Acceleration Bay LLC v. Activision Blizzard Inc.

Filing 275

MEMORANDUM OPINION providing claim construction for multiple terms in U.S. Patent Nos. 6,701,344, 6,714,966, 6,829,634, 6,910,069, 6,732,147, and 6,920,497. Within five days the parties shall submit a proposed order consistent with this Memorandum Opinion. Signed by Judge Richard G. Andrews on 8/29/2017. Associated Cases: 1:16-cv-00453-RGA, 1:16-cv-00454-RGA, 1:16-cv-00455-RGA(nms)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

ACCELERATION BAY LLC,
Plaintiff,
Civil Action No. 16-453-RGA

v.
ACTIVISION BLIZZARD, INC.
Defendant.

ACCELERATION BAY LLC,
Plaintiff,
Civil Action No. 16-454-RGA

v.
ELECTRONIC ARTS INC.
Defendant.

ACCELERATION BAY LLC,
Plaintiff,
v.
Civil Action No. 16-455-RGA
TAKE-TWO INTERACTIVE SOFTWARE,
INC., ROCKSTAR GAMES, INC., AND 2K
SPORTS, INC.
Defendants.

MEMORANDUM OPINION

Philip A. Rovner, Jonathan A. Choa, POTTER ANDERSON & CORROON LLP, Wilmington,
DE; Paul J. Andre, Lisa Kobialka, Hannah Lee, KRAMER LEVIN NAFTALIS & FRANKEL
LLP, Menlo Park, CA; Aaron Frankel, KRAMER LEVIN NAFTALIS & FRANKEL LLP, New
York, NY.

Attorneys for Plaintiff.
Jack B. Blumenfeld, Stephen J. Kraftschik, MORRIS, NICHOLS, ARSHT & TUNNEL LLP,
Wilmington, DE; Michael A. Tomasulo, Gino Cheng, David K. Lin, Joe S. Netikosol,
WINSTON & STRAWN LLP, Los Angeles, CA; David P. Enzminger, WINSTON & STRAWN
LLP, Menlo Park, CA; Dan K. Webb, Kathleen B. Barry, WINSTON & STRAWN LLP,
Chicago, IL.
Attorneys for Defendants.

August.2:'1._, 201 7

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AN»REW~s~
Presently before me is the issue of claim construction of multiple terms in U.S. Patent
No. 6,701,344 (the '"344 patent"), U.S. Patent No. 6,714,966 (the "'966 patent"), U.S. Patent
No. 6,829,634 (the "'634 patent"), U.S. Patent No. 6,910,069 (the "'069 patent"), U.S. Patent
No. 6,732,147 (the '"147 patent"), and U.S. Patent No. 6,920,497 (the "'497 patent"). I have
considered the parties' Joint Claim Construction Brief (D .I. 186) 1 and supplemental letters. (D .I.
220; D.I. 222; D.I. 225; D.I. 237; D.I. 240). I issued an order limiting the issues to the eight
means-plus-function terms and the three "m" terms found on pages 1-23 and 26-51 of the Joint
Claim Construction Brief. (D.I. 206). I held oral argument on July 10, 2017. (D.I. 219 ("Tr.")).

I.

LEGAL STANDARD
"It is a bedrock principle of patent law that the claims of a patent define the invention to

which the patentee is entitled the right to exclude." Phillips v. AWH Corp., 415 F.3d 1303, 1312
(Fed. Cir. 2005) (en bane) (internal quotation marks omitted). "'[T]here is no magic formula or
catechism for conducting claim construction.' Instead, the court is free to attach the appropriate
weight to appropriate sources 'in light of the statutes and policies that inform patent law."'
Soft View LLC v. Apple Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4, 2013) (quoting Phillips,

415 F.3d at 1324) (alteration in original). When construing patent claims, a court considers the
literal language of the claim, the patent specification, and the prosecution history. Markman v.
Westview Instruments, Inc., 52 F.3d 967, 977-80 (Fed. Cir. 1995) (en bane), aff'd, 517 U.S. 370

(1996). Of these sources, "the specification is always highly relevant to the claim construction
analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term."
Phillips, 415 F.3d at 1315 (internal quotation marks omitted).

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Citations to "D.I.

" are to the docket in C.A. No. 16-453 unless otherwise noted.

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"[T]he words of a claim are generally given their ordinary and customary meaning....
[Which is] the meaning that the term would have to a person of ordinary skill in the art in
question at the time of the invention, i.e., as of the effective filing date of the patent application."
Id. at 1312-13 (citations and internal quotation marks omitted). "[T]he ordinary meaning of a

claim term is its meaning to [an] ordinary artisan after reading the entire patent." Id. at 1321
(internal quotation marks omitted). "In some cases, the ordinary meaning of claim language as
understood by a person of skill in the art may be readily apparent even to lay judges, and claim
construction in such cases involves little more than the application of the widely accepted
meaning of commonly understood words." Id. at 1314.
When a court relies solely upon the intrinsic evidence-the patent claims, the
specification, and the prosecution history-the court's construction is a determination oflaw.
See Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015). The court may also

make factual findings based upon consideration of extrinsic evidence, which "consists of all
evidence external to the patent and prosecution history, including expert and inventor testimony,
dictionaries, and learned treatises." Phillips, 415 F .3d at 1317-19. Extrinsic evidence may assist
the court in understanding the underlying technology, the meaning of terms to one skilled in the
art, and how the invention works. Id. Extrinsic evidence, however, is less reliable and less
useful in claim construction than the patent and its prosecution history. Id.
"A claim construction is persuasive, not because it follows a certain rule, but because it
defines terms in the context of the whole patent." Renishaw PLC v. Marposs Societa 'per
Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows that "a claim interpretation that would

exclude the inventor's device is rarely the correct interpretation." Osram GMBH v. Int'l Trade
Comm 'n, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (citation omitted).

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II.

BACKGROUND
The following claims are the most relevant for the purposes of this Markman.

Claim 1 of the '344 Patent

1. A computer network for providing a game environment for a plurality of
participants, each participant having connections to at least three neighbor
participants, wherein an originating participant sends data to the other participants
by sending the data through each of its connections to its neighbor participants
and wherein each participant sends data that it receives from a neighbor
participant to its other neighbor participants, further wherein the network ismregular, 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.
(D.I. 117-2, Exh. A-1 ('"344 patent"), claim 1).
Claim 13 of the '344 Patent

13. 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.
('344 patent, claim 13).
Claim 9 of the '497 Patent

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 portal computer having a dynamically
selected call-in port for communicating with other computers;

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means for identifying the call-in port of the identified portal computer by repeatedly
trying to establish 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.
(D.I. 117-2, Exh. A-6 ("' 497 patent"), claim 9).

III.

TERMS FOR CONSTRUCTION

1. Term 4: "means for connecting to the identified broadcast channel" (claim 13 of the
'344 patent; claim 13 of the '966 patent)
a. Plaintiff's proposed construction:
Function: Connecting a participant to an identified broadcast channel

'966 Structure: A processor programmed to perform at least one of the algorithms
disclosed in steps 801 to 806 in Figure 8 and described in the '966 Patent at 18:3-19:22
or Figures 3A and 3B and described in the '966 Patent at 5:32-52, which involves
invoking the connecting routine with the identified broadcast channel's type and instance,
connecting to the broadcast channel, connecting to a neighbor, and connecting to a fully
connected state
'344 Structure: A processor programmed to perform at least one of the algorithms
disclosed in steps 801 to 806 in Figure 8 and described in the '344 Patent at 17:67-18:47
or Figures 3A and 3B and described in the '344 Patent at 5:33-55, which involves
invoking the connecting routine with the identified broadcast channel's type and instance,
connecting to the broadcast channel, connecting to a neighbor, and connecting to a fully
connected state
b. Defendants' proposed construction:
Function: Connecting to the identified broadcast channel
Structure: Indefinite because no/insufficient algorithm disclosed

c. Court's construction:
Function: Connecting to the identified broadcast channel

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'966 Structure: A processor programmed to perform at least one of the algorithms
disclosed in steps 801 to 809 in Figure 8 and described in the '966 Patent at 18:3-20:9,
20:41-21:19, 21:46-22:28,23:37-24:49, and Figures 9, 11, 13, 14, 17 and 18, or Figures
3A and 3B and described in the '966 Patent at 5:32-52, which involves invoking the
connecting routine with the identified broadcast channel's type and instance, connecting
to the broadcast channel, connecting to a neighbor, and connecting to a fully connected
state
'344 Structure: A processor programmed to perform at least one of the algorithms
disclosed in steps 801 to 809 in Figure 8 and described in the '344 Patent at 17:67-19:34,
19:66-20:44, 21:4-53, 22:61-24:6, and Figures 9, 11, 13, 14, 17 and 18, or Figures 3A
and 3B and described in the '344 Patent at 5:33-55, which involves invoking the
connecting routine with the identified broadcast channel's type and instance, connecting
to the broadcast channel, connecting to a neighbor, and connecting to a fully connected
state
The claims require a "means for connecting to the identified broadcast channel." (See,

e.g., '344 patent, claim 13). Plaintiff provides no basis for its proposed function language. (D.I.
186 at p. 32). Plaintiff further agrees with using "the." (Tr. 106:9-12). Thus, I adopt
Defendants' function including the "the" language.
The specification describes Figure 8 as a "flow diagram[] illustrating the processing of
the broadcaster component in one embodiment." (See, e.g., D.I. 117-2, Exh. A-2 ("'966 patent"),
18:2-3). It "illustrat[es] the processing of the connect routine .... " (See, e.g., '966 patent,
18:3-5). Thus, the specification describes all of Figure 8 as the structure for "connecting to the
identified broadcast channel." The algorithm in Figure 8 is further fleshed out by Figures 9, 11,
13, 14, 17 and 18 and their corresponding descriptions in the specification. (See, e.g., '966
patent, 18:3-20:9, 20:41-21 :19, 21 :46-22:28, 23:37-24:49). Block 806 is therefore relevant to
the connecting function that is claimed. I think Figure 8, considered as a whole, and its
accompanying disclosures, are "integral to performing the stated function." See Gemstar-TV

Guide Int'l, Inc. v. Int'! Trade Comm 'n, 383 F.3d 1352, 1362 (Fed. Cir. 2004).

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The specification describes Figures 3A and 3B as "illustrat[ing] the process of a new
computer Z connecting to the broadcast channel." (See, e.g., '966 patent, 5:62-63). The
specification also provides a description of the process. (See, e.g., '966 patent, 5:32-52). Thus,
this portion of the specification also serves as structure for the function. Overall, the
specification adequately discloses structure for the function, and thus, the claims are not
indefinite.

2. Term 1: "means for identifying a broadcast channel for a game of interest" (claim 13 of
the '344 patent)
a. Plaintiff's proposed construction:
Function: Identifying a broadcast channel for a game of interest
Structure: A processor programmed to perform the algorithm disclosed in steps described
in the '344 Patent at 16:57-17:1, which involves connecting to a web server and
downloading a broadcaster component that identifies the broadcast channel for the game
of interest
b. Defendants' proposed construction:
Function: Identifying a broadcast channel for a game of interest
Structure: Indefinite because no/insufficient algorithm disclosed
c. Court's construction:
Function: Identifying a broadcast channel for a game of interest
Structure: A processor programmed to perform the algorithm disclosed in steps described
in the '344 Patent at 16:57-17:1, which involves connecting to a web server and
downloading a broadcaster component that identifies the broadcast channel for the game
of interest
Plaintiffs citation to column 16, line 57 to column 17, line 1 of the '344 patent provides
adequate structure for the function of"identifying a broadcast channel for a game of interest."
This structure teaches that the game environment can provide a game web site through which
players can view the state of current games and register new games. ('344 patent, 16:57-59). It

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teaches that using the game web server maps each game with the broadcast channel on which the
game is to be played. ('344 patent, 16:59-61). It teaches that using the web server generates the
channel type and channel instance associated with the game and the identification of the portal
computers for the game. ('344 patent, 16:65-17:1). This structure specifically provides a way to
identify a broadcast channel for a game of interest.

3. Term 2: "means for identifying a game of interest includes accessing a web server that
maps games to corresponding broadcast channel" (claim 14 of the '344 patent)
a. Plaintiff's proposed construction: "Means for identifying a game of interest" is construed
in Term 1. No further construction necessary.
b. Defendants 'proposed construction:
Function: Identifying a game of interest includes accessing a web server that maps
games to corresponding broadcast channel
Structure: Indefinite because no/insufficient algorithm disclosed
c. Court's construction:
Function: Identifying a game of interest includes accessing a web server that maps games
to corresponding broadcast channel
Structure: A processor programmed to perform the algorithm disclosed in steps described
in '344 Patent at 16:57-17:1, which involves connecting to a web server and
downloading a broadcaster component that identifies the broadcast channel for the game
of interest
Defendant's proposed function accurately captures that the function requires accessing a
web server that maps games to a corresponding broadcast channel. As discussed above in Part
III.2, column 16, line 57 to column 17, line 1 provides sufficient structure to perform this
function. This structure teaches that the game environment can provide a game web site through
which players can view the state of current games and register new games. (' 344 patent, 16:5759). It teaches that using the game web server maps each game with the broadcast channel on
which the game is to be played. ('344 patent, 16:59-61).

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4. Term 3: "means for identifying a broadcast channel for a topic of interest" (claim 13 of
the '966 patent)
a. Plaintiff's proposed construction:
Function: Identifying a broadcast channel for a topic of interest
Structure: A processor programmed to perform the algorithm disclosed in steps described
in '966 Patent at 16:41-51, which involves connecting to a web server and downloading
a broadcaster component that identifies the broadcast channel for a topic of interest
b. Defendants' proposed construction:
Function: Identifying a broadcast channel for a topic of interest
Structure: Indefinite because no/insufficient algorithm disclosed
c. Court's construction:
Function: Identifying a broadcast channel for a topic of interest
Structure: A processor programmed to perform the algorithm disclosed in steps described
in '966 Patent at 16:41-51, which involves connecting to a web server and downloading
a broadcaster component that identifies the broadcast channel for a topic of interest
The analysis here is similar to that discussed in Part III.2. The '966 patent provides:
The information delivery service may provide a directory web site where
consumers can locate and subscribe to broadcast channels of interest. The
directory may provide a hierarchical organization of topics of the various
broadcast channels. When a user decides to subscribe to a broadcast channel, the
broadcaster component and information delivery service application program may
be downloaded to the user's computer if not already available on the user's
computer. Also, the channel type and channel instance associated with that
broadcast channel and the identification of the portal computers for that broadcast
channel may be downloaded to the subscriber's computer.

('966 patent, 16:41-51). This structure specifically provides a way to identify a
broadcast channel for a topic of interest.

5. Term 5: "means for identifying the portal computer" (claim 9 of the '497 patent)
a. Plaintiff's proposed construction:
Function: Identifying a portal computer using a dynamically selected call-in port

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Structure: A processor programmed to perform the algorithm described in the '497 Patent
at 12:34-36 and 12:49-52, which involves performing the steps of the seeking computer
having a list of portal computers to connect to and selecting the port number of the portal
computer using a port-ordering algorithm
b. Defendants' proposed construction:
Function: Identifying the portal computer
Structure: Indefinite because no/insufficient algorithm disclosed
c. Court's construction:

Function: Identifying a portal computer
Structure: A processor programmed to perform the algorithm described in the '497 Patent
at 12:34-36 and 12:49-52, which involves performing the steps of the seeking computer
having a list of portal computers to connect to and selecting the port number of the portal
computer using a port-ordering algorithm
Defendant's proposed function more accurately reflects the claim language, which does
not require that the portal computer use its dynamically selected call-in port, but merely requires
that the portal computer have a dynamically selected call-in port. (' 497 patent, claim 9 ("means
for identifying the portal computer, the portal computer having a dynamically selected call-in
port for communicating with other computers")). Plaintiffs citations to column 12, lines 34-36
and column 12, lines 49-52 of the '497 patent provide structure that adequately corresponds to
Defendants' function. Column 12, lines 34-36 provides, "Each computer that can connect to the
broadcast channel has a list of one or more portal computers through which it can connect to the
broadcast channel." ('497 patent, 12:34-36). Column 12, lines 49-52 provides that a computer
can select a port number according to an algorithm and dial each portal computer at that port
number. ('497 patent at 12:49-52). It is readily apparent that these citations provide a specific
way for a computer to select a port number of the portal computer from that list, and thus,

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"identify" the portal computer. I think these disclosures, considered as a whole, are "integral to
performing the stated function." See Gemstar-TV, 383 F.3d at 1362.

6. Term 6: "means for identifying the call-in port of the identified portal computer by
repeatedly trying to establish a connection with the identified portal computer through
contacting a communications port or communications ports until a connection is
successfully established" (claim 9 of the '497 patent)
This term is resolved. (D.I. 213).

7. Term 7: "means for selecting the call-in port of the identified portal computer using a
port ordering algorithm" (claim 9 of the '497 patent)
a. Plaintiff's proposed construction:

Function: Selecting the call-in port of the identified portal computer using a port ordering
algorithm
Structure: A processor programmed to perform the algorithm described in the '497 Patent
at 11:60-12:12, which involves performing the steps of using a port ordering algorithm
for selecting the call in port of the identified portal computer by using an algorithm that
provides a sequence of port numbers
b. Defendants' proposed construction:
Function: Selecting the call-in port of the identified portal computer using a port ordering
algorithm
Structure: Indefinite because no/insufficient algorithm disclosed
c. Court's construction:
Function: Selecting the call-in port of the identified portal computer using a port ordering
algorithm
Structure: A processor programmed to perform the algorithm described in the '497 Patent
at 11:60-12:12, which involves performing the steps of using a port ordering algorithm
for selecting the call in port of the identified portal computer by using an algorithm that
provides a sequence of port numbers
Plaintiffs citation of column 11, line 60 to column 12, line 12 of the '497 patent provides
structure that adequately corresponds to the function. The cited portion of the specification
provides that the computer uses a port ordering algorithm to identify the port number order when

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a portal computer is finding an available port for its call-in port. (' 497 patent, 11 :60-64). This
algorithm may be a hashing algorithm. ('497 patent, 11 :64-65). The specification teaches that
the algorithm preferably randomly distributes the port number ordering throughout the user port
number space and only selects each port number once. ('497 patent, 11 :65-12:1). The algorithm
may be "seeded" with channel type and channel instance in order to make unique orderings of
the port numbers. ('497 patent, 12:7-9). These citations provide a specific way to select the
call-in port of the identified portal computer using a port ordering algorithm.

8. Term 8: "means for re-ordering the communications ports ... " (claim 9 of the '497
patent)
a. Plaintiff's proposed construction:
Function: Re-ordering the communications ports selected by the port ordering algorithm
Structure: A processor programmed to perform the algorithm described in the '497 Patent
at 12:18-12:28, which involves performing the steps of using the call-in port number
generated by the port ordering algorithm, and if the connection is unsuccessful,
reordering the communication ports
b. Defendants' proposed construction:
Function: Re-ordering the communications ports selected by the port ordering algorithm
Structure: Indefinite because no/insufficient algorithm disclosed
c. Court's construction:
Function: Re-ordering the communications ports selected by the port ordering algorithm
Structure: A processor programmed to perform the algorithm described in the '497 Patent
at 12:18-12:28, which involves performing the steps of using the call-in port number
generated by the port ordering algorithm, and if the connection is unsuccessful,
reordering the communication ports
Plaintiffs citation to column 12, line 18 to column 12, line 28 provides structure that
adequately corresponds to the function. This citation provides that in one embodiment, seeking
computers may reorder the first few port numbers created by a hashing algorithm. (' 497 patent,

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12:18-20). This could be implemented through a weighted method. ('497 patent, 12:24-26).
These citations allow a computer to re-order the communications ports selected by the port
ordering algorithm.

9. Term 17: "m-regular" and "m-regular network" (claims 1, 13, 18 of the '344 patent;
claims 1 and 13 of the '966 patent; claims 1 and 19 of the '634 patent; claims 1 and 11 of
the '147 patent)
a. Plaintiff's proposed construction: A network where each participant has m neighbor
participants in a steady state
b. Defendants' proposed construction:
For the '344, '966, and '634 patents: A state that the network seeks to maintain at all
times, where each participant is connected to exactly m neighbor participants
For the ' 14 7 patent: A state that the network seeks to maintain at all times, where each
computer is connected to exactly m neighbor computers
c. Court's construction:
For the '344, '966, and '634 patents: A state that the network is configured to maintain,
where each participant is connected to exactly m neighbor participants
For the '147 patent: A state that the network is configured to maintain, where each
computer is connected to exactly m neighbor computers
Plaintiffs only concern with my construction is that it seeks clarification that it would not
read out a configuration which allows states where the network is not in a "steady state." (Tr.
70:14-72:13). Plaintiff argues that a network is not in a "steady state" when the network is not
configured such that each participant is connected to exactly m neighbors. (Id.). This concern is
resolved by taking out Defendants' language of "at all times." My construction does not require
the network to have each participant be connected to m neighbors at all times; rather, the
network is configured (or designed) to have each participant be connected to m neighbors. 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.

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Defendants are largely in agreement with my construction although they prefer the "at all
times" language. Defendants concede that their intention with the "at all times" language is not
to indicate that the network had to be m-regular at all times. (Tr. 73:13-21). I am taking out the
"at all times" language because it could be misleading to a jury.
Defendants also prefer the word "seeks" over "configured." Defendants concede that
they do not seek to impose an intent requirement. (D.I. 186 at p. 22). I think that "seeks"
improperly connotes an intent element more so than the word "configured." Using the word
"configured" resolves Defendants' concerns about networks that appear m-regular by chance.

10. Term 16: "m" (claims 1and13 of the '344 patent; claims 1and13 of the '966 patent;
claims 1 and 19 of the '634 patent; claims 1 and 11 of the '147 patent)
a. Plaintiff's proposed construction: No construction necessary. Plain and ordinary
meanmg.
b. Defendants 'proposed construction:

For the '344, '966, '634, and '069 patents: A predetermined design parameter specifying
the number of neighbors each participant should maintain
For the '14 7 patent: A predetermined design parameter specifying the number of
neighbors each computer should maintain
c. Court's construction: No construction necessary. Plain and ordinary meaning.
The plain language of the claims provides a ready definition for the concept of "m" at
least when used in isolation. The claims expressly define "m" as "the exact number of neighbor
participants of each participant." (See, e.g., '344 patent, claim 1). A person of ordinary skill in
the art would understand that this is the plain meaning of the word "m." (See D.I. 157-1, Exh. F.

ii 44). The plain and ordinary meaning of "m" does not suggest that the word "m," at least when
used in isolation, is a "predetermined design parameter."
Ill

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11. Term 18: "m-connected" and "m-connected network" (claim 1and19, '634 patent)

a. Plaintiff's proposed construction: A network that may be divided into disconnected subnetworks by the removal of m participants in a steady state
b. Defendants' proposed construction: A state that the network seeks to maintain at all
times, where dividing the network into two or more separate parts would require the
removal of at least m participants
c. Court's construction: A state that the network is configured to maintain, where the
network may be divided into disconnected sub-networks by the removal of m participants
in a steady state
Plaintiff objects to Defendants' proposed construction because it uses the words "seeks,"
"at all times," "parts," and "two or more." For the reasons given above in connection with the
previous term, I am changing "seeks" to "is configured" and striking "at all times" from
Defendants' proposed construction. Plaintiff argues, and Defendants do not dispute in their
briefing, that Defendants' usage of "parts" is less precise than "sub-networks" as proposed by
Plaintiff. (See D.I. 186 at p. 27). Plaintiff argues, and Defendants also do not dispute, that the
"two or more" language is superfluous. (See D.I. 186 at p. 27). Thus, I partially adopt Plaintiffs
proposed construction.
IV.

CONCLUSION

Within five days the parties shall submit a proposed order consistent with this
Memorandum Opinion.

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