opening claim

7/30/2019 Opening Claim

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2658941v9/013049

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

WORLDS, INC.,

v.

ACTIVISION BLIZZARD, INC., BLIZZARDENTERTAINMENT, INC., and ACTIVISION

PUBLISHING, INC.,

Defendants.

Civil Action No. 1:12-CV-10576-DJC

JURY TRIAL DEMANDED

WORLDS OPENING CLAIM CONSTRUCTION BRIEF

Case 1:12-cv-10576-DJC Document 62 Filed 04/22/13 Page 1 of 37


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TABLE OF CONTENTS

Page

I. Introduction ..........................................................................................................................1

II. Legal Principles of Claim Construction ...............................................................................1

III. Background ..........................................................................................................................4

IV. Discussion of Disputed Terms .............................................................................................5

A. determining, from the received positions, [a/the] set of the other

users avatars that are to be displayed ....................................................................6

B. position of less than all of the other users avatars .............................................12

C. programmed to limit the number of remote user avatars shown on the

graphic display .....................................................................................................15

D. client process / server process .........................................................................18

E. condition / participant condition .....................................................................20

F. avatar ..................................................................................................................23

G. third user perspective ..........................................................................................24

H. switch between a rendering in which all of a perspective 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 .................................................26

I. synchronously disseminating .............................................................................29

V. Conclusion .........................................................................................................................31



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TABLE OF AUTHORITIES

CasesAspex Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d

(quotingPhillips, 415 F.3d at 1315) ................................................................................... 8

Boston Scientific Corp. v. Micrus Corp.,

556 F. Supp. 2d 1045, 1054 (N.D. Cal. 2012) .................................................................... 8

Cybor Corp. v. FAS Techs., Inc.,

138 F.3d 1448 (Fed. Cir. 1998)........................................................................................... 1

E.I. du Pont de Nemours & Co. v. Phillips Petroleum Co.,

849 F.2d 1430, 1433 (Fed. Cir. 1988)........................................................................... 3, 11

Edward Lifesciences LLC v. Cook Inc.,

582 F.3d 1322, 1329 (Fed. Cir. 2009)................................................................................. 6

Energizer Holdings v. International Trade Comn,435 F.3d 1366 (Fed. Cir. 2006)......................................................................................... 21

Exxon Research & Engg Co. v. United States,265 F.3d 1371 (Fed. Cir. 2001)................................................................................... 20, 21

Finisar Corp. v. DirecTV Group, Inc.,

523 F.3d 1323 (Fed. Cir. 2008)........................................................................................... 2

Honeywell Intl, Inc. v. Intl Trade Commn,

341 F.3d 1332 (Fed. Cir. 2003)......................................................................................... 21

Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc.,

381 F.3d 1111 (Fed. Cir. 2004)........................................................................................... 2

Intervet Am., Inc. v. Kee-Vet Labs., Inc.,

887 F.2d 1050 (Fed. Cir. 1989)........................................................................................... 2

Inverness Med. Switzerland GmbH v. Princeton Biomeditech Corp.,

309 F.3d 1365, 1371 (Fed. Cir. 2002)............................................................................... 10

Markman v. Westview Instruments, Inc.,

52 F.3d 967 (Fed. Cir. 1995), affd, 517 U.S. 370 (1996) ........................................ 1, 2, 21

Omega Engg, Inc, v. Raytek Corp.,

334 F.3d 1314 (Fed. Cir. 2003)..................................................................................... 3, 23



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Phillips v. AWH Corp.,

415 F.3d 1303 (Fed. Cir. 2005).................................................................................. passim

Renishaw PLC v. Marposs Societa per Azioni,

158 F.3d 1243 (Fed. Cir. 1998)........................................................................................... 2

Robotic Vision Sys., Inc. v. View Engg, Inc.,189 F.3d 1370, 1376 (Fed. Cir. 1999 .................................................................................. 9

SanDisk Corp. v. Memorex Prods., Inc.,

415 F.3d 1278 (Fed. Cir. 2005)........................................................................................... 3

SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys.,

242 F.3d 1337 (Fed. Cir. 2001)........................................................................................... 2

Southwall Techs., Inc. v. Cardinal IG Co.,

54 F.3d 1570, 1579 (Fed. Cir. 1995)................................................................................... 8

Union Pac. Res. Co. v. Chesapeake Energy Corp.,

236 F.3d 684 (Fed. Cir. 2001)........................................................................................... 20

Vitronics Corp. v. Conceptronic, Inc.,90 F.3d 1576 (Fed. Cir. 1996)....................................................................................... 2, 24



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I. IntroductionPlaintiff Worlds, Inc. (Worlds or Plaintiff) asserts that Defendants Activision

Blizzard, Inc.; Blizzard Entertainment, Inc.; and Activision Publishing, Inc. (collectively,

Defendants) infringe certain claims of U.S. Patent Nos. 7,181,690 (the 690 Patent);

7,493,558 (the 558 Patent); 7,945,856 (the 856 Patent); 8,082,501 (the 501 Patent); and

8,145,998 (the 998 Patent) (collectively, the Worlds Patents).1

Defendants make, use, sell, and offer for sale several infringing video games in the highly

successful Call of Duty and World of Warcraft franchises. In making their proposed claim

constructions, Defendants attempt to avoid liability for their infringement by proposing

constructions unsupported by the intrinsic evidence. Defendants have also proposed to

improperly import limitations from the specification of the Worlds Patents into the asserted

claims. As explained below, the Court should adopt Worlds proposed claim constructions and

reject Defendants.

II. Legal Principles of Claim ConstructionA determination of patent infringement involves two steps. First, the patent claims are

construed. Second, the claims are compared to the allegedly infringing device. Cybor Corp. v.

FAS Techs., Inc., 138 F.3d 1448, 1455 (Fed. Cir. 1998) (en banc). Claim construction is a legal

question for the courts. Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir.

1995) (en banc), affd, 517 U.S. 370 (1996). The Federal Circuit reexamined the legal principles

of claim construction inPhillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc), where

it expressly reaffirmed the principles of claim construction set forth inMarkman, Vitronics Corp.

1 For the Courts reference, the Worlds Patents are attached as Exhibits B through F. However, for the sake of

clarity, in the body of this document the patents are cited according to their patent number rather than to their exhibit

number.



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v. Conceptronic, Inc., 90 F.3d 1576 (Fed. Cir. 1996), and Innova/Pure Water, Inc. v. Safari

Water Filtration Sys., Inc., 381 F.3d 1111 (Fed. Cir. 2004).

UnderPhillips, a claim term should be given the meaning it would have to a person of

ordinary skill in the art at the time of the invention. Phillips, 415 F.3d at 1313. The claims

themselves provide substantial guidance as to the meaning of the terms. Id. at 1314. Indeed,

the claim construction inquiry . . . begins and ends in all cases with the actual words of the

claim. Renishaw PLC v. Marposs Societa per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998).

Generally, [the Federal Circuit] gives claim terms their ordinary and customary meanings,

according to the customary understanding of an artisan of ordinary skill at the time of the

invention. Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1328 (Fed. Cir. 2008). The

Federal Circuit has repeatedly held that courts cannot alter what the patentee has chosen to

claim as his invention, that limitations appearing in the specification will not be read into claims,

and that interpreting what is meantby a word in a claim is not to be confused with adding an

extraneous limitation appearing in the specification, which is improper. Intervet Am., Inc. v.

Kee-Vet Labs., Inc., 887 F.2d 1050, 1053 (Fed. Cir. 1989) (quotation marks omitted).

The claims, however, must be read in light of the specification, of which they are part.

Phillips, 415 F.3d at 1315. As the Federal Circuit has often stated, the specification is always

highly relevant to the claim construction analysis and is the single best guide to the meaning of

a disputed term. Id. (citing Markman and Vitronics). Despite the weight given to the

specification, care should be taken not to import limitations from the specification into the

claims. Id. at 131920; see also SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., 242

F.3d 1337, 1340 (Fed. Cir. 2001) (describing the importation of a limitation from the written

description into the claims as one of the cardinal sins of patent law). Indeed, it is entirely



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improper to import extraneous limitation[s] appearing in the specification. E.I. du Pont de

Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1433 (Fed. Cir. 1988). An

extraneous limitation is a limitation read into a claim from the specification wholly apart from

any need to interpret what the patentee meant by particular words or phrases in the claim. Id.

The Court may also consider the patents prosecution history. Phillips, 415 F.3d at 1317.

Like the specification, the prosecution history provides evidence of how the PTO and the

inventor understood the patent and whether the inventor limited the invention in the course of

prosecution, making the claim scope narrower than it would otherwise be. Id. However, the

prosecution history is accorded far less weight than the specification as a guide to understanding

claim terms because it often lacks the clarity of the specification and thus is less useful for

claim construction purposes. Id. Thus, while clear and unmistakable prosecution arguments

limiting the meaning of a claim term may be used to limit a claim terms ordinary meaning, an

ambiguous statement has no such effect. SanDisk Corp. v. Memorex Prods., Inc., 415 F.3d 1278,

1286 (Fed. Cir. 2005).

There is no clear and unmistakable disclaimer if a prosecution argument is subject to

more than one reasonable interpretation, one of which is consistent with a proffered meaning of

the disputed term. Id. at 1287. [T]he alleged disavowing statements [must] be both so clear as

to show reasonable clarity and deliberateness and so unmistakable as to be unambiguous

evidence of disclaimer. Omega Engg, Inc., v. Raytek Corp., 334 F.3d 1314, 1325 (Fed. Cir.

2003) (citations omitted).

Finally, extrinsic evidence can shed useful light on the relevant art but is unlikely to

result in a reliable interpretation of patent claim scope unless considered in the context of the



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intrinsic evidence. Id. at 131819. Expert and inventor testimony, dictionaries, and learned

treatises are all considered extrinsic evidence. Id. at 1317.

III. BackgroundIn 1995, four Worlds employees Stephen Adler, S. Mitra Ardon, Judith Challinger,

and David Leahy (the named inventors) discovered several novel inventions that solved

crucial problems in the area of software development. They arrived at these solutions while

developing Worlds groundbreaking software platforms, which enabled remote users to interact

in graphically rich, three-dimensional virtual environments. The Worlds Patents reflect the novel

inventions of those Worlds employees.

The named inventors initially set forth their inventions in a provisional patent

application filed on November 13, 1995. Worlds first patent, U.S. Patent No. 6,219,045 (the

045 Patent), issued on April 17, 2001. Each of the Worlds Patents, as identified above, is a

continuation of the 045 Patent. As such, they all share a common specification. The 690

Patent issued on February 20, 2007; the 558 Patent issued on February 17, 2009; the 856 Patent

issued on May 17, 2011; the 501 Patent issued on December 20, 2011; and the 998 Patent

issued on March 27, 2012. Each of these patents is entitled to a November 13, 1995 priority

date.

The claims of the Worlds Patents generally describe a system and method for

implementing a highly scalable, client-server architecture that facilitates the efficient interaction

of users in a three-dimensional, graphical, multi-user, interactive virtual environment. (See, e.g.,

690 Patent at 1:2442.) For example, the Worlds Patents disclose an invention whereby a client

device and associated server can efficiently filter the number of visible avatars so as to preserve

bandwidth, optimize processing capabilities, and enhance the user experience. (See, e.g., id. at

19:3220:2 (Claims 15).) The disclosed client-server system is highly relevant to multi-user



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video games, where the positions and actions of each user must be communicated to other users

to inform them of the state changes (e.g., position, actions, etc.) of the other users avatars. (See,

e.g., id. 1:4855.) The Worlds Patents also disclose other inventions important to the

development of multi-user video games. For example, the patents describe how software

programs can facilitate the creation and customization of avatars, teleportation of users,

switching of views, and other key features that enhance user experiences. (See, e.g., 501 Patent

at 19:2526 (Claim 1), 19:6164 (Claim 7), 20:2021 (Claim 12); 998 Patent at 19:2530

(Claim 1).)

IV. Discussion of Disputed TermsWorlds constructions are clear and well-supported by the Worlds Patents and the

relevant intrinsic evidence.2

By contrast, Defendants constructions are unwieldy and laden with

extraneous limitations not required or even suggested by the language of the claims. As a result,

the Court should adopt Worlds proposed constructions.

2 A chart of the disputed terms and the parties proposed constructions is attached as Exhibit A.



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A. determining, from the received positions, [a/the] set of the other usersavatars that are to be displayed

3

Claim Term (Claim) Plaintiffs Proposed

Construction

Defendants Proposed

Construction

determining, from the

received positions, [a/the] set

of the other users avatars thatare to be displayed (690

Claims 15, 1114, 19)

No construction needed. selecting [a/the] set

consisting of up to a set

maximum number of the otherusers avatars to be displayed

based on the received

positions

The parties agree that the term avatar should be construed, as set forth in section IV.F

below. However, the other words in this term are so common and simple that jurors will have no

difficulty understanding them. See Phillips, 415 F.3d at 1314. Thus, this disputed phrase

contains no technical terms requiring separate construction. Defendants implicitly acknowledge

this, as their proposed construction simply reuses the words they seek to define. Defendants

proposed construction is improperly restrictive, lacks any evidentiary support, and should be

rejected.

There is a heavy presumption that claim terms carry their ordinary and customary

meaning as a person of ordinary skill in the art would understand them. Epistar Corp. v. Intl

Trade Commn, 566 F.3d 1321, 1334 (Fed. Cir. 2009). A party seeking to overcome that heavy

presumption must show that the patentee clearly relinquished the claims scope or acted as his

or her own lexicographer. Id.;see also Edward Lifesciences LLC v. Cook Inc., 582 F.3d 1322,

1329 (Fed. Cir. 2009) ([W]e will adopt a definition that is different from the ordinary meaning

when the patentee acted as his own lexicographer and clearly set forth a definition of the

3 In their Proposed Constructions for Claim Terms to Be Construed, served on March 29, 2013, Defendants

proposed constructions for a lengthy series of claim terms functionally identical to this disputed claim term. On

April 17, 2013, to avoid having to discuss each disputed term individually, the parties agreed to use determining,

from the received positions, [a/the] set of the other users avatars that are to be displayed as a representative termfor purposes of claim construction briefing. Therefore, the parties agree that the Courts construction of this term

will affect the construction of other claims terms in the Worlds Patents. A complete list of the terms that will be

impacted by the construction of this exemplar term is included in Exhibit A.



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disputed claim term in either the specification or the prosecution history.). Defendants cannot

overcome this heavy presumption. The patentees did not assign a particular meaning to the

phrase position of less than all of the other users avatars, nor did they distinguish the term

from its ordinary meaning.

To begin, rather than clarifying ambiguous claim language (which is the point of claim

construction), Defendants materially alter the meaning of the claim in two ways. First,

Defendants replace the word determining with the word selecting. Second, defendants

inelegantly inject the limiting phrase a set maximum number into the claim. Defendants

proposed construction must be rejected for the following reasons.

First, Defendants improperly urge the Court to replace the claim word determining

with their word selecting. The specifications use of the word selecting makes clear that the

patentees never intended to define that term. Worlds anticipates that Defendants will focus on

one description of one embodiment described in the specification and make the flimsy argument

that, because the client can select N avatars from the N avatars provided by the server,

determining must mean selecting. (690 Patent at 6:78.) Defendants are wrong, and the

common specification itself debunks this argument.

Indeed, reading from the beginning of the selecting sentence tells us that this

embodiment only selects in the specific instance [w]here N is less than N. (Id. at 6:67.)

Thus, when N is equal to or greater than N, no selection is needed; theres no need to pick out

avatars if all are going to be displayed. See Ex. N at 1111 (Websters College Dictionary

(Random House, 2001) (definition of select)). Put simply, Defendants construction requires

selection in every instance; the preferred embodiment, however, requires selection in only some

instances. (See e.g., 690 Patent at 5:6667 ([U]ser A might have a way to filter out avatars on



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other variables in addition to proximity, such as user ID.)) Accordingly, Defendants

construction makes no sense in the full context of the specification. As a matter of law, a

construction, like Defendants proposal, that reads out part of a preferred embodiment is rarely,

if ever, correct and would require highly persuasive evidentiary support. Vitronics Corp. v.

Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996). Defendants do not and cannot provide

any evidentiary support much less the highly persuasive evidentiary support that is required

to rebut this presumption. Defendants construction should be rejected.

Defendants next improper proposal is to insert a set maximum number limitation into

this term definition. Defendants proposed construction would put the disputed claims directly at

odds with several dependent claims, such as claim 4 of the 690 Patent, that do expressly

contemplate a maximum-number limitation. Under the doctrine of claim differentiation, the

presence of a dependent claim that adds a particular limitation gives rise to a presumption that

the limitation in question is not present in the independent claim. Aspex Eyewear, Inc. v.

Marchon Eyewear, Inc., 672 F.3d (quoting Phillips, 415 F.3d at 1315). Furthermore, claim

terms must be interpreted consistently. Phillips, 415 F.3d at 1314; see also Southwall Techs.,

Inc. v. Cardinal IG Co., 54 F.3d 1570, 1579 (Fed. Cir. 1995) (The fact that we must look to

other claims using the same claim term when interpreting a term in an asserted claim mandates

that the term be interpreted consistently.);Boston Scientific Corp. v. Micrus Corp., 556 F. Supp.

2d 1045, 1054 (N.D. Cal. 2012) (citing Southwallfor same).

Here, if defendants proposed construction of claim 1 is accepted, then to practice claim 1

of the 690 patent, a client process would have to select a set consisting of up to a set

maximum number of the other users avatars to be displayed based on the received positions.



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(Emphasis added.) But claim 4 of the 690 patent, which is dependent on claim 1 of that patent,

already includes the maximum-number limitation that defendants seek to import into claim 1(b):

4. The method of claim 1, wherein step (1b) comprises

(b)(1) determining from the received positions an actual number of the otherusers avatars;

(b)(2) determining a maximum number of the other users avatars to bedisplayed; and

(b)(3) comparing the actual number to the maximum number to determinewhich of the other users avatars are to be displayed where in steps (b)(1)

(b)(3) are performed by the client process associated with the first user.

(690 Patent at 19:5564 (Claim 4) (emphasis added).) Numerous other dependent claims

incorporate a maximum number limitation on the number of avatars as well. (See, e.g., 690

Patent at 20:2533 (Claim 8), 21:2836 (Claim 13), 22:1423 (Claim 16).) However, such a

limitation is expressly omitted from the associated independent claims. That differentiation is

significant and eliminating this differentiation would improperly alter the meaning of the

carefully drafted claims.

Further, the above-referenced dependent claims show that, when the patentees wanted to

include a maximum-number limitation in a claim, they were well aware of how to do so. They

certainly would not have inserted that limitation by implication only. Ultimately, the Court

should recognize that awkwardly shoehorning a maximum-number limitation into claim 1 (and

the other similar claims raised by Defendants) when it already exists in claim 4 (and several

other dependent claims) would create redundancy and run afoul of the principle that independent

claims must be broader than (and distinguishable from) their dependent claims. See Robotic

Vision Sys., Inc. v. View Engg, Inc., 189 F.3d 1370, 1376 (Fed. Cir. 1999 (Views construction

incorrectly attributes the requirement of separately fabricated index pads to an independent claim

when it is clear that a claim that depends from that independent claim does not incorporate that



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limitation.); see also Inverness Med. Switzerland GmbH v. Princeton Biomeditech Corp., 309

F.3d 1365, 1371 (Fed. Cir. 2002).

Further proof of the inappropriateness of Defendants proposed construction is provided

by the fact that the embodiment in the common Worlds specification does not discuss the

concept of a maximum number of avatars in any sense that is directly relevant to the disputed

term. That embodiment uses the term maximum number in two contexts. First, the

embodiment describes a server that maintains a variable, N, which sets the maximum number of

other avatars A will see. Client also maintains a variable, N, which might be less than N, which

indicates the maximum number of avatars client wants to see and/or hear. (690 Patent at 5:36

39.) In focusing myopically on the maximum number language, Defendants lose sight of the

fact that, by definition,N and N are variables. That is, N and N are named storage locations

capable of containing a certain type of data that can be modified during program execution;

they are not fixed, hardcoded numerical values. Ex. L at 408 (Microsoft Press Computer

Dictionary (2d ed., 1994)). Adding a set maximum number limitation into the construction, as

Defendants propose to do, would exclude the patentees own preferred embodiment. The

embodiment allows a variable, multi-criteria approach to filtering avatars; it does not require an

overly constrained, set maximum number approach to filtering.

The common specification of the Worlds Patents also uses the term maximum number

in the context of disclosing that the maximum number of avatars, N, is determined by server,

but might also be determined for each client. (690 Patent at 13:2729.) In other words, the

common specification explicitly discloses that a maximum number of avatars need not be

fixed, but rather can be a dynamic, adjustable variable. This specification provision offers no

help to Defendants. Defendants construction simply cuts against the plain disclosures in the



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specification, adding unsupported limitations the patentees specifically addressed with dependent

claims.

Moreover, at most, when the common Worlds specification discusses the concept of a

maximum number, it does so only to provide simple examples of how crowd control may be

accomplished. There are of course other methods, including (among others), proximity, user ID,

orientation, strain on computing resources, local user selection, or any other participant

condition. (See, e.g., 998 Patent at 20:1741 (Claims 1115); 690 Patent at 5:6667 ([U]ser A

might have to find a way to filter out avatars on other variables in addition to proximity, such as

user ID.).)

Ultimately, absent highly persuasive evidentiary support, which Defendants do not and

cannot offer, the Court should reject Defendants improper attempt to import extraneous

limitation[s] appearing in the specification. E.I. du Pont de Nemours & Co. v. Phillips

Petroleum Co., 849 F.2d 1430, 1433 (Fed. Cir. 1988) (explaining that extraneous refers to a

limitation read into a claim from the specification wholly apart from any need to interpret what

the patentee meant by particular words or phrases in the claim). Defendants maximum

number limitation is a textbook extraneous limitation.

In sum, there no support for including Defendants proposed limitations in the

construction of this term. The claim term, which was written in plain English, should not be

construed.



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B. position of less than all of the other users avatars4Claim Term (Claim) Plaintiffs Proposed

Construction

Defendants Proposed

Construction

position of less than all of theother users avatars (690

claims 15)

No construction needed. positions for up to a setmaximum number of the other

users avatars, which is less

than the total number of other

users avatars

Again, aside from the term avatar (construed separately), the words in this disputed

term are common and easy to understand; in fact, it is impossible to derive a simpler, more

straightforward version of the claim. See Phillips, 415 F.3d at 1314. As explained, there is a

heavy presumption that claim terms carry their ordinary and customary meaning as a person of

ordinary skill in the art would understand them. Epistar Corp., 566 F.3d at 1334. Defendants

cannot overcome this presumption, as nothing in the intrinsic evidence even hints that the

position of less than all of the other users has any meaning other than its everyday meaning.

Accordingly, the Court should reject Defendants second attempt to import a maximum

number limitation into a clearly worded claim term. This term needs no construction.

Defendants again improperly seek to import an entirely new limitation up to a set

maximum number that is untethered to (and in many ways, expressly contrary to) language

from the patents claims, specifications, or prosecution histories. There is not a shred of intrinsic

evidence showing that that the patentees sought to define less than all in terms of a set

maximum number . . . , which is less than the total number. In fact, the intrinsic evidence

forecloses the insertion of any such limitation.

4 In their Proposed Constructions for Claim Terms to Be Construed, served on March 29, 2013, Defendants

proposed constructions for a lengthy series of claim terms functionally identical to this disputed claim term. On

April 17, 2013, to avoid having to discuss each disputed term individually, the parties agreed to use position of less

than all of the other users avatars as a representative term for purposes of claim construction briefing. Therefore,the parties agree that the Courts construction of this term will affect the construction of various claims in the

Worlds Patents. A complete list of the terms that will be impacted by the construction of this exemplar term is

included in Exhibit A.



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Whereas the term at issue plainly includes only one limitation namely, that the client

receive the positions of less than all of the total number of avatars in a virtual space

defendants proposed construction includes two discrete limitations, requiring not only (1) that

the client receive position data for less than the total number of other users avatars but also (2)

that the client receive position data for fewer than an undefined set maximum number of

avatars. Worlds can only speculate as to the source of this second limitation. The patents

shared specification does not suggest that less than all carries any special meaning and it

does not even hint that the patentees sought to imply a maximum number requirement in the

claims including the less than all limitation. Defendants presumably will attempt to tie their

maximum number limitation to an extraneous limitation in the preferred embodiment, but any

such attempt must fail. The preceding section addresses the only two instances where the

specification addresses the concept of a maximum number; neither instance is relevant here.

Accordingly, Defendants attempt to import a maximum-number limitation is unavailing

for the reasons recited in the discussion of the preceding disputed claim. As discussed above,

importing a maximum-number limitation would be at odds with language from the specification,

which never defines limiting constraints exclusively in terms of numerical maximums, never

links the concepts of less than all and set maximum number, and never even purports to

define the term less than all. Once again, if patentees had intended to include a maximum-

number limitation, they could have; the Court should not inject limitations that no one ever

intended to exist.

The prosecution histories buttress the foregoing arguments. In all respects, the histories

confirm that the phrase less than all requires no definition, and that at no point did patentees

disavow the plain and ordinary meaning of the less than all limitation. The prosecution history



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for the 690 Patent is illustrative on this point. In June 2005, the PTO rejected Worlds proposed

claims under 35 U.S.C. 102(e) as being anticipated by Suzuki et al. (U.S. Patent No.

5,736,982). In March 2006, Worlds added a less than all limitation to many of its claims and

argued that this new limitation distinguished Suzuki. For example, Worlds stated several times

that, [u]nlike Suzuki, the method includes the steps of receiving a position ofless than all of

the other users avatars from the server process, and determining, from the received positions, a

set of the other users avatars that are to be displayed to the first user. See Ex. G at WORLDS

00209597 (609 Patent File History excerpts) (emphasis in original); see also, e.g., id. at

WORLDS 002097 (Unlike Suzuki, the method also includes the step of transmitting, by the

server process to each client process, the positions of less than all of the avatars that are not

associated with the client process.) (emphasis in original); id. at WORLDS 00208794

(replacing the phrase at least some with less than all to distinguish claims from prior art).

The PTO accepted this argument and, in June 2006, allowed the claims of the 690 Patent. The

PTO stated that receiving a position of at [sic] less than all of the other users avatar [sic] from

the server process was a uniquely distinct feature in the instant invention that separated

Worlds claims from the prior art. Id. at WORLDS 002040 (The closest prior art Suzuki

discloses a conventional terminals [sic] each receive of all of the position of other users avatar

from the server.); see also Ex. H at WORLDS 00423043 (998 Patent File History excerpts)

(PTO explaining that Shiio and Suzuki fail to explicitly disclose wherein the processor does not

. . . receive orientation information associated with less than all of the remote user avatars.

(emphasis added)).

In sum, during prosecution, the patentees amended their claims to insert a less than all

limitation, but at no point did they suggest that the meaning of less than all is anything other



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than the plain and ordinary meaning of those words. There has never been any suggestion that

the patentees sought to further constrain the less than all limitation with an implicit and

onerous maximum number limitation. The PTO directly cites the less than all limitation as

uniquely distinct over the prior art without ever discussing, contemplating, or even mentioning

any limiting construction of the meaning of less than all. The upshot is clear: nothing in the

prosecution history of the Worlds Patents suggests that the term position of less than all of the

other users avatars has any special meaning. SandDisk Corp., 415 F.3d at 1286 (a patentees

statements made during prosecution limit the plain language of claims only if the patentee made

clear and unmistakable prosecution arguments limiting the meaning of a claim term).

Moreover, all statements made by Worlds and the PTO during the patent prosecutions are

consistent with the plain and ordinary meaning of less than all. The Court should reject

Defendants construction and read the claim in a straightforward manner, as it was meant to be

read.

C. programmed to limit the number of remote user avatars shown on thegraphic display


Construction

Defendants Proposed

Construction

programmed to limit the

number of remote user avatarsshown on the graphic display

(998 claims 1115)

No construction needed. programmed to restrict the

number of remote user avatarsshown on the graphic display

to a maximum number of

avatars allowed

Defendants for the third time again without support or justification attempt to

import a maximum number limitation into an easily comprehensible phrase: programmed to

limit the number of remote user avatars. The Court should reject Defendants construction.

The term programmed to limit the number of remote user avatars shown on the graphic display

is unambiguous, easily applicable, and needs no construction.



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First, Defendants propose to replace the word limit with the word restrict. It is

impossible to know why, given that the word restrict does not appear even once in the 998

Patent, whereas the word limit is commonly used in the Worlds Patents. The intrinsic

evidence gives no indication of how restrict means anything different than limit; in fact, the

terms are essentially synonymous. In a commonly used thesaurus, limit is listed as a synonym

for restrict, and restrict is listed as a synonym for limit. See Ex. J (Rogets II: The New

Thesaurus, at 592 (limit), 834 (restrict);see also id. at 834 (defining restrict as [t]o place

a limit on). Swapping one common, ordinary word for its synonym adds no clarity to the

meaning. There is no simply no basis for defendants substitution; the Court should retain the

word the patentees intended to include.

Second, Defendants attempt for a third time to import a maximum-number limitation; this

specific attempt is perhaps more mystifying than the previous two. In addition to the litany of

problems with their proposed maximum-number construction amply documented above

Defendants attempt to insert their maximum-number limitation into a series of dependent claims,

each of which explicitly sets forth discrete and well-defined filtering criteria without ever

insinuating the possibility of avatar filtering based on a set maximum number.

Claims 11 to 15 of the 998 Patent are dependent claims that are worded as follows:

The system according to claim 2, wherein the first processor is further programmed to limit the

number of remote user avatars shown on the graphic display based on ___________________.

See (998 Patent at 20:1738.) Each claim fills in the blank with a separate criterion that can be

used to limit the number of avatars displayed. Sequentially, the criteria are the proximity of the

remote user avatars relative to the local user avatar (claim 11); the orientation of the remote

user avatars relative to the local user avatar (claim 12); computing resources available to the



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local user graphic display (claim 13); a selection made by the local user (claim 14); and a

selection made by the local user, wherein the selection is independent of the relative position

of the local avatar and the remote user avatars not shown on the graphic displays (claim 15). Id.

Clearly absent in any of these claims is any mention or even suggestion of a maximum

number limitation. Defendants apparently contend that, despite expressly listing five specific

filtering criteria in claims 1115 of the 998 Patent, the patentees also intended to imply an

additional (yet entirely silent) maximum-number limitation in each claim.

Defendants approach defies logic. As is apparent from several other asserted claims

(e.g., claim 4, 8, 13, and 16 of the 690 Patent), the patentees knew full well about maximum-

number filters and how to claim them. Claims 1115 of the 998 Patent are evidence of the

patentees recognition that, given the invention disclosed in the patents specification, various

other criteria can be used to accomplish crowd control in a multi-user virtual environment, and

that these criteria can be used separately or in conjunction with each other. Setting a maximum

number is one possible criterion and that criterion is addressed in several asserted claims

but it is by no means the onlycriterion. Again, if the patentees had desired to constrain all terms

by a hardcoded, set maximum number, they could have easily done so. Instead, they chose not

to.

The Court should recognize that this disputed term includes no technical worlds, and in

fact, Defendants construction essentially does nothing more than adopt the disputed claim

terms language wholesale, and then tacks on an additional limitation. Thus, the Court should

reject Defendants blatant attempt to avoid infringement by importing extraneous limitations into

the clearly worded claims of the 998 Patent.



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D. client process / server processClaim Term (Claim) Plaintiffs Proposed

Construction

Defendants Proposed

Construction

client process (690 Claims120; 558 Claims 49; 856

Claim 1)

a program being executed bya users computer that receives

services from a server

a program executed, stored,or accessible on a users

computer to provide access to

a server

server process (690 Claims120; 558 Claims 47; 856

Claim 1; 501 Claims 1-8, 10,

14-16)

a program being executed bya computer that provides

services to a client

a program executed, stored,or accessible by one or more

computers that provide one or

more services to users of

computers across a network

The parties dispute with respect to this claim term centers on whether, to qualify as a

client process or a server process, a program must be in the state of being executed

(Defendants proposed construction), or must only be capable ofbeing executed (e.g., executed,

stored, or accessible, Worlds proposed construction). Defendants obvious motivation in

seeking this construction is to avoid infringement by imposing an unnatural limitation that they

believe would exclude their software products from the ambit of many of the patents claims.

However, the intrinsic evidence amply supports Worlds proposed construction.

Worlds constructions track the definition provided in the patents shared specification.

That specification defines a client process flexibly, such that it can take the form of software

accessible by a processor, stored on recordable media, or something else entirely. It reads:

The architecture is described with reference to a system where each user is

associated with their own client computer system separate from the network

and servers, however a 20 person of ordinary skill in the art of network

configuration would understand, after reading this description, how to vary thearchitecture to fit other physical arrangements, such as multiple users per

computer system or a system using more complex network routing structures

than those shown here. 25A person of ordinary skill in the art of computer

programming will also understand that where a process is described withreference to a client or server, that process could be a program executed by a

CPU in that client or server system and the program could be stored in apermanent memory, 30such as a hard drive or read-only memory (ROM),or in temporary memory, such as random access memory (RAM). A person



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of ordinary skill in the art of computer programming will also understand

how to store, modify and access data structures which are shown to beaccessible by a client or server.

(See, e.g., 690 Patent at 4:1135 (emphasis added).)

This definition shows that the patentees had no intention of defining client process or

server process narrowly, as Defendants seek to do here. Under the express terms of the

patents shared specification, a client or server process need not be rigidly in the state of being

executed; instead, it can be a program stored in a permanent memory, such as a hard driveor

read-only memory (ROM), or in temporary memory, such as random access memory (RAM).

(Id. (emphasis added).) Given this flexibility, a client or server process can be stored on a

devices storage drive, a download site, a CD-ROM or DVD-ROM, or other media. All that is

required is that the storage media need to be accessibleby a client or server, or in other words,

the process must be capableof being executed. (Id. (emphasis added).)

For these reasons, the Court should adopt Worlds proposed construction which would

categorize a client or server process as any program that is executed, stored, or accessible by a

relevant device and reject Defendants proposed construction, which, by failing to allow for

programs that are stored or accessible, effectively eliminates the specifications broad

definition of client and server processes.



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E. condition / participant conditionClaim Term (Claim) Plaintiffs Proposed

Construction

Defendants Proposed

Construction

condition (998 Claims 13,78, 1118, 2021)

No construction needed.

In the alternative, an

expression in a software

program that affects the statusor display of an avatar

Indefinite under 35 U.S.C. 112, 2.

In the alternative, a condition

set by the client

participant condition (501

Claims 18, 10, 12, 1416)


In the alternative, a conditionimposed on an avatar, its

controlling user, or its

associated client device thataffects the status or display of

an avatar

Indefinite under 35 U.S.C.

112, 2.

Next, Defendants make an invalidity argument rather than a claim construction argument

by incorrectly asserting that several of the patents terms specifically, condition,

participant condition, third user perspective, switch between a rendering . . . and

synchronously disseminating are invalid as indefinite under 35 U.S.C. 112, 2. For this

Court to adopt Defendants argument and hold as a matter of law that these terms are

invalid as indefinite, Defendants must show by clear and convincing evidence that the claims

are insolubly ambiguous and not amenable to construction by a person of ordinary skill in

light of the patent claims and specification. Exxon Research & Engg Co. v. United States, 265

F.3d 1371, 1375 (Fed. Cir. 2001). This defendants cannot do.

It is well established that [t]he definiteness inquiry focuses on whether those skilled in

the art would understand the scope of the claim when the claim is read in light of the rest of the

specification. Union Pac. Res. Co. v. Chesapeake Energy Corp., 236 F.3d 684, 692 (Fed. Cir.

2001) (emphasis added). Furthermore, because a claim is presumed valid, a claim is indefinite

only if the claim is insolubly ambiguous, and no narrowing construction can properly be



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adopted. Exxon Research, 265 F.3d at 1375; see also Honeywell Intl, Inc. v. Intl Trade

Commn, 341 F.3d 1332, 133839 (Fed. Cir. 2003). A claim that is amenable to construction is

not invalid on the ground of indefiniteness. Energizer Holdings v. International Trade Comn,

435 F.3d 1366, 1370 (Fed. Cir. 2006).

Where the meaning of the claim is discernible, even though the task may be formidable

and the conclusion may be one over which reasonable persons will disagree, . . . the claim [is]

sufficiently clear to avoid invalidity on indefiniteness grounds. Exxon Research, 265 F.3d at

1375. Accordingly, the claims of a patent need not be plain on their face in order to avoid

invalidation due to indefiniteness. Id. (By finding claims indefinite only if reasonable efforts

at claim construction prove futile, we accord respect to the statutory presumption of patent

validity and we protect the inventive contribution of patentees, even when the drafting of their

patents has been less than ideal. (citation omitted)).

To begin, the terms condition and participant condition do not require construction at

all. If an explicit construction is necessary, the dictionary-based meaning that Worlds proposes

is appropriate and reflects the worlds plain and ordinary meanings. In contrast, Defendants

proposed construction of a condition set by the client merely surrounds condition with

limiting and unhelpful verbiage; it does nothing to shed light on the meaning of the term. See

Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) ([T]he court has the

power and obligation to construe as a matter of law the meaning of language used in the patent

claim.). Defendants accusations of indefiniteness are also unavailing as they simply ignore the

plain and ordinary meaning of a condition to one skilled in the art.

As explained above, there is a heavy presumption that claim terms carry their full

ordinary and customary meaning absent a showing that the patentee expressly relinquished



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claim scope. Epistar Corp., 566 F.3d at 1334. Defendants cannot rebut this presumption.

Nothing in the intrinsic evidence even suggests that patentees sought to give a special definition

to condition or participant condition; they certainly did not expressly relinquish the full

scope of a condition and the related term, participant condition.

Furthermore, the use of the terms condition and participant condition in the claims

and common specification is consistent with the plain and ordinary meaning of those terms: [a]n

expression in a program or procedure that can be evaluated as either true or false when the

program or procedure is running. Ex. K at 668 (IBM Dictionary of Computing (McGraw Hill,

1994)). The claims of the 501 Patent disclose that such conditions can be based on avatar

identifiers, and can be used to limit sending the position information of some avatars to the

client. (501 Patent at 20:1213 (Claim 11), 20:3132 (Claim 13), 20:6465 (Claim 17);see id.

at 19:2038 (Claim 1) ([T]he client device does not receive position information of at least

some avatars that fail to satisfy a participant condition imposed on avatars.).) The specification

also tells us that user A might have a way to filter out avatars on other variables in addition to

proximity, such as user ID. (Id. at 6:35.) Contrary to the proposal made by Defendants, there

simply is no suggestion that the client must set anything, or that any setting must be made by

the client. The claims merely teach that there be a condition, i.e., an expression that is

evaluated that affects the display of an avatar, be it set by the client, the server, or otherwise.

Finally, the file history offers no support for the Defendants construction. Rather, the

examiner found the term participant condition so plain and ordinary that just prior to allowance

the examiner inserted the term into the claims without any further elaboration. See Ex. I at

WORLDS00009093 (Examiners Amendment) (501 File History excerpts). In short, there is

no clear and unmistakable disavowal of claim scope and the Court should reject the



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Defendants construction. Omega Engg, Inc., v. Raytek Corp., 334 F.3d 1314, 1326 (Fed. Cir.

2003).

F. avatarClaim Term (Claim) Plaintiffs Proposed

Construction

Defendants Proposed

Construction

avatar (690 Claims 1-16,18; 558 Claims 4-9; 856

Claim 1; 501 Claim 1-6, 8,10, 12, 14, 15; 998 Claim 1-3,

11-15, 18-20)

graphical representation of auser in three-dimensional

form

a graphical representation ofa user

The parties agree that an avatar is a graphical representation of a user. The main

dispute about the term is whether the avatar is in three-dimensional form, as described in the

common Worlds specification, or could instead be in two-dimensional form, as Defendants

propose. Worlds construction comes straight out of the patent claims and specification.

Defendants have no support for their proposed construction.

The specification makes clear that the patentees sought to limit their patent to three-

dimensional virtual worlds and associated avatars. For example,first sentences of the patents

Abstract and Summary of Invention read: The present invention provides a highly scalable

architecture for a three-dimensional graphical, multi-user, interactive virtual world system.

(See, e.g., 690 Patent at 2:2426.) More specifically, elsewhere in the specification the

patentees offered a specific definition of the term avatar, explaining that Each avatar 18 is a

three dimensional figure chosen by a user to represent the user in the virtual world. (Id. at

3:1117.) The Detailed Description further discloses that the avatar images are three-

dimensional and look different (in most cases) from different angles. (Id. at 6:911.) [T]he

person of ordinary skill in the art is deemed to read the claim term not only in the context of the

particular claim in which the disputed term appears, but in the context of the entire patent,

including the specification. Phillips, 415 F.3d 131213. In fact, the specification is always



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highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best

guide to the meaning of a disputed term. Vitronics, 90 F.3d at 1582.

Further, Claim 2 of the 988 Patent clearly and precisely discloses each user being

associated with a three dimensional avatar. Claim 12 of the 501 Patent similarly discloses

each user being associated with a three dimensional avatar. Even the Abstract discloses a

preferred embodiment where a plurality of users interact in the three-dimensional, computer-

generated graphical space:

The present invention provides a highly scalable architecture for a three-dimensional graphical, multi-user, interactive virtual world system. In a preferred

embodiment a plurality of users interact in the three-dimensional, computer-generated graphical space where each user executes a client process to view a

virtual world from the perspective of that user. The virtual world shows avatarsrepresenting the other users who are neighbors of the user viewing the virtual

word.

(690 Patent at 2:2430. (emphasis added))

Defendants proposed construction ignores the common specification, ignores the claim

language, and intentionally invites prior art references with users represented in two-dimensional

and one-dimensional forms. The Court should accept Worlds well-supported construction.

G. third user perspectiveClaim Term (Claim) Plaintiffs Proposed

Construction

Defendants Proposed

Construction

third user perspective (998

Claim 2)

view from the perspective of

the user


112, 2.

Claim 2 of the 998 Patent discloses, among other things, a switch between a rendering

on the graphic display that shows the virtual world to the local user from a third user perspective

and a rendering that allows the local user to view the local user avatar in the virtual world.

Intrinsic evidence more than sufficiently demonstrates that third user perspective means view

from the perspective of the user. Again seeking to make invalidity rather than claim



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construction arguments, Defendants say the term third user perspective is indefinite.

Defendants are clearly wrong.

The 998 patent specification makes abundantly clear that the preferred embodiment

includes a view of the virtual world from the perspective of the user:

In a preferred embodiment a plurality of users interact in the three-dimensional,computer-generated graphical space where each user executes a client process toview a virtual world from the perspective of that user. The virtual world showsavatars representing the other users who are neighbors of the user viewing thevirtual word.

(998 Patent at 2:3944 (emphasis added).) The 998 specification explains that FIG. 1 is an

illustration of a client screen display 10 seen by one user in the chat system. Screen display 10 is

shown with several stationary objects (wall, floor, ceiling and clickable object 13) and two

avatars 18. (Id. at 3:2225.)

The 998 specification further demonstrates 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.

In this example, two users are shown: Paula and Ken, who have chosen the

robot avatar and the penguin avatar, respectively. Each user interacts with a



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client machine (not shown) which produces a display similar to screen display 10,

but from the perspective of the avatar for that client/user. Screen display 10 isthe view from the perspective of a third user, D, whose avatar is not shown sinceD's avatar is not within D's own view.

(Id. at 3:2835 (emphasis added);see also id. at 3:4546 (While FIG. 1 shows two avatars (and

implies a third), typically many more avatars will be present.).)

A person of ordinary skill in the art reading Claim 2 in light of the specification would

easily 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 ambiguous in

light of the clear, precise, and detailed description provided in the common Worlds specification.

In light of the claims and specification, the term third user perspective is not indefinite, and

clearly may be construed as a view from the perspective of the user.

H. switch between a rendering in which all of a perspective view of a local useravatar of the local user is displayed and a rendering in which less than all ofthe perspective view is displayed


Construction

Defendants Proposed

Construction

switch between a rendering

in which all of a perspectiveview of a local user avatar of

the local user is displayed and

a rendering in which less thanall of the perspective view is

displayed (998 Claim 19)


In the alternative, switch

between a graphical

representation in which all ofa local users field of view is

displayed, and a graphical

representation in which lessthan all of a local users field

of view is displayed


112, 2.

Claim 19 of the 998 patent discloses a switch between a rendering in which all of a

perspective 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 additional construction is necessary. Each

word of each term may be understood by its ordinary and customary meaning, and Defendants

cannot identify a single word that is unique ambiguous, or incapable of construction.



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Tellingly, defendants do not contend that any of the claim terms within claim 1 of the

998 patent are indefinite, ambiguous, or require construction. That strikingly similar claim

includes many of the same terms used in claim 19 and discloses switching between a rendering

on the graphic display that shows at least a portion of the virtual environment to the local user

from a perspective of one of the remote user avatars and a rendering that allows the local user to

view the local user avatar in the virtual environment. Similarly, Defendants do not contend that

any of the claim terms within claim 18 of the 998 Patent are indefinite, ambiguous, or require

construction. That claim also incorporates strikingly similar terms and discloses a change in

three dimensions the perspective view of the rendering on the graphic display of the virtual

world in response to user input. Thus, it is unclear what if anything defendants claim is

ambiguous or indefinite about claim 19, which uses plain and ordinary terms that any person of

ordinary skill in the art could understand.

As explained above, the 998 Patent makes abundantly clear that the term perspective

view means a view of the virtual world from the perspective of the user. Specifically, 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 Patent at 2:3944.) 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

3:2235.) In light of the claim language and the common Worlds specification, a person of

ordinary skill in the art would easily understand that perspective view means a view from the

perspective of the user and incorporates the field of view that the user sees in the virtual world.



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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 similarly need no construction and may be understood by

their ordinary and customary meaning. Because the perspective view of a local user avatar

incorporates the users field of view as depicted in FIG. 1, a person of ordinary skill in the art

would understand that the term all of a perspective view of a local user avatar references the

full field of view or entire field of view of the user, which illustrates all the avatars and stationary

objects within the field of view of that users virtual environment. By contrast, a person of

ordinary skill in the art reading claim 19 and the specification would understand that the term

less than all of a perspective view of a local user avatar would mean something less than the

entire or full field of view of the user, such as a view that focuses on one particular avatar or

object within the users virtual world environment.

As for the term rendering, the 998 patent clearly explains that a graphical rendering

engine generates the users view of the virtual world and renders a view of the virtual world

from the view point (position and orientation) of As avatar. (Id. at 4:5556, 7:5557.) The

998 specification further explains that User input could also be used to signal for a viewpoint

change. (Id. at 8:2021.) Thus, a person of ordinary skill in the art reading claim 19 in light of

the specification would easily understand that the term switch between a rendering references

a signal for a viewpoint change in response to user input, and the term switch between a

rendering in which all of a perspective 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 needs no further

construction. However, if the Court were to make a construction, a person of ordinary skill in

the art would be able to construe the term as a switch between a graphical representation in



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which all of a local users field of view is displayed, and a graphical representation in which less

than all of a local users field of view is displayed. This term is not indefinite.

I. synchronously disseminatingClaim Term (Claim) Plaintiffs Proposed

Construction

Defendants Proposed

Construction

synchronouslydisseminating (690 Claims

9, 18, 20)


In the alternative,transmitting in a manner that

is synchronized or

coordinated

Indefinite under 35 U.S.C. 112, 2.

The term synchronously disseminating does not require construction. If an explicit

construction were to be made, however, the dictionary-based meaning that Worlds proposes is

appropriate and reflects the plain and ordinary meaning to one of ordinary skill in the art. See

Epistar, 566 F.3d at 1334 (finding a heavy presumption that claim terms carry their full

ordinary and customary meaning absent a showing that the patentee expressly relinquished

claim scope.). Defendants cannot rebut this presumption. Nothing in the intrinsic evidence

gives any indication that the patentees sought to relinquish the full scope of the term

synchronously disseminating. Defendants accusations of indefiniteness are also unavailing as

they simply ignore the plain and ordinary meaning of synchronously disseminating to one

skilled in the art.

The use of the term synchronously in the claims and common Worlds specification is

consistent with the plain and ordinary meaning of that term: [p]ertaining to two or more

processes that depend upon the occurrence of specific events such as common timing signals,

Ex. K at 134 (IBM Dictionary of Computing(McGraw Hill, 1994)); [g]enerally, any operation

that proceeds under control of a clock or timing mechanism, Ex. L at 379 (Computer Dictionary

(Microsoft Press, 1994)); or a mode of transmission in which the sending and receiving terminal



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equipment are operating continuously at the same rate and are maintained in a desired phase

relationship by an appropriate means, Ex. M at 1075 (The IEEE Standard Dictionary of

Electrical and Electronics Terms (6th Ed. 1996)).

Moreover, 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 reading the

claims and specification 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 synchronized data transmission across multiple client

computers, server computers, and users:

9. A method for operating a server to enable a plurality of users to interact in avirtual space, wherein each user has a computer associated therewith, whereineach computer has a client process associated therewith, wherein each client

process has an avatar associated therewith, wherein the server has a process

associated therewith, and wherein each client process is in communication withthe server process, comprising:

(a) receiving, from each client process by the server process, dataindicating a position of the avatar associated with the client process; and

(b) synchronously disseminating less than all of the positions of theavatars not associated with a particular client process to each of the other

client processes so that the particular client process can determine from

the positions a set of avatars that are to be displayed.

The 690 specification also extensively details the mechanics of data transmissions across

multiple client and server machines:

where a client-server system is used for real-time exchange of information, suchas a distributed virtual reality network where users at client machines visually and

aurally interact with other users at other client machines, communication is muchmore difficult, especially where the information is high-bandwidth data such asaudio streams, graphic images and image streams. One application of such a

client-server system is for game playing, where the positions and actions of eachuser need to be communicated between all the players to inform each client of



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the state changes (position, actions, etc.) which occurred at the other clients. Theserver might maintain global state information and serve as a data server for theclients as they request visual, program and other data as the game progresses.

(690 Patent at 1:4255. (emphasis added)) In the detailed description, the 690 specification

further explains how the client-server system works to synchronize and coordinate the

dissemination of position information:

In order that each user see [sic] 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 3:3034.) The 690 specification also explains that the preferred embodiment operates

synchronously in contrast with other possible embodiments that work asynchronously:

In rendering a view, client 60 requests the locations, orientations and avatar imagepointers of neighboring remote avatars from server61 and the server's responses

are stored in remote avatar position table 112. Server61 might also respond with

entries for short object ID lookup table 110. Alternatively, the updates can bedone asynchronously, with server 61 sending periodic updates in response to aclient requestor automatically without request.

(Id. at 7:4249.) Thus, a person of ordinary skill in the art reading claim 8 in light of the

specification would easily understand that the term synchronously disseminating means

transmitting in a manner that is synchronized and coordinated. Such extensive, detailed,

discussion in the specification can hardly be insolubly ambiguous. This term is not indefinite.

V. ConclusionFor the foregoing reasons, this Court should adopt Plaintiffs proposed constructions.



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Dated: April 22, 2013 Respectfully submitted,

Worlds, Inc.By its attorneys,

By: /s/ Max L. TribbleMax L. Tribble (admittedpro hac vice)[email protected] D. Melton (admittedpro hac vice)[email protected] Langham (pro hac vice pending)[email protected] Caughey (admittedpro hac vice)[email protected] GODFREY L.L.P.1000 Louisiana Street, Suite 5100Houston, Texas 77002Telephone: (713) 651-9366

Facsimile: (713) 654-6666

Joel R. Leeman (BBO # 292070)[email protected] C. Schecter (BBO # 652349)[email protected] KANN MURPHY&TIMBERS LLP125 Summer StreetBoston, MA 02110-1618Telephone: (617) 443-9292Facsimile: (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

Electronic Filing (NEF).

/s/Max L. TribbleMax L. Tribble


opening claim

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