[00:00:00] Speaker 00:
Good morning.

[00:00:01] Speaker 00:
Our next case for argument is 20-1700, Acceleration Bay versus Take-Two Interactive.

[00:00:10] Speaker 00:
Mr. Frankel, please proceed.

[00:00:13] Speaker 03:
May it please the court.

[00:00:14] Speaker 03:
Good morning, Your Honors.

[00:00:16] Speaker 03:
This case is squarely within the Centrac case and not Centillion.

[00:00:22] Speaker 03:
The key holding of Centrac is that

[00:00:25] Speaker 03:
the defendant infringes by making the final assembly or configuration of the accused system.

[00:00:32] Speaker 03:
Here, Take Two is the only party that assembles the infringing networks.

[00:00:39] Speaker 03:
The district court committed legal error by focusing on the fact that Take Two's customers supply the components that are used to make the infringing network.

[00:00:52] Speaker 03:
However, it is Take Two that

[00:00:54] Speaker 03:
combines the various components to make the infringing network.

[00:00:59] Speaker 03:
If Take-Two disappeared, the multiplayer functionality of the accused products could not operate, and the networks could not be formed.

[00:01:09] Speaker 03:
Take-Two receives requests from its customers to join a multiplayer game, and then it stitches together those individual customers to form the infringing multiplayer network.

[00:01:23] Speaker 03:
Only take two has the servers and the infrastructure.

[00:01:28] Speaker 02:
Council, this is Judge Raina.

[00:01:31] Speaker 02:
How do you account for the fact that the players make the decision whether to join the game or not?

[00:01:38] Speaker 03:
The active infringement does not occur until the participants are connected to form the network.

[00:01:46] Speaker 03:
So the players have to decide that they want to play.

[00:01:48] Speaker 03:
That's a predicate to forming the network.

[00:01:51] Speaker 02:
If 16 players have all decided... And how do they, once they decide that, what does a player need to do in order to join the network?

[00:01:59] Speaker 02:
A player's got to take action, correct?

[00:02:02] Speaker 02:
That is correct.

[00:02:03] Speaker 02:
The player selects a multiplayer mode for one of the accused products.

[00:02:07] Speaker 02:
So at that time, the network is formed once you get sufficient players.

[00:02:14] Speaker 03:
I disagree with that, Your Honor.

[00:02:17] Speaker 03:
If 16 players have decided they want to play the multiplayer mode and they've selected the multiplayer mode, all that happens at that point is that they send a request to Take-Two to participate in the game.

[00:02:30] Speaker 03:
Then Take-Two servers will connect the players to actually form the network.

[00:02:36] Speaker 03:
Again, if Take-Two servers were down and 16 players went on their computers and said, I want to play multiplayer,

[00:02:44] Speaker 03:
nothing would happen.

[00:02:46] Speaker 03:
Only Take-Two has the ability to receive those requests and then to stitch the players together to form the network.

[00:02:54] Speaker 03:
And that's squarely within the Centrac fact.

[00:02:57] Speaker 03:
In Centrac, the customers had contacted Defendant and said, I have these components in place.

[00:03:05] Speaker 03:
I'd like you to create the network for me.

[00:03:08] Speaker 03:
And then Sonnitor would come in and do the final assembly and configuration of the network.

[00:03:14] Speaker 03:
Here, it is true that the players have to decide that they would like to play the game and request to play the game.

[00:03:21] Speaker 03:
But only Take-Two can put them together and make the infringing network.

[00:03:26] Speaker 03:
Until Take-Two performs that final step of assembling the network, there is no infringing network.

[00:03:34] Speaker 02:
If no player is asked to play the game, then there's nothing that Take-Two can do or does.

[00:03:41] Speaker 03:
That is correct.

[00:03:43] Speaker 03:
And that would be, again, true in the case of Centrac.

[00:03:47] Speaker 03:
If no customers want to monitor and ask to have a network built for them, there would never be infringement.

[00:03:55] Speaker 03:
But the Centrac analysis focuses on who performs the final step to assemble the network.

[00:04:03] Speaker 03:
and take it across the finish line to become an infringing network.

[00:04:07] Speaker 00:
But, counsel, can I get you to focus for a second on the 497 patent, and in particular, Claim 9?

[00:04:14] Speaker 00:
Claim 9 of the 497 patent is directed to a component in a computer system for locating a call in court.

[00:04:22] Speaker 00:
The district court construed that, and you haven't appealed it.

[00:04:25] Speaker 00:
And they construed it as the end user's processor in their computer system.

[00:04:31] Speaker 00:
So this entire claim is directed to not the Take-Two server, but rather the end user's own processor within its computer.

[00:04:44] Speaker 00:
Under those circumstances, how can Take-Two be the direct infringer as opposed to potentially an induced or contributory infringer?

[00:04:56] Speaker 03:
Claim nine of the 497 patent is infringed

[00:05:00] Speaker 03:
when software is controlling the processor to perform the process of connecting to Take-Two's server.

[00:05:09] Speaker 03:
The software, it is undisputed, is owned and controlled only by Take-Two.

[00:05:15] Speaker 03:
Customers do not purchase the software from Take-Two.

[00:05:19] Speaker 03:
They pay for the right to use the software.

[00:05:21] Speaker 03:
And when the player of a game says that they want to connect to the system... Yes, but counsel, this is a claim to the end user's computer.

[00:05:33] Speaker 03:
Well, the claim is to the combination of the software and the processor.

[00:05:38] Speaker 03:
It's not just the processor.

[00:05:39] Speaker 00:
Right, but the K2 doesn't possess the processor.

[00:05:43] Speaker 00:
So that's why I was saying, how can take two be a direct infringer when you just acknowledge that the claim is to the combination of the customer's processor plus the software?

[00:05:57] Speaker 00:
Take two is only providing one of those two components, the software.

[00:06:02] Speaker 00:
The customer is providing the processor, and that's an express limitation of this claim.

[00:06:09] Speaker 03:
That is correct, Your Honor, but under the holding of Centrac, the focus is not on who supplies the components.

[00:06:19] Speaker 03:
It's the party that combines them.

[00:06:23] Speaker 03:
And it's take two that combines the software and the processor.

[00:06:28] Speaker 03:
Until the software begins operating and controls the processor,

[00:06:33] Speaker 03:
there's no infringement of the 497 pattern.

[00:06:38] Speaker 00:
When you say it's take two that is the one that's controlling it and doing it, I'm sorry, but if the user doesn't activate, if the user doesn't engage the software on their computer, how could take two possibly be causing infringement?

[00:06:56] Speaker 00:
It kind of goes back to Judge Raina's question, which is if the user doesn't turn on and try to join the game, can take to be an infringer?

[00:07:07] Speaker 03:
Well, the answer to that is no, that the user has to perform the predicate act, just as there's a requirement for electricity and an internet connection.

[00:07:19] Speaker 03:
But the focus under the Centrac analysis

[00:07:23] Speaker 03:
is not has a customer made a request.

[00:07:26] Speaker 03:
It's who performs the action of the combination, which is what makes the infringing component.

[00:07:35] Speaker 03:
So when the customer says, I would like to play Grand Theft Auto, and I would like to be connected to the matchmaking server, infringement has not yet occurred.

[00:07:47] Speaker 03:
Then when Take-Two software working with Take-Two server

[00:07:53] Speaker 03:
controls the processor on the computer, that, and only then, is when the active infringement occurs.

[00:08:00] Speaker 03:
And that is why K2 is a direct infringer as a party.

[00:08:05] Speaker 02:
So, Council, exactly what's your theory here?

[00:08:09] Speaker 02:
Now you're arguing control.

[00:08:13] Speaker 02:
And I thought your argument was more that an assertion that the process is in the making, making a processor.

[00:08:24] Speaker 02:
making the processor as opposed to control.

[00:08:28] Speaker 02:
You argue control now.

[00:08:29] Speaker 02:
It seems to me that your primary argument was making.

[00:08:34] Speaker 03:
Correct.

[00:08:35] Speaker 03:
Is construed by the court, the component is a processor operating the software.

[00:08:42] Speaker 03:
So when the processor is running and being controlled by the software, that's when it becomes infringing.

[00:08:51] Speaker 03:
That's when the software is controlling the processor.

[00:08:55] Speaker 03:
So simply installing the program on a computer has not yet created the infringing combination of software and processor.

[00:09:04] Speaker 02:
It seems to me then that you're running head on into my prior questions and that's the role of the user who actually turns on, besides not only whether to join

[00:09:17] Speaker 02:
a game, but to join the game or to join specific individuals located across the country or maybe even across the world to get together to play, let's say, Halo.

[00:09:31] Speaker 03:
Well, for these accused products, Your Honor, the user does not have the ability to connect to particular players on their own.

[00:09:41] Speaker 03:
Again, if Take-Two vanished, none of that would be possible.

[00:09:45] Speaker 03:
The user's software talks to Take-Two servers.

[00:09:53] Speaker 03:
That's how it becomes connected to the game.

[00:09:57] Speaker 03:
And it's Take-Two that provides that service.

[00:10:00] Speaker 03:
And in fact, they sell the service.

[00:10:01] Speaker 03:
That's the other form of infringement at issue here, of being able to connect to the other players.

[00:10:09] Speaker 03:
Again, only Take-Two has the ability

[00:10:13] Speaker 03:
to combine the players together to form the network.

[00:10:16] Speaker 00:
That's not something that they... Council, this is Judge Morgan.

[00:10:19] Speaker 00:
This argument you say pertains, I think, to the 344, 966, and 497 patent.

[00:10:27] Speaker 00:
Is that correct?

[00:10:30] Speaker 03:
Correct, Your Honor.

[00:10:31] Speaker 00:
Okay.

[00:10:31] Speaker 00:
But the 344 and the 966 patents were independently

[00:10:38] Speaker 00:
found not to infringe by virtue of the M-regular limitation, which is expressly contained in them, and you have not appealed that holding as to those patents.

[00:10:48] Speaker 00:
Is that correct?

[00:10:50] Speaker 03:
Well, that's not entirely correct, Your Honor.

[00:10:55] Speaker 03:
We have appealed and asked for reversal of the finding of non-infringement.

[00:11:00] Speaker 03:
And the reason we focus- Wait, wait, wait.

[00:11:02] Speaker 00:
Am I right in understanding that the 344 and 966

[00:11:07] Speaker 00:
were found not to infringe for two independent reasons?

[00:11:12] Speaker 03:
There were two reasons, but they're not independent, Your Honor.

[00:11:15] Speaker 03:
The district court's focus was on who is performing the actions.

[00:11:20] Speaker 03:
And I would direct you to append it.

[00:11:22] Speaker 00:
Wait.

[00:11:22] Speaker 00:
Did or did not the district court find the 344 patent and the 966 patent not infringed by virtue of the M regular limitation?

[00:11:34] Speaker 03:
That is correct, Your Honor.

[00:11:36] Speaker 00:
And he did not appeal that with regard to those two pets.

[00:11:42] Speaker 03:
Well, if I could explain, the basis for the district court's decision, and I would direct you to Appendix 160, is that the network is not M-regular because the participants just happen to connect.

[00:11:57] Speaker 03:
But, counsel, you haven't appealed this issue.

[00:12:01] Speaker 03:
Well, we... Our first...

[00:12:03] Speaker 03:
The issue is whether the district court erred in granting summary judgment of non-infringement of the 344966 and 497 by finding that Take-Two does not make or sell the infringing network.

[00:12:16] Speaker 03:
The focus is on the actor, but the district court's finding is based on the fact, the district court, let me be specific, the district court's finding with respect to M-regular

[00:12:30] Speaker 03:
is based on the fact that the players are the ones who are choosing connections, and that's incorrect on the facts and incorrect on the law.

[00:12:39] Speaker 03:
And the legal error has been the focus of this appeal.

[00:12:45] Speaker 00:
When you directed me to page 160 of the appendix, which is page 14 of the opinion,

[00:12:53] Speaker 00:
Isn't that where the District Court says, even viewing this evidence in the light most favorable to plaintiffs, no reasonable jury could find GTAO meets the M-regular limitation?

[00:13:06] Speaker 03:
Correct.

[00:13:06] Speaker 03:
And I was reading from the following sentence, Your Honor.

[00:13:11] Speaker 00:
I am really baffled.

[00:13:14] Speaker 00:
I don't understand your argument.

[00:13:15] Speaker 00:
I read this district court opinion as finding summary judgment of non-infringement on the basis of these two patents for two independent grounds, one of which you did not appeal.

[00:13:28] Speaker 03:
We did not appeal the findings with respect to M-regular, but we did appeal the findings with respect to the making.

[00:13:37] Speaker 03:
And it's the focus, the district courts

[00:13:39] Speaker 00:
Yes, but the court held the product didn't infringe these two patents on the basis also of the M-regular limitation.

[00:13:50] Speaker 00:
So your appeal could not result in a different outcome with regard to those patents because you did not appeal one of the independent grounds for non-infringement.

[00:14:05] Speaker 03:
I understand your point, Your Honor.

[00:14:07] Speaker 03:
What I'm saying is that it's not an independent ground.

[00:14:10] Speaker 03:
It's based on the district court.

[00:14:12] Speaker 03:
The prism and foundation for the district court's decision was that the players are the ones making the connections.

[00:14:21] Speaker 02:
And I thought you conceded on page 11 of your reply brief that you're only appealing one of multiple grounds for the district court's non-infringement decisions.

[00:14:33] Speaker 02:
You're appealing only one or multiple grounds.

[00:14:36] Speaker 02:
And so if you leave other grounds out there and you're not appealing them, it just seems to me that the summary judgment issue with respect of non-affringement with the respective 344 and the 966 patent is moot.

[00:14:51] Speaker 03:
Well, there are multiple grounds that it's not moot, even if you find that the issue of M-regular is not on appeal.

[00:15:00] Speaker 03:
The decision for all three patents was a collective one.

[00:15:04] Speaker 03:
There's only a sentence or two of analysis for the 497.

[00:15:09] Speaker 02:
The district court's decision is based on multiple grounds.

[00:15:14] Speaker 02:
You've only appealed one.

[00:15:17] Speaker 02:
That means that your appeal with respect to the 344 and 966 patents is moot.

[00:15:31] Speaker 03:
Right.

[00:15:31] Speaker 03:
Your honor, the point is that if the case is remanded with the instruction as it should be under Centrac, that the district court should focus on the actions of take two as the one who's making the networks, then it would need to reevaluate this issue as well because its decision in the portion I pointed to was based on the actions of the customers and not on the actions of take two.

[00:16:01] Speaker 00:
Okay, Council, why don't we move on and hear from approaching Council.

[00:16:07] Speaker 01:
Thank you.

[00:16:08] Speaker 01:
Good morning, Your Honors.

[00:16:09] Speaker 01:
This is Mike Tomasulo for Defendants and Appellees.

[00:16:15] Speaker 01:
Can you hear me okay?

[00:16:18] Speaker 00:
Yes.

[00:16:20] Speaker 01:
So you're absolutely correct that the 344 and the 966, that decision is moot and I don't...

[00:16:29] Speaker 01:
I think I need to spend much time on that.

[00:16:31] Speaker 01:
As to the 497, again, Judge Moore, you're absolutely correct.

[00:16:35] Speaker 01:
The accused device is the game console running our software.

[00:16:39] Speaker 01:
And that accused device does not exist until the customer installs it.

[00:16:44] Speaker 01:
Just like in Centillion, the customers, not us, makes the accused device.

[00:16:49] Speaker 01:
Unlike Centrac, there's no evidence that we ever act as an installer.

[00:16:53] Speaker 01:
And I'll also note

[00:16:54] Speaker 00:
that you have collectively and now I have... Council, so you believe that a customer makes the device encapsulated by claim nine when they install it on their computer, is that right?

[00:17:12] Speaker 01:
I would say the customer makes the device accused of infringing claim nine when they install that software on the computer, the customer's computer.

[00:17:20] Speaker 00:
And so you

[00:17:22] Speaker 00:
So you believe if there is a direct infringer, it is the customer.

[00:17:27] Speaker 01:
Correct.

[00:17:27] Speaker 01:
And there is no indirect infringement allegations in this case.

[00:17:31] Speaker 00:
Okay.

[00:17:33] Speaker 01:
Uh, I would also notice all of these issues.

[00:17:35] Speaker 01:
You have now heard far more argument and received far more briefing than the district court ever did the S of the four nine seven.

[00:17:42] Speaker 01:
This issue was never raised below.

[00:17:43] Speaker 01:
That is all on two pair, two pages or about one minute at J a two six.

[00:17:49] Speaker 01:
276.

[00:17:50] Speaker 01:
None of these arguments were ever made.

[00:17:52] Speaker 01:
The stitch together theory was never made.

[00:17:54] Speaker 01:
There was never any citation to evidence.

[00:17:56] Speaker 01:
No expert ever said anything that Mr. Frankel just said.

[00:17:59] Speaker 01:
With your permission, I can move to the 069 if you would like.

[00:18:07] Speaker 00:
Sure, go ahead.

[00:18:12] Speaker 01:
The claim requires an M-regular network because the claim is limited for at least two reasons to the large regime.

[00:18:20] Speaker 01:
And in the large regime, the network is M-regular.

[00:18:24] Speaker 01:
That is what the district court found, and acceleration never really challenges or even acknowledges either of these findings.

[00:18:31] Speaker 01:
The claim uses the term fully connected.

[00:18:33] Speaker 01:
A fully connected computer is explicitly defined in the specification as a computer or computer process that has exactly M connections in the large regime.

[00:18:42] Speaker 00:
Council, when you say it's specifically defined in the spec, that's within the context of an embodiment that's already been specified as a M-regular, in fact, four-regular network, right?

[00:18:56] Speaker 00:
So, of course, fully connected in a four-regular network would mean that.

[00:19:03] Speaker 01:
So, I think that that is correct.

[00:19:07] Speaker 01:
I believe as there are many, if you look through the specification,

[00:19:12] Speaker 01:
as to, for instance, the term fully connected is used consistently to mean that in the large regime, each participant is connected to exactly M neighbors or participants, and that in the four regular embodiment, that number is four.

[00:19:27] Speaker 01:
But if you look at, I think it is joint appendix 441, which is column 14, lines 51 through, I think, 56, what it says is,

[00:19:42] Speaker 01:
In the embodiment described above, each fully connected computer has four connections.

[00:19:47] Speaker 01:
The broadcast technique can be used with other numbers of internal connections.

[00:19:51] Speaker 01:
For example, each computer could have six, eight, or any even number of internal connections.

[00:19:56] Speaker 01:
So I think that when it has used the term fully connected and generally does state that it's connected to four neighbors,

[00:20:05] Speaker 01:
That is a shorthand for saying it's connected to M neighbors.

[00:20:10] Speaker 00:
So I'm trying to figure out if that's right.

[00:20:12] Speaker 00:
That is under the header, M regular, right?

[00:20:15] Speaker 00:
So there's M regular and then it says the embodiment described above, each fully connected, has four internal connections.

[00:20:21] Speaker 00:
Then it says it could be six, eight, or any even number.

[00:20:24] Speaker 00:
And then a little further down in that same paragraph, it says that if the number of internal connections is odd,

[00:20:33] Speaker 00:
Then the broadcast channel has an odd number of computers connected.

[00:20:36] Speaker 00:
One of the computers will have less than the odd number of internal connections.

[00:20:42] Speaker 00:
And then it spans on the next page to continue talking about how it could be odd.

[00:20:47] Speaker 00:
Thus, with an odd number of internal connections, the broadcast channel toggles between being and not being m-regular.

[00:20:55] Speaker 00:
So what does that mean?

[00:20:57] Speaker 00:
I guess, and what does that mean for the words fully connected?

[00:21:00] Speaker 00:
I believe column 14 is disclosing the possibility of an odd number of connections, and when there are an odd number of connections, it wouldn't be M connected until it kind of flips to the even number, right?

[00:21:16] Speaker 00:
It sort of suggests it could toggle between being M regular and not M regular.

[00:21:21] Speaker 00:
Does that make sense?

[00:21:21] Speaker 00:
Am I making that, explaining that right?

[00:21:24] Speaker 01:
I think that you've shown a good command of the subject matter, a remarkable command of it.

[00:21:29] Speaker 01:
So what I would direct you to is the district court's construction of M-regular.

[00:21:35] Speaker 01:
There's a difference between being configured to be an M-regular network and to be a network that has the mathematical properties of being exactly M-regular.

[00:21:46] Speaker 01:
And so what I mean by that is what the district court said is that

[00:21:52] Speaker 01:
it construed M regular to mean a state that the network is configured to maintain where each participant is connected to exactly M neighbor participants and he says under my claim construction a network is not M regular participants just happen to connect to the same number of other participants occasionally rather the network must be configured to maintain an M regular state and he goes on to say that in other words you try to get to that state where appropriate so from a mathematical standpoint a network

[00:22:22] Speaker 01:
that is, say, has an odd degree of regularity, cannot be, everybody cannot have exactly M connections when there's an odd number of participants in the network.

[00:22:36] Speaker 00:
So that's what they- So, Council, I guess you're sort of saying a lot of stuff, and maybe I'm not totally following it, I don't know, but I guess I'm looking at the bottom of column 14 and the top of column 15,

[00:22:49] Speaker 00:
And I believe it is suggesting that you could have an odd number of internal connections, which would result in a network that is not configured to maintain an M-regular state.

[00:23:01] Speaker 00:
Is that fair?

[00:23:03] Speaker 01:
Respectfully, no.

[00:23:04] Speaker 01:
What that means is that it will try to, in other words, each of the participants is programmed to have a certain number of holes, which it calls

[00:23:15] Speaker 01:
There'll be four internal holes, and they're each programmed to fill those holes with a connection.

[00:23:22] Speaker 01:
And so when there's an odd degree of regularity and an odd number of neighbors, just one won't be able to have exactly M connection.

[00:23:32] Speaker 01:
But as soon as another participant either leaves or joins, then they will restore M regularity for each and every participant.

[00:23:39] Speaker 01:
So that that one participant that isn't M regular, there'll be one participant only in a network

[00:23:45] Speaker 01:
that doesn't have exactly M connections when the network has an odd degree of regularity and an odd number of neighbors.

[00:23:51] Speaker 01:
That's the only time any participant that's fully connected to the network won't have exactly M connections.

[00:23:58] Speaker 00:
And that's why they advocate for... So are you saying that this claim and that this invention, but this claim in particular, covers networks which can persist

[00:24:12] Speaker 00:
with an odd number so long as they're attempting to get back to an M regular state and then eventually do?

[00:24:20] Speaker 00:
I mean, you're describing a scenario in which there will be a portion of time when this network will not be in an M regular state, right?

[00:24:29] Speaker 01:
That's exactly right.

[00:24:31] Speaker 01:
The district court's construction is that it's summarized at JA 160, which I think is exactly where you were.

[00:24:41] Speaker 01:
And what the district court says there, it says, as I explained, my construction does not require the network to, this is with respect to M regular network, and this is something that was not appealed.

[00:24:51] Speaker 01:
My construction does not require the network to have each participant to be connected to M neighbors at all times.

[00:24:56] Speaker 01:
Rather, the network is configured or designed to have each participant be connected to M neighbors.

[00:25:01] Speaker 01:
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.

[00:25:10] Speaker 01:
So if you have computers, if you have chosen an even degree of regularity, it will always be possible for it to achieve

[00:25:19] Speaker 01:
a state that's mathematically M regular where each and every participant has exactly M connections.

[00:25:25] Speaker 00:
I get it.

[00:25:26] Speaker 00:
So you're telling me that what appears in the bottom of 14 and 15 is encapsulated with the unappealed district court's construction of what it means to be M regular.

[00:25:37] Speaker 00:
See, I read it at first and I was confused about whether or not

[00:25:41] Speaker 00:
The description of the potential for an odd number and toggling back and forth created a problem.

[00:25:48] Speaker 00:
But you're saying the district court's construction fully encompassed that?

[00:25:52] Speaker 01:
100%.

[00:25:54] Speaker 00:
And it wasn't appealed?

[00:25:55] Speaker 01:
It was not appealed.

[00:25:57] Speaker 00:
Got it.

[00:26:00] Speaker 01:
Any further?

[00:26:03] Speaker 01:
Well, I could continue to discuss this for six years as I have, or I could... That would probably not be to your advantage.

[00:26:11] Speaker 01:
Then I will sit down, turn the time over to my colleague.

[00:26:16] Speaker 00:
Okay.

[00:26:18] Speaker 00:
So, Council for Acceleration Bay, you have rebuttal time.

[00:26:21] Speaker 00:
Please proceed.

[00:26:23] Speaker 03:
Thank you.

[00:26:23] Speaker 03:
I'll address the arguments regarding the 069 pattern.

[00:26:27] Speaker 03:
And the 069 pattern has several concepts.

[00:26:32] Speaker 03:
One of them is that the network can be M-regular, but it does not require the network to be M-regular.

[00:26:39] Speaker 03:
And I would direct the court's attention to Appendix 436 at Column 4, Lines 5 through 30.

[00:26:49] Speaker 03:
And there, the first concept described in the patent is an incomplete network where messages are relayed from one participant to its neighbors.

[00:26:59] Speaker 03:
And it goes on to say that, as an example, it can be a regular network.

[00:27:06] Speaker 03:
That's a column four, line 30.

[00:27:08] Speaker 03:
But it does not require the network to be on regular.

[00:27:13] Speaker 03:
So then we look at the claim language of claims one and 14.

[00:27:17] Speaker 03:
And claim one only says that each participant has to be connected to at least three neighbors.

[00:27:25] Speaker 00:
The district court actually agreed that under the plain language... Council, don't waste your time on the each participant language.

[00:27:31] Speaker 00:
Focus on the fully connected language.

[00:27:34] Speaker 00:
That's the language that I can't figure out what it means if it doesn't mean m-regular.

[00:27:41] Speaker 03:
Fully connected means connected to the maximum number of connections.

[00:27:46] Speaker 00:
Now, the discussion of... Actually, Counsel, I think that would not be right, right?

[00:27:51] Speaker 00:
Fully connected to the... Imagine a hub-and-spoke system.

[00:27:53] Speaker 00:
You've got a portal computer connected to every single computer.

[00:27:56] Speaker 00:
That would be the maximum number of possible connections.

[00:27:59] Speaker 00:
But that's not what this claim is directed to, is it?

[00:28:03] Speaker 03:
Well, it's not that each participant is fully connected.

[00:28:07] Speaker 03:
It's that the portal computer is fully connected.

[00:28:11] Speaker 03:
That's the... It's a fully connected portal computer.

[00:28:15] Speaker 03:
So the portal computer could and should be connected to all of the participants.

[00:28:21] Speaker 03:
The portal computer, if you want to join the network, you contact the portal computer.

[00:28:26] Speaker 03:
The portal computer says, I know everyone who's participating in this game.

[00:28:31] Speaker 00:
I understand your definition of fully connected.

[00:28:33] Speaker 00:
You're saying the portal computer must be connected to every single participant.

[00:28:39] Speaker 00:
What embodiment in this patent discloses that?

[00:28:47] Speaker 03:
Well, there's actually no discussion of what it means of the plural computer being fully connected.

[00:28:55] Speaker 03:
The reference to fully connected is only with reference to the individual participants in the examples where the network could be unregular.

[00:29:05] Speaker 03:
And that's where the district court went astray by looking at what it means for in an unregular network of participants

[00:29:15] Speaker 03:
to be fully connected and then jumping from that to the reference to a fully connected portal computer.

[00:29:22] Speaker 00:
So you're saying there is nothing in the specification from which I could glean that a fully connected portal computer is, as you say, a portal computer that is connected to every single participant?

[00:29:38] Speaker 03:
Well, Your Honor can look to the fact that fully connected means connected to the maximum number of connections, and then the general discussion of the portal computer.

[00:29:51] Speaker 03:
There's equally no discussion in this specification.

[00:29:54] Speaker 00:
But where does something tell me that fully connected means connected to the maximum number of participants?

[00:30:17] Speaker 03:
I have to find that site, Your Honor.

[00:30:20] Speaker 03:
It only appears a few times.

[00:30:23] Speaker 03:
Let's see.

[00:30:35] Speaker 00:
Council, I can't find anything in the 069 patent that says anything like that.

[00:30:44] Speaker 03:
The fact that it's fully connected means connected to the maximum number of connections?

[00:30:49] Speaker 00:
Correct.

[00:31:15] Speaker 03:
So Your Honor, I have to find the exact site.

[00:31:34] Speaker 03:
But the reference, every time fully connected appears, it's discussing the individual participants

[00:31:43] Speaker 03:
in the M-regular context, and each time it says it's connected to that maximum number of connections.

[00:31:52] Speaker 02:
Counsel, can you point in the, where it says, uses the word maximum, especially in your brief.

[00:32:02] Speaker 02:
I don't know that you ever argued maximum, maximum number of participants.

[00:32:09] Speaker 02:
Number of participants, yes, but maximum.

[00:32:35] Speaker 03:
Yes, so on page 19 of the reply brief, fully connected can refer to a portal computer that is connected to all participants, not just to M participants.

[00:32:50] Speaker 03:
There is no reason a portal computer cannot be fully connected to a network that is not M regular.

[00:32:57] Speaker 03:
In other words, that the portal computer is fully connected has no bearing on the structure of the rest of the network.

[00:33:04] Speaker 00:
Justin, can I just be clear about one thing?

[00:33:06] Speaker 00:
You think the word fully connected means connected to every single participant when it's referring to the portal computer.

[00:33:13] Speaker 00:
Is that correct?

[00:33:14] Speaker 03:
That's 100% correct, Your Honor.

[00:33:16] Speaker 00:
Would that still encapsulate an M-regular network?

[00:33:20] Speaker 03:
It could encapsulate an M-regular network and it could encapsulate a network that's not M-regular.

[00:33:25] Speaker 00:
No, actually it wouldn't, right?

[00:33:27] Speaker 00:
It wouldn't encapsulate an M-regular network because in the M-regular network, each person is connected to the same, has the same number of internal connections, correct?

[00:33:38] Speaker 03:
In the M-regular network, each participant in the network is connected to M neighbors.

[00:33:45] Speaker 03:
The portal computer is not a participant in the network.

[00:33:47] Speaker 03:
The portal computer is the

[00:33:49] Speaker 03:
matchmaking computer that introduces everyone to the network.

[00:33:55] Speaker 03:
But it's not part of the broadcast channel itself.

[00:33:59] Speaker 03:
The portal computer is different from a regular participant in the network.

[00:34:05] Speaker 03:
The portal computer is performing the matchmaking function, not the broadcasting function.

[00:34:15] Speaker 00:
I think we've exhausted our time for today.

[00:34:17] Speaker 00:
Barring any questions from my colleagues, I think that we will take this case under submission.

[00:34:25] Speaker 03:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.