Case: 20-1700 Document: 60 Page: 1 Filed: 10/04/2021
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`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ACCELERATION BAY LLC,
`Plaintiff-Appellant
`
`v.
`
`2K SPORTS, INC., ROCKSTAR GAMES, INC., TAKE-
`TWO INTERACTIVE SOFTWARE, INC.,
`Defendants-Appellees
`______________________
`
`2020-1700
`______________________
`
`Appeal from the United States District Court for the
`District of Delaware in No. 1:16-cv-00455-RGA, Judge
`Richard G. Andrews.
`______________________
`
`Decided: October 4, 2021
`______________________
`
`AARON M. FRANKEL, Kramer Levin Naftalis & Frankel
`LLP, New York, NY, argued for plaintiff-appellant. Also
`represented by CRISTINA MARTINEZ; PAUL J. ANDRE, JAMES
`R. HANNAH, LISA KOBIALKA, Menlo Park, CA.
`
` MICHAEL A. TOMASULO, Winston & Strawn LLP, Los
`Angeles, CA, argued for defendants-appellees. Also repre-
`sented by DAVID P. ENZMINGER; LOUIS CAMPBELL, Menlo
`Park, CA; GEOFFREY P. EATON, Washington, DC.
` ______________________
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`ACCELERATION BAY LLC v.
` TAKE-TWO INTERACTIVE SOFTWARE
`
`
`Before MOORE, Chief Judge∗, REYNA, and HUGHES, Circuit
`Judges.
`
`REYNA, Circuit Judge.
`This is an appeal from the U.S. District Court for the
`District of Delaware’s decisions construing certain claim
`terms in plaintiff-appellant Acceleration Bay LLC’s four
`asserted patents, U.S. Patent Nos. 6,701,344, 6,714,966,
`6,910,069, and 6,920,497, and granting defendant-appel-
`lees 2K Sports, Inc., Rockstar Games, Inc., and Take-Two
`Interactive Software, Inc.’s motion for summary judgment
`of non-infringement. We conclude that Acceleration Bay’s
`appeal is moot with respect to the ’344 and ’966 patents,
`and therefore we dismiss the appeal in part for lack of ju-
`risdiction. We further affirm the district court’s claim con-
`struction of the ’069 patent and its grant of summary
`judgment of non-infringement as to the ’069 and ’497 pa-
`tents.
`
`BACKGROUND
`The Patents-in-Suit
`Acceleration Bay asserted four patents that are at is-
`sue in this appeal: U.S. Patent Nos. 6,701,344 (“’344 Pa-
`tent”), 6,714,966 (“’966 Patent”), 6,910,069 (“’069 Patent”),
`and 6,920,497 (“’497 Patent”). The patents are unrelated
`but were filed on the same day, July 31, 2000, and share
`similar specifications.1 The patents disclose a networking
`
`
`∗ Chief Judge Kimberly A. Moore assumed the posi-
`tion of Chief Judge on May 22, 2021.
`
`1 The ʼ069 and ʼ497 patents have identical specifica-
`tions. The other two patents’ specifications differ in that
`the ’344 patent adds a section titled “Distributed Game En-
`vironment,” see ’344 patent col. 16 l. 29–col. 17 l. 11, and
`
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`ACCELERATION BAY LLC v.
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`technology that allegedly improves upon pre-existing com-
`munication techniques because it is “suitable for the sim-
`ultaneous sharing of information among a large number of
`the processes that are widely distributed.” See ʼ344 patent
`col. 2 ll. 38–41. Specifically, the patents describe a “broad-
`cast technique in which a broadcast channel overlays a
`point-to-point communications network.” Id. at col. 4
`ll. 3–5.
`The ’344 and ’966 patents’ claims at issue—namely
`claims 12 to 15 of the ’344 patent and claims 12 and 13 of
`the ’966 patent—are drawn to networks that provide
`broadcast channels and information distribution services
`where participating computers (i.e., nodes) are connected
`and organized via a virtual network (i.e., overlay network).
`See ’344 patent col. 30 ll. 4–32; ’966 patent col. 30 ll. 36–57.
`Pertinent to this subject matter, the patents teach, for ex-
`ample, that an originating computer sends a message to its
`neighbors on the broadcast channel using point-to-point
`connections. ’344 patent at col. 4 ll. 26–32. Then each com-
`puter that receives the message sends it to its neighbors
`using point-to-point connections. Id. at col. 4 ll. 32–34. Re-
`quiring the computers to send the message only to their
`neighbors, rather than to all network participants, im-
`proves efficiency and reliability of communication because
`it reduces both the number of connections that each partic-
`ipant must maintain and the number of messages that
`each participant must send. See id. at col. 4 ll. 23–47; see
`also Appellant’s Br. 8–11. The technology also allegedly
`improves communication by using redundancy to avoid
`transmission errors. ’344 patent col. 7 ll. 50–51 (“The re-
`dundancy of the message sending helps to ensure the over-
`all reliability of the broadcast channel.”). Claim 12 of the
`
`
`the ʼ966 patent adds a section called “Information Delivery
`Service,” ’966 patent col. 16 l. 24–col. 17 l. 26. This opinion
`cites for convenience to the ’344 patent.
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`ACCELERATION BAY LLC v.
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`’344 patent, which depends from claim 1, is representative
`of the ’344 patent’s claims at issue in this case. Those
`claims recite:
`1. A computer network for providing a game envi-
`ronment 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 re-
`ceives 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.
`12. The computer network of claim 1 wherein the
`interconnections of participants form a broadcast
`channel for a game of interest.
`And asserted claims 12 and 13 of the ’966 patent are nearly
`identical to asserted claims 12 and 13 of the ’344 patent,
`containing no differences material to the outcome of the ap-
`peal.2 ’966 patent col. 30 ll. 36–57.
`
`
`2 The ’966 patent’s asserted claims are different in
`
`that they refer to an “information delivery service” rather
`than a “game environment” or “game system”; “distributing
`
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`The ’069 patent’s claims 1 and 11, at issue in this ap-
`peal, are drawn to methods for adding participants to a net-
`work. ’069 patent col. 28 l. 48–col. 29 l. 25. The method
`involves, in simple terms, a computer seeking to join the
`network by contacting what is referred to as a “portal com-
`puter” on the network, which then sends a connection re-
`quest to certain of its neighbors. Claim 1 is representative3
`and recites:
`1. A computer-based, non-routing table based, non-
`switch based method for adding a participant to a
`network of participants, each participant being
`connected to three or more other participants, the
`method comprising:
`identifying a pair of participants of the network
`that are connected wherein a seeking participant
`contacts a fully connected portal computer, which
`in turn sends an edge connection request to a num-
`ber of randomly selected neighboring participants
`to which the seeking participant is to connect;
`disconnecting the participants of the identified pair
`from each other; and
`connecting each participant of the identified pair of
`participants to the seeking participant.
`’069 patent col. 28 ll. 48–62.
`
`
`information relating to a topic” rather than “playing a
`game”; and a “topic” rather than a “game.”
`
`3 Claim 11 depends from claim 1 and recites: “The
`method of claim 1 wherein the participants are connected
`via the Internet.” ’069 patent col. 29 ll. 24–25.
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`ACCELERATION BAY LLC v.
` TAKE-TWO INTERACTIVE SOFTWARE
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`The ’497 patent’s claims at issue, namely claims 9 and
`16, cover a component for locating a call-in port4 of a portal
`computer. According to the specification, dialing a port is
`a “relatively slow process” that takes time for the computer
`seeking to join the network to locate the call-in port of a
`portal computer. ’497 patent col. 11 ll. 58–60. To speed up
`the process, the patent teaches using a port ordering algo-
`rithm “to identify the port number order that a portal com-
`puter should use when finding an available port for its call-
`in port.” Id. at col. 11 ll. 60–64. Claim 9 is representative5
`and recites:
`9. A component in a computer system for locating a
`call-in port of a portal computer, comprising:
`means for identifying the portal computer, the por-
`tal computer having a dynamically selected call-in
`port for communicating with other computers;
`means for identifying the call-in port of the identi-
`fied portal computer by repeatedly trying to estab-
`lish a connection with the identified portal
`computer through contacting a communications
`port or communications ports until a connection is
`successfully established;
`means for selecting the call-in port of the identified
`portal computer using a port ordering algorithm;
`and
`means for re-ordering the communications ports
`selected by the port ordering algorithm.
`
`
`4 The ’497 patent explains, for example, that a “call-
`
`in port is used to establish connections with the external
`port and the internal ports.” ’497 patent col. 6 ll. 40–41.
`
`5 Claim 16 depends from claim 9 and recites: “The
`component of claim 9 wherein the communications ports
`are TCP/IP ports.”
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`Id. at col. 30 ll. 16–30.
`Procedural History
`On June 17, 2016, Acceleration Bay filed a patent in-
`fringement suit against 2K Sports, Inc., Rockstar Games,
`Inc., and Take-Two Interactive Software, Inc. in the U.S.
`District Court for the District of Delaware. J.A. 550. Ac-
`celeration Bay accused the defendants of directly infring-
`ing the ’344, ’966, ’069, and ’497 patents, among others, by
`establishing networks for customers who play the video
`games called Grand Theft Auto V, NBA 2K15, and 2K16.
`See J.A. 573. Specifically, Acceleration Bay alleged that
`the accused video games’ software creates Take Two’s in-
`fringing virtual networks. J.A. 573 at ¶ 65; Appellant’s
`Br. 14.
`From 2017 to 2018, the district court issued a series of
`claim construction orders.6 Pertinent to this appeal, in its
`August 29, 2017 order, the district court addressed the par-
`ties’ dispute concerning the proper construction of the term
`“m-regular,” which is a limitation in the claims-at-issue of
`the ’344 and ’966 patents. See J.A. 16. The district court
`largely adopted Take Two’s proposed construction but re-
`vised it to read as follows: “A state that the network is con-
`figured to maintain, where each participant is connected to
`exactly m neighbor participants.” Id. The district court
`explained that this construction
`does not require the network to have each partici-
`pant be connected to m neighbors at all times; ra-
`ther, the network is configured (or designed) to
`have each participant be connected to m neighbors.
`
`6 See J.A. 3–18 (Aug. 29, 2017 order); J.A. 19–24
`
`(Sept. 6, 2017 order); J.A. 25–49 (Dec. 20, 2017 order);
`J.A. 50–66 (Dec. 20, 2017 order); J.A. 67–70 (Dec. 28, 2017
`order); J.A. 71–93 (Jan. 17, 2018 order); J.A. 94–97
`(Jan. 24, 2018 order); J.A. 98–104 (Apr. 10, 2018 order).
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`In other words, if the network does not have each
`participant connected to m neighbors, this is fine so
`long as, when appropriate, it tries to get to that
`configuration.
`
`8
`
`Id.
`
`In the December 20, 2017 claim construction order, the
`district court construed “fully connected portal computer”
`in claim 1 of the ’069 patent largely consistent with Take
`Two’s proposed construction to mean “portal computer con-
`nected to exactly m neighbor participants.” J.A. 33. This
`construction meant, in other words, that the asserted
`claims effectively included the “m-regular” limitation. Ac-
`celeration Bay LLC v. Take-Two Interactive Software, Inc.,
`No. CV 16-455-RGA, 2020 WL 1333131, at *2 n.1 (D. Del.
`Mar. 23, 2020); J.A. 33–37.
`In the same order, the district court construed “each
`participant being connected to three or more other partici-
`pants,” also appearing in claim 1 of the ’069 patent, con-
`sistent with Take Two’s proposal to mean “each participant
`being connected to the same number of other participants
`in the network, where the number is three or more.”
`J.A. 38. The court again explained that this construction
`effectively included the “m-regular” limitation into the as-
`serted claims of the ’069 patent even though it was not ex-
`plicitly stated. J.A. 38–39.
`In its January 17, 2018 claim construction order, the
`district court construed the following term that appears in
`claim 9 of the ’497 patent: “a component in a computer sys-
`tem for locating a call-in port of a portal computer.” J.A. 90
`(emphasis added). The district court adopted Take Two’s
`construction: “a hardware component programmed to lo-
`cated [sic] a call-in port of a portal computer.” J.A. 90 (em-
`phasis added). The district court explained that the term
`requires hardware because Acceleration Bay had agreed in
`its proposed construction for other disputed terms that the
`term “component” requires hardware. J.A. 91.
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`On March 23, 2020, the district court granted summary
`judgment of non-infringement for all four patents-at-issue.
`See Acceleration Bay, 2020 WL 1333131. The court first
`addressed Acceleration Bay’s theory of direct infringement
`of the ’344, ’966, and ’497 patents by virtue of Take Two’s
`“making,” “selling,” and “offering to sell” the accused sys-
`tems under 35 U.S.C. § 271(a). Id. at *4. The court ex-
`plained that making a system under § 271(a) requires a
`single entity to combine all the claim elements and that, if
`a customer, rather than an accused infringer, performs the
`final step to assemble the system, then the accused in-
`fringer has not infringed. Id. (citing Centillion Data Sys.,
`LLC v. Qwest Commc’ns Int’l, Inc., 631 F.3d 1279, 1288
`(Fed. Cir. 2011)). Applying these principles to the ’344 and
`’966 patents, the court observed that Take Two “make[s]
`software, not computer networks or broadcast channels”
`and that its customers must introduce those elements to
`the systems before the claims can be met. Id. at *4. The
`court also explained that the asserted claims of the ’344
`and ’966 patents require “participants” who form “connec-
`tions” with each other, and it is therefore the video game
`players, not Take Two, who assemble the claimed system.
`Id. Turning to the ’497 patent, the court explained that
`Take Two did not meet the “component” limitation in the
`’497 patent’s asserted claims because “customers use their
`own hardware, such as an Xbox or personal computer, to
`locate the ‘call-in port of a portal computer.’” Id.
`The district court then rejected Acceleration Bay’s “fi-
`nal assembler” infringement theory with respect to the
`’344, ’966, and ’497 patents ostensibly based on Centrak,
`Inc. v. Sonitor Technologies, Inc., 915 F.3d 1360 (Fed. Cir.
`2019). Id. The district court explained that, in Centrak,
`summary judgment was deemed inappropriate because,
`“although the defendant’s product did not include all the
`elements of the asserted claims, there was evidence that
`the defendant installed the accused product for its custom-
`ers.” Id. But here, the district court reasoned, Acceleration
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`ACCELERATION BAY LLC v.
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`Bay “has not alleged Defendants ever installed the video
`games for customers,” and therefore the case was con-
`trolled by Centillion, “in which the Federal Circuit found
`the defendant could not have infringed the patents because
`the customers installed the accused software themselves.”
`Id. (citing Centillion, 631 F.3d at 1288).
`The district court also determined that Take Two did
`not infringe the ’069 patent. The district court recalled
`that, although the asserted claims of the ’069 patent did
`not explicitly recite an “m-regular” limitation, the court
`had construed two separate terms, “fully connected portal
`computer” and “each participant being connected to three
`or more other participants,” as including the “m-regular”
`limitation. Acceleration Bay, 2020 WL 1333131, at *2 &
`n.1; J.A. 36, 38–39. The district court then explained that
`the critical question for purposes of the ’069 patent was
`whether the accused video games met the “m-regular” lim-
`itation. Acceleration Bay, 2020 WL 1333131, at *7. The
`court determined that Acceleration Bay had not carried its
`burden of showing a genuine dispute about whether the ac-
`cused video games are “‘configured to maintain’ networks
`where each participant is connected to exactly the same
`number of other participants,” as required by the district
`court’s construction of the term “m-regular.” Id. Accelera-
`tion Bay’s experts, in their theories regarding Grand Theft
`Auto, did not identify “any source code that directs the par-
`ticipants to connect to the same number of other partici-
`pants.” Id. at *8. Regarding the NBA 2K video games, the
`court agreed with Take Two that the video games did not
`meet the “m-regular” limitation because the server that
`connects players’ computers or consoles (called a “Park Re-
`lay Server”) was itself a participant in the network and con-
`nected to all other network participants, rather than just
`m participants. Id. at *9. This argument was consistent
`with Acceleration Bay’s expert’s explanation that relay
`servers are participants in the network “because they can
`equally send and receive heartbeat data, lockstep data,
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`gameplay data, and VoIP data to other participants in the
`network.” Id.
`The district court further noted that the asserted
`claims of the ’344 and ’966 patents, like those of the ’069
`patent, include the term, “m-regular,” and therefore the ac-
`cused video games’ failure to meet that limitation meant
`that multiple independent grounds for summary judgment
`of non-infringement existed with respect to the ’344 and
`’966 patents: failure to meet the “m-regular” limitation and
`failure to “make,” “sell,” or “offer to sell” the claimed sys-
`tems under § 271(a), as discussed above. Id. at *7.
`Acceleration Bay appealed the district court’s grant of
`summary judgment of non-infringement with respect to the
`’344, ’966, ’497, and ’069 patents and its construction of the
`asserted claims of the ’069 patent. We have jurisdiction
`under 28 U.S.C. § 1295(a)(1).
`STANDARD OF REVIEW
`This Court reviews a district court’s grant of summary
`judgment under the law of the regional circuit, here the
`Third Circuit. Teva Pharm. Indus. Ltd. v. AstraZeneca
`Pharm. LP, 661 F.3d 1378, 1381 (Fed. Cir. 2011). The
`Third Circuit reviews a district court’s grant of summary
`judgment de novo. Azur v. Chase Bank, USA, Nat’l Ass’n,
`601 F.3d 212, 216 (3d Cir. 2010). We review a district
`court’s claim construction based solely on intrinsic evi-
`dence de novo and review a district court’s subsidiary fact-
`finding for clear error. Teva Pharms. USA, Inc. v. Sandoz,
`Inc., 574 U.S. 318, 331–32 (2015).
`DISCUSSION
`The ’344 and ’966 Patents
`Article III of the Constitution limits federal courts’ ju-
`risdiction to actual cases and controversies. U.S. Const.
`art. III, § 2, cl. 1; Simon v. E. Kentucky Welfare Rts. Org.,
`426 U.S. 26, 37 (1976) (“No principle is more fundamental
`
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`to the judiciary’s proper role in our system of government
`than the constitutional limitation of federal-court jurisdic-
`tion to actual cases or controversies.”). “A case becomes
`moot—and therefore no longer a ‘Case’ or ‘Controversy’ for
`purposes of Article III—when the issues presented are no
`longer ‘live’ or the parties lack a legally cognizable interest
`in the outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85,
`91 (2013) (internal quotation marks and citation omitted).
`It is well established that an appeal should be dismissed as
`moot when it is impossible to grant the appellant “any ef-
`fectual relief whatever.” See, e.g., Nasatka v. Delta Sci.
`Corp., 58 F.3d 1578, 1580 (Fed. Cir. 1995) (citation omit-
`ted); Calderon v. Moore, 518 U.S. 149, 150 (1996) (“It is
`true, of course, that mootness can arise at any stage of liti-
`gation; that federal courts may not give opinions upon moot
`questions or abstract propositions; and that an appeal
`should therefore be dismissed as moot when, by virtue of
`an intervening event, a court of appeals cannot grant any
`effectual relief whatever in favor of the appellant.” (cita-
`tions omitted)). The test for mootness is whether the relief
`sought, if granted, would “make a difference to the legal
`interests of the parties (as distinct from their psyches,
`which might remain deeply engaged with the merits of the
`litigation).” Nasatka, 58 F.3d at 1580 (citation omitted).
`Take Two argues that Acceleration Bay’s appeal with
`respect to the ’344 and ’966 patents is moot and should
`therefore be dismissed because Acceleration Bay only chal-
`lenges one of multiple independent grounds that the dis-
`trict court articulated for granting summary judgment.
`Appellees’ Br. 30. Specifically, according to Take Two, the
`district court granted summary judgment because (1) the
`accused video games do not meet the “m-regular” limita-
`tion, and (2) Acceleration Bay’s theory that Take Two di-
`rectly infringes because it is the “final assembler” of the
`claimed networks failed for lack of case law support. Id.;
`see also Acceleration Bay, 2020 WL 1333131, at *4, *7.
`Take Two argues that Acceleration Bay’s opening brief only
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`addresses the second of these summary judgment grounds.
`As a result, Take Two contends, this court cannot grant Ac-
`celeration Bay “effectual relief” even if it agreed with Ac-
`celeration Bay’s “final assembler” theory because a
`reversal on that issue would leave the district court’s sum-
`mary judgment grant intact on the separate “m-regular”
`ground. Appellees’ Br. 31–32.
`In reply, Acceleration Bay does not dispute that the dis-
`trict court granted judgment on the independent “m-regu-
`lar” ground. See Appellant’s Reply Br. 11. Instead,
`Acceleration Bay argues that this court’s reversal on the
`“final assembler” issue would grant Acceleration Bay effec-
`tual relief, and thereby avoid mootness, because it would
`help Acceleration Bay oppose Take Two’s forthcoming “ex-
`ceptional case motion.” Id. We are not persuaded. Accel-
`eration Bay has forfeited any challenge to the district
`court’s grant of summary judgment of non-infringement on
`the basis that the accused products fail to satisfy the “m-
`regular” limitation of the ’344 and ’966 patents’ asserted
`claims. In re Google Tech. Holdings LLC, 980 F.3d 858, 862
`(Fed. Cir. 2020) (defining forfeiture as “the failure to make
`the timely assertion of a right” (citation omitted)). As a re-
`sult of Acceleration Bay’s forfeiture, its appeal with respect
`to the ’344 and ’966 patents is moot because we are unable
`to grant Acceleration Bay effectual relief. Even if we were
`to agree that its “final assembler theory” is viable as a mat-
`ter of law, our reversal on that issue would leave the dis-
`trict court’s grant of summary
`judgment of non-
`infringement intact. In Nasatka, we rejected the appel-
`lant’s argument that the appeal was not moot because a
`favorable ruling would impact the parties’ positions on the
`appellee’s then-pending motion for attorney fees under
`35 U.S.C. § 285. 58 F.3d at 1581. We discern no reason to
`decide otherwise here. Our advisory validation or rejection
`of Acceleration Bay’s “final assembler” theory is not re-
`quired for the district court to conduct the exceptional case
`analysis.
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`ACCELERATION BAY LLC v.
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`Acceleration Bay also argues that a favorable decision
`would impact “at least two co-pending cases before the
`same District Court for all three patents.” Appellant’s Re-
`ply Br. 11–12. Again, we are not persuaded that an impact
`on other cases between Acceleration Bay and third parties
`confers jurisdiction. At least two of our sister circuits have
`observed that “collateral consequences in a separate law-
`suit . . . does not fall within any exception to the mootness
`doctrine . . . .” Citizens for Responsible Gov’t State Pol. Ac-
`tion Comm. v. Davidson, 236 F.3d 1174, 1184 (10th Cir.
`2000) (quoting State of Neb. v. Cent. Interstate Low-Level
`Radioactive Waste Compact Comm’n, 187 F.3d 982, 987
`(8th Cir. 1999)). Acceleration Bay cites no case where such
`consequences were determined to fall within an exception
`to the mootness doctrine. See Appellant’s Reply Br. 11–12.
`We accordingly reject Acceleration Bay’s argument with re-
`spect to the ’344 and ’966 patents on the basis of mootness.
`We therefore lack jurisdiction over this appeal with respect
`to those patents.
`
`The ’069 Patent
`Acceleration Bay challenges the district court’s grant of
`summary judgment of non-infringement of the ’069 patent
`by arguing that the asserted claims do not explicitly con-
`tain any “m-regular” limitation, and the district court erro-
`neously interpreted the claim term “fully connected portal
`computer” to
`include that
`limitation.
` Appellant’s
`Br. 32–43.7
`
`
`7 Specifically, Acceleration Bay argues that the dis-
`
`trict court’s construction erroneously imported a “m-regu-
`lar” limitation from the specification into the claim
`language “fully connected portal computer,” id. at 36–38;
`that it improperly excludes non-m-regular embodiments,
`id. at 38–40; and that it violates the principle of claim
`
`
`

`

`Case: 20-1700 Document: 60 Page: 15 Filed: 10/04/2021
`
`ACCELERATION BAY LLC v.
`TAKE-TWO INTERACTIVE SOFTWARE
`
`15
`
`Take Two responds that Acceleration Bay’s appeal fails
`because it does not challenge the district court’s full basis
`for construing the ’069 patent’s asserted claims to include
`the “m-regular” limitation. Take Two points out that the
`district court did not only construe the term “fully con-
`nected portal computer” to include the limitation, but it
`also construed the term “each participant being connected
`to three or more other participants” to include it. Appel-
`lees’ Br. 41–42. Because Acceleration Bay does not chal-
`lenge the district court’s latter construction, Take Two
`argues that the appeal necessarily fails. Id. at 41–43. We
`agree.
`Even considering Acceleration Bay’s arguments re-
`garding the construction of the term “fully connected portal
`computer,” the district court’s grant of summary judgment
`would remain intact because the district court interpreted
`a separate term in the ’069 patent’s asserted claims to in-
`clude the “m-regular” limitation. See J.A. 38–39. We can
`affirm a district court’s summary judgment of non-infringe-
`ment if the accused infringer “remains entitled to judgment
`as a matter of law despite an error in claim construction.”
`Innovad Inc. v. Microsoft Corp., 260 F.3d 1326, 1334–36
`(Fed. Cir. 2001). We do so again here.
`The ’497 Patent
`Acceleration Bay argues that it has asserted a viable
`“final assembler” theory of direct infringement based on
`Centrak, and therefore the district court erred in granting
`summary judgment of non-infringement. Acceleration Bay
`contends that, even though Take Two does not “make” the
`hardware that its customers use to play the accused video
`games, it nevertheless directly infringes by “making” the
`claimed systems because Take Two qualifies as the “final
`
`
`differentiation because certain claims in the ’069 patent do
`explicitly recite an m-regular limitation, id. at 40–43.
`
`

`

`Case: 20-1700 Document: 60 Page: 16 Filed: 10/04/2021
`
`16
`
`ACCELERATION BAY LLC v.
` TAKE-TWO INTERACTIVE SOFTWARE
`
` Appellant’s
`assembler” of the “accused systems.”
`Br. 30–32. Specifically, Acceleration Bay contends that
`Take Two’s accused software “controls the processors” in
`the customers’ consoles, “caus[ing] the processors to act in
`a way that satisfies the four means elements recited in
`claim 9 of the ’497 patent.” Id. at 31.
`Acceleration Bay misapprehends Centrak. In Centrak,
`the accused infringer made hardware products and in-
`stalled them by connecting them to an existing network.
`915 F.3d at 1371. The plaintiff there had a viable theory—
`called a “final assembler” theory—that the defendant di-
`rectly infringed a claim because, even though the defend-
`ant did not make some of the existing network components,
`it “made” the claimed system when it installed its own
`hardware onto the existing network, thereby completing
`the claimed system. Id.
`This case is distinguishable from Centrak. Accelera-
`tion Bay does not contend that Take Two makes hardware
`and installs it onto an existing network to complete the
`claimed system. See Appellant’s Br. 30–32. Instead, Ac-
`celeration Bay proffers a novel theory, without case law
`support, that the defendants are liable for “making” the
`claimed hardware components, even though they are in
`fact made by third parties, because their accused software
`runs on them. Id. at 31–32. We disagree and conclude that
`Centillion controls here, where “[t]he customer, not [Take
`Two], completes the system by providing the [hardware
`component] and installing the client software.” 631 F.3d
`at 1288. We therefore hold that the district court did not
`err in granting summary judgment of non-infringement as
`to the ’497 patent.
`
`CONCLUSION
`For the above reasons, we dismiss Acceleration Bay’s
`appeal on mootness grounds insofar as it relates to the ’344
`and ’966 patents, and we affirm the district court’s grant of
`summary judgment that the accused video games do not
`
`

`

`Case: 20-1700 Document: 60 Page: 17 Filed: 10/04/2021
`
`ACCELERATION BAY LLC v.
`TAKE-TWO INTERACTIVE SOFTWARE
`
`17
`
`infringe the ’069 and ’497 patents and the district court’s
`construction of the claims at issue of the ’069 patent. We
`have considered Acceleration Bay’s remaining arguments
`but find them unpersuasive.
`DISMISSED-IN-PART AND AFFIRMED-IN-PART
`COSTS
`
`No costs.
`
`