15 F.4th 1069
Fed. Cir.2021Background
- Acceleration Bay sued Take-Two and related companies alleging infringement of four patents (ʼ344, ʼ966, ʼ069, ʼ497) based on networking techniques used by video games (e.g., Grand Theft Auto V, NBA 2K15/16).
- The patents describe overlay/virtual networks that implement broadcast channels via point-to-point neighbor connections and methods/components for adding participants and locating portal call-in ports.
- The district court construed several claim terms to effectively import an “m-regular” limitation (each participant connected to exactly m neighbors) into asserted claims and construed “component” to require hardware.
- The district court granted summary judgment of non-infringement for all four patents, reasoning among other things that (a) Take-Two’s customers, not Take-Two, assemble the claimed networks (Centillion), and (b) Take-Two’s software does not satisfy the hardware "component" limitation of the ʼ497 patent.
- On appeal the Federal Circuit held the appeals relating to the ʼ344 and ʼ966 patents moot (plaintiff forfeited challenge to the independent m-regular ground), and affirmed the district court’s claim construction and summary judgment of non-infringement for the ʼ069 and ʼ497 patents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of appeal re: ʼ344 & ʼ966 patents | Reversal on "final assembler" theory would relieve pressure (e.g., fees, related suits) and thus avoid mootness | Plaintiff forfeited challenge to the district court’s independent m‑regular ground; even reversal on assembler issue gives no effectual relief | Appeal as to ʼ344 and ʼ966 is moot and dismissed for lack of jurisdiction |
| Construction of “fully connected portal computer” in ʼ069 (m‑regular import) | Court erred by importing m‑regular into the term; claims don’t explicitly require m‑regular | Construction was consistent with intrinsic record and other claim language | Even if that construction were erroneous, another claim term unchallenged by plaintiff also imported m‑regular, so judgment stands |
| Sufficiency of plaintiff’s challenge to district court’s m‑regular constructions in ʼ069 | Plaintiff contests only one of two constructions that imported m‑regular | District court also construed “each participant being connected to three or more other participants” to require m‑regular; that construction is unchallenged | Plaintiff failed to challenge all bases; summary judgment affirmed for ʼ069 on alternative, unchallenged ground |
| “Final assembler”/direct infringement theory for ʼ497 patent | Take‑Two’s software controls customers’ hardware and thus ‘‘makes’’ the claimed system—software should count as making hardware elements | Centillion controls: customers provide and install hardware; Centrak is distinguishable (there defendant installed hardware) | Court rejects plaintiff’s novel extension of Centrak; affirms non‑infringement for ʼ497 |
Key Cases Cited
- Centillion Data Sys., LLC v. Qwest Commc’ns Int’l, Inc., 631 F.3d 1279 (Fed. Cir. 2011) (defendant does not "make" a claimed system when customers supply and install the missing components)
- Centrak, Inc. v. Sonitor Technologies, Inc., 915 F.3d 1360 (Fed. Cir. 2019) (installation of defendant‑provided hardware onto a customer’s network supported a "final assembler" infringement theory)
- Teva Pharm. Indus. Ltd. v. AstraZeneca Pharm. LP, 661 F.3d 1378 (Fed. Cir. 2011) (claim construction standard for reviewing factual findings and law)
- Teva Pharms. USA, Inc. v. Sandoz, Inc., 574 U.S. 318 (U.S. 2015) (appellate review: claim construction based on intrinsic evidence de novo; subsidiary factual findings for clear error)
- Already, LLC v. Nike, Inc., 568 U.S. 85 (U.S. 2013) (mootness doctrine: case becomes moot when issues are no longer live or parties lack a legally cognizable interest)
- Nasatka v. Delta Sci. Corp., 58 F.3d 1578 (Fed. Cir. 1995) (appeal should be dismissed as moot when no effectual relief can be granted)
- Innovad Inc. v. Microsoft Corp., 260 F.3d 1326 (Fed. Cir. 2001) (appellate court may affirm summary judgment on alternative grounds even if there was error in claim construction)
- In re Google Tech. Holdings LLC, 980 F.3d 858 (Fed. Cir. 2020) (forfeiture: failure to timely assert or preserve an argument can bar appellate review)