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Acceleration Bay LLC v. Activision Blizzard Inc.

Poorly-Indexed Digital Article Was Not a “Printed Publication”

Acceleration Bay LLC v. Activision Blizzard Inc., __ F.3d __, 2018 WL 5795976 (Fed. Cir. Nov. 6, 2018) (Prost, MOORE, Reyna) (PTAB) (3 of 5 stars)

Fed Cir affirms, in multi-patent IPR appeal, cancellation of some claims and confirmation of others. Acceleration’s patents related to a network broadcast technique that overlays a point-to-point communications network. The PTAB did not err in rejecting Acceleration’s narrow interpretation of a key term, which relied on importation of structure from the patent specification. It also did not err in declining to treat terms from claim preambles as non-limiting, as the terms merely described intended uses for an otherwise complete invention. And the opinion rejects Acceleration’s argument that certain claims required a broadcast channel that overlays a point-to-point network. “While the specifications discuss a broadcast channel overlaying a network, the claims are not so limited,” and the specifications lacked the “sort of precise and clear language that would warrant reading [such] a limitation . . . into the claims at issue.” 2018 WL 5795976, at *3.

As to the cross-appeal, the PTAB did not err in concluding that a 1999 “technical report,” though apparently available in the digital archives of UCSD’s Computer Science department, was not a “printed publication” under § 102. Substantial evidence supported the PTAB’s reasoning that there was no evidence of the report being actually disseminated to members of the public, and how the PTAB found the indexing and search functionality of the UCSD archive insufficient to conclude that the article could be located by an interested individual applying reasonable diligence. The PTAB also did not err in applying one of Acceleration’s claims to the prior art, nor abuse its discretion in declining to consider Blizzard’s “backup” argument in an expert declaration for invalidity over that art on grounds that such argument could, and should, have been in the petition. The PTAB also did not err in finding certain substitute claims by Acceleration patentable, and finds no inconsistency in how the PTAB analyzed these claims and how it analyzed other claims containing similar language.

KEYWORDS: INTER PARTES REVIEW; CLAIM CONSTRUCTION; PRINTED PUBLICATION