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Acceleration Bay, LLC v. Activision Blizzard Inc.

United States Court of Appeals, Federal Circuit

November 6, 2018

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

          Appeals from the United States Patent and Trademark 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.

          Paul J. Andre, Kramer Levin Naftalis & Frankel LLP, Menlo Park, CA, argued for appellant. Also represented by James R. Hannah.

          James Lawrence Davis, Jr., Ropes & Gray LLP, East Palo Alto, CA, argued for cross-appellants. Also represented 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.

         Background

         The patents at issue are directed to a broadcast technique 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 implemented, represented in Figure 1. Id. at 4:23-26, 48-49.

         (Image Omitted)

         Figure 1 illustrates a broadcast channel that is "4-regular, 4-connected." Id. at 4:48-49. It is "4-regular" because each node is connected to exactly four other nodes, referred 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") petitions-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 article[2] alone or combined with a prior art book Direct-Play[3] ("Shoubridge IPRs"), and another set of IPRs challenged claims based on the Lin article[4] alone or combined with DirectPlay ("Lin IPRs"). The Board instituted IPR on each petition, on many of the grounds and claims raised, [5] and rendered six final decisions. In the 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 challenged claims are unpatentable over Lin.

         Acceleration appeals portions of the Board's decisions in the Shoubridge IPRs, and Blizzard cross-appeals portions 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 information delivery service 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.

         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 broadcast 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 "participant." 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 ...


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