case, even a term of degree is not ipso facto indefinite.
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`See Exmark Manufacturing Co. v. Briggs & Stratton Power Prods. Grp., LLC, 879 F.3d 1332,
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`1345–47 (Fed. Cir. 2018) (affirming claim definiteness where evidence showed that claim term
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`“substantially straight,” a term of degree, would have definite meaning to one skilled in the art).
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`Third, Zynga cites Halliburton Energy Services, Inc. v. M-I LLC, a decision that predates
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`Nautilus by more than six years. Reply at 11 (citing 514 F.3d 1244, 1250 (Fed. Cir. 2008)). Zynga
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`argues that this case supports its theory since “[t]he Court found the claim indefinite because the
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`11
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`

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`Case 6:21-cv-00331-ADA Document 40 Filed 12/17/21 Page 15 of 22
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`patent owner ‘had produced no evidence of “precisely how … ‘strong’ a gel must be—for that
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`fluid to exhibit ‘fragile gel behavior.’”’” Id. (quoting Halliburton, 514 F.3d at 1248). But the
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`question of sufficient gel fragility, determined by referencing an “L-shaped curve” (Halliburton,
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`514 F.3d at 1248), is unlike the question of whether a function is high-level or not—i.e., whether
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`or not the function may be used or consumed by devices from more than one vendor. And, as
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`noted above, Zynga cites zero evidence of a “medium-level” or “just plain old ‘function.’” See
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`Dkt. 25 at 23; Reply at 11. Zynga merely supposes that they exist in order to imply a spectrum.
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`Fourth, Zynga suggests that “IGT seeks to read in a negative limitation that a high-level
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`function cannot be ‘configured for one specific device.’” Reply at 12. This is incorrect and a red
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`herring. IGT does not believe the term “high-level function” requires construction at all. But, to
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`assist the Court in understanding the difference between high- and low-level functions, IGT and
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`Dr. Wills explained “high-level function,” in part, as a contrast with functions configured for one
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`specific device. See Dkt. 33 at 24 (citing Dkt. 34 ¶¶ 43–54); Wills 2d Decl. ¶ 20. This is not
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`required for a POSITA to understand the term.9 Rather, a POSITA would understand that a “high-
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`level function” may be used or consumed by devices from more than one vendor. Id. Thus, while
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`IGT believes the term needs no construction at all, it would not be opposed to the Court adopting
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`this definition and excluding the contrasting language that Zynga complains about.
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`Fifth, Zynga argues that “[b]iometric and graphics functions are often not vendor-agnostic
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`as they typically require specific hardware details.” Reply at 12 (citing Dkt. 39-2 ¶ 30). Here,
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`Zynga and Dr. Goodrich mistakenly conflate high-level functions (i.e., software services) with
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`underlying hardware. Reply at 12–13 (discussing “a biometric reader” and “graphics devices”);
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`9 Zynga also observes that “nothing in the claims refers to ‘different vendors.’” Reply at 12. IGT
`never argued otherwise. But a POSITA would understand from the very outset of the ’212 patent
`that th