Acceleration Bay LLC v. Activision Blizzard
United States District Court for the District of Delaware
August 28, 2018
Back in 2015 Acceleration Bay filed lawsuits against Activision Blizzard, Electronic Arts, Take-Two Interactive, and Rockstar Games. Acceleration Bay accused the video game companies of infringing U.S. Patent Nos. 6,829,634 (the ‘634 Patent); 6,732,147 (the ‘147 Patent); 6,714,966 (the ‘966 Patent); 6,701,344 (the ‘344 Patent); 6,920,497 (the ‘497 Patent). You can read our initial coverage of each case here, here, and here. All of the asserted patents related to networks used for online gaming. On August 28, 2018, in a summary judgment, the Delaware District Court ruled in favor of Activision by invalidating two of the patents and determining Activision did not infringe the other three.
The court found claim 19 in the ‘634 Patent to be indefinite. Claim 19 reads, “a non-routing table based computer-readable medium containing instructions for controlling communications of a participant of a broadcast channel within a network, by a non-routing tabled based method . . . .” (‘634 Patent, Col. 30, line 20). Acceleration Bay argued that claim 19 contained an obvious error which should be corrected. The court rejected the plaintiff’s argument because it did not think there was an obvious error, and even if there were, any correction would still be the subject of a reasonable debate. In addition to having an indefinite claim, the court found another reason to invalidate the ‘634 Patent.
The district court also determined the ‘634 and ‘147 Patents to be invalid because both contained unpatentable subject matter. There are four statutory categories of patentable subject matter: process, machine, manufacture, or composition of matter. Anything determined to be outside those four categories is considered unpatentable. The claims being asserted by Acceleration Bay all related to a computer-readable medium, which the court constructed to mean “any medium for storing or transporting computer readable instructions, including memory, storage devices, carrier waves, and communication links.” Memorandum Opinion at 21, Acceleration Bay v. Activision Blizzard, No. 1:16-cv-00453-RGA (2018). Carrier waves have been found to be unpatentable subject matter since it is a type of signal, which is also unpatentable. Therefore the computer-readable medium claims in the ‘634 and ‘247 Patents were invalid because the claims contained non-statutory subject matter.
Despite the court invaliding two patents, Activision still needed to show it did not infringe the remaining patents. An entity infringes a patent when it makes, uses, sells, or offers to sell the invention, as defined by at least one claim of the patent. Acceleration Bay claimed that Activision made, used, and sold video games that included the inventions claimed in the ‘147 and ‘966 Patents. However, the district court rejected each assertion. First, the court did not believe that merely owning software was equal to creating a network, plus the court found it was players who formed the networks, not Activision. Second, the court found Activision did not use the claimed systems because Activision “neither puts the entire claimed invention into service nor obtains the benefit from each and every element of the claimed system.” Memorandum Opinion at 16, Acceleration Bay v. Activision Blizzard, No. 1:16-cv-00453-RGA (2018). Lastly, the court ruled that selling software was not the same as selling a computer network. Since Activision did not make, use, or sell a network as claimed in the ‘147 and ‘966 Patents, there was no patent infringement.
The last patent Acceleration Bay asserted against Activision was the ‘497 Patent, which is related to hardware components. The court agreed with Activision that since it does not make, use, or sell infringing hardware, therefore there is no infringement of the ‘497 Patent.
Acceleration Bay can appeal the district court’s decision to the Federal Circuit. If Acceleration Bay does decide to appeal, we will provide an update.