`
`
`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ACCELERATION BAY, LLC,
`Appellant
`
`v.
`
`ACTIVISION BLIZZARD INC., ELECTRONIC ARTS
`INC., TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC., ROCKSTAR GAMES, INC.,
`Cross-Appellants
`
`BUNGIE, INC.,
`Appellee
`______________________
`
`2017-2084, 2017-2085, 2017-2095, 2017-2096, 2017-2097,
`2017-2098, 2017-2099, 2017-2117, 2017-2118
`______________________
`
`Appeals from the United States Patent and Trade-
`mark Office, Patent Trial and Appeal Board in Nos.
`IPR2015-01951,
`IPR2015-01953,
`IPR2015-01964,
`IPR2015-01970,
`IPR2015-01972,
`IPR2015-01996,
`IPR2016-00933,
`IPR2016-00934,
`IPR2016-00935,
`IPR2016-00936, IPR2016-00963, IPR2016-00964.
`______________________
`
`Decided: November 6, 2018
`______________________
`
`PAUL J. ANDRE, Kramer Levin Naftalis & Frankel
`LLP, Menlo Park, CA, argued for appellant. Also repre-
`sented by JAMES R. HANNAH.
`
`
`
`2
`
`ACCELERATION BAY, LLC v. ACTIVISION BLIZZARD INC.
`
`
` JAMES LAWRENCE DAVIS, JR., Ropes & Gray LLP, East
`Palo Alto, CA, argued for cross-appellants. Also repre-
`sented by ANDREW N. THOMASES; DOUGLAS HALLWARD-
`DRIEMEIER, Washington, DC.
`
` MICHAEL T. ROSATO, Wilson, Sonsini, Goodrich &
`Rosati, PC, Seattle, WA, for appellee. Also represented by
`JOSE CARLOS VILLARREAL, Austin, TX; RICHARD TORCZON,
`Washington, DC.
` ______________________
`
`Before PROST, Chief Judge, MOORE and REYNA, Circuit
`Judges.
`
`MOORE, Circuit Judge.
`Patent owner Acceleration Bay, LLC (“Acceleration”)
`appeals the final written decisions of the Patent Trial and
`Appeal Board holding unpatentable claims 1–9 of U.S.
`Patent No. 6,829,634, claims 1–11 and 16–19 of U.S.
`Patent No. 6,701,344, and claims 1–11 and 16–17 of U.S.
`Patent No. 6,714,966. Activision Blizzard, Inc., Electronic
`Arts Inc., Take-Two Interactive Software, Inc., 2k Sports,
`Inc., and Rockstar Games, Inc. (collectively, “Blizzard”)
`cross-appeal portions of the Board’s decisions holding
`patentable claims 10–18 of the ’634 patent, as well as
`substitute claims 19 of the ’966 patent, 21 of the ’344
`patent, and 25 of the ’634 patent. Blizzard also cross-
`appeals the Board’s decisions holding that the Lin article
`is not a printed publication under 35 U.S.C. § 102(a). For
`the following reasons, we affirm.
`
`
`
`
`
`
`ACCELERATION BAY, LLC v. ACTIVISION BLIZZARD INC.
`
`3
`
`BACKGROUND
`The patents at issue are directed to a broadcast tech-
`nique in which a broadcast channel overlays a point-to-
`point communications network. See, e.g., ’966 patent at
`4:3–5.1 The communications network consists of a graph
`of point-to-point connections between host computers or
`“nodes,” through which the broadcast channel is imple-
`mented, represented in Figure 1. Id. at 4:23–26, 48–49.
`
`Figure 1 illustrates a broadcast channel that is “4-regular,
`4-connected.” Id. at 4:48–49. It is “4-regular” because
`
`1 The specifications are similar but contain sections
`unique to each patent, such as: ’966 patent at 16:24–
`17:26 (discussing “an information delivery service”); ’344
`patent at 16:29–17:11 (discussing “a distributed game
`environment”); ’634 patent at 2:45–67 (providing a “sum-
`mary of the invention”).
`
`
`
`4
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`ACCELERATION BAY, LLC v. ACTIVISION BLIZZARD INC.
`
`each node is connected to exactly four other nodes, re-
`ferred to as “neighbors.” Id. at 4:26–30, 38–42, 49–53. It
`is “4-connected” because it would take the failure of four
`nodes to divide the graph into two separate sub-graphs.
`Id. at 4:42–47. One node sends a message to each of its
`three neighbors, and they send the message to their
`neighbors, thus broadcasting the message to each node.
`Id. at 4:30–38.
`Blizzard filed six inter partes review (“IPR”) peti-
`tions—two for each of the ’344, ’966, and ’634 patents—
`based principally on two different prior art references: one
`set of IPRs challenged claims based on the Shoubridge
`article2 alone or combined with a prior art book Direct-
`Play3 (“Shoubridge IPRs”), and another set of IPRs chal-
`lenged claims based on the Lin article4 alone or combined
`with DirectPlay (“Lin IPRs”). The Board instituted IPR
`on each petition, on many of the grounds and claims
` In the
`raised,5 and rendered six final decisions.
`
`
`2 Peter J. Shoubridge & Arek Dadej, Hybrid Rout-
`ing in Dynamic Networks, 3 IEEE INT’L CONF. ON COMMS.
`CONF. REC. 1381–86 (Montreal, 1997).
`3 Bradley Bargen & Peter Donnelly, Inside Di-
`rectX®: In-Depth Techniques
`for Developing High-
`Performance Multimedia Applications (Microsoft Press,
`1998).
`4 Meng-Jang Lin, et al., Gossip versus Deterministic
`Flooding: Low Message Overhead and High Reliability for
`Broadcasting on Small Networks, Technical Report No.
`CS1999-0637 (Univ. of Cal. San Diego, 1999).
`5 The Board did not institute IPR on all challenged
`claims and grounds. In SAS Institute, Inc. v. Iancu, 138
`S. Ct. 1348, 1353 (2018), the Court held that 35 U.S.C.
`§ 318(a) prohibits the Board from instituting IPR on fewer
`than all challenged claims. No party, however, has asked
`us to reopen or remand any portion of a non-instituted
`
`
`
`ACCELERATION BAY, LLC v. ACTIVISION BLIZZARD INC.
`
`5
`
`Shoubridge IPRs, the Board determined the following
`claims are unpatentable: ’966 patent claims 1–11 and 16–
`17; ’344 patent claims 1–11 and 16–19; and ’634 patent
`claims 1–9. In the Lin IPRs, the Board concluded that
`Lin is not a printed publication under 35 U.S.C. § 102(a)
`and thus determined Blizzard failed to show the chal-
`lenged claims are unpatentable over Lin.
`Acceleration appeals portions of the Board’s decisions
`in the Shoubridge IPRs, and Blizzard cross-appeals por-
`tions of the Board’s decisions in the Shoubridge IPRs and
`the Lin IPRs. We have jurisdiction under 28 U.S.C.
`§ 1295(a)(4)(A).
`
`DISCUSSION
`We review the Board’s legal determinations de novo
`and its fact findings for substantial evidence. PPC
`Broadband, Inc. v. Corning Optical Commc’ns RF, LLC,
`815 F.3d 747, 751 (Fed. Cir. 2016). In IPR, the Board
`gives claims their broadest reasonable interpretation
`consistent with the specification. Id. We review claim
`construction de novo except for subsidiary fact findings,
`which we review for substantial evidence. Id.
`I.
` Acceleration challenges three aspects of the Board’s
`decisions. Claim 1 of the ’966 patent is representative of
`the claim construction disputes in Acceleration’s appeal
`(emphases added):
`1. A computer network for providing an infor-
`mation delivery service for a plurality of par-
`ticipants, each participant having connections to
`
`petition, and we see no reason to independently do so.
`See, e.g., PGS Geophysical AS v. Iancu, 891 F.3d 1354,
`1359–62 (Fed. Cir. 2018); Jazz Pharm., Inc. v. Amneal
`Pharm., LLC, 895 F.3d 1347, 1354–55 (Fed. Cir. 2018).
`
`
`
`6
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`ACCELERATION BAY, LLC v. ACTIVISION BLIZZARD INC.
`
`at least three neighbor participants, wherein an
`originating participant sends data to the other
`participants by sending the data through each of
`its connections to its neighbor participants and
`wherein each participant sends data that it re-
`ceives from a neighbor participant to its other
`neighbor participants, further wherein the net-
`work is m-regular, where m is the exact number of
`neighbor participants of each participant and fur-
`ther wherein the number of participants is at
`least two greater than m thus resulting in a non-
`complete graph.
`Acceleration argues the Board erred by construing the
`term “participant” according to its plain meaning. It
`argues the terms “game environment” and “information
`delivery service,” appearing in the ’344 and ’966 patents,
`respectively, should have been given patentable weight.
`Finally, it argues the Board failed to identify a broadcast
`channel in Shoubridge in its anticipation and obviousness
`analyses. We address each argument in turn.
`A.
`Acceleration argues the Board erred by construing the
`term “participant” according to its plain meaning. It
`argues the proper construction of “participant” is an
`“application program that interacts with a logical broad-
`cast channel which overlays an underlying network.”
`Appellant’s Br. 26–27.
`We see no legal error in the Board’s refusal to import
`detailed structural information into the term “partici-
`pant.” See, e.g., J.A. 42–44. Neither the claims nor the
`specifications define or expressly describe the term in this
`manner, a fact Acceleration conceded at oral argument.
`Oral Arg. at 4:20–5:10. The specifications, for example,
`describe “participant” without reference to an application
`program. See, e.g., ’634 and ’966 patents at Abstract; ’634
`
`
`
`ACCELERATION BAY, LLC v. ACTIVISION BLIZZARD INC.
`
`7
`
`patent at 2:45–67. We conclude, therefore, that the Board
`properly construed “participant.”
`B.
`Acceleration argues the claim terms “game environ-
`ment” and “information delivery service” are limitations
`despite appearing in the preambles because they provide
`structure for the remainder of the claims. Appellant’s Br.
`35–38 (citing, e.g., Rowe v. Dror, 112 F.3d 473, 478 (Fed.
`Cir. 1997); Vizio, Inc. v. Int’l Trade Comm’n, 605 F.3d
`1330, 1341 (Fed. Cir. 2010)); Appellant’s Reply Br. 26.
`Acceleration alternatively argues that these terms appear
`in the body of the claims because there is no transition
`phrase denoting a preamble. See, e.g., Appellant’s Br. 38;
`Oral Arg. at 7:22–7:36.
`“A claim typically contains three parts: the preamble,
`the transition, and the body.” 3 Chisum on Patents § 8.06
`(2018). Acceleration’s poor claim drafting will not be an
`excuse for it to infuse confusion into its claim scope. We
`conclude that “game environment” and “information
`delivery service” are part of the preamble of the claims.
`We see no beneficial purpose to be served by failing to
`include a transition word in a claim to clearly delineate
`the claim’s preamble from the body, and we caution
`patentees against doing so.
`Because the terms at issue appear in preambles, we
`must determine whether the terms are limitations. A
`preamble limits the invention if it recites essential struc-
`ture or steps, or is “necessary to give life, meaning, and
`vitality” to the claim. Catalina Mktg. Int’l, Inc. v.
`Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002)
`(quoting Pitney Bowes, Inc. v. Hewlett-Packard Co., 182
`F.3d 1298, 1305 (Fed. Cir. 1999)). “[A] preamble is not
`limiting ‘where a patentee defines a structurally complete
`invention in the claim body and uses the preamble only to
`state a purpose or intended use for the invention.’” Id.
`(citing Rowe, 112 F.3d at 478).
`
`
`
`8
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`ACCELERATION BAY, LLC v. ACTIVISION BLIZZARD INC.
`
`We agree with the Board that the claim terms “game
`environment” and “information delivery service” are non-
`limiting because they merely describe intended uses for
`what is otherwise a structurally complete invention.
`They do not impart any structure into or serve as ante-
`cedents for the claims at issue. Instead, they simply
`provide an intended use for what is otherwise a claim for
`a network.
`
`C.
`Finally, Acceleration argues the Board determined
`that the canceled claims of the ’344 and ’966 patents
`describe a broadcast channel and acknowledged that the
`specifications explain the “broadcast channel overlays a
`point-to-point communications network.”
` It argues,
`however, that the Board failed to determine whether
`Shoubridge discloses such a broadcast channel.
`Acceleration again attempts to import structural limi-
`tations into claims lacking those limitations. The Board’s
`statement that the claims “recite[] a structurally complete
`invention (i.e., ‘a broadcast channel’)” did not import a
`broadcast channel overlaying a point-to-point network
`into the claims. See J.A. 41–42; J.A. 168. While the
`specifications discuss a broadcast channel overlaying a
`network, the claims at issue are not so limited. The
`specifications do not contain the sort of precise and clear
`language that would warrant reading a limitation to a
`broadcast channel overlaying a point-to-point communica-
`tions network into the claims at issue. Appellant’s Br. 41
`(citing ’966 patent at 4:3–5 (noting such an arrangement
`“is provided”); ’634 patent at 4:29–31 (same); ’344 patent
`at 4:3–5 (same)). The language in the specifications falls
`far short of the language we have found sufficient to limit
`claims to configurations described in the specification.
`See, e.g., Blackbird Tech LLC v. ELB Elecs., Inc., 895 F.3d
`1374, 1377 (Fed. Cir. 2018) (collecting cases, including
`those found to contain limiting language in the specifica-
`
`
`
`ACCELERATION BAY, LLC v. ACTIVISION BLIZZARD INC.
`
`9
`
`tion such as “the present invention” and “essential ele-
`ment among all embodiments or connotations of the
`invention”). The specifications further explain “the inven-
`tion is not limited except by the claims.” E.g., ’344 patent
`at 29:23–24. Because the claims at issue do not contain
`the broadcast channel limitation argued for by Accelera-
`tion, the Board did not err by failing to identify such a
`broadcast channel in Shoubridge. We have considered
`Acceleration’s remaining arguments and find them un-
`persuasive. Accordingly, we affirm the Board’s determi-
`nations with regard to issues raised in Acceleration’s
`appeal.
`
`II.
`Claim 10 of the ’634 patent, and substitute claim 19 of
`the ’966 patent, J.A. 81, are representative of the issues in
`Blizzard’s cross-appeal (emphases added):
`10. A non-routing table based broadcast channel for
`participants, comprising:
`a communications network that provides peer-to-
`peer communications between the participants
`connected to the broadcast channel; and
`for each participant connected to the broadcast
`channel, an indication of four neighbor par-
`ticipants of that participant; and
`a broadcast component that receives data from a
`neighbor participant using the communications
`network and that sends the received data to its
`other neighbor participants to effect the broad-
`casting of the data to each participant of the to
`broadcast channel, wherein the network is m-
`regular and m-connected, where m is the number
`of neighbor participants of each participant, and
`further wherein the number of participants is at
`least two greater than m thus resulting in a non-
`complete graph.
`
`
`
`10
`
`ACCELERATION BAY, LLC v. ACTIVISION BLIZZARD INC.
`
`19. (Proposed Substitute for Claim 7) A computer
`network for providing an information delivery service for
`a plurality of participants, each participant having con-
`nections to at least three neighbor participants,
`wherein an originating participant sends data to
`the other participants by sending the data
`through each of its connections to its neighbor
`participants and wherein each participant sends
`data that it receives from a neighbor participant
`to its other neighbor participants,
`further wherein the network is m-regular, where
`m is the exact number of neighbor participants of
`each participant,
`further wherein the number of participants is at
`least two greater than m thus resulting in a non-
`complete graph,
`further wherein the connections are peer-to-peer
`connections,
`further wherein the network is formed through a
`broadcast channel that overlays an underlying
`network,
`further wherein the information delivery service
`is provided by at least one information delivery
`service application program executing on each
`computer of the computer network that interacts
`with the broadcast channel,
`and further wherein participants can join and
`leave the network using the broadcast chan-
`nel.
`Blizzard cross-appeals three issues. First, it argues
`the Board erroneously concluded that Lin is not a printed
`publication under § 102(a). Second, it argues the Board
`erroneously determined ’634 patent claims 10–18 were
`not anticipated or rendered obvious by Shoubridge.
`
`
`
`ACCELERATION BAY, LLC v. ACTIVISION BLIZZARD INC.
`
`11
`
`Third, it argues the Board erred in determining that
`various amended claims were patentable over the prior
`art. We consider each in turn.
`A.
`Whether a reference qualifies as a printed publication
`under § 102 is a legal conclusion based on underlying fact
`findings.6 Jazz Pharm., Inc. v. Amneal Pharm., LLC, 895
`F.3d 1347, 1356 (Fed. Cir. 2018); accord Cooper Cameron
`Corp. v. Kvaerner Oilfield Prod., Inc., 291 F.3d 1317, 1321
`(Fed. Cir. 2002). One such fact question is public accessi-
`bility, which we review for substantial evidence. Jazz
`Pharm., 895 F.3d at 1356. “Because there are many ways
`in which a reference may be disseminated to the interest-
`ed public, ‘public accessibility’ has been called the touch-
`stone in determining whether a reference constitutes a
`‘printed publication’ . . . .” Id. (quoting In re Hall, 781
`F.2d 897, 898–99 (Fed. Cir. 1986)). A reference is consid-
`ered publicly accessible if it was “disseminated or other-
`wise made available to the extent that persons interested
`and ordinarily skilled in the subject matter or art, exercis-
`ing reasonable diligence, can locate it.” Id. at 1355–56
`(citing In re Wyer, 665 F.2d 221, 226 (CCPA 1981)). As
`petitioner, Blizzard had the burden to prove Lin is a
`printed publication. See id. at 1356.
`The Board found that Lin was not publicly accessible
`before the critical date. See J.A. 10–22; J.A. 114–127; J.A.
`141–153. Based on the testimony of Glenn Little, a
`Systems Administrator at the Computer Science and
`Engineering (“CSE”) department of the University of
`California, San Diego (“UCSD”), the Board found that Lin
`had been uploaded to the CSE Technical Reports Li-
`
`
`6 Because the applications for each of the patents at
`issue were filed before March 16, 2013, the pre-Leahy-
`Smith America Invents Act version of § 102 applies.
`
`
`
`12
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`ACCELERATION BAY, LLC v. ACTIVISION BLIZZARD INC.
`
`brary’s website as of November 23, 1999, which is not
`challenged on appeal. See, e.g., J.A. 11–13. As the Board
`explained, according to Mr. Little, “the CSE department
`regularly maintains electronic technical reports and
`records concerning those reports, and a staff member
`assigns a unique identifier to each report based on the
`year it was uploaded and the relative order it was upload-
`ed in comparison to other papers.” J.A. 11.
`The Board then correctly noted that “public accessibil-
`ity” requires more than technical accessibility. J.A. 13.
`Because there was no evidence that Lin was disseminated
`to the public, the Board focused on whether an interested
`skilled artisan, using reasonable diligence, would have
`found Lin on the CSE Technical Reports Library website.
`J.A. 13–14 (citing Voter Verified, Inc. v. Premier Election
`Sols., Inc., 698 F.3d 1374, 1380–81 (Fed. Cir. 2012)). The
`Board found that despite some indexing and search
`functionality on the website, Lin was not publicly accessi-
`ble. See J.A. 15–19. It found the website allowed a user
`to view a list of technical reports indexed only by author
`or year and that there was no evidence as to how many
`reports were in the Library’s database in 1999. See J.A.
`16–17, 22. The Board determined that at best, Blizzard’s
`evidence “suggests that an artisan might have located Lin
`by skimming through potentially hundreds of titles in the
`same year, with most containing unrelated subject mat-
`ter, or by viewing all titles in the database listed by
`author, when the authors were not particularly well
`known.” J.A. 17. The Board also found the website’s
`advanced search form to be deficient. It found that while
`the advanced search form appeared to allow a user to
`search keywords for author, title, and abstract fields,
`evidence demonstrated that functionality was not reliable.
`J.A. 18–19, 22. In sum, the Board determined that Bliz-
`zard “has not shown sufficiently that the UCSD CSE
`Technical Reports Library was searchable or indexed in a
`meaningful way so that a person of ordinary skill in the
`
`
`
`ACCELERATION BAY, LLC v. ACTIVISION BLIZZARD INC.
`
`13
`
`art would have located Lin.” J.A. 22. The Board, there-
`fore, concluded Lin is not a printed publication under
`§ 102(a). J.A. 22.
`The Board did not err in concluding Lin is not a print-
`ed publication. Substantial evidence supports its findings
`that Lin was not publicly accessible, including that Lin
`was not indexed in a meaningful way and that the web-
`site’s advanced search form was deficient. Mr. Little
`testified he does not know how the search works or how
`keywords are generated, that he never searched for Lin
`using the advanced search form, and that it was not the
`CSE department’s practice to verify the advanced search
`capability for title and abstract when a new article was
`uploaded. See J.A. 18; J.A. 7034–35. Mr. Little also
`admitted it was possible the search function did not work.
`J.A. 7035–36. Acceleration presented evidence that a
`recent advanced search for keywords in the title and
`abstract of Lin failed to produce any results. J.A. 7035–
`36; J.A. 7991–94. Blizzard argues these results are
`unauthenticated hearsay and are based on searches
`conducted years after the critical date, but Mr. Little
`testified that as to the website, “[i]t’s pretty much the
`same, actually, between [1999] and now. We’re running
`the same software.” J.A. 7031 at 19:15–20:23; see also
`J.A. 18–19. We will not disturb the Board’s weighing of
`the evidence. Substantial evidence supports the Board’s
`finding that there “is insufficient evidence of record to
`support a finding that a person of ordinary skill in the art
`in 1999 could have located Lin using the CSE Library
`website’s search function.” See J.A. 19.
`In light of these facts, this case is not analogous to In
`re Lister, 583 F.3d 1307 (Fed. Cir. 2009), as Blizzard
`claims. In Lister, we explained that “[a] reasonably
`diligent researcher with access to a database that permits
`the searching of titles by keyword would be able to at-
`tempt several searches using a variety of keyword combi-
`nations,” and thus concluded that the manuscript at issue
`
`
`
`14
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`ACCELERATION BAY, LLC v. ACTIVISION BLIZZARD INC.
`
`was publicly accessible as of the date it was included in
`“databases that permitted keyword searching of titles.”
`583 F.3d at 1315–16. Unlike in Lister, here the record
`supports the Board’s finding that the CSE Library web-
`site’s advanced search function did not successfully per-
`mit keyword searching of titles, a key feature in Lister.
`See id. The Board’s fact finding that, with available
`reports indexed only by author or year, Lin was not
`meaningfully indexed, is supported by substantial evi-
`dence.
`Blizzard argues we need not even consider the web-
`site’s search functionality because Lin was indexed by
`title for a given year, author name, and unique sequence
`number, which is sufficient for public accessibility under
`In re Hall, 781 F.2d 897 (Fed. Cir. 1986). We do not
`agree.
`The test for public accessibility is not “has the refer-
`ence been indexed?” We have explained that where
`indexing is concerned, whether online or in tangible
`media, the “ultimate question is whether the reference
`was ‘available to the extent that persons interested and
`ordinarily skilled in the subject matter or art, exercising
`reasonable diligence, can locate it.’” Voter Verified, 698
`F.3d at 1380; accord In re Klopfenstein, 380 F.3d 1345,
`1348 (Fed. Cir. 2004) (“Even if the cases cited by the
`appellants relied on inquiries into distribution and index-
`ing to reach their holdings, they do not limit this court to
`finding something to be a ‘printed publication’ only when
`there is distribution and/or indexing. Indeed, the key
`inquiry is whether or not a reference has been made
`‘publicly accessible.’”). Here, the Board found that alt-
`hough Lin was indexed by author and year, it was not
`meaningfully indexed such that an interested artisan
`exercising reasonable diligence would have found it,
`which is a proper consideration under our precedent. See,
`e.g., In re Cronyn, 890 F.2d 1158, 1161 (Fed. Cir. 1989)
`(“We conclude that in the present case, as in Bayer and
`
`
`
`ACCELERATION BAY, LLC v. ACTIVISION BLIZZARD INC.
`
`15
`
`unlike Hall, the three student theses were not accessible
`to the public because they had not been either cataloged
`or indexed in a meaningful way. . . . Here, the only re-
`search aid was the student’s name, which, of course, bears
`no relationship to the subject of the student’s thesis.”). In
`light of the Board’s fact findings, which are supported by
`substantial evidence, we agree that Lin is not a printed
`publication under § 102.
`
`B.
`Blizzard argues the Board erroneously determined
`claims 10–18 of the ’634 patent are patentable over
`Shoubridge. Independent claim 10 contains the limita-
`tion, “for each participant connected to the broadcast
`channel, an indication of four neighbor participants of
`that participant.” The Board construed “indication”
`according to its ordinary meaning as “something that
`serves to indicate,” J.A. 253–54, which is not disputed on
`appeal. Blizzard disputes the Board’s application of the
`term to Shoubridge. Specifically, it argues its expert, Dr.
`David Karger, explained “a participant must know the
`identities of its neighbors in order to send messages to
`them,” and the Board applied an unspecified narrower
`construction that requires something more than each
`participant “know[ing] the identities of its neighbors” in
`determining Shoubridge did not disclose or render obvious
`this limitation. Cross-Appellants’ Br. 58–60.
`We see no error in the Board’s construction or applica-
`tion of “indication.” The Board did not err in determining
`that “an ‘indication’ requires more than the existence of
`neighbors,” and substantial evidence supports its finding
`that Shoubridge does not disclose “something that serves
`to indicate” despite the fact that Shoubridge discloses
`nodes connected to each other. J.A. 254; J.A. 271–72.
`Blizzard also argues the Board abused its discretion
`by failing to consider paragraphs 193–205 of Dr. Karger’s
`reply declaration because it constituted new evidence for
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`ACCELERATION BAY, LLC v. ACTIVISION BLIZZARD INC.
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`its obviousness argument that could have been presented
`in the petition. See, e.g., Cross-Appellants’ Br. 60 (citing
`J.A. 40569–74 ¶¶ 193–205)). It argues the declaration
`directly responds to Acceleration’s construction of “indica-
`tion” and explains a skilled artisan’s understanding of the
`prior art regarding this limitation. It also argues it raised
`backup obviousness arguments for claims 1–18 over
`Shoubridge in its petition. We review the Board’s eviden-
`tiary rulings for abuse of discretion. Belden Inc. v. Berk-
`Tek LLC, 805 F.3d 1064, 1078 (Fed. Cir. 2015).
`The Board did not abuse its discretion in declining to
`consider the cited paragraphs in Dr. Karger’s reply decla-
`ration. See J.A. 271–72. The declaration raises a new
`obviousness argument for this limitation that could have
`been made in the petition. The Board correctly noted this
`argument was not made in the petition, which proposed
`that Shoubridge rendered obvious a number of other claim
`limitations. Blizzard, as petitioner, had an opportunity to
`present this argument in its petition, but chose not to.
`See SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1355 (2018)
`(noting “the petitioner is master of its complaint”); id. at
`1358 (noting the statute “makes the petition the center-
`piece of the proceeding both before and after institution”).
`As we recently explained,
`[i]t is of the utmost importance that petitioners in
`the IPR proceedings adhere to the requirement
`that the initial petition identify “with particulari-
`ty” the “evidence that supports the grounds for the
`challenge to each claim.” 35 U.S.C. § 312(a)(3).
`“All arguments for the relief requested in a motion
`must be made in the motion. A reply may only re-
`spond to arguments raised in the corresponding
`opposition or patent owner response.” 37 C.F.R.
`§ 42.23(b). Once the Board identifies new issues
`presented for the first time in reply, neither this
`court nor the Board must parse the reply brief to
`determine which, if any, parts of that brief are re-
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`ACCELERATION BAY, LLC v. ACTIVISION BLIZZARD INC.
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`17
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`sponsive and which are improper. As the Board
`noted, “it will not attempt to sort proper from im-
`proper portions of the reply.” Office Patent Trial
`Practice Guide, 77 Fed. Reg. 48,756, 48,767 (Aug.
`14, 2012).
`Intelligent Bio-Sys., Inc. v. Illumina Cambridge Ltd., 821
`F.3d 1359, 1369 (Fed. Cir. 2016). We conclude that the
`Board did not abuse its discretion in not considering the
`cited paragraphs of the reply declaration in its analysis.
`C.
`Finally, Blizzard argues that certain substitute claims
`are unpatentable. The Board held substitute claims 19 of
`the ’966 patent, 21 of the ’344 patent, and 25 of the ’634
`patent patentable. These substitute claims contain the
`limitation “participants can join and leave the network
`using the broadcast channel.” Blizzard argues the Board
`inconsistently and erroneously construed the join-leave
`limitation. It argues the Board applied the correct con-
`struction when analyzing whether the motions to amend
`identified written description support in the original
`disclosure for the new limitation, but that it applied an
`unspecified, narrower construction when comparing the
`claims to the prior art.
`We see no error in the Board’s analysis of this limita-
`tion. Blizzard provided no construction below, or on
`appeal, for this claim limitation. The Board, therefore,
`properly focused on the ordinary meaning to determine
`the prior art did not disclose or render obvious joining the
`network “using the broadcast channel.” We see no error
`or inconsistent treatment of this claim limitation in the
`Board’s analyses concerning written description and
`invalidity. We have considered Blizzard’s remaining
`arguments and find them unpersuasive. Accordingly, we
`affirm the Board’s determinations with regard to issues
`raised in Blizzard’s cross-appeal.
`
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`CONCLUSION
`We conclude the Board properly construed “partici-
`pant” according to its plain meaning and gave no patent-
`able weight to the terms “game environment” and
`“information delivery service.” We also conclude substan-
`tial evidence supports the Board’s findings underlying its
`conclusion that Lin is not § 102 prior art, and that the
`Board did not err in determining certain claims and
`substitute claims are patentable over the prior art.
`Accordingly, we affirm.
`AFFIRMED
`COSTS
`
`No costs.
`
`
`
`