Full text of WDDD brief
3314797v5/013049
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
WORLDS, INC.,
Plaintiff,
vs.
ACTIVISION BLIZZARD, INC., BLIZZARD ENTERTAINMENT, INC. and ACTIVISION PUBLISHING, INC.,
Defendants.
) ) ) ) ) ) ) ) ) ) ) )
Civil Action No. 1:12-CV-10576 (DJC)
JURY TRIAL DEMANDED
PLAINTIFF’S RESPONSE TO DEFENDANTS’ SUPPLEMENTAL CLAIM CONSTRUCTION BRIEF CONCERNING INDEFINITENESS
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INTRODUCTION
In its original claim construction briefing, Activision argued incorrectly that four terms in
the patents-in-suit — “condition / participant condition,” “third user perspective,” “switch be-
tween a rendering … ,” and “synchronously disseminating” — are invalid as indefinite under 35
U.S.C. § 112 ¶ 2. Activision now submits a supplemental brief in light of Nautilus, Inc. v. Biosig
Instruments, Inc., 572 U.S. __ (2014), where Activision advances the same faulty arguments it
made initially. But Activision’s arguments fare no better under Nautilus than they did under prior
cases. Activision has presented no clear and convincing evidence that any of the disputed terms
are invalid as indefinite, and a person skilled in the art would understand easily that
• the terms “condition” and “participant condition” are not indefinite and need no construc- tion, as they are everyday terms that describe an expression in a software program that af- fects the status or display of an avatar;
• the term “third user perspective” is not indefinite because it is defined clearly in the ex- press language of the ’998 patent’s specification and illustrations as “a view from the per- spective of the user”;
• the term “all of a perspective view of a local user avatar” is not indefinite because it is easily comprehensible standing alone, and the specification of the ’998 patent includes additional description and illustration identifying the characteristics of a user’s perspec- tive view; and
• the term “synchronously disseminating” is not indefinite because the claims and specifi- cation of the ’690 patent indicate explicitly and by clear implication that “synchronously disseminating” means “transmitting in a manner that is synchronized or coordinated.”
Accordingly, the Court should reject Activision’s attempt to invalidate claim terms that
are straightforward and comprehensible to anyone skilled in the art.
LEGAL STANDARD
A patent is presumed valid. 35 U.S.C. § 282(a). The party asserting invalidity — in this
case, Activision — has the burden to show the patent is invalid by “clear and convincing evi-
dence.” Microsoft Corp. v i4i Ltd. P’ship, 131 S. Ct. 2238, 2242 (2011) (emphasis added); see
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also Phillips v. AWH Corp., 415 F.3d 1303, 1327 (Fed. Cir. 2005) (claims should generally be
construed to preserve their validity).
In Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. __ (2014), the Supreme Court held
that, under 35 U.S.C. § 112 ¶ 2, “a patent is invalid for indefiniteness if its claims, read in light
of the specification delineating the patent, and the prosecution history, fail to inform, with rea-
sonable certainty, those skilled in the art about the scope of the invention.” Slip Op. at 1. Criti-
cally, the Court recognized that “the definiteness requirement must take into account the in-
herent limitations of language.” Id. at 9 (emphasis added). Accordingly, “[s]ome modicum of
uncertainty … is the price of ensuring the appropriate incentives for innovation.” Id. (quota-
tion omitted) (emphasis added). The court also stated that “a patent must be precise enough to
afford clear notice of what is claimed”; otherwise, “there would be a zone of uncertainty which
enterprise and experimentation may enter only at the risk of infringement claims.” Id. at 10.
The Supreme Court’s concern in Nautilus with a “zone of uncertainty” arises most
pointedly in cases like Nautilus itself, which involved the question whether a claim term
adequately specified a distance between two electrodes. In particular, Nautilus involved a patent
for a heart-rate monitor that included “a live electrode and a common electrode mounted … in
spaced relationship with each other.” Id. at 4. Nautilus argued that the term “spaced relationship”
was indefinite under § 112 ¶ 2 because the term “spaced relationship” does not identify any
parameters for determining spacing. Id. at 6. The district court granted summary judgment but
the Federal Circuit reversed, finding that the term “spaced relationship” was amenable to
construction. Id. at 7. The Supreme Court reversed and remanded for a determination whether
the term “spaced relationship” “fail[ed] to inform, with reasonable certainty, those skilled in the
art about the scope of the invention.” Id. at 13–14. The issue on remand is whether one skilled in
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the art can ascertain from the asserted patent how far apart the electrodes should be spaced See
id. at 7. Thus, the issue is not one of definition, but rather of distance or measurement.
The main case cited by Activision in its supplemental briefing, Broussard v. Go-Devil
Manufacturing Co. of Louisiana, Inc., 2014 WL 3377708 (M.D. La. July 9, 2014), addresses a
very similar issue. Specifically, the patent in Broussard discussed an “elongated drive housing”
and “drive shaft” but did not provide for a limitation on the length for those features — just like
the Nautilus patent did not provide guidance on electrode spacing. If there is a takeaway from
Broussard (a district court case from Louisiana), it is that an approximation of length may
implicate indefiniteness concerns under Nautilus. The issue here is entirely different, however, as
Defendants are merely saying that certain plain-language terms are lacking specific definitions.
There is no issue with lengths, distances, separation, weights, or similar parameters — the only
question is one of definition, and in this case the definitions of the words used in the patents-in-
suit are clear and easily understood by anyone skilled in the art. In circumstances like the present
case, courts have regularly refused to invalidate claims under the Nautilus standard.1
DISPUTED CLAIM TERMS
Activision argues that four terms in the patents-in-suit are invalid as indefinite under
§ 112 ¶ 2 because the terms allegedly “fail to inform, with reasonable certainty, those skilled in
the art about the scope of the invention.” See Activision Br. at 1. Activision is wrong. Setting
aside the fact that Activision neither submits an affidavit from an individual skilled in the art nor
even attempts to describe the relevant level of skill in the art, Activision does not present any
1 See, e.g., Exergen Corp. v. Brooklands, Inc., 2014 U.S. Dist. LEXIS 113736, at *39, 44, 52 (D. Mass. Aug. 15, 2015); Carrier Corp. v. Goodman Global, Inc., 2014 U.S. Dist. LEXIS 112508, at *18–19 (D. Del. Aug. 14, 2014); Virnetx Inc. v. Apple, Inc., 2014 U.S. Dist. LEXIS 110134, at *29–36 (E.D. Tex. Aug. 8, 2014); East Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc., 2014 U.S. Dist. LEXIS 100950, at *7–8 (D.N.H. July 24, 2014); Cognex Corp. v. Microscan Sys., Inc., 2014 U.S. Dist. LEXIS 91203, at *20 n.2 (S.D.N.Y. June 29, 2014); Thomas Swan & Co. Ltd. v. Finisar Corp., 2014 U.S. Dist. LEXIS 86209, at *27–41 (S.D.N.Y. June 25, 2014).
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persuasive evidence, much less clear and convincing evidence, that the following easily compre-
hensible claim terms are indefinite under § 112 ¶ 2.
1. “condition” / “participant condition”
The terms “condition” and “participant condition” do not require construction and are not
indefinite. There is “a heavy presumption that claim terms carry their full ordinary and custom-
ary meaning” absent a showing that “the patentee expressly relinquished claim scope.” Epistar
Corp. v. Int’l Trade Com’n, 566 F.3d 1321, 1334 (Fed. Cir. 2009) (emphasis added). Defendants
cannot rebut this presumption here. Nothing in the intrinsic evidence even suggests that patentees
sought to give a special definition to “condition” or “participant condition” — and the patentees
never relinquished the full scope of a “condition” and the related term, “participant condition.”2
Activision contends, however, that “condition” and “participant condition” are indefinite
unless the Court adopts Activision’s proposed construction of “a condition set by the client.” Ac-
tivision is wrong for multiple reasons. First, Activision’s accusations of indefiniteness are una-
vailing as they ignore the plain meaning of a “condition” to one skilled in the art, which is con-
sistent with how the terms “condition” and “participant condition” are used in the patents-in-suit.
According to the IBM Dictionary of Computing, a “condition” is “[a]n expression in a program
or procedure that can be evaluated as either true or false when the program or procedure is run-
ning.” Ex. K at 668.3 In line with this definition, the ’501 patent discloses that various condi-
tions — i.e., expressions that affect the display of an avatar — can be set by the server, client, or
user. Contrary to what Activision says, the patents-in-suit contain no suggestion that the client
must “set” anything, or that any setting must be made “by the client.” For example, claim 1 of 2 In the alternative, if the Court deems a construction necessary, the dictionary-based meaning that Worlds proposes — “an expression in a software program that affects the status or display of an avatar” — is appropriate and reflects the words’ plain and ordinary meanings.
3 All exhibit references in this brief correspond with the exhibits attached to the Declaration of Ryan Caughey In Support of Worlds’ original claim construction briefs, see D.I. 62, 68-1.
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the ’501 patent explains that “the client device does not receive position information of at least
some avatars that fail to satisfy a participant condition imposed on avatars.” See id. at 19:20–38.
Under this claim, the participant condition need not be imposed by the client. The specification
also explains that “user A might have a way to filter out avatars on other variables in addition to
proximity, such as user ID.” Id. at 6:3–5. There is no indication in this passage or anywhere else
in the’501 patent that only the client can set conditions. In fact, claims 2, 8, 9, 10, and 11 of the
’501 plainly incorporate the concept of a “condition” or “participant condition” that is not neces-
sarily imposed by the client but could instead be set by the server or user. See, e.g., ’501 Pat. at
cl. 2 (“filtering the other user avatars based on the monitored orientation of the first user ava-
tar”); id. at cl. 8 (“filtering the other user avatars based on at least one variable other than (1) po-
sitions of the other user avatars, and (2) orientation of the first user avatar”); id. at cl. 9 (“filtering
the other user avatars based on identifiers (IDs) of the other user avatars”); id. at cl. 10 (“filtering
the other user avatars based on a limit of the other user avatars that may be displayed on the cli-
ent device display”).
Second, it is unclear what Activision purports to accomplish with its proposed construc-
tion of “a condition set by the client.” Indeed, Activision’s proposed construction is not based on
any language from the specification or prosecution history; it merely surrounds “condition” with
improperly limiting and unhelpful verbiage. Of course, Activision’s proposed construction,
which includes the word “condition,” can do nothing to shed light on the meaning of the term
“condition.” Activision has argued that the deficiency in Worlds’ plain-language interpretation is
that it does not give someone skilled in the art enough indication of what conditions should be
applied. But strikingly, Activision has not even attempted to explain how its proposed construc-
tion — which is just a blatant rewrite of the claim language — would help a person of ordinary
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skill in the art determine the types of conditions that may be imposed by the client. In short, Ac-
tivision has no legitimate claim of indefiniteness and the Court should reject Defendants’ attempt
to rewrite or invalidate claims of the ’501 patent.
2. “third user perspective”
Claim 2 of the ’998 Patent discloses a “switch between a rendering … that shows the vir-
tual world to the local user from a third user perspective and a rendering that allows the local us-
er to view the local user avatar in the virtual world.” Activision incorrectly says the term “third
user perspective” is indefinite. Activision is wrong under Nautilus or any other standard.
The intrinsic evidence demonstrates that the term “third user perspective” describes what
is often referred to as a first-person view — i.e., a “view from the perspective of the user.” In
particular, the ’998 patent specification makes clear that the preferred embodiment includes a
view of the virtual world “from the perspective of the user.” ’998 Pat. at 2:39–44 (“[A] plurality
of users interact in the three-dimensional, comput-
er-generated graphical space where each user exe-
cutes a client process to view a virtual world from
the perspective of that user.”) This perspective is
represented in Figure 1. See id. at 3:22–25.
The ’998 specification further explains that
Figure 1 is “the view from the perspective of a third user, D, whose avatar is not shown” and
presents a view of the virtual world “from the perspective of the user.” Id. at 3:28–35 (emphasis
added). In other words, Figure 1 shows the “third user perspective” — i.e., the first-person view
of the user looking at two other avatars and the three-dimensional virtual world. See id. at 3:45–
46 (“While FIG. 1 shows two avatars (and implies a third), typically many more avatars will be
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present.”). Accordingly, a person of ordinary skill in the art would understand the term “third
user perspective” to reference “a view of the virtual world from the perspective of the user.”
Nothing about the term “third user perspective” is indefinite.
3. “a rendering in which all of a perspective view of a local user avatar of the local user is displayed”
Claim 19 of the ’998 patent discloses a “switch between a rendering in which all of a per-
spective view of a local user avatar of the local user is displayed and a rendering in which less
than all of the perspective view is displayed.” No construction is necessary. Each word of this
claim may be understood by its ordinary and customary meaning, and Defendants cannot identify
a single word or phrase that is unique, ambiguous, or incapable of construction.
The ‘998 Patent explains that “each user executes a client process to view a virtual world
from the perspective of that user” that “shows avatars representing the other users who are
neighbors of the user.” ’998 Pat. at 2:39–44. The specification likewise explains that “[e]ach user
interacts with a client machine … which produces a display similar to screen display 10, but
from the perspective of the avatar for that client/user.” Id. at 3:30–34. And Figure 1 of the ’998
patent illustrates this perspective view “from the perspective of the avatar for that client/user” by
clearly showing a view depicting other user avatars and stationary objects within the field of
view of the user. Id. at 3:22–35. Accordingly, in light of the claim language and the patents-in-
suits’ specification, a person of ordinary skill in the art would understand that “perspective view”
means a “view from the perspective of the user” and incorporates the field of view the user sees
in the virtual world.
A person skilled in the art would likewise understand the scope or area of a user’s “per-
spective view.” For example, the specification explains that “[s]creen display 10 is shown with
several stationary objects (wall, floor, ceiling and clickable object 13) and two ‘avatars’ 18.” Id.
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at 3:23–25. Thus, when a user views the virtual world from the perspective of the user, the user
sees other avatars as well as any walls, floors, ceilings, and other stationary objects within the
user’s line of sight. In other words, the screen display in Figure 1 depicts “all of the perspective
view of a local user avatar” because it shows the user’s entire field of view, including all the ava-
tars and stationary objects within that user’s area of visibility. By contrast, it is plain that the
term “less than all of a perspective view of a local user avatar” means something less than the
entire or full field of view of the user, such as a view that is zoomed in on or focused on a partic-
ular object within the user’s virtual world environment. By way of example, if a user switches to
a view of the virtual world through binoculars, goggles, or a sniper scope, the user may be view-
ing “less than all of [its] perspective view.” Thus, the terms “all of a perspective view of a local
user avatar” and “less than all of a perspective view of a local user avatar” are not indefinite.
4. “synchronously disseminating … positions”
The term “synchronously disseminating” is not indefinite and does not require construc-
tion. If an explicit construction were to be made, however, the dictionary-based meaning that
Worlds proposes — “transmitting in a manner that is synchronized and coordinated” — is ap-
propriate and reflects the plain and ordinary meaning to one of ordinary skill in the art. Ac-
tivision’s accusations of indefiniteness are meritless as they ignore the plain and ordinary mean-
ing of “synchronously disseminating” to one skilled in the art.
To begin, the ’690 patent more than sufficiently discloses the scope and meaning of the
term “synchronously disseminating” so that a person of ordinary skill in the art would understand
that the term means “transmitting in a manner that is synchronized or coordinated.” Claim 9 of
the ’690 patent provides the appropriate context and discloses that a “method for operating a
server to enable a plurality of users to interact in a virtual space” needs coordinated and “syn-
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chronized” data transmission across multiple client computers, server computers, and users. ’690
Pat. at cl. 9. The ’690 patent’s specification in turn details the mechanics of data transmissions
across multiple client and server machines:
[W]here a client-server system is used for real-time exchange of information … where users at client machines visually and aurally interact with other users at other client machines, communication is much more difficult, especially where the information is high-bandwidth data …. One application of such a client-server system is for game playing, where the positions and actions of each user need to be communicated between all the players to inform each client of the state changes (position, actions, etc.) which occurred at the other clients. The server might maintain global state information and serve as a data server for the clients as they request … data as the game progresses.
’690 Pat. at 1:42–55 (emphasis added). Then, in the detailed description, the ’690 patent’s speci-
fication further explains how the client-server system works to synchronize and coordinate the
dissemination of position information:
In order that each user sees the correct location of each of the other avatars, each client machine sends its current location, or changes in its current location, to the server and receives updated position information of the other clients.
Id. at 3:30–34. Thus, a person of ordinary skill in the art reading claim 8 in light of the specifica-
tion would easily understand that the term “synchronously disseminating” means “transmitting in
a manner that is synchronized and coordinated.” This term is not indefinite.
It is also notable that numerous courts and dictionaries have successfully defined the
terms “synchronous” and “synchronously” in a manner consistent with the claims, specification,
and Worlds’ proposed construction. For example, in Mosaid Technologies, Inc. v. Freescale
Semiconductor, Inc., 2013 U.S. Dist. LEXIS 60866, at *66 (E.D. Tex. Apr. 29, 2013), the court
construed “synchronously” to mean “with coordination between components … before commu-
nication transmission begins.” Likewise, in Piersons v. Quality Archery Designs, Inc., 2008 U.S.
Dist. LEXIS 19227, *7 (N.D.N.Y. Mar. 12, 2008), the court construed “synchronously” to mean
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“to cause to occur at approximately the same successive instants of time so that the movements
are coordinated.” These decisions are in accord with the IEEE Standard Dictionary definition of
the term “synchronous computer” as “[a] computer in which each event or operation is per-
formed upon receipt of a signal generated by the completion of a previous event or operation, or
upon availability of the system resources required by the event or operation” — in other words,
an event that is synchronized or coordinated. Ex. M at 1075.4
These definitions align with Worlds’ proposed construction and are consistent with the
claims that disclose a step of “receiving, from each client process by the server process, data in-
dicating position of the avatar,” and then — upon receipt of the data — “disseminating less than
all of the positions” so that “the particular client process can determine from the positions a set
of avatars” to display. See, e.g., ’690 Pat. cl. 9. All of this occurs in a synchronized and coordi-
nated manner. In light of the plain and ordinary meaning of “synchronously” and the disclosure
in claim 9 for “operating a server to enable a plurality of users to interact” over multiple users,
computers, clients processes, server processes, and communications, a person of ordinary skill in
the art would readily understand that the term “synchronously disseminating” in this context
means “transmitting in a manner that is synchronized and coordinated.”
CONCLUSION
The Court should find that the foregoing claim terms are not indefinite.
4 Further, the use of the term “synchronously” in the claims and specification is consistent with the plain meaning of that term as defined in other dictionaries. See, e.g., Ex. K at 134 (IBM Dictionary of Computing (1994)) (“Pertaining to two or more processes that depend upon the occurrence of specific events such as common timing signals.”); Ex. L at 379 (Microsoft Computer Dictionary (1994)) (“Generally, any operation that proceeds under control of a clock or timing mechanism.”); Ex. M at 1075 (The IEEE Standard Dictionary of Electrical and Electronics Terms (1996)) (“[A] mode of transmission in which the sending and receiving terminal equipment are operating continuously at the same rate and are maintained in a desired phase relationship by an appropriate means.”).
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Dated: September 12, 2014 Respectfully submitted, Worlds, Inc. By its attorneys,
By: /s/ Ryan V. Caughey Max L. Tribble (admitted pro hac vice) mtribble@susmangodfrey.com Chanler Langham (pro hac vice pending) clangham@susmangodfrey.com Ryan Caughey (admitted pro hac vice) rcaughey@susmangodfrey.com Susman Godfrey L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666
Joel R. Leeman (BBO # 292070) jleeman@sunsteinlaw.com SUNSTEIN KANN MURPHY & TIMBERS LLP 125 Summer Street Boston, MA 02110-1618 Telephone: (617) 443-9292 Facsimile: (617) 443-0004
Attorneys for Plaintiff Worlds, Inc.
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CERTIFICATE OF SERVICE
I certify that on the above date, this document was filed through the ECF system and
thereupon sent electronically to the registered participants as identified on the Notice of Elec-
tronic Filing (NEF).
/s/ Ryan V. Caughey Ryan V. Caughey
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