In such circumstances, the Board’s “precedential cases are clear that the guiding principle is whether or not the dismissal in question left the parties as though the action had never been brought.” LG, IPR2016-01516, Paper 23 at 8 (citations omitted).

But that court’s statement that “the re-filed complaints functionally were equivalent to amendments of the co-pending 2015 complaints” was made solely “for purposes of the first-to-file rule” which “is not a rigid or inflexible rule … [and] is to be applied with a view to the dictates of sound judicial administration.” 2016 WL 4548985 at *3, *5; see also id. at *4 n.3 (“To be clear, the relation back doctrine, strictly construed, may not technically apply, but the present circumstances warrant the same result its application would dictate.”).

The Board expressly confirmed that a complaint without standing “was not a proper federal pleading and did not trigger the one- year time period under 35 U.S.C. § 315(b).” Id. at 10.

Description Case IPR2017-01600 Patent 6,910,069 B1 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 U.S. Patent No. 6,910,069 File History of U.S. Patent No. 6,910,069 - 0001 to 1442 Declaration of Dr. Nicholas Bambos, Ph.D. Curriculum vitae of Dr. Nicholas Bambos, Ph.D. Francis, Paul, Yallcast: Extending the Internet Multicast Architecture (Sep. 30, 1999) (“Francis”) Ciriculum Vitae of Dr. Paul Francis, Ph.D Sept. 2, 2000, snapshot of www.yallcast.com, from web.archive.org, The Wayback Machine, last visited Feb. 9, 2017 Feb. 17, 2001, snapshot of www.yallcast.com/docs/index.html, from web.archive.org, The Wayback Machine, last visited Feb. 9, 2017 Post-script encoding for Ex. 1005, Francis Feb. 17, 2001, snapshot of www.yallcast.com/mail/index.html, from web.archive.org, The Wayback Machine, last visited Feb. 9, 2017 Jun.

“Seminar – Francis – Nov. 9 10am – Y’allcast architecture” Presentation – Yallcast Architecture Overview Case IPR2017-01600 Patent 6,910,069 B1 Presentation – Overview of Yallcast Dynamic Topology Configuration Apr. 3, 2002 snaptshot of www.icir.org/yoid/ from web.archive.org, the Wayback Marchine, last visited Feb. 9, 2017 Aug. 31, 2002 snaptshot of www.icir.org/yoid/docs/index.html from web.archive.org, the Wayback Marchine, last visited Feb. 9, 2017 Francis, Paul, Yoid: Extending the Internet Multicast Architecture (April 2, 2000) (“Yoid paper”) Declaration of Paul T. Francis U.S. Patent No. 6,490,247 to Gilbert et al. (“Gilbert”) U.S. Patent No. 5,170,482 to Shu et al. Frank et al., Multicast Communication on Network Computers, IEEE Software (1985) Friesen et al., Resource Management with Virtual Paths in ATM Networks, IEEE Network (1996) Dalal, Yogen Kantilal, Broadcast Protocols in Packet Switched Computer Networks, Ph.D. dissertation, Stanford University (1977) Chen et al., Addressing, Routing, and Broadcasting in Hexagonal Mesh Multiprocessors, IEEE Transactions on Computers (1990) Fragopoulou et al., Efficient Algorithms for Global Data Communication on the Multidimensional Torus Network, Parallel Processing Symposium Proceedings, IEEE (1995) Maxemchuk, Nicholas F., Routing in the Manhattan Street Network, IEEE Transactions on Communications (1987) Chalasani et al., Adaptive Wormhold Routing in Tori with Faults, IEEE Proceedings – Computers and Digital Techniques (1995) U.S. Patent No. 5,056,085 to Vu Ballardie et al., Core Based Trees (CBT): An Architecture for Scalable Inter-Domain Multicast Routing, ACM SIGCOMM Computer Communication Review (1993) U.S. Patent No. 5,331,637 to Francis et al. 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 Case IPR2017-01600 Patent 6,910,069 B1 Garcia-Luna-Aceves et al., A Multicast Routing Protocol for Ad- Hoc Networks, INFOCOM'99, Eighteenth Annual Joint Conference of the IEEE Computer and Communications Societies, IEEE (1999) Deering, Request for Comments: 1112, IETF (1989) Fenner, Request for Comments: 2236, IETF (1997) Estrin et al., Request for Comments: 2362, IETF (1998) Liu et al., A Scalable Multicast Routing, MILCOM 97 Proceedings, IEEE (1997) U.S. Patent No. 6,603,742 to Steele et al. (“Steele”) Chawathe et al., RMX Reliable Multicast for Heterogeneous Networks, INFOCOM 2000, Nineteenth Annual Joint Conference of the IEEE Computer and Communications Societies, IEEE (2000) (“Chawathe”) Chu et al., A Case for End System Multicast, ACM SIGMETRICS Performance Evaluation Review (2000) http://gaia.cs.umass.edu/sigmetrics2000/cfp.htm (retrieved February 9, 2017).

Accordingly, while Patent Owner reserves its right to advance additional arguments in the event that trial is instituted on any ground, the deficiencies of the Petition noted herein are more than sufficient for the Board to find that Petitioner has not met its burden to demonstrate a reasonable likelihood that it would prevail in showing unpatentability of any of the challenged claims.

Accordingly, Virgil Bourassa and Fred Holt— employees working in the Mathematics & Engineering Analysis Department at Boeing and eventual co-inventors of the SWAN Patents—were asked to create a system that would allow peer-to-peer communications for at least three participants across the country.

Throughout those three years, the inventors had nearly thirty different epiphanies that led to the creation of a successful system that was able to provide peer-to-peer communications among computer processes across the world, all while maintaining high reliability and low latency.

The SWAN project initially began in November of 1996 when Robert Abarbanel, Virgil Bourassa’s supervisor in the Computer Science Group, asked Mr. Bourassa to create a peer-to-peer communication platform that would support more than two users.

However, when “a patent owner provides sufficient rebuttal evidence that reasonably brings into question the accuracy of the petitioner’s identification of real parties-in-interest, the burden remains with the petitioner to establish that it has complied with the statutory requirement.” Id.

The Board’s standards for granting motions to seal are discussed in Garmin International v. Cuozzo Speed Technologies, LLC, IPR2012-00001 (Paper 34 at 4- 5, Mar. 14, 2013).

Motion for Entry of the Proposed Stipulated Protective Order IPR2017-01600 (U.S. Patent No. 6,910,069) The sealing of the foregoing is of particular importance because the public disclosure of such “truly sensitive information” would impact Boeing’s competitive position in the market.

The public’s interest in accessing the information requiring that the limited identified portions of the Patent Owner Preliminary Response, and Subject Exhibits be sealed for the purposes of the patentability of the challenged claims is unquestionably outweighed by the prejudicial effect and competitive harm of disclosing the above described confidential business information of third party, Boeing.

To the best of Acceleration Bay’s knowledge, the confidential information contained in the Patent Owner Preliminary Response, and the Subject Exhibits has not been made publically available.

Accordingly, good cause exists to warrant entry of the Proposed Stipulated Protective Order and to seal Acceleration Bay’s Patent Owner Preliminary Response and the Subject Exhibits from public disclosure.

For more information, please consult the Office Patent Trial Practice Guide, 77 Fed. Reg. 48756 (Aug. 14, 2012), which is available on the Board Web site at http://www.uspto.gov/PTAB.

Patent Owner is advised of the requirement to submit mandatory notice information under 37 C.F.R. § 42.8(a)(2) within 21 days of service of the petition.

The parties are advised that under 37 C.F.R. § 42.10(c), recognition of counsel pro hac vice requires a showing of good cause.

Such motions shall be filed in accordance with the “Order -- Authorizing Motion for Pro Hac Vice Admission” in Case IPR2013-00639, Paper 7, a copy of which is available on the Board Web site under “Representative Orders, Decisions, and Notices.” The parties are reminded that unless otherwise permitted by 37 C.F.R. § 42.6(b)(2), all filings in this proceeding must be made electronically in the Patent Review Processing System (PRPS), accessible from the Board Web site at http://www.uspto.gov/PTAB.

If the parties actually engage in alternative dispute resolution, the PTAB would be interested to learn what mechanism (e.g., arbitration, Case IPR2016-00726 Patent 6,910,069 mediation, etc.) was used and the general result.

Pursuant to 37 C.F.R. § 42.8(a)(3), the undersigned on behalf of and acting in a representative capacity for Petitioner Bungie, Inc., hereby submits the following mandatory change-of-information notices in connection with the petition for inter partes review of U.S. Patent No. 6,910,069, Case IPR2017-01600.

Related Matters (37 C.F.R. § 42.8(b)(2)) – Unchanged C. Lead and Back-up Counsel (37 C.F.R. § 42.8(b)(3)) –Revised Petitioner Bungie, Inc. provides the following updated designation of counsel: Lead Counsel Michael T. Rosato USPTO Reg. No. 52,182

Back-Up Counsel Andrew S. Brown USPTO Reg. No. 74,177

Related Matters (37 C.F.R. § 42.8(b)(2)): On March 12, 2016, Activision Blizzard, Inc., Electronic Arts Inc., Take-Two Interactive Software, Inc., 2K Sports, Inc., and Rockstar Games, Inc. (collectively, “Prior Petitioners”) petitioned for inter partes review of claims 1-17 of the ’069 patent (IPR2016-00726), which was denied.

v. Rea, 733 F.3d 1355, 1362 (Fed. Cir. 2013) (obvious analysis must “account for critical background information that could easily explain why an ordinarily skilled artisan would have been motivated to combine or modify the cited references to arrive at the claimed inventions”).

Thus, it would be a natural step for a person of ordinary skill in the art to add rendezvous-host responsibilities to network participants if the added security of a separate rendezvous host is not needed.

A person of ordinary skill in the art seeking to advance Francis’s objective that “each member establishes the same number of mesh links” would have looked to Gilbert for inspiration on how to maintain such a topology while adding new nodes.

Moreover, as described above in connection with claim element [1-E], Gilbert discloses a full range of alternatives for a “portal computer” that, upon a request by a node wishing to join the network, initiates the identification of a pair of participants.

Petitioner respectfully submits that the Board’s basis for denial as set forth in the Decision is misplaced because it misapprehends or overlooks Petitioner’s arguments regarding the prior art as a whole and the rationale for combining the teachings of Francis (EX1005) and Gilbert (EX1021).

Second, when introducing the detailed explanation for unpatentability, Petitioner presented several well-accepted rationales describing Case IPR2017-01600 Patent 6,910,069 B1 how and why a POSA would have modified Francis to utilize aspects of Gilbert’s joining techniques (see Pet. 40-41).

The Board reviews the prior decision for an abuse of discretion, id. § 42.71(c), such as an erroneous interpretation of law, a factual finding that is not supported by substantial evidence, or an unreasonable judgment in weighing relevant factors.

“In KSR, the Supreme Court criticized a rigid approach to determining obviousness based on the disclosures of individual prior-art references, with little recourse to the knowledge, creativity, and common sense that an ordinarily skilled artisan would have brought to bear when considering combinations or modifications.” Randall Mfg.

v. Rea, 733 F.3d 1355, 1362 (Fed. Cir. 2013) (finding Board erred by “ignoring the additional record evidence [challenger] cited to demonstrate the knowledge and perspective of one of ordinary skill in the art” and “fail[ing] to account for critical background information that could easily explain why an ordinarily skilled artisan would have been motivated to combine or modify the cited references to arrive at the claimed inventions”); see also Ariosa Diagnostics v. Verinata Health, Inc., 805 F.3d 1359, 1365 (Fed. Cir. 2015) (remanding and noting that background knowledge of a POSA “had to be considered by the Board” as the basis for obviousness).

Patent Owner, Acceleration Bay, LLC, hereby appoints the Practitioners associated with KRAMER LEVIN NAFTALIS & FRANKEL LLP, USPTO Customer Number 31013, as its attorneys to prosecute and to transact all business in the Patent Trial & Appeal Board of the United States Patent and Trademark Office connected with the above-identified Inter Partes Review matter.

); Acceleration Bay LLC v. Electronic Arts Inc., Case No. 1:16-cv-00454-RGA (D.

); and Acceleration Bay LLC v. Take-Two Interactive Software, Inc. et al., Case No. 1:16-cv-00455-RGA (D.

The ‘069 Patent has also been the subject of a Petition for Inter Partes Review in Case No. IPR2016-00726, which was denied institution.

Backup Counsel: Jeffrey H. Price, KRAMER LEVIN NAFTALIS & FRANKEL LLP, 1177 Avenue of the Americas, New York, NY 10036.

Service Information Patent Owner may be served through its counsel identified above.