‘Grand Theft Auto’ game makers take CAFC victory with no-violation ruling

“[C]The ollateral consequences of a separate legal action are not subject to any exception to the doctrine of mootness. – CAFC

On October 4, the United States Federal Circuit Court of Appeals (CAFC) partially upheld the interpretation of the claim and summary judgment of the non-infringement decision rendered by the United States District Court- United for the District of Delaware and Partially Dismissed Acceleration Bay LLC’s appeal against the makers of the video game Grand Theft Auto is considered moot.

In July 2000, Acceleration Bay filed four patents: U.S. Patents 6,701,344 (the ‘344 patent), 6,714,966 (the’ 966 patent), 6,910,069 (the ‘069 patent) and 6,920,497 ( the ‘497 patent). The patents are unrelated but share a similar specification revealing network technology that allegedly improves earlier methods of communication. More specifically, the patents describe a “broadcast technique in which a broadcast channel spans a point-to-point communication network”. On June 16, 2016, Acceleration Bay filed a patent infringement action against 2K Sports, Inc., Rockstar Games, Inc. and Take-Two Interactive Software, Inc. (defendants). Acceleration Bay accused the defendants of directly infringing the ‘344,’ 966, ‘069 and’ 497 patents by establishing networks for customers who play Grand Theft Auto V, NBA 2K15 and 2K16 video games.

Claim construction

From 2017 to 2018, the district court issued several debt construction orders. In an order from August 2017, the district court interpreted the term “m-regular”, which was at issue in the ‘344 and’ 966 patents. The district court ruled that “m-regular” meant “[a] declare that the network is configured to maintain, where each participant is connected to exactly m neighboring participants. In other words, if the network is not designed so that each participant is connected to m neighbors, that is fine, as long as the network tries to achieve this configuration if necessary.

In a December 2017 order, the court interpreted the term “fully connected portal computer” in claim 1 of the 069 patent to mean “portal computer connected to exactly a number of participants m”. This construction meant that claim 1 did include the “m-regular” limitation. In the same order, the district court interpreted “each participant being connected to three or more other participants” to mean “each participant being connected to the same number of other participants in the network, where the number is three or more”. The court again explained that this construction did include the “m-regular” limitation in the claimed claims of the ‘069 patent even though it was not explicitly claimed.

Finally, in a January 2018 construction claim order, the district court interpreted a term that appeared in claim 9 of the ‘497 patent: “a making up in a computer system to locate a call port of a portal computer. The district court adopted the construction of the word “component” to require material.

Summary judgment

With this claim construction in hand, on March 23, 2020, the district court issued a summary judgment of non-infringement on the four patents at issue. The district court first considered Acceleration Bay’s theory of direct infringement of the ‘344,’ 966 and ‘497 patents by virtue of Take Two’s manufacture, sale and offer for sale of the accused system. under 35 USC §271 (a). The court explained that “the creation of a system under section 271 (a) requires that a single entity combine all the elements of the claim and that, if a customer, rather than an accused infringer, performs the last step to assemble the system, then the accused infringer did not violate. Applying this standard, the court observed that Take Two manufactures software, and not computer networks or broadcast channels. Instead, its customers must get these things into the systems before complaints can be resolved. The court further explained that the claimed claims of the ‘344 and’ 966 patents require “participants” who form “connections” with each other, therefore, it is not Take Two, but the players who put together. the claimed system.

Acceleration Bay also advanced a “final assembly” infringement theory, which the district court rejected. Quoting Centrak, the court explained that conduct can still be inappropriate if the product of an alleged infringer does not include all elements of the claims made if there is evidence that the defendant installed the accused product for the customer. Centrak, Inc. v Sonitor Technologies, Inc. 915 F.3d 1360 (Cir. Fed. 2019). However, the court ruled that Acceleration Bay had not alleged that the defendants had already installed the video games for customers. Therefore, Centrak is not in control here.

In addition, the district court found that Take Two did not infringe the ‘069 patent. The district court recognized that although the claimed claims of the ‘069 patent did not explicitly mention the “m-regular” limitation, two separate terms of the claims of the’ 069 patent had been interpreted to include the limitation. The court then explained that this limitation was essential in the infringement analysis and that Acceleration Bay had not shown that there was a real dispute as to whether the incriminated video games included this limitation. Following this decision, Acceleration Bay appealed, challenging the summary judgment of non-infringement relating to the ‘344,’ 966, ‘498 and’ 069 patents.

The theoretical aspect

Initially, the CAFC recognized that Article III of the Constitution limits the jurisdiction of federal courts to actual cases and controversies. Quoting Already, the CAFC found that “[a] the matter becomes moot – and therefore no longer a “matter” or “controversy” for the purposes of Article III – when the issues presented are no longer “alive” or the parties have no legally recognizable interest in the outcome. Already, LLC v Nike, Inc., 568 US 85, 91 (2013). Without object, the motivated court can intervene at any stage of the litigation.

Here, Take Two argued that Acceleration Bay’s appeal regarding the ‘344 and’ 966 patents is moot and therefore should have been dismissed because Acceleration Bay only challenged one of multiple independent grounds that the court of district cited in its summary judgment. Specifically, according to Take Two, the district court issued summary judgment because (1) the accused video game did not include the “m-regular” limitation, and (2) the “final assembler” theory Acceleration Bay failed for lack of supporting case law. . Therefore, Take Two asserts that the CAFC cannot grant Acceleration Bay “effective relief” even if it agreed with Acceleration Bay’s final assembler theory because a reversal for this reason would not. would not reverse the distinct “m-regular” pattern. In response, Acceleration Bay did not dispute that the court issued summary judgment on the “m-regular” independent limitation. Instead, Acceleration Bay argued that overthrowing the CAFC on the “final assembler” issue would give them effective relief and thus avoid mootness, as it would help Acceleration Bay oppose the next ” exceptional request ”from Take Two. The CAFC was not persuaded by Acceleration Bay’s response, finding that Acceleration Bay lost any challenge to the District Court’s summary judgment of non-infringement on the grounds that the accused products did not meet the limitation “m -Regular “of the” 344 and “966 patents. Due to forfeiture, the appeal is moot with respect to the ‘344 and’ 966 patents.

Alternatively, Acceleration Bay argued that the case is not moot because a favorable ruling here would influence other pending cases. The CAFC also did not find this argument convincing. Quoting Citizen, the CAFC stated that “the collateral consequences of a separate legal action are not subject to any exception to the doctrine of mootness.” Citizens for Responsible Government Pol. action Comm. v. Davidson, 236 F.3d 1174, 1184 (10th Cir. 2000).

The ‘069 patent

Acceleration Bay challenged the district court’s grant of a summary judgment for non-infringement of the ‘069 patent. Acceleration Bay argued that the claimed claims do not explicitly contain the “m-regular” limitation, and the district court incorrectly interpreted the claim term “fully connected portal computer” to include this limitation. In response, Take Two argued that Acceleration Bay’s appeal must fail because it did not challenge the full basis for the interpretation of the district court’s claim. Take Two pointed out that the district court not only interpreted the term “fully connected portal computer” to include the limitation, but also interpreted the term “each participant being connected to three or more participants” to include the limitation. ‘include. The CAFC therefore concluded that the summary judgment should be upheld because even if Acceleration Bay were to prove its argument, the summary judgment would remain intact on the basis of the term separate claim.

The ‘497 patent

Acceleration Bay argued that it had advanced a viable “final assembler” theory of direct infringement and that, therefore, the District Court erred in granting a summary judgment of non-infringement. Acceleration bay claimed that while Take Two did not “fabricate” the hardware its customers used to play the accused video games, as required to satisfy their theory, Take Two nonetheless directly infringed by “fabricating” the claimed system. because Take Two qualifies as a “final assembler”. Quoting Centrak, the CAFC concluded that Acceleration Bay had misinterpreted the case law that controls the “final assembly” theoretical analysis. In Centrak, the accused infringer manufactured the hardware of the products and installed them by connecting them to an existing network. 915 F.3d 1360 (Cir. Fed. 2019). This case, according to the CAFC, stands out from Centrak, because Acceleration Bay does not claim that Take Two manufactures and installs hardware in an existing network to complement a claimed system. Therefore, the CAFC upheld the summary judgment granting non-infringement.

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