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`Case 1:16-cv-00455-RGA Document 419 Filed 04/10/18 Page 1 of 7 PageID #: 31391
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.
`
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`V.
`
`ELECTRONIC ARTS INC.
`
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`TAKE-TWO INTERACTIVE
`SOFTWARE, INC., ROCKSTAR
`GAMES, INC., AND 2K SPORTS,
`INC.
`
`Defendants.
`
`Civil Action No. 16-453-RGA
`
`Civil Action No. 16-454-RGA
`
`Civil Action No. 16-455-RGA
`
`MEMORANDUM ORDER
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`

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`Case 1:16-cv-00455-RGA Document 419 Filed 04/10/18 Page 2 of 7 PageID #: 31392
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`Presently before me is Defendants' Motion for Clarification of the Court's Claim
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`Construction Opinion and Order (No. 16-453, D.I. 302; No. 16-454, D.I. 275, No. 16-455, D.I.
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`271) and related briefing (No. 16-453, D.I. 318; No. 16-454, D.I. 286; No. 16-455, D.I. 281 ). 1
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`For the reasons that follow, IT IS HEREBY ORDERED THAT Defendants'
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`Motion for Clarification is GRANTED as to both Term 4 and Term 18.
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`I. Term 4 ("means for connecting to the identified broadcast channel")
`('344/13, '966/13)
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`For Term 4 ("means for connecting to the identified broadcast channel"), my construction
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`for U.S. Patent No. 6,701,344 (the '"344 patent") is:
`
`A processor programmed to perform at least one o/the algorithms disclosed in
`steps 801 to 809 in Figure 8 and described in the '344 Patent at 17:67-19:34,
`19:66-20:44, 21 :4-53, 22:61-24:6, and Figures 9, 11, 13, 14, 17 and 18, or
`Figures 3A and 3B and described in the '344 Patent at 5:33-55, which involves
`invoking the connecting routine with the identified broadcast channel's type and
`instance, connecting to the broadcast channel, connecting to a neighbor, and
`connecting to a fully connected state.
`
`(D.I. 287 at 3) (emphasis added). Term 4 has the same construction for U.S. Patent No.
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`6,714,966 (the "'966 patent") as for the '344 patent, with the only differences being column and
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`line citations.
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`In their initial briefing, Defendants requested that I clarify my construction by deleting
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`"at least one of' and changing "or" to "in combination with." (D.I. 302 at 4). Defendants argued
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`that Figures 3A and 3B of the '344 patent do not provide "sufficient structure" for performing
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`the recited function of "connecting to the identified broadcast channel." (Id.). More specifically,
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`Defendants argued that Figures 3A and 3B and lines 5:33-55 are not an algorithm on their own
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`and therefore cannot be "one of the algorithms" the structure requires. (Id. at 3). Rather, argued
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`Defendants, Figures 3A and 3B and lines 5:33-55, along with Figure 8 and lines 17:67-19:34,
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`1 All further citations are only to the docket in No. 16-453.
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`2
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`

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`Case 1:16-cv-00455-RGA Document 419 Filed 04/10/18 Page 3 of 7 PageID #: 31393
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`19:66-20:44, 21:4-53, 22:61-24:6, together comprise an algorithm that provides structure for
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`performing the recited function. (Id).
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`Plaintiff disagreed, arguing that either of the two alternative embodiments-"portions of
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`Figure 8 and corresponding specifications Q! Figures 3A and 3B and corresponding
`
`specifications"-provides function and supporting structures sufficient for the means term's
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`validity. (D.I. 318 at 1-3).
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`The arguments in the parties' initial briefs focused on whether Plaintiff had ever argued
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`that Figures 3A and 3B alone constitute an algorithm. (D.I. 302 at 3; D.I. 318 at 5). However,
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`the parties did not point to any evidence about whether Figures 3A and 3B actually constitute an
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`algorithm.2
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`Accordingly, in response to Defendants' motion, I directed the parties to submit
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`additional briefs
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`on the issues of ( 1) whether there is a substantive difference between the
`algorithm/"process of a new computer Z connecting to the broadcast channel" of
`Figures 3A and 3B and corresponding specifications and the algorithm
`/"processing of the connect routine" of Figure 8 and corresponding specifications,
`and (2) ifthere is a difference, whether Figures 3A and 3B and corresponding
`specifications constitute a separate algorithm.
`
`(D.I. 332). They did. (D.I. 340, 345, 354).
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`As to the first issue, I found that the parties "seem to agree that the Figure 3A/3B
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`algorithm and the Figure 8 algorithm are describing the same algorithm, but at different levels of
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`detail." (D.I. 388 at 2).
`
`2 I note that Plaintiff did identify alternative algorithm embodiments. Paragraph 57 of Plaintiffs expert Dr.
`Nenad Medvidovic's declaration identifies a single "algorithm" described in Figure 8 and its corresponding
`descriptions in the '966 and '344 patent specifications. Paragraph 58 then separately refers to a single "algorithm"
`found in Figures 3A and 3B and corresponding descriptions. Paragraph 59 then refers to these "algorithms" in
`tandem, stating that a "person of ordinary skill in the art would understand that the steps set forth in these figures
`and the related portions of the specification disclose [both] algorithms for performing the function of 'connecting a
`participant to an identified broadcast channel."' (D.1. 191-1, Exh. Fat iii! 57-61).
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`3
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`Case 1:16-cv-00455-RGA Document 419 Filed 04/10/18 Page 4 of 7 PageID #: 31394
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`As to the second issue, "Defendants argued that Figures 3A and 3B and corresponding
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`specifications are a 'black box' and do not provide an independent algorithm for 'connecting."'
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`(Id. at 3 (citing D.I. 340 at 4-6, D.I. 354 at 2-6)). "Plaintiff, on the other hand, argued that
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`Figures 3A and 3B and corresponding specifications do in fact provide an independent algorithm
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`for 'connecting,' citing a new declaration from Dr. Medvidovic (D.I. 346)." (D.I. 388 at 3
`
`(citing D.I. 345 at 9-10)). I ordered the parties to produce expert witness testimony to resolve the
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`second issue. (D.I. 388 at 3; Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1313-14 (Fed. Cir.
`
`2012) (holding that the issue of whether structure is "sufficient ... requir[ es] consideration of
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`what one skilled in the art would understand from [the] disclosure, whether by way of expert
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`testimony or otherwise")).
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`I held a hearing on January 29, 2018, at which Plaintiffs expert Dr. Michael
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`Mitzenmacher and Defendants' expert Dr. John Kelly testified. (D.1. 437 ("Tr.") 5:2-4, 63:17-
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`19).
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`Dr. Kelly testified that Figures 3A and 3B and lines 5:33-55 are not relevant to the claims
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`in which Term 4 appears. (Tr. 76:21-77:17). Both experts agree that Figure 3A depicts a
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`"complete" graph, where the number of participants (5) is one more than m (4). (Tr. 30:5-9, 18-
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`31 ). The "plurality of broadcast channels" in the claims, however, require that "the number of
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`participants is at least two greater than m thus resulting in a non-complete graph." (Tr. 29:24-
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`30:21; '344 patent, claim 13; '966 patent, claim 13). Thus, say Defendants, "[Figures 3A and
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`3B] depict a computer connecting to a small regime 'complete' graph, whereas Term 4 is
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`directed to connecting to a channel 'of interest' from among a plurality of [large regime] 'non-
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`complete' channels." (D.1. 456 at 2). Defendants assert that this mismatch means Figures 3A
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`4
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`Case 1:16-cv-00455-RGA Document 419 Filed 04/10/18 Page 5 of 7 PageID #: 31395
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`and 3B are "not relevant to the claims at issue and cannot be used as corresponding structure for
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`Term 4." (Id.).
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`Plaintiff does not address this argument in letter briefing submitted after the hearing.
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`(See generally D.I. 457). At the hearing, Dr. Mitzenmacher testified that Figure 3B depicts a
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`"non-complete" graph, and therefore "meets the language of the claims." (Tr. 30:14-17).
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`However, Term 4 requires "means for connecting to the identified broadcast channel." The
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`"identified broadcast channel" refers to the graph being joined, not the graph that results from
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`joining. (Tr. 29:5-17). Figure 3A depicts the graph being joined. Figure 3B, on the other hand,
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`depicts the graph that results from joining. Figure 3B therefore does not depict an "identified
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`broadcast channel." Dr. Mitzenmacher's point is unavailing.
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`I find that Figures 3A and 3B and lines 5:33-55 are not relevant to the claims in which
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`Term 4 appears. 3 Because Figures 3A and 3B and lines 5:33-55 of the '344 Patent specification
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`are not relevant to the claims at issue, they cannot be used as a corresponding structure for Term
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`4. I will therefore grant Defendants' Motion as to Term 4. I need not reach the parties'
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`arguments about whether the Figure 3A/3B algorithm provides sufficient structure. (D.I. 456 at
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`2-4; D.I. 457 at 1-6). I adopt the following construction for Term 4:
`
`A processor programmed to perform the algorithms disclosed in steps 801 to 809
`in Figure 8 (described in the '344 Patent at 17:67-19:34, 19:66-20:44, 21 :4-53,
`22:61-24:6), and Figures 9, 11, 13, 14, 17 and 18, which involves invoking the
`connecting routine with the identified broadcast channel's type and instance,
`connecting to the broadcast channel, connecting to a neighbor, and connecting to
`a fully connected state.
`
`3 This conclusion is consistent with my finding that that the parties agreed "that the Figure 3A/3B algorithm
`and the Figure 8 algorithm are describing the same algorithm, but at different levels of detail." (D.l. 388 at 2).
`Figure 8 is not limited to connecting to a "complete" graph.
`
`5
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`

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`Case 1:16-cv-00455-RGA Document 419 Filed 04/10/18 Page 6 of 7 PageID #: 31396
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`II.
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`Term 18 ("m-connected" and "m-connected network") ('634/1, 19)
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`For term 18 ("m-connected" and "m-connected network"), my construction for the '344
`
`patent is:
`
`A state that the network is configured to maintain, where the network may be
`divided into disconnected sub-networks by the removal of m participants in a
`steady state.
`
`(D.I. 287 at 5) (emphasis added). Defendants request that I strike "in a steady state" from this
`
`construction to be consistent with the construction for the "m-regular" terms. Plaintiff does not
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`really oppose this request. (D .I. 318 at 7-8).
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`For the "m-regular" terms, I did not include Plaintiffs requested language "in a steady
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`state" in my construction. Plaintiff expressed concern with my construction on grounds that it
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`might read out a configuration where the network is not in a "steady state," defining a "steady
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`state" as existing when the network is configured such that each participant is connected to
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`exactly m neighbors. Plaintiff explained that there will be "points where [the] network ... is
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`configured to maintain where each participant [is] connected to exactly m neighbors, but ... also
`
`allows for ... flexing in and out ofthat configuration." (D.I. 219 at 70:25-71:16). Plaintiff
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`urged that Defendants' proposed language of "at all times" would improperly disallow this
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`"flexing" from the "steady state" because it would require the network to have each participant
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`be connected to m neighbors at all times. But by eliminating Defendants' "at all times"
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`language, my construction requires only that the network is configured to have each participant
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`be connected to m neighbors. In other words, it is fine that the network does not have each
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`participant connected to m neighbors so long as, when appropriate, the network tries to get that
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`configuration. (D.I. 275 at 14-15).
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`6
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`

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`Case 1:16-cv-00455-RGA Document 419 Filed 04/10/18 Page 7 of 7 PageID #: 31397
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`Here, as is the case in my construction for the "m-regular" term, the network is not
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`"configured to maintain" an "m-connected" state "at all times." Indeed, for that reason, I struck
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`"at all times" from the Defendants' proposed construction. (D.I. 275 at 16). As a result, to the
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`extent that Plaintiffs concerns were alleviated for the "m-regular" term by my striking
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`Defendants' proposed "at all times" language, they should be alleviated here, as well, even
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`absent the "in a steady state" language. Thus, to be consistent with the "m-regular" construction,
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`I will grant Defendants' Motion as to Term 18 and strike "in a steady state" from the
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`construction.
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`Entered this J1l day of April, 2018.
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`United States
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`7
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