Case 2:16-cv-00741-RWS Document 262 Filed 09/18/17 Page 1 of 13 PageID #: 4651
`
` IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`UNILOC USA, INC., et al,
`
`Plaintiffs,
`
`
`v.
`
`
`
`ADP, LLC,
`BIG FISH GAMES, INC.,
`
`Defendants.
`
`
`§
`§
`§ Case No. 2:16-cv-00741-RWS
`§
`
`LEAD CASE
`§
`§
`§ Case No. 2:16-cv-00858-RWS
`
`DEFENDANT BIG FISH GAMES, INC.’S MOTION TO STRIKE
`CERTAIN MEANS-PLUS-FUNCTION CLAIMS FROM
`PLAINTIFFS’ INFRINGEMENT CONTENTIONS
`
`Defendant Big Fish Games, Inc. (“Big Fish”) hereby moves to strike certain means-plus-
`
`function claims from Plaintiffs Uniloc USA, Inc.’s, and Uniloc Luxembourg, S.A.’s (together,
`
`“Uniloc”) Infringement Contentions.
`
`INTRODUCTION
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`Uniloc’s Infringement Contentions, as supplemented on August 21, 2017 (“Supplemental
`
`Infringement Contentions”), should be stricken for failure to comply with the Patent Local Rules
`
`with respect to the asserted claims drafted in means-plus-function format pursuant to pre-AIA
`
`35 U.S.C. § 112, ¶ 6 (“Asserted MPF Claims”).1 Patent Local Rule 3-1(c) requires Uniloc to
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`specifically identify in its infringement contentions the structure, act, or material in the Big Fish
`
`accused instrumentality that Uniloc contends satisfies each limitation drafted in means-plus-
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`function format. Yet, even after Uniloc elected to supplement its contentions after it reviewed
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`Big Fish’s source code pursuant to paragraph 3(a)(i) of the Discovery Order—a deadline which
`
`
`1
`The Asserted MPF Claims are: claims 17, 27, and 38 of U.S. Patent No. 6,324,578 (“the
`’578 patent”); claims 12 and 17 of U.S. Patent No. 7,069,293 (“the ’293 patent”); and claims 15,
`16, 17, 22 and 30 of U.S. Patent No. 6,510,466 (“the ’466 patent”). The ’578 patent, the ’293
`patent, and the ’466 patent are collectively referred to as the “Asserted Patents.”
`-1-
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`

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`Case 2:16-cv-00741-RWS Document 262 Filed 09/18/17 Page 2 of 13 PageID #: 4652
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`Uniloc belatedly tried to delay until after the fact discovery period—Uniloc’s Supplemental
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`Infringement Contentions still fail to identify any specific structures embodied in the Big Fish
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`accused instrumentality and do not provide any explanation as to what corresponding structures
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`Uniloc contends are disclosed in the specifications of the Asserted Patents for each means-plus-
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`function limitation.
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`Indeed, while Uniloc appears to contend that the Asserted Patents disclose certain
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`algorithmic structures for the means-plus-function limitations (which are required to provide
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`structure for software-based inventions, like those allegedly claimed in the Asserted Patents),
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`Uniloc’s Supplemental Infringement Contentions do not articulate where the Asserted Patents
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`disclose those algorithms, what those algorithms might be, or provide any explanation as to how
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`Big Fish’s accused instrumentality reads onto the unidentified algorithms. Uniloc’s repeated
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`refusal to provide sufficient infringement contentions (and repeated failure to properly
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`supplement its interrogatory responses, which is the focus of a separate motion to compel) has
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`resulted in Uniloc obfuscating its infringement theory for the means-plus-function limitations
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`throughout the discovery period, which is now set to close. Uniloc’s tactics have severely
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`prejudiced Big Fish’s ability to defend itself in this case, including Big Fish’s ability to prepare
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`expert reports on invalidity and non-infringement—reports that are necessarily contingent upon
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`Uniloc’s contentions with respect to structure.
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`Accordingly, because Uniloc has failed to meet its burden under the Patent Local Rules
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`to allege a sufficient claim of infringement with respect to the Asserted MPF Claims, Uniloc’s
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`Infringement Contentions for those claims should be stricken.
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`-2-
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`

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`Case 2:16-cv-00741-RWS Document 262 Filed 09/18/17 Page 3 of 13 PageID #: 4653
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`BACKGROUND
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`When this case began, Uniloc accused Big Fish of infringing sixty (60) claims across the
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`three Asserted Patents.2 Although nearly two-thirds of those originally asserted claims were
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`drafted in means-plus-function format pursuant to § 112, ¶ 6, Uniloc did not identify any
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`corresponding structure (algorithms or otherwise) disclosed in the specification of the Asserted
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`Patents or any structure allegedly present in the Big Fish accused instrumentality. Instead,
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`Uniloc merely cross-referenced to the steps in the method claims, without any further
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`explanation of the alleged structures.
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`Despite repeated requests from Big Fish and other Defendants for Uniloc to comply with
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`the deadlines in General Local Order 13-20, which required Uniloc to reduce the number of
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`asserted claims, Uniloc refused to do so. Until just twelve days ago, Uniloc continued to assert
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`all sixty claims against Big Fish. Uniloc only reduced its asserted claims on September 6, 2017,
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`when it elected to assert claims 1, 8, 17, 27, and 38 of the ’578 patent; claims 1, 12, and 17 of the
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`’293 patent; and claims 15, 16, 17, 22, and 30 of the ’466 patent. Of the thirteen remaining
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`claims, ten are drafted in means-plus-function format—claims 17, 27, and 38 of the ’578 patent;
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`claims 12 and 17 of the ’293 patent; and claims 15, 16, 17, 22, and 30 of the ’466 patent
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`(collectively, the “Asserted MPF Claims”).
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`During the claim construction process, Uniloc failed to sufficiently describe the structure
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`and/or algorithms allegedly disclosed in the specification for the more than 100 distinct elements
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`within the sixty initially asserted means-plus-function claims. See Dkt. 218 at 1-3 (describing
`
`the parties’ means-plus-function exchanges). Between the service of the parties’ initial P.R. 4-2
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`disclosures on March 23, 2017, and the end of June, the parties exchanged multiple rounds of
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`
`2
`Uniloc’s Disclosure of Asserted Claims and Infringement Contentions, dated November
`10, 2016, are attached hereto as Exhibits A-D.
`
`-3-
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`Case 2:16-cv-00741-RWS Document 262 Filed 09/18/17 Page 4 of 13 PageID #: 4654
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`proposals related to the myriad means-plus-function claims, but continued to disagree as to the
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`identification of the alleged structures. None of Uniloc’s various proposals during that period
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`specifically described the corresponding structures/algorithms for performing various computing
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`functions as required for the software-based limitations in the Asserted MPF Claims. Uniloc
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`instead cited wholesale sections of the specifications of various patents (some of which are not
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`even asserted in this case), and made no effort to explain how the lengthy cited paragraphs
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`provided algorithmic structure that corresponded to the means-plus-function claim elements.
`
`See, e.g., Uniloc USA, Inc., et al. v. AVG Tech. USA, Inc., 2:16-cv-00393-RWS (“AVG Action”),
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`Dkt. 188-2. Thus, the parties were never able to reach agreement on the applicable structure for
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`the means-plus-function claims.
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`As the claim construction hearing drew closer, it became apparent that Uniloc’s
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`proposals for many, if not all, of the means-plus-function terms did not contain algorithmic, step-
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`by-step procedures or code for accomplishing the functional acts claimed, as required to avoid a
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`finding of indefiniteness for software-based limitations. Accordingly, upon the filing of
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`Defendants’ Supplemental Responsive Claim Construction Brief, which was spurred by Uniloc’s
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`eleventh hour reversal of its prior positions concerning previously agreed-upon claim terms,
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`Defendants Big Fish and ADP also moved for leave to file a supplemental claim construction
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`brief to demonstrate that the means-plus-function claims are indefinite. See Dkts. 217, 218.
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`That motion remains pending.
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`Uniloc reviewed Big Fish’s source code on July 17 and 18, 2017. Despite the 30-day
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`deadline to supplement its Initial Infringement Contentions following source code review under
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`paragraph 3(a) of the Discovery Order in this case, Uniloc did not request an extension of that
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`deadline until August 14, 2017, just days before its supplemented contentions would have been
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`-4-
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`Case 2:16-cv-00741-RWS Document 262 Filed 09/18/17 Page 5 of 13 PageID #: 4655
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`due. See Dkt. 106, ¶ 3(a); Ex. E (Email from A. Jacobs, dated Aug. 14, 2017). Paragraph 3(a)
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`provides that “if a party claiming patent infringement asserts that a claim element is a software
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`limitation, the party need not comply with P.R. 3-1 for those claim elements until 30 days after
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`source code for each Accused Instrumentality is produced by the opposing party.” Dkt. 106, ¶
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`3(a). Uniloc’s requested extension would have delayed its supplementation until either 30 days
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`after the Court issued its claim construction order or two weeks following an unnoticed and
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`previously unrequested deposition of Big Fish’s source code representative. Big Fish, still
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`facing over 60 asserted claims and without having received any information regarding Uniloc’s
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`infringement theory, agreed to a four day extension. In addition, Big Fish specifically requested
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`that Uniloc’s supplementation “properly identify: (1) the structures disclosed in the patents‐in‐
`Uniloc alleges to satisfy each of the identified structures in the patents‐in‐suit.” Ex. E (Email
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`suit that allegedly correspond to the claimed functions; and (2) the Big Fish structures that
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`from D. Ball, dated Aug. 15, 2017).
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`Uniloc served its Supplemental Infringement Contentions on August 21, 2017.3 Ex. E
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`(Email from A. Jacobs, dated Aug. 21, 2017). The very next day, Big Fish notified Uniloc that
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`its Supplemental Infringement Contentions still failed to identify means-plus-function structures
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`as required by the Patent Local Rules and again requested compliant contentions. Ex. I (Email
`
`from T. Geiger, dated Aug. 22, 2017). Despite further requests and subsequent meet-and-confers
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`between
`
`the parties’ counsel, Uniloc has repeatedly refused
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`to provide any further
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`supplementation or to identify structures.
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`
`
`3
`Uniloc’s Supplemental Infringement Contentions are attached as Exhibit F, G, and H.
`(Plaintiffs’ Initial and Supplemental Infringement Contentions are throughout together referred
`to as the “Infringement Contentions.”)
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`-5-
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`Case 2:16-cv-00741-RWS Document 262 Filed 09/18/17 Page 6 of 13 PageID #: 4656
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`Although Uniloc’s Supplemental Infringement Contentions are deficient as to all asserted
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`claims, Uniloc’s contentions for the Asserted MPF Claims clearly do not comply with the
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`requirements of P.R. 3-1(c) because they fail to identify any structure in the specification of the
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`Asserted Patents or in the accused Big Fish products. See Ex. B at 79-81, 87-88; Ex. C at 16-22;
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`Ex. D at 31-40. Instead, Uniloc’s Supplemental Infringement Contentions for the Asserted MPF
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`Claims simply refer to contentions for method claims that do not require (or state) any specific
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`structure and accordingly do not identify which aspect of Big Fish’s accused instrumentality
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`allegedly reads on the Asserted MPF Claims. See id. Thus, despite the close of fact discovery
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`and upcoming expert report deadlines, Big Fish is still without notice and is unable to determine
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`which structures/algorithms in the Big Fish accused instrumentality are being accused of
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`infringement.
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`ARGUMENTS AND AUTHORITIES
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`A.
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`Uniloc’s Infringement Contentions Do Not Comply with the Patent Local Rules
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`P.R. 3-1(c) requires a plaintiff to provide “a chart identifying specifically where each
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`element of each asserted claim is found within each Accused Instrumentality, including for each
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`element that such party contends is governed by 35 U.S.C. § 112(6), the identity of the
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`structure(s), act(s), or material(s) in the Accused Instrumentality that performs the claimed
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`function.” P.R. 3-1(c) (emphasis added). This Court has noted that the Patent Local Rules exist
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`to “further the goal of full, timely discovery and provide all parties with adequate notice and
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`information with which to litigate.” Computer Acceleration Corp. v. Microsoft Corp., 593 F.
`
`Supp. 819, 822 (E.D. Tex. 2007). As a result, infringement contentions must “set forth particular
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`theories of infringement with sufficient specificity to provide defendants with notice of
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`infringement beyond that which is provided by the mere language of the patent [claims]
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`-6-
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`

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`Case 2:16-cv-00741-RWS Document 262 Filed 09/18/17 Page 7 of 13 PageID #: 4657
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`themselves.” Connectel, L.L.C. v. Cisco Systems, Inc., 391 F. Supp. 2d 526, 527–28 (E.D. Tex.
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`2005) (quotations omitted).
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`Infringement contentions and claim charts do not comply with P.R. 3-1 where they “do
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`not refer in their text to a single construction, process, algorithm, feature or function of any
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`accused product” and where the plaintiff does not explain how the defendant’s allegedly
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`infringing products “read on the asserted claim language.” Id. at 528; see also EON Corp. IP
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`Holdings, LLC, v. Sensus USA Inc., No. 6:09-cv-116, 2010 WL 346218, at *2, *3 (E.D. Tex. Jan.
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`21, 2010) (noting that plaintiff must explain its theories of how the accused instrumentalities
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`satisfy the asserted claim elements, and that the identification of evidence alone will not satisfy
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`the notice function of the Patent Local Rules). Vague or conclusory language is insufficient.
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`ConnecTel, 391 F. Supp. 2d at 528; see also Linex Techs. v. Belkin Int’l, Inc., 628 F. Supp. 2d
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`703, 712 (E.D. Tex. 2008) (noting that complex or numerous claims, accused products, or parties
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`require “more thorough” infringement contentions).
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`Here, Uniloc has failed to comply with its obligations. Computer-based means-plus-
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`function terms, like the Asserted MPF Claims in this case, must be linked to algorithms
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`disclosed in the specification for performing the claimed function. WMS Gaming, Inc. v. Int’l
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`Game Tech., 184 F.3d 1339, 1348 (Fed. Cir. 1999); Ergo Licensing, LLC v. CareFusion 303,
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`Inc., 673 F.3d 1361, 1365 (Fed. Cir. 2012) (an algorithm is a “step-by-step procedure for
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`accomplishing a given result”). However, Uniloc does not identify any structure or algorithm,
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`much less match one to a specific structure or algorithm in Big Fish’s software as required by
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`P.R. 3-1(c). Instead, Uniloc simply states “Refer to claim …” to reference its contentions for a
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`step of the method claims. See, e.g., Ex. F, at 79. Uniloc’s indiscriminate cross-referencing does
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`not comply with the requirements in P.R. 3-1(c) for means-plus-function claims, or reasonably
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`-7-
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`

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`Case 2:16-cv-00741-RWS Document 262 Filed 09/18/17 Page 8 of 13 PageID #: 4658
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`put Big Fish on notice of what Uniloc contends
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`to be
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`the allegedly
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`infringing
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`structure/algorithm.
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`Means-plus-function claims, unlike method claims, are necessarily limited in scope to
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`specific structures/algorithms recited in the specification and linked to the claimed function. See
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`Cloud Farm Assocs. LP v. Volkswagen Grp. of Am., Inc., 674 F. App’x 1000, 1009 (Fed. Cir.
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`2017) (when no structure in the specification is linked to the function in a means-plus-function
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`claim element, that claim is indefinite under 35 U.S.C. § 112) (citing AllVoice Computing PLC v.
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`Nuance Commc’ns, Inc., 504 F.3d 1236, 1241 (Fed. Cir. 2007)). Indeed, this Court relied on the
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`difference in scope between method claims and means-plus-function claims to defer its decision
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`regarding the ineligibility of the means-plus-function claims recited in the ’466 patent until after
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`claim construction.4 AVG Action, Mem. Order & Opinion, Dkt. 129, at 7 (E.D. Tex. Mar. 28,
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`2017). Thus, regardless of Uniloc’s contentions with respect to the method claims, Big Fish was
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`entitled to know what structures in the specification are relied upon to allege infringement of the
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`Asserted MPF Claims and how the Big Fish accused instrumentality allegedly reads on any
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`identified algorithms.
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`By not linking any particular structure in the accused instrumentality to a structure in the
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`specification of the Asserted Patents, Uniloc has failed to “set forth particular theories of
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`infringement with sufficient specificity to provide defendants with notice of infringement.” See
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`ConnecTel, 391 F. Supp. 2d at 527-28. Big Fish is not only unable to determine what algorithm
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`in the Asserted Patents Uniloc intends to pursue in connection with the Asserted MPF Claims,
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`
`
`4
`Although claim construction has been complete since August 16, 2017, Uniloc has
`neither provided an adequate proposed construction for the limitations in the Asserted MPF
`Claims, nor has obtained a ruling from the Court construing the means-plus-function limitations.
`-8-
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`Case 2:16-cv-00741-RWS Document 262 Filed 09/18/17 Page 9 of 13 PageID #: 4659
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`but also without an explanation of how the accused instrumentality could conceivably read on
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`such a structure/algorithm.
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`B.
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`The Infringement Contentions For The Asserted MPF Claims Should Be Struck
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`Without specific and detailed Infringement Contentions, Big Fish has been unable
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`effectively defend against Uniloc’s infringement allegations with respect to the Asserted MPF
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`Claims. See Am. Video Graphics, 359 F. Supp. 2d at 560 (“To the extent defendants are given
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`vague infringement contentions, they are hampered in their ability to prepare their defense.”); see
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`also ConnecTel, 391 F. Supp. 2d at 527 (noting that where a plaintiff only narrows its numerous
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`accusations after discovery, a case lacks clear direction, but where parties “formulate, test, and
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`crystallize their infringement theories before stating their preliminary infringement contentions,
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`as the Patent Rules require, the case takes a clear path”). In deciding whether to strike
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`infringement contentions, courts consider the following factors: (1) the reason for the delay and
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`whether the party has been diligent; (2) the availability of a continuance and the potential impact
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`of a delay on judicial proceedings; (3) the danger of unfair prejudice; and (4) the importance of
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`what the court is excluding and the availability of lesser sanctions. Davis-Lynch, Inc. v.
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`Weatherford Int’l, Inc., No. 07-CV-559, 2009 WL 81874, at *3 (E.D. Tex. Jan. 12, 2009). In
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`this case, all four factors weigh in favor of striking Uniloc’s Infringement Contentions for the
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`Asserted MPF Claims.
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`First, there is no legitimate excuse for Uniloc’s failure to identify the alleged structures,
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`and Uniloc has not been diligent with respect to the Asserted MPF Claims. Uniloc submitted its
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`Initial Infringement Contentions in November 2016, but waited until July 2017 to review the Big
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`Fish source code necessary to adequately allege infringement of the structures/algorithms
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`required by the means-plus-function limitations. Following its source code review, Uniloc
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`-9-
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`Case 2:16-cv-00741-RWS Document 262 Filed 09/18/17 Page 10 of 13 PageID #: 4660
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`demanded that Big Fish consent to significantly extending the 30-day supplementation deadline
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`set by paragraph 3(a) of the Discovery Order based on specious reasoning. See Ex. E. When
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`Big Fish refused the extension—an understandable position given that less than a month
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`remained until the close of fact discovery and just over a month remained until the due date for
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`Big Fish’s expert report on invalidity—and expressly reminded Uniloc of its obligation to
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`provide contentions identifying the structures/algorithms for the Asserted MPF Claims, Uniloc
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`did not seek relief from the Court. Instead, Uniloc served facially deficient Supplemental
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`Infringement Contentions and made no attempt to identify the structures/algorithms in the
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`specification of the Asserted Patents or in Big Fish’s source code.
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`Second, permitting further supplementation at this late date would necessarily delay the
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`proceedings. Any supplementation would be received well after the close of fact discovery and
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`the initial expert report due date. As a result, the schedule would need to be extended to permit
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`additional fact discovery to be taken from Plaintiffs and to allow for sufficient time for expert
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`analysis, reports, and depositions related to the supplementation. Conversely, striking the
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`Asserted MPF Claims from Uniloc’s Infringement Contentions would fulfill the underlying
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`purpose of the Patent Local Rules, which attempt to streamline discovery and case management
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`by requiring detailed disclosure of plaintiffs’ infringement theories early in a case, thereby
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`allowing the parties to properly tailor their discovery efforts to those disclosed theories.
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`Third, permitting further supplementation would be unfairly prejudicial to Big Fish. Big
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`Fish’s initial expert report regarding invalidity is due on September 22, 2017, and its rebuttal
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`report regarding non-infringement is due October 13, 2017. Uniloc’s repeated failure to identify
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`structure in its Infringement Contentions has severely prejudiced the ability of Big Fish’s experts
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`to prepare their reports because Uniloc’s allegations regarding the structures/algorithms
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`-10-
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`Case 2:16-cv-00741-RWS Document 262 Filed 09/18/17 Page 11 of 13 PageID #: 4661
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`disclosed in the Asserted Patents and those accused of infringement are necessary for their
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`opinions regarding invalidity and non-infringement. Without any specificity regarding the
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`structures/algorithms at issue, Big Fish’s experts are forced to speculate as to what algorithms in
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`the specification Uniloc contends correspond to the claimed functions and what structure in the
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`Big Fish Accused Instrumentality is being accused of reading onto those algorithms. Thus,
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`Uniloc’s concealment of its infringement allegations for the Accused MPF Claims during the
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`entire fact discovery period has significantly impaired Big Fish’s ability to defend itself in this
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`case. Conversely, any prejudice to Uniloc could have been avoided had Uniloc provided proper
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`contentions for the Asserted MPF Claims as repeatedly requested by Big Fish.
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`Fourth, striking the Infringement Contentions for the Asserted MPF Claims is not fatal to
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`Uniloc’s case because Uniloc has also asserted method claims from two of the Asserted Patents.
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`Further, Uniloc’s Infringement Contentions for the method claims purport to accuse the same
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`functionality as the corresponding means-plus-function claims.
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`Uniloc’s own dilatory conduct has spurred the instant motion, and there is no lesser
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`remedy available that would not also significantly extend the case, thereby increasing the
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`expense to Big Fish.
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`CONCLUSION
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`For the foregoing reasons, Defendant Big Fish respectfully requests that the Court strike
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`Uniloc’s Infringement Contentions with respect to claims 17, 27, and 38 of U.S. Patent No.
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`6,324,578; claims 12 and 17 of U.S. Patent No. 7,069,293; and claims 15, 16, 17, 22, and 30 of
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`U.S. Patent No. 6,510,466.
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`
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`-11-
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`Case 2:16-cv-00741-RWS Document 262 Filed 09/18/17 Page 12 of 13 PageID #: 4662
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`
`
`
`
`/s/ Douglas F. Stewart
`
`Douglas F. Stewart
`Washington State Bar No. 34068
`BRACEWELL LLP
`701 Fifth Avenue, Suite 6200
`Seattle, WA 98104
`Tel: 206-204-6200
`Fax: 800-404-3970
`doug.stewart@bracewell.com
`
`David J. Ball
`New York State Bar No. 4315099
`BRACEWELL LLP
`1251 Avenue of the Americas
`New York, NY 10020
`Tel: 212-508-6100
`Fax: 800-404-3970
`david.ball@bracewell.com
`
`Timothy R. Geiger
`Texas State Bar No. 24078552
`BRACEWELL LLP
`711 Louisiana, Suite 2300
`Houston, Texas 77002
`Tel: 713-223-2300
`Fax: 800-404-3970
`tim.geiger@bracewell.com
`
`ATTORNEYS FOR DEFENDANT BIG
`FISH GAMES, INC.
`
`Dated: September 18, 2017
`
`-12-
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`

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`Case 2:16-cv-00741-RWS Document 262 Filed 09/18/17 Page 13 of 13 PageID #: 4663
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`CERTIFICATE OF CONFERENCE
`
`I hereby certify that Timothy R. Geiger, counsel for Big Fish, conferred in good faith
`with Plaintiffs’ counsel Jim Foster on August 24, 2017 in an effort to reach agreement on an
`Plaintiffs’ supplemental infringement contentions. On that call, Plaintiffs’ counsel stated that
`Plaintiffs would not agree to amend their contentions. I further certify that on September 14,
`2017 lead and local counsel for Big Fish and Plaintiffs again conferred regarding Plaintiffs’
`supplemental infringement contentions and the relief sought in this motion. On that call,
`Plaintiffs’ counsel stated that Plaintiffs would oppose Big Fish’s Motion to Strike Certain
`Means-Plus-Function Claims From Plaintiffs’ Infringement Contentions. Thus, the matter is ripe
`for the Court’s determination.
`
`
`/s/ Timothy R. Geiger
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that all counsel of record who are deemed to have
`consented to electronic service are being served with a copy of this document via the Court’s
`CM/ECF system per Local Rule CV-5(a)(3) on September 18, 2017.
`
`
`
`/s/ Douglas F. Stewart
`
`
`
`