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Acceleration Bay LLC v. Activision Blizzard, Inc.

United States District Court, D. Delaware

August 30, 2017

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.

          Philip A. Rovner, Jonathan A. Choa, POTTER ANDERSON & CORROON LLP, Wilmington, DE; Paul J. Andre, Lisa Kobialka, Hannah Lee, KRAMER LEVIN NAFTALIS & FRANKEL LLP, Menlo Park, CA; Aaron Frankel, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York, NY. Attorneys for Plaintiff.

          Jack B. Blumenfeld, Stephen J. Kraftschik, MORRIS, NICHOLS, ARSHT & TUNNEL LLP, Wilmington, DE; Michael A. Tomasulo, Gino Cheng, David K. Lin, Joe S. Netikosol, WINSTON & STRAWN LLP, Los Angeles, CA; David P. Enzminger, WINSTON & STRAWN LLP, Menlo Park, CA; Dan K. Webb, Kathleen B. Barry, WINSTON & STRAWN LLP, Chicago, IL. Attorneys for Defendants.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Presently before me is the issue of claim construction of multiple terms in U.S. Patent No. 6, 701, 344 (the '"344 patent"), U.S. Patent No. 6, 714, 966 (the '"966 patent"), U.S. Patent No. 6, 829, 634 (the '"634 patent"), U.S. Patent No. 6, 910, 069 (the '"069 patent"), U.S. Patent No. 6, 732, 147 (the '"147 patent"), and U.S. Patent No. 6, 920, 497 (the '"497 patent"). I have considered the parties' Joint Claim Construction Brief (D.I. 186)[1] and supplemental letters. (D.I. 220; D.I. 222; D.I. 225; D.I. 237; D.I. 240). I issued an order limiting the issues to the eight means-plus-function terms and the three "m" terms found on pages 1-23 and 26-51 of the Joint Claim Construction Brief. (D.I. 206). I held oral argument on July 10, 2017. (D.I. 219 ("Tr.")).

         I. LEGAL STANDARD

         "It is a bedrock principle of patent law that the claims of a patent define the invention to which the patentee is entitled the right to exclude." Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (internal quotation marks omitted). '"[T]here is no magic formula or catechism for conducting claim construction.' Instead, the court is free to attach the appropriate weight to appropriate sources 'in light of the statutes and policies that inform patent law.'" Soft View LLC v. Apple Inc., 2013 WL4758195, at *1 (D. Del. Sept. 4, 2013) (quoting Phillips, 415 F.3d at 1324) (alteration in original). When construing patent claims, a court considers the literal language of the claim, the patent specification, and the prosecution history. Markman v. Westview Instruments, Inc., 52 F.3d 967, 977-80 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996). Of these sources, "the specification is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term." Phillips, 415 F.3d at 1315 (internal quotation marks omitted).

         "[T]he words of a claim are generally given their ordinary and customary meaning.... [Which is] the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application." Id. at 1312-13 (citations and internal quotation marks omitted). "[T]he ordinary meaning of a claim term is its meaning to [an] ordinary artisan after reading the entire patent." Id. at 1321 (internal quotation marks omitted). "In some cases, the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words." Id. at 1314.

         When a court relies solely upon the intrinsic evidence-the patent claims, the specification, and the prosecution history-the court's construction is a determination of law. See Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015). The court may also make factual findings based upon consideration of extrinsic evidence, which "consists of all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises." Phillips, 415 F.3d at 1317-19. Extrinsic evidence may assist the court in understanding the underlying technology, the meaning of terms to one skilled in the art, and how the invention works. Id. Extrinsic evidence, however, is less reliable and less useful in claim construction than the patent and its prosecution history. Id.

         "A claim construction is persuasive, not because it follows a certain rule, but because it defines terms in the context of the whole patent." Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows that "a claim interpretation that would exclude the inventor's device is rarely the correct interpretation." Osram GMBH v. Int'l Trade Comm 'n, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (citation omitted).

         II. BACKGROUND

         The following claims are the most relevant for the purposes of this Markman.

         Claim 1 of the '344 Patent

1. A computer network for providing a game environment for a plurality of participants, each participant having connections 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 and further wherein the number of participants is at least two greater than m thus resulting in a non-complete graph.

(D.I. 117-2, Exh. A-l ('"344 patent"), claim 1).

         Claim 13 of the '344 Patent

         13. A distributed game system comprising:

a plurality of broadcast channels, each broadcast channel for playing a game, each of the broadcast channels for providing game information related to said game to a plurality of participants, each participant having connections 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 neighbor participants, further wherein the network is m-regular, where m is the exact 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;
means for identifying a broadcast channel for a game of interest; and
means for connecting to the identified broadcast channel.

('344 patent, claim 13).

         Claim 9 of the '497 Patent

         9. A component in a computer system for locating a call-in port of a portal computer, comprising:

means for identifying the portal computer, the portal computer having a dynamically selected call-in port for communicating with other computers;
means for identifying the call-in port of the identified portal computer by repeatedly trying to establish a connection with the identified portal computer through contacting a communications port or communications ports until a connection is successfully established;
means for selecting the call-in port of the identified portal computer using a port ordering algorithm; and
means for re-ordering the communications ports selected by the port ordering algorithm.

(D.I. 117-2, Exh. A-6 ('"497 patent"), claim 9).

         III. TERMS FOR CONSTRUCTION

         1. Term 4: "means for connecting to the identified broadcast channel" (claim 13 of the '344 patent; claim 13 of the '966 patent)

a. Plaintiff's proposed construction:
Function: Connecting a participant to an identified broadcast channel
'966 Structure: A processor programmed to perform at least one of the algorithms disclosed in steps 801 to 806 in Figure 8 and described in the '966 Patent at 18:3-19:22 or Figures 3A and 3B and described in the '966 Patent at 5:32-52, 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
'344 Structure: A processor programmed to perform at least one of the algorithms disclosed in steps 801 to 806 in Figure 8 and described in the '344 Patent at 17:67-18:47 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
b. Defendants' proposed construction:
Function: Connecting to the identified broadcast channel Structure: Indefinite because no/insufficient algorithm disclosed
c. Court's construction:
Function: Connecting to the identified broadcast channel '966 Structure: A processor programmed to perform at least one of the algorithms disclosed in steps 801 to 809 in Figure 8 and described in the
'966 Patent at 18:3-20:9, 20:41-21:19, 21:46-22:28, 23:37-24:49, and Figures 9, 11, 13, 14, 17 and 18, or Figures 3A and 3B and described in the '966 Patent at 5:32-52, 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
'344 Structure: A processor programmed to perform at least one of 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

         The claims require a "means for connecting to the identified broadcast channel." (See, e.g., '344 patent, claim 13). Plaintiff provides no basis for its proposed function language. (D.I. 186 at p. 32). Plaintiff further agrees with using "the." (Tr. 106:9-12). Thus, I adopt Defendants' function including the "the" language.

         The specification describes Figure 8 as a "flow diagram[] illustrating the processing of the broadcaster component in one embodiment." (See, e.g., D.I. 117-2, Exh. A-2 ('"966 patent"), 18:2-3). It "illustrat[es] the processing of the connect routine .. .." (See, e.g., '966 patent, 18:3-5). Thus, the specification describes all of Figure 8 as the structure for "connecting to the identified broadcast channel." The algorithm in Figure 8 is further fleshed out by Figures 9, 11, 13, 14, 17 and 18 and their corresponding descriptions in the specification. (See, e.g., '966 patent, 18:3-20:9, 20:41-21:19, 21:46-22:28, 23:37-24:49). Block 806 is therefore relevant to the connecting function that is claimed. I think Figure 8, considered as a whole, and its accompanying ...


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