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Acceleration Bay LLC v. Activision Blizzard Inc.

United States District Court, D. Delaware

April 10, 2018

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.

          MEMORANDUM ORDER

         Presently before me is Defendants' Motion for Clarification of the Court's Claim Construction Opinion and Order (No. 16-453, D.I. 302; No. 16-454, D.I. 275, No. 16-455, D.I. 271) and related briefing (No. 16-453, D.I. 318; No. 16-454, D.I. 286; No. 16-455, D.I. 28l).[1]

         For the reasons that follow, IT IS HEREBY ORDERED THAT Defendants' Motion for Clarification is GRANTED as to both Term 4 and Term 18.

         I. Term 4 ("means for connecting to the identified broadcast channel") ('344/13, '966/13)

         For Term 4 ("means for connecting to the identified broadcast channel"), my construction 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. 6, 714, 966 (the '"966 patent") as for the '344 patent, with the only differences being column and line citations.

         In their initial briefing, Defendants requested that I clarify my construction by deleting "at least one of and changing "or" to "in combination with." (D.I. 302 at 4). Defendants argued that Figures 3 A and 3B of the '344 patent do not provide "sufficient structure" for performing the recited function of "connecting to the identified broadcast channel." (Id.). More specifically, Defendants argued that Figures 3A and 3B and lines 5:33-55 are not an algorithm on their own and therefore cannot be "one of the algorithms" the structure requires. (Id. at 3). Rather, argued Defendants, Figures 3A and 3B and lines 5:33-55, along with Figure 8 and lines 17:67-19:34, 19:66-20:44, 21:4-53, 22:61-24:6, together comprise an algorithm that provides structure for performing the recited function. (Id.).

         Plaintiff disagreed, arguing that either of the two alternative embodiments-"portions of Figure 8 and corresponding specifications or Figures 3A and 3B and corresponding specifications"-provides function and supporting structures sufficient for the means term's validity. (D.I. 318 at 1-3).

         The arguments in the parties' initial briefs focused on whether Plaintiff had ever argued that Figures 3A and 3B alone constitute an algorithm. (D.I. 302 at 3; D.I. 318 at 5). However, the parties did not point to any evidence about whether Figures 3 A and 3B actually constitute an algorithm.[2]

         Accordingly, in response to Defendants' motion, I directed the parties to submit additional briefs

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) if there is a difference, whether Figures 3 A and 3B and corresponding specifications constitute a separate algorithm.

(D.I. 332). They did. (D.I. 340, 345, 354).

         As to the first issue, I found that the parties "seem to agree that the Figure 3 A/3B algorithm and the Figure 8 algorithm are describing the same algorithm, but at different levels of detail." (D.I. 388 at 2).

         As to the second issue, "Defendants argued that Figures 3A and 3B and corresponding specifications are a 'black box' and do not provide an independent algorithm for 'connecting.'" (Id. at 3 (citing D.I. 340 at 4-6, D.I. 354 at 2-6)). "Plaintiff, on the other hand, argued that Figures 3A and 3B and corresponding specifications do in fact provide an independent algorithm 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 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 ...


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