Case 1:16-cv-00455-RGA Document 492 Filed 03/23/20 Page 1 of 20 PageID #: 34448
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`V.
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC., and 2K
`SPORTS, INC.,
`
`Defendants.
`
`Civil Action No. 16-455-RGA
`
`MEMORANDUM OPINION
`
`Philip A. Rovner and Jonathan A. Choa, POTTER ANDERSON & CORROON LLP,
`Wilmington, DE; Paul J. Andre, Lisa Kobialka, and James Hannah, KRAMER LEVIN
`NAFT ALIS & FRANKEL LLP, Menlo Park, CA; Aaron M. Frankel and Marcus A. Colucci,
`KRAMER LEVIN NAFT ALIS & FRANKEL LLP, New York, NY, attorneys for Plaintiff.
`
`Jack B. Blumenfeld and Stephen J. Kraftschik, MORRIS, NICHOLS, ARSHT & TUNNELL
`LLP, Wilmington, DE; Michael A. Tomasulo, Gino Cheng, David K. Lin, and Joe S. Netikosol,
`WINSTON & STRAWN LLP, Los Angeles, CA; David P. Enzminger and Louis L. Campbell,
`WINSTON & STRAWN LLP, Menlo Park, CA; Daniel K. Webb and Kathleen B. Barry,
`WINSTON & STRAWN LLP, Chicago, IL; Michael M. Murray, WINSTON & STRAWN LLP,
`New York, NY; Andrew R. Sommer, Paul N. Harold, and Joseph C. Masullo, WINSTON &
`STRAWN LLP, Washington, DC, attorneys for Defendants.
`
`March 23 , 2020
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`

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`Case 1:16-cv-00455-RGA Document 492 Filed 03/23/20 Page 2 of 20 PageID #: 34449
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`/s/ Richard G. Andrews
`ANDREWS, U.S. DISTRICT JUDGE:
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`This is a patent case about three video games: Grand Theft Auto Online, NBA 2K15, and
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`NBA 2K16. Currently before me is the Motion for Summary Judgment of Non-Infringement
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`filed by Defendant Take-Two Interactive Software, Inc. and its subsidiaries, Defendants
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`Rockstar Garnes, Inc. and 2K Sports, Inc. (D.I. 462). I have considered the parties' briefing (D.I.
`
`463 , 472, 477), and I heard oral argument on February 4, 2020 (D.I. 490). Because no reasonable
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`jury could conclude Defendants infringed the asserted patents, it is "game over" for Plaintiff
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`Acceleration Bay, LLC' s infringement claims. The Motion for Summary Judgment is granted.
`
`I.
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`BACKGROUND
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`A. The Patents
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`Plaintiff alleges online features of the three accused video games infringe five patents:
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`U.S. Patent Nos. 6,701,344 ('344 patent), 6,714,966 ('966 patent), 6,920,497 ('497 patent),
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`6,732,147 ('147 patent), and 6,910,069 ('069 patent). Plaintiff initially sued Defendants for
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`infringing these patents in 2015. Acceleration Bay LLC v. Take-Two Interactive Software Inc.,
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`No. 15-cv-311-RGA (D. Del.). I dismissed that case because Plaintiff lacked standing to assert
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`the patents. No. 15-cv-311-RGA, D.I. 149. Plaintiff resolved the standing issue by reaching a
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`new patent purchase agreement with the Boeing Company, which was the original owner of the
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`patents. (D.I. 1 at 1). The parties agree Plaintiff cannot seek damages for any infringement that
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`occurred before April 2015. (D.I. 463 at 43 ; D.I. 472 at 14).
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`Plaintiff asserts the following claims:
`
`•
`•
`•
`•
`
`' 344: Claims 12, 13, 14, and 15;
`' 966: Claims 12 and 13;
`'497: Claims 9 and 16;
`'147: Claim 1; and
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`1
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`Case 1:16-cv-00455-RGA Document 492 Filed 03/23/20 Page 3 of 20 PageID #: 34450
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`•
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`' 069: Claims 1 and 11
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`(D.I. 489). The asserted claims of the ' 069 and ' 147 patents are method claims. The ' 069 claims
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`recite methods for adding participants to a computer network, while the '14 7 claim recites a
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`method for disconnecting participants from a computer network. The asserted claims of the
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`remaining patents (' 344, ' 966, and '497) recite types of computer networks, systems, services, or
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`components.
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`The parties refer to the ' 344, ' 966, ' 069, and ' 147 patents as "topology" patents. The
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`asserted claims of these patents are limited to networks that are "incomplete" and "m-regular." I
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`construed "m-regular" to mean " [a] state that the network is configured to maintain, where each
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`computer is connected to exactly m neighbor [participants or computers] ." (D.I. 256 at 5). Claim
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`13 of the ' 344 patent is illustrative:
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`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 ism-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.
`
`Claim 13 of the ' 966 patent is similar:
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`An information delivery service comprising:
`a plurality of broadcast channels, each broadcast channel for distributing
`information relating to a topic, each of the broadcast channels for
`providing said information related to a topic 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
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`2
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`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 ism-regular, where mis 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 topic of interest; and
`means for connecting to the identified broadcast channel.
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`While the '069 and ' 147 patent claims describe methods, they are also limited to "incomplete"
`
`and "m-regular" networks. 1 For example, claim 1 of the ' 147 patent claims:
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`A method of disconnecting a first computer from a second computer, the first
`computer and the second computer being connected to a broadcast channel, said
`broadcast channel forming an m-regular graph where m is at least 3, the method
`compnsmg:
`when the first computer decides to disconnect from the second computer,
`the first computer sends a disconnect message to the second computer,
`said disconnect message including a list of neighbors of the first computer;
`and
`when the second computer receives the disconnect message from the first
`computer, the second computer broadcasts a connection port search
`message on the broadcast channel to fmd a third computer to which it can
`connect in order to maintain an m-regular graph, said third computer being
`one of the neighbors on said list of neighbors.
`
`The '497 patent is the only asserted patent that is not limited to m-regular and incomplete
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`networks. Instead, the asserted claims of the '497 patent recite a "component in a computer
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`system" that uses a "port ordering algorithm" to identify a call-in port and to connect a computer
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`to the network.
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`B. The Video Games
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`Take-Two is the parent company of Rockstar Games and 2K Sports. (D.I.27018).
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`Rockstar Games publishes Grand Theft Auto V (GTA V), a video game which includes an online
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`1 Although the asserted claim of the ' 069 patent does not explicitly require an "m-regular" or
`"incomplete" network, I construed the claim to include both limitations. (D.I. 345 at 12, 14-15).
`3
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`

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`mode called Grand Theft Auto Online (GTAO). (Id. ,i 35). GTA Vis an action-adventure game
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`in which players inhabit the roles of characters in the criminal underbelly of Los Santos, a
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`fictionalized version of Los Angeles. (D.I. 464, Ex. A-1 , "Medvidovic Report" ,i 66). In GTAO,
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`players can roam freely through Los Santos or they can compete with other players in defined
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`games, such as heists, races, or shoot outs. (Id. ,i 67). Acceleration Bay alleges both forms of
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`online play infringe its patents. (Id.).
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`NBA 2K15 and NBA 2K16 are basketball games published by 2K Sports. Both games
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`feature single-player and online multiplayer modes. (Id. ,i 69). In the online modes, players can
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`compete on a single court or on large shared locations with multiple courts. These online
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`multicourt modes can include up to 100 players at a time (10 games of 5-on-5 players). (Id.
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`ill 83). Although the multicourt modes have different names, such as "My Park," "ProAm," and
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`"Rec Hall," Plaintiff alleges the underlying networks are the same and all infringe its patents.
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`(D.I. 472 at 7 & n.4). Plaintiff does not accuse the single player or single-court multiplayer
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`modes of infringement. (Id.).
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`II.
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`LEGAL STANDARDS
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`A. Summary Judgment
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`"The court shall grant summary judgment if the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R.
`
`Crv. P. 56(a). The moving party has the initial burden of proving the absence of a genuinely
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`disputed material fact relative to the claims in question. Celotex Corp. v. Catrett, 477 U.S. 317,
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`3 3 0 ( 1986). Material facts are those "that could affect the outcome" of the proceeding, and "a
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`dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
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`to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
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`4
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`2011) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). The burden on the
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`moving party may be discharged by pointing out to the district court that there is an absence of
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`evidence supporting the non-moving party's case. Celotex, 477 U.S. at 323.
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`The burden then shifts to the non-movant to demonstrate the existence of a genuine issue
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`for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S . 574, 586-87 (1986);
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`Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989). A non-moving
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`party asserting that a fact is genuinely disputed must support such an assertion by: "(A) citing to
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`particular parts of materials in the record, including depositions, documents, electronically stored
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`information, affidavits or declarations, stipulations ... , admissions, interrogatory answers, or
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`other materials; or (B) showing that the materials cited [by the opposing party] do not establish
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`the absence . .. of a genuine dispute .... " FED. R. Crv. P. 56(c)(l).
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`When determining whether a genuine issue of material fact exists, the court must view
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`the evidence in the light most favorable to the non-moving party and draw all reasonable
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`inferences in that party' s favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476
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`F .3d 180, 184 (3d Cir. 2007). A dispute is "genuine" only if the evidence is such that a
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`reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-49.
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`If the non-moving party fails to make a sufficient showing on an essential element of its case
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`with respect to which it has the burden of proof, the moving party is entitled to judgment as a
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`matter oflaw. See Celotex Corp., 477 U.S. at 322.
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`B. Patent Infringement
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`A patent is infringed when a person "without authority makes, uses, offers to sell, or sells
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`any patented invention, within the United States ... during the term of the patent .... " 35
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`U.S.C. § 271(a). "Literal infringement of a claim exists when every limitation recited in the
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`5
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`claim is found in the accused device." Kahn v. Gen. Motors Corp., 135 F.3d 1472, 1477 (Fed.
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`Cir. 1998). "If any claim limitation is absent from the accused device, there is no literal
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`infringement as a matter of law." Bay er AG v. Elan Pharm. Research Corp., 212 F.3d 1241 ,
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`1247 (Fed. Cir. 2000).
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`A product that does not literally infringe may still infringe under the doctrine of
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`equivalents. Warner-Jenkinson Co. v. Hilton Davis Chem. Co. , 520 U.S. 17, 37 (1997). The most
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`familiar framework for evaluating equivalence is whether the accused product performs
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`substantially the same function in substantially the same way to obtain substantially the same
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`result. See Mylan Institutional LLC v. Aurobindo Pharma Ltd. , 857 F.3d 858, 866 (Fed. Cir.
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`2017) (citing Graver Tank & Mfg. Co. v. Linde Air Prod. Co., 339 U.S. 605, 608, 609 (1950)).
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`"[T]he doctrine of equivalents must be applied to individual elements of the claim, not to the
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`invention as a whole. It is important to ensure that the application of the doctrine, even as to an
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`individual element, is not allowed such broad play as to effectively eliminate that element in its
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`entirety." Warner-Jenkinson Co. 520 U.S. at 29.
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`III. DISCUSSION
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`A. Infringement of the '344, '966, and '497 Patents
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`1. "Makes," "Sells," or "Offers to Sell"
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`The parties agree that, under my reasoning in Acceleration Bay LLC v. Activision
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`Blizzard, Inc., 324 F. Supp. 3d 470 (D. Del. 2018) and Acceleration Bay LLC v. Elec. Arts Inc. ,
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`No. 1:16-CV-00454-RGA, 2019 WL 1376036 (D. Del. Mar. 27, 2019), Defendants do not
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`"make," "sell," or "offer to sell" the inventions claimed in the ' 344, '966, and ' 497 patents. (D.I.
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`463 at 3; D.I. 472 at 16 n.5). In those cases, I concluded the defendants (other video game
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`developers) did not infringe these patents because the claimed systems only existed when
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`multiple customers played the games. Activision, 324 F. Supp. 3d at 482; EA , 2019 WL 1376036
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`at *4. Plaintiff, however, asks me to reconsider my reasoning in those prior cases, particularly in
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`light of the Federal Circuit's decision in Centrak, Inc. v. Sonitor Techs., Inc., 915 F.3d 1360
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`(Fed. Cir. 2019).
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`To "make" a system under§ 271(a), a single entity must combine all the claim elements.
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`Centillion Data Sys. , LLC v. Qwest Commc 'ns Int '!, Inc., 631 F.3d 1279, 1288 (Fed. Cir. 2011).
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`If a customer, rather than a defendant company, performs the final step to assemble the system,
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`then the defendant has not infringed. Id. The asserted '344 and '966 claims require a "computer
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`network," "broadcast channels," or both. Defendants here, like the defendants in Activision and
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`EA , make software, not computer networks or broadcast channels. The customers need to
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`introduce those elements to the systems. Additionally, these asserted claims require
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`"participants" who form "connections" with one another. It is therefore the video game players,
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`not Defendants, who assemble the claimed systems.
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`Similarly, the asserted ' 497 claims require a "component in a computer system for
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`locating a call-in port of a portal computer." Defendants do not make this "component." Instead,
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`customers use their own hardware, such as an Xbox or personal computer, to locate the "call-in
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`port of a portal computer." Defendants therefore do not make all the elements of the asserted
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`'497 claims.
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`For the same reasons Defendants do not "make" the '344, '966, and ' 497 claimed
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`systems, they do not "sell" or "offer to sell" them under§ 271(a) either. Plaintiff has only alleged
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`Defendants sell software, not hardware. Defendants do not sell the claimed "computer
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`network[s]," "broadcast channels," or "component[s]." The customers themselves take the final
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`steps to create the accused systems.
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`Plaintiff cites Centrak, in which the Federal Circuit found there was a triable issue of fact
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`of whether the defendant was the "final assembler" of the claimed system. 915 F.3d at 1371. In
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`that case, although the defendant's product did not include all the elements of the asserted
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`claims, there was evidence that the defendant installed the accused product for its customers. Id.
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`"[A]s long as a defendant adds the final limitations to complete a claimed combination, the
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`defendant infringes." Id. at 1372.
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`Plaintiff here has not alleged Defendants ever installed the video games for customers.
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`(See D.I. 472 at 18). The controlling case is therefore Centi/lion, in which the Federal Circuit
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`found the defendant could not have infringed the patents because the customers installed the
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`accused software themselves. 631 F.3d at 1288. Here, Defendants make the software that allows
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`customers to simulate a basketball game or rob a virtual bank, but it is the customers themselves
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`who form the claimed systems when they connect to each other. The customers, not Defendants,
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`add the "final limitations to complete a claimed combination." Centrak, 915 F.3d at 1372.
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`Plaintiff has only alleged direct infringement. (D.I. 1, D.I. 472). Thus, it is unnecessary to
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`analyze whether Defendants might be liable for indirect infringement.
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`2. "Uses" by Testing
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`Plaintiff argues Defendants "used" the inventions claimed in the '344, '966, and '497
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`patents when they developed, updated, and tested the video games internally. (D.I. 472 at 12-16).
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`This argument avoids the flaw that dooms Plaintiffs theory that Defendants infringed by making
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`or selling the inventions. If Defendants' own employees tested all the elements of the claimed
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`systems, then they, not their customers, were the "final assembler[s]." Centrak, 915 F.3d at 1371.
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`Testing a system can constitute an infringing use under§ 271(a), but to survive summary
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`judgment, the plaintiff must "provide evidence sufficient, if unopposed, to prevail as a matter of
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`law." Ricoh Co. v. Quanta Computer Inc., 550 F.3d 1325, 1336 (Fed. Cir. 2008).
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`It is not enough for Plaintiff to show that Defendants' employees probably played the
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`three video games at some point. Rather, Plaintiff acknowledges it must produce evidence that
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`Defendants tested the accused products: 1) in the accused online game modes; 2) on an accused
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`platform; 3) in the United States; and 4) during the damages time period. (D.I. 472 at 12). The
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`parties agree the damages period begins in April 2015 (D.I. 463 at 43 ; D.I. 472 at 14), and the
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`accused platform must be either an Xbox or a personal computer (D.I. 477 at 2; D.I. 472 at 14).2
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`Plaintiff has provided evidence that testing of the three games occurred in the United
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`States. In response to an interrogatory, Defendants stated that NBA 2K15 and 2K16 were
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`primarily tested and developed in the United States. (D.I. 473 , Ex. 11 , Response to Interrogatory
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`No. 6). Defendants also stated that a Rockstar studio in California tested features for GTAO,
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`in,cluding online functionality. (Id. , First Supplemental Response to Interrogatory No. 6).
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`It is less clear though that Defendants tested the games in modes that could infringe the
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`asserted patents. All three games have single-player modes that indisputably do not infringe.
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`Additionally, not all versions of online play infringe. The asserted claims of the '344, '966, and
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`' 497 patents all require that each participant have "connections to at least three neighbor
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`participants," and the '344 and ' 966 patent claims require that the number of participants be "at
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`least two greater than m." Thus, any testing Defendants did of the games with fewer than six
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`participants could not have infringed the ' 344 and '966 patent claims, and testing with fewer than
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`four participants could not have infringed the '497 patent claims. Furthermore, Plaintiff only
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`2 The games are also available on Sony PlayStation, but any infringing activity on that platform
`is protected by a license. (D.I. 237 at 5).
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`accuses the multi-court online mode of the NBA 2K games of infringing, not the single-court
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`online mode. (D.I. 472 at 7, n. 4). Plaintiff alleges that GTAO is programmed so that it tends to
`
`I
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`"converge" to an infringing mode, but Plaintiff does not claim the game automatically infringes
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`whenever it is played. (D.I. 472 at 3). Because various game modes do not infringe, the fact that
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`Defendants acknowledge generally testing the games does not mean they must have tested them
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`in an infringing mode.
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`Plaintiff points to an online news article that quotes an anonymous game tester who said
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`testers devoted "tons of time to granular parts of [GTA V]." (D.I. 472 at 16, citing D.I. 473 , Ex.
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`17 [at 187 of 463]). The article does not help Plaintiff. The "piece originally appeared 7/27/15."
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`(D.I. 473 , Ex. 17 [at 184 of 463]). That is less than four months after the beginning of the
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`damages period. The article' s recitation of what anonymous sources said is clearly inadmissible
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`hearsay if offered to prove the truth of what was asserted. Since the only relevance of the
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`statements would be to prove the truth of the assertions, the article has no evidentiary value in
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`terms of creating a disputed material fact. While Defendants surely tested various aspects of their
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`games before releasing them, Plaintiff fails to present evidence that Defendants specifically
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`tested the accused online modes.
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`Even if Defendants tested the accused modes, Plaintiff needs to show that the testing
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`occurred after April 2015. GTAO and NBA 2K15 were both released before April 2015 .
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`(Medvidovic Report ,r,r 66, 68). Thus, any pre-release testing is irrelevant. Plaintiff counters this
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`fact by pointing to updates and patches to all three games that were released during the damages
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`period. (D.I. 472 at 14-15, citing D.I. 473, Exs. 12-16). The fact that Defendants fixed glitches or
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`added features does not, however, imply that they comprehensively tested every feature of the
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`games. Some of the updates involve online play, but that is not enough to show Defendants
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`tested the accused modes. Even though NBA 2K16 was released during the damages period,
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`Plaintiff does not present evidence of how much testing occurred after April 2015. NBA 2K16 is
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`an updated version of NBA 2K15, and the multiplayer modes are functionally the same.
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`(Medvidovic Report ,r 77). It is entirely possible that Defendants focused most of their testing of
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`NBA 2Kl 6 within the damages period on new features that are not accused here.
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`It is also possible that Defendants tested the accused modes during the damages period,
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`but just not on an accused platform. All three games are available on the Sony PlayStation, but
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`that platform is outside the scope ofthis case. (D.I. 237 at 5). Defendants therefore could have
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`tested features on the PlayStation without also testing them on the Xbox or personal computer.
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`Thus, while Defendants admit testing the three games in the United States, I am
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`unconvinced there is evidence that the U.S. testing involved the accused game modes on an
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`accused platform during the damages period. Plaintiff needed to present evidence that these
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`conditions were all met simultaneously. It has failed to do so.
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`Plaintiff's argument is, essentially, that TakeTwo is a big company that spends significant
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`time and resources developing these games, and it is implausible that none of its employees
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`tested these games in a way that would infringe the patents. (See D.I. 472 at 12-16). That
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`argument, however, asks me (and would ask a jury) to speculate about TakeTwo 's internal game(cid:173)
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`testing procedures. Speculation is not enough to survive summary judgment. "[T]he non-moving
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`party has the duty to set forth specific facts showing that a genuine issue of material fact exists
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`and that a reasonable factfinder could rule in its favor. " Azur v. Chase Bank, USA, Nat. Ass 'n,
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`601 F.3d 212, 216 (3d Cir. 2010). "The nonmoving party may not avoid summary judgment by
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`relying on speculation or by rehashing the allegations in the pleadings." Sullivan v. Warminster
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`Twp., 765 F. Supp. 2d 687, 697 (E.D. Pa. 2011). As noted by the Court of Appeals in an
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`analogous situation, "If it was inconceivable to [Plaintiff] that the accused features were not
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`practiced ... , it should have no difficulty in meeting its burden of proof and introducing
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`testimony." Mirror Worlds, LLC v. Apple, Inc ., 692 F.3d 1351, 1362 (Fed. Cir. 2012) (quoting
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`the district court).
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`Plaintiff has failed to show there is a genuine dispute of material fact that Defendants
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`"made," "sold," "offered to sell," or "used" the claimed inventions within the damages period.
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`Summary judgment of non-infringement of the ' 344, ' 966, and '497 patents is therefore
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`appropriate.
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`B. Infringement of the '069 and '147 Patents
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`Unlike the claims discussed above, the asserted ' 069 and ' 147 claims do not recite
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`systems or components. Instead, they recite methods for adding or disconnecting participants
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`from a network. "A finding of direct infringement [ of a method claim] requires that all steps of
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`the claim are performed by or attributable to a single entity." Medgraph, Inc. v. Medtronic, Inc. ,
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`843 F.3d 942, 948 (Fed. Cir. 2016). Viewing the evidence in the light most favorable to Plaintiff,
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`it appears Defendants, not their customers, perform the methods for adding or disconnecting
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`participants from the game networks.
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`The critical question then is whether the accused games meet them-regular limitation of
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`the ' 069 and ' 147 claims. I construed "m-regular" to mean " [a] state that the network is
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`configured to maintain, where each computer is connected to exactly m neighbor [participants or
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`computers]." (D .I. 256 at 5). In other words, Plaintiff must show there is a genuine dispute about
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`whether Defendants' games are "configured to maintain" networks where each participant is
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`connected to exactly the same number of other participants. I conclude Plaintiff has not met this
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`burden.
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`Case 1:16-cv-00455-RGA Document 492 Filed 03/23/20 Page 14 of 20 PageID #: 34461
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`Them-regular limitation is also part of the asserted '344 and ' 966 claims. Summary
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`judgment is therefore appropriate for those claims on two bases: because Defendants' products
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`do not meet them-regular limitation, and, as discussed above, because Defendants did not
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`"make," "sell," "offer to sell" or "use" those claimed inventions.
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`Because the games operate differently, I discuss each in turn.
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`1. Grand Theft Auto Online
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`Plaintiffs infringement theory is that the GTAO software applies various rules and
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`constraints that cause the gameplay network to "converge to the same number of connections for
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`each participant." (D.I. 472 at 3). In his report, Plaintiffs expert Dr. Nenad Medvidovic
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`explained that the GT AO software is "configured to have a maximum number of participants, a
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`maximum number of connections, reserved connections, [and] limited available ports."
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`(Medvidovic Report ,r 163 ). The software also uses "load balancing rules, including prioritized
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`channels, to distribute the flow of data evenly between participants." (Id.). Dr. Medvidovic
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`concluded the combination of these constraints "drives the formation of an incomplete and m(cid:173)
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`regular network." (Id.) . Dr. Michael Mitzenmacher, also a Plaintiff's expert, similarly concluded:
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`"Because these rules and constraints cause the network to converge to the same optimal number
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`of connections, each player tends to send data to the same number of participants during game
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`play." (D.I. 464, Ex. A-2, "Mitzenmacher Report" ,r 121 ). These rules and constraints exist when
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`players wander through the online open-world mode and when they compete in specific games,
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`but the limits are more restrictive in the specific games. (Medvidovic Report ,r 163).
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`Part of Plaintiffs theory is that GTAO transfers data based on the players' positions in
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`the virtual world. When two players' avatars are closer together, there is a higher rate of data
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`exchange between those two players. (D.I. 473 , Ex. 2, "Conlin Report" ,r 26). According to Dr.
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`Case 1:16-cv-00455-RGA Document 492 Filed 03/23/20 Page 15 of 20 PageID #: 34462
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`Mitzenmacher, "when the players are geographically dispersed throughout the gameplay area,
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`the proximity connection rules will cause the network to form m-regular graphs." (Mitzenmacher
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`Report 1 121 ). At his deposition, Dr. Mitzenmacher further explained that "in the course of
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`players wandering through the environment, there will be various local data available to subsets
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`of players, and there will be the natural configurations when players are distributed
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`geographically where the resulting network will be m-regular ... . Again, I think that just arises
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`naturally. Again, in the course of gameplays, the players are moving throughout the game." (D.I.
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`464, Ex. E-5 , "Mitzenmacher Tr." at 173:24-174:5, 175 : 17-19).
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`Even viewing this evidence in the light most favorable to Plaintiff, no reasonable jury
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`could find GTAO meets the m-regular limitation. Under my claim construction, a network is not
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`m-regular if the participants just happen to connect to the same number of other participants
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`occasionally. Rather, the network must be "configured to maintain" an m-regular state. In my
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`claim construction opinion, I explained: "My construction does not require the network to have
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`each participant be connected tom neighbors at all times; rather, the network is configured (or
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`designed) to have each participant be connected to m neighbors. In other words, if the network
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`does not have each participant connected to m neighbors, this is fine so long as, when
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`appropriate, it tries to get to that configuration." (D.I. 244 at 14).
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`Plaintiff's experts are not describing a network that meets this construction. They have
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`not identified any source code that directs the participants to connect to the same number of other
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`participants. Dr. Medvidovic concluded that the combination of various rules and constraints
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`"drives the formation" of an m-regular network. (Medvidovic Report 1163). Dr. Mitzenmacher
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`concluded that each participant "tends" to connect to the same number of other participants.
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`(Mitzenmacher Report 1121 ). Those descriptions are not enough to show that the network is
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`Case 1:16-cv-00455-RGA Document 492 Filed 03/23/20 Page 16 of 20 PageID #: 34463
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`"configured to maintain" an m-regular state. It might be true that GT AO players are sometimes,
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`or even often, connected to the same number of other players. But Plaintiff's evidence does not
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`suggest it is the default state of the network or that the network is in that state substantially all
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`the time.
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`My construction does not require Plaintiff to show that the accused networks are m(cid:173)
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`regular 100 percent of the time. For example, ifthere is a split-second transition after a player
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`disconnects from the game, that would not be enough to make the network not m-regular.
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`Plaintiff's evidence, however, suggests far greater variation. Plaintiff has not shown (and does
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`not try to show) that if the network falls out of them-regular state, the network responds by
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`immediately trying to return to that configuration. Rather, it seems that the network might return
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`tom-regular or it might not, depending on various factors.
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`A reasonable jury could not find that the "proximity connection rules" make the networks
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`m-regular. The players control their own avatars and choose where to move throughout the game
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`environment. The fact that players share more data when they are near each other does not
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`suggest that the network ism-regular. Instead, it suggests that the players' actions determine how
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`connections are formed, and the network is not "configured to maintain" any particular state. Dr.
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`Mitzenmacher said at his deposition that the infringing state "just arises naturally [as] ... the
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`players are moving throughout the game." (Mitzenmacher Tr. at 17 5: 17-19). But if a system is
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`designed to achieve a de