Case: 19-2269   Document: 39     Page: 1   Filed: 07/08/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

     VIA VADIS, LLC, AC TECHNOLOGIES S.A.,
                Plaintiffs-Appellants

                            v.

         BLIZZARD ENTERTAINMENT, INC.,
                 Defendant-Appellee
               ______________________

                       2019-2269
                 ______________________

    Appeal from the United States District Court for the
 Western District of Texas in No. 1:14-cv-00810-LY, Judge
 Lee Yeakel.

 --------------------------------------------

     VIA VADIS, LLC, AC TECHNOLOGIES S.A.,
                Plaintiffs-Appellants

                            v.

                 AMAZON.COM, INC.,
                   Defendant-Appellee
                 ______________________

                       2019-2270
                 ______________________
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 2              VIA VADIS, LLC   v. BLIZZARD ENTERTAINMENT, INC.



    Appeal from the United States District Court for the
 Western District of Texas in No. 1:14-cv-00813-LY, Judge
 Lee Yeakel.
                  ______________________

                    Decided: July 8, 2020
                   ______________________

    ANDREW DINOVO, DiNovo Price LLP, Austin, TX, ar-
 gued for plaintiffs-appellants.

    NATHAN K. KELLEY, Perkins Coie, LLP, Washington,
 DC, argued for defendants-appellees. Also represented by
 DAN L. BAGATELL, Hanover, NH; DANIEL T. SHVODIAN,
 WING LIANG, Palo Alto, CA.
                 ______________________

     Before DYK, WALLACH, and CHEN, Circuit Judges.
 CHEN, Circuit Judge.
      Via Vadis, LLC and AC Technologies S.A. (collectively,
 Via Vadis) appeals a decision of the U.S. District Court for
 the Western District of Texas finding the claim term “pre-
 specified parameters” in U.S. Patent No. RE40,521 (’521
 patent) indefinite, thereby rendering the asserted claims
 invalid under 35 U.S.C. § 112, ¶ 2. 1 For the reasons that
 follow, we affirm-in-part and reverse-in-part.




     1   Paragraph 2 of 35 U.S.C. § 112 was replaced by
 § 112(b) when the Leahy-Smith America Invents Act (AIA),
 Pub. L. No. 112–29, 125 Stat. 284 (2011) took effect on Sep-
 tember 16, 2012. Because the application resulting in the
 ’521 patent was filed before that date, we refer to the pre-
 AIA version of § 112.
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                          BACKGROUND
      The ’521 patent generally describes a system and
 method for optimizing access to data in a distributed net-
 work. The ’521 patent identifies a number of problems with
 prior art distributed network computer systems where in-
 dividual clients across a network seek access to data stored
 on a server. ’521 patent col. 1 ll. 32–67. For example, un-
 wanted transmission “lags” between the server and clients
 can occur “in part because the connection quality to the cli-
 ents varies e.g. due to various distances between the server
 and the clients as well as different transmission perfor-
 mances in various areas of the network.” Id. at col. 1 ll. 57–
 67. The patent claims to solve these problems by redun-
 dantly storing the same data in multiple, differently lo-
 cated “data storage means.” Id. at col. 2 ll. 24–30. Then,
 based on “prespecified parameters of the data transmis-
 sion” between each of the data storage means and the client
 computer requesting the data, one of the data storage
 means redundantly storing the requested data transmits
 the data to the client, “as a function of the determined pre-
 specified parameters.” Id. “Preferably, these prespecified
 parameters comprise the duration of transmission, and/or
 the fault rate, and/or the duration of data processing oper-
 ations of the individual computer units, and/or the individ-
 ual users prior to the transmission of the data.” Id. at col. 4
 ll. 20–24. With this design, according to the ’521 patent,
 transmission of requested data is “carried out more rapidly
 involving fewer faults.” Id. at col. 2 ll. 30–34. In addition,
 the specification describes each data storage means as com-
 prising a “cluster” of “cells,” with each cell storing a field of
 data. Id. at col. 7 ll. 26–35. In accordance with the inven-
 tion, each field of data is redundantly stored in different
 cell clusters. Id. at col. 8 ll. 65–67.
     Claim 1 is representative:
     1. A data access and management system for a com-
     puter system, comprising:
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 4              VIA VADIS, LLC   v. BLIZZARD ENTERTAINMENT, INC.



     at least two data storage means;
     at least one computer unit which accesses the data
     of the data storage means;
     data transmission means for a data transmission
     between the data storage means and the computer
     unit, with the data being stored in a redundant
     manner in at least two of the at least two data stor-
     age means; and
     means for detecting prespecified parameters of the
     data transmission between the data storage means
     and the computer unit, with data being preferably
     stored in a redundant manner in the data storage
     means as a function of said detected prespecified
     parameters, and with the computer unit accessing
     one of the data storage means as a function of said
     detected prespecified parameters, the data storage
     means comprising a second means for detecting
     prespecified parameters for data transmissions be-
     tween said data storage means; and
     wherein the data storage means copies data which
     is redundantly stored in the system independent of
     an access of the computer unit as a function of the
     detected prespecified parameters for data trans-
     missions between said data storage means.
 Id. at claim 1. The ’521 patent’s other independent claim,
 claim 30, is similar to system claim 1, except written as a
 method claim. Id. at claim 30.
     On August 22, 2014, Via Vadis filed complaints against
 Blizzard Entertainment, Inc. and Amazon.com, Inc. (collec-
 tively, Blizzard) asserting infringement of claims 1, 4, 11–
 18, 20–22, 30–31, 33, and 40–46 of the ’521 patent at the
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 district court. 2 On August 25, 2015, Blizzard filed a peti-
 tion for inter partes review (IPR) of the ’521 patent claims
 asserted at the district court litigation. On March 8, 2016,
 the Patent Trial and Appeal Board (Board) instituted IPR
 of the ’521 patent with respect to method claims 30, 31, 33,
 and 40–46. J.A. 2016–30. As to system claims 1, 4, 11–18,
 and 20–22, however, the Board did not institute IPR be-
 cause the specification lacks sufficient corresponding struc-
 ture for the means-plus-function limitation “second means
 for detecting,” thus preventing the Board from being able
 to interpret the scope of claim 1. Id. at 2029.
     On September 20, 2016, the district court issued its
 claim construction order finding the claim term “prespeci-
 fied parameters,” which is recited in both claims 1 and 30,
 indefinite. Id. at 26. The district court also found “means
 for detecting prespecified parameters of the data transmis-
 sion between the data storage means and the computer
 unit” and “second means for detecting prespecified param-
 eters for data transmissions between said data storage
 means” not indefinite based on its view that the specifica-
 tion disclosed an algorithm that corresponded to both
 means-plus-function limitations. Id. at 27–32. On March
 6, 2017, the Board issued its final written decision finding
 Blizzard had failed to meet its burden of proving claims 30–
 31, 33, and 40–46 unpatentable. Id. at 1584–1607. On
 April 22, 2019, Via Vadis moved the district court to recon-
 sider its finding of the claim term “prespecified parame-
 ters” as indefinite in light of the Board’s institution of IPR
 and final written decision. Id. at 1569–82. On July 9, 2019,
 the district court denied Via Vadis’s motion for reconsider-
 ation, reaffirmed its finding that the asserted claims of the
 ’521 patent are invalid as indefinite, and entered judgment
 in Blizzard’s favor. Id. at 1–7. Via Vadis timely appealed



     2   Via Vadis also asserted infringement of a number
 of other patents not relevant to this appeal.
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 to our court. We have jurisdiction pursuant to 28 U.S.C.
 § 1295(a)(1).
                          DISCUSSION
     The ultimate conclusion that a claim is indefinite un-
 der 35 U.S.C. § 112, ¶ 2 is a legal conclusion which we re-
 view de novo. Eidos Display, LLC v. AU Optronics Corp.,
 779 F.3d 1360, 1364 (Fed. Cir. 2015). We review a district
 court’s underlying factual determinations for clear error.
 Id. “[A] patent is invalid for indefiniteness if its claims,
 read in light of the specification delineating the patent, and
 the prosecution history, fail to inform, with reasonable cer-
 tainty, those skilled in the art about the scope of the inven-
 tion.” Nautilus Inc. v. Biosig Instruments, Inc., 572 U.S.
 898, 901 (2014). “Reasonable certainty” does not require
 “absolute or mathematical precision.” Biosig Instruments,
 Inc. v. Nautilus, Inc., 783 F.3d 1374, 1381 (Fed. Cir. 2015)
 (internal quotation marks omitted).
     We review a district court’s ruling on a motion for re-
 consideration under the law of the regional circuit. Del.
 Valley Floral Grp., Inc. v. Shaw Rose Nets, LLC, 597 F.3d
 1374, 1379 (Fed. Cir. 2010). The Fifth Circuit reviews a
 district court’s grant or denial of a motion for reconsidera-
 tion for abuse of discretion. Anderson v. Argent Mortg. Co.,
 692 F. App’x 769, 770 (5th Cir. 2017).
                  I. Prespecified parameters
     The district court concluded that the claim term “pre-
 specified parameters” is indefinite because “there is no ex-
 planation in the text of the Asserted Patents from which to
 determine what event, action, or condition in advance of
 which the parameters of data transmission must be chosen
 in order to satisfy the claim.” J.A. 26. In other words, the
 district court’s concern with the claim term boils down to
 the meaning of “prespecified”—the court could not discern
 in advance of what event or action the parameters must be
 specified. For the reasons that follow, we conclude that the
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 meaning of “prespecified parameters” is reasonably ascer-
 tainable in the context of this patent and refers to param-
 eters specified in advance of a data transmission.
      “[C]laim construction must begin with the words of the
 claims themselves.” Amgen Inc. v. Hoechst Marion Rous-
 sel, Inc., 457 F.3d 1293, 1301 (Fed. Cir. 2006). Claim 1 uses
 “prespecified parameters” as follows:
     means for detecting prespecified parameters of the
     data transmission between the data storage means
     and the computer unit, with data being preferably
     stored in the data storage means as a function of
     said detected prespecified parameters, and with the
     computer unit accessing one of the data storage
     means as a function of said detected prespecified
     parameters . . .
     wherein the data storage means copies data which
     is redundantly stored in the system independent of
     an access of the computer unit as a function of the
     detected prespecified parameters for data transmis-
     sions between said data storage means.
 ’521 patent claim 1 (emphases added). Similarly, claim 30
 uses “prespecified parameters” as follows:
     accessing the stored data by at least one computer
     unit via data transmission means, with prespeci-
     fied parameters of the data transmission between
     the data storage means and the computer unit be-
     ing determined, the data being stored in a redun-
     dant manner in at least two of the at least two data
     storage means as a function of the determined pre-
     specified parameters of the data transmission, the
     access to the data being effected as a function of the
     determined prespecified parameters of the data
     transmission . . .
 Id. at claim 30 (emphases added). The claims on their face
 require the data be both stored and then accessed for
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 transmission “as a function of the detected [or determined]
 prespecified parameters.” Consideration of the parameters
 relevant to a particular cell is therefore necessary before
 selecting a particular cell for storing data in that cell as
 well as transmitting data to a client from that cell. Thus,
 in the context of the claims, the parameters logically must
 be specified prior to the transmission of data.
     A skilled artisan is deemed to read a claim term not
 only in the context of the particular claim, but in the con-
 text of the entire patent, including the specification. Phil-
 lips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en
 banc); see also Trs. of Columbia Univ. v. Symantec Corp.,
 811 F.3d 1359, 1363 (Fed. Cir. 2016) (“[T]he specification is
 always highly relevant to the claim construction analysis
 and is, in fact, the single best guide to the meaning of a
 disputed term.” (internal quotations and citation omitted)).
 According to the specification, the patented invention’s
 purpose is to optimize the speed and reliability of data
 transmission, and it achieves this by first (1) redundantly
 storing data in different data storage locations and then (2)
 using parameters associated with each location (i.e., cell)
 to assess which location will most rapidly and reliably de-
 liver the desired data to a requesting client. The ’521 pa-
 tent’s specification contains a number of references to
 prespecified parameters:
     Further it is to be preferred that the determination
     of the prespecified parameters of data transmis-
     sions between the individual data storage means
     and the computer unit comprises the determina-
     tion of the duration of the transmission, and/or the
     fault rate, and/or the duration of data processing
     operations of the individual data storage means
     prior to the transmission of the data in order to ac-
     cess data more rapidly and/or reliably.
 ’521 patent col. 5 ll. 27–35; see also id. at col. 3 ll. 39–47,
 col. 4 ll. 16–24 (“Preferably, these prespecified parameters
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 VIA VADIS, LLC   v. BLIZZARD ENTERTAINMENT, INC.             9



 comprise the duration of the transmission, and/or the fault
 rate, and/or the duration of the data processing operations
 of the individual computer units and/or the individual us-
 ers prior to the transmission of data.”). Reviewing these
 passages and understanding the express purpose of the in-
 vention, a skilled artisan would understand that the pa-
 rameters are specified in advance of a given data
 transmission, as they are employed to select the source of
 that data transmission. In other words, knowledge of the
 parameters is needed before the system can select an opti-
 mal data source, and thus the parameters must be speci-
 fied, that is, available and on-hand, before the
 transmission of the data.
     Blizzard, for its part, contends that the above-quoted
 passages’ usage of permissive terms such as “[p]referably”
 and “it is to be preferred” suggests that the patent does not
 necessarily require the “prespecified parameters” to be
 specified “prior to the transmission of data,” thereby mak-
 ing the meaning of “prespecified” unclear. Appellees’ Br.
 at 26–28. We disagree. The far better reading of these per-
 missive terms is that they refer to the disclosed preferred,
 non-limiting list of types of parameters that can be used
 with the invention, like the duration of the transmission,
 and are not applicable to when the parameters are speci-
 fied. Nowhere in the specification does the patent suggest
 specifying the parameters during a transmission or after a
 transmission. Nor would it be logical to do so where those
 parameters are needed for the determination of which cell
 or data storage means will be accessed for a data transmis-
 sion. For the same reason, we disagree with Blizzard’s
 view that “prior to the data transmission” modifies only the
 last identified parameter in the disclosed list. See, e.g., id.
 at col. 3 ll. 39–47 (listing prespecified parameters as “dura-
 tion of the transmission, and/or the fault rate, and/or the
 duration of data processing operations of the individual
 data storage means prior to the transmission of the data”).
 The more reasonable interpretation of these passages is
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 that this phrase conveys that each of the identified param-
 eters is “prespecified” prior to a data transmission. For ex-
 ample, a prespecified parameter could be the fault rate
 determined prior to the transmission of the data.
     To the extent Blizzard further argues that “prespeci-
 fied” is unclear because the patent fails to require a precise
 moment in time the parameters are specified, we find that
 argument lacks merit. Precisely when the parameters are
 specified is unimportant so long as they are specified in ad-
 vance of data transmission. The specification in fact ex-
 plains how the parameters can be updated periodically
 when a given cell’s recent performance provides more in-
 formation related to its data transmission parameters. See
 id. at col. 9 ll. 25–37. To update and further optimize the
 parameters, a skilled artisan would understand that the
 parameters would have to be known prior to the transmis-
 sion of data and that the parameters are not required to be
 static values generated at a single fixed time.
      As to Blizzard’s argument that the term “prespecified
 parameters” is indefinite because neither the claims nor
 the specification explains how the data transmission pa-
 rameters are specified or who or what specifies those pa-
 rameters, we see no reason why in the context of this
 patent such details are needed to understand the scope and
 meaning of the disputed claim term. In our view, this ar-
 gument sounds more like a potential enablement question
 than an indefiniteness problem. Blizzard does not cite any
 analogous cases, nor are we aware of any, to support its
 proposition that to reasonably discern the meaning of “pre-
 specified parameters” in this case, a skilled artisan would
 have to know not only what they are, but also know specif-
 ically how they are generated. Via Vadis, on the other
 hand, relies on a case that we believe is consistent with our
 ruling here. See IGT v. Bally Gaming Int’l, Inc., 659 F.3d
 1109 (Fed. Cir. 2011). In IGT, we analyzed the phrase “pre-
 determined event” and found that the word predetermined
 has a plain and ordinary meaning—defined in advance. Id.
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 VIA VADIS, LLC   v. BLIZZARD ENTERTAINMENT, INC.           11



 at 1118–19. Although in IGT “predetermined event” was
 not directly challenged as indefinite, its holding that all
 that is required is for a skilled artisan to understand that
 there is an event with a temporal aspect as to when it is
 determined applies here. “Prespecified” signifies that pa-
 rameters are specified or determined in advance of some
 event. In this instance, both the patent specification and
 claims inform a skilled artisan that the parameters are
 specified ahead of the data transmission.
     Because we conclude that the patent’s intrinsic evi-
 dence renders the meaning of the term “prespecified pa-
 rameters” sufficiently clear, we cannot affirm this basis for
 the district court’s indefiniteness finding. 3
             II. Means-plus-function limitations
     Blizzard raises an additional indefiniteness challenge,
 directed at the asserted system claims. Claim 1 of the ’521
 patent contains the following means-plus-function terms:
 (1) “means for detecting prespecified parameters of the
 data transmission between the data storage means and the
 computer unit” (first means) and (2) “second means for de-
 tecting prespecified parameters for data transmissions be-
 tween said data storage means” (second means). See ’521
 patent claim 1. Both parties agree that the two means lim-
 itations are governed by pre-AIA § 112, ¶ 6. Blizzard ar-
 gues that the ’521 patent specification does not identify
 sufficient corresponding structure for either claimed
 means limitations and thus system claim 1 and its asserted
 dependent claims are indefinite. Appellees’ Br. at 44. Via
 Vadis argues that the specification discloses a network of
 computers and an algorithm as the corresponding struc-
 ture and that this structure is the corresponding structure



     3   We need not reach Via Vadis’s alternative definite-
 ness arguments for “prespecified parameters” based on the
 Board’s IPR decision and judicial estoppel.
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 12             VIA VADIS, LLC   v. BLIZZARD ENTERTAINMENT, INC.



 for both of the means limitations. Appellant’s Reply Br. at
 23. The district court agreed with Via Vadis and found that
 the ’521 patent’s specification disclosed a single structure
 for both means terms. After reviewing the specification
 and considering the parties’ arguments, we disagree with
 the district court, this time siding with Blizzard’s position
 that the system claims are invalid as indefinite because the
 specification fails to identify the corresponding structure
 for the second means limitation.
     Means-plus-function claim limitations must satisfy the
 particularity requirements of § 112, ¶ 2. S3 Inc. v. nVIDIA
 Corp., 259 F.3d 1364, 1367 (Fed. Cir. 2001). Construction
 of a means-plus-function limitation includes two steps.
 “First, the court must determine the claimed function. Sec-
 ond, the court must identify the corresponding structure in
 the written description of the patent that performs the
 function.” Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302,
 1311 (Fed. Cir. 2012) (internal citations and quotations
 omitted). We review de novo what structures disclosed in
 the specification correspond to the “means” for performing
 a function. Kemco Sales, Inc. v. Control Papers Co., Inc.,
 208 F.3d 1352, 1360 (Fed. Cir. 2000); see also B. Braun
 Med., Inc. v Abbott Labs., 124 F.3d 1419, 1424 (Fed. Cir.
 1997). A structure disclosed in the specification qualifies
 as a “corresponding structure” if the specification or the
 prosecution history “clearly links or associates that struc-
 ture to the function recited in the claim.” B. Braun Med.,
 124 F.3d at 1424. When the specification fails to identify
 sufficient structure for performing the claimed function,
 the means-plus-function limitation lacks any discernible
 scope, and the claim is invalid for indefiniteness. Diebold
 Nixdorf, Inc. v. Int’l Trade Comm’n, 899 F.3d 1291, 1303
 (Fed. Cir. 2018).
     The second means limitation requires a means for de-
 tecting prespecified parameters of data transmissions be-
 tween two data storage means. There are a number of
 problems with Via Vadis’s argument that the specification
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 VIA VADIS, LLC   v. BLIZZARD ENTERTAINMENT, INC.           13



 provides a corresponding structure. As an initial matter,
 Via Vadis below argued, and the district court accepted,
 that the specification disclosed the same structure for both
 means limitations: “a network of computers programmed
 to perform” a certain algorithm. JA 27–32, 337–39, 346–
 47. Claim 1, however, states that the “second means for
 detecting” is located within the data storage means. See
 ’521 patent col. 27 ll. 36–38 (“the data storage means com-
 prising a second means for detecting parameters”). It thus
 is wrong to say that the same hardware related to the first
 means (“a network of computers”) is also performing the
 second means (“data storage means”). At oral argument,
 Via Vadis admitted that the data storage means is not the
 hardware that performs the first means. Oral Arg. at
 23:15–24:14. While Via Vadis suggested that column 4,
 lines 4 through 10 of the specification discloses that the
 data storage means itself is a computer system, that is a
 plainly incorrect reading of the passage. Also, claim 1 itself
 draws a distinction between a computer and the data stor-
 age means. ’521 patent col. 27 ll. 23–24 (“at least one com-
 puter unit which accesses the data of the data storage
 means”).
      Moreover, we disagree with both Via Vadis and the dis-
 trict court that the two means limitations share the same
 algorithm, given that their recited functions are different.
 The function for the first means is “for detecting prespeci-
 fied parameters of the data transmission between the data
 storage means and the computer unit,” whereas the func-
 tion of the second means is “for detecting prespecified pa-
 rameters for data transmissions between said data storage
 means.” Thus, the respective algorithms that carry out
 these recited functions involve parameters of different
 transmissions with different end points. While we do not
 disagree with Via Vadis’s hypothetical that it is possible for
 one structure to perform more than one function, nothing
 in the specification nor the claims of the ’521 patent sup-
 ports that outcome here as to either the hardware or the
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 14             VIA VADIS, LLC   v. BLIZZARD ENTERTAINMENT, INC.



 algorithm portion for performing the functions associated
 with the two means limitations.
     At bottom, the specification does not associate the data
 storage means with detecting parameters, nor does it ex-
 plain how the data storage means detects parameters.
 Moreover, Blizzard correctly points out that the specifica-
 tion only discloses a counter or timer measuring one pa-
 rameter—data transmission duration—and thus there is
 no disclosed structure for detecting multiple prespecified
 parameters as required by claim 1. Appellees’ Br. at 47. In
 response, Via Vadis argues that the timer and counter pro-
 vide two different measurements, and thus detect two dif-
 ferent parameters. Appellant’s Reply Br. at 24. We find
 Via Vadis’s argument unavailing because the specification
 only refers to the counter and timer being used to measure
 transmission duration. ’521 patent col. 26 ll. 30–39. Via
 Vadis adopted that very position below. J.A. 340 (“[T]he
 patent discloses a counter and optional timer for the pur-
 poses of calculating transmission duration with pseudore-
 liable messages.”). We cannot find any instances, and
 Blizzard’s counsel at oral argument could not point us to
 any instances, in the specification where the counter was
 used to measure any parameter other than duration, such
 as fault rate. Therefore, the counter and timer both meas-
 ure transmission duration, which is a single parameter. As
 mentioned above, the claimed function requires detecting
 more than one prespecified parameter. Thus, even assum-
 ing that the specification disclosed locating a counter or
 timer in the data storage means, the specification fails to
 disclose a corresponding structure for the second means’
 function of detecting multiple parameters.
     We find that the specification does not describe suffi-
 cient structure in the data storage means for detecting pa-
 rameters of transmission between two or more data storage
 means. We therefore find the second means term indefi-
 nite, thus rendering claim 1 and its asserted dependent
 claims invalid. As such, we need not reach Blizzard’s
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 VIA VADIS, LLC   v. BLIZZARD ENTERTAINMENT, INC.           15



 additional indefiniteness challenge to the first means limi-
 tation.
                           CONCLUSION
      We have considered the parties’ remaining arguments
 and find them unpersuasive. For the foregoing reasons, we
 affirm-in-part the district court’s indefiniteness finding,
 but for a different reason than the one on which the district
 court relied. We conclude that claims 1, 4, 11–18, and 20–
 22 are indefinite because the specification fails to provide
 a structure corresponding to the recited “second means for
 detecting” claim limitation, and that claims 30–31, 33, and
 40–46 are definite because the scope and meaning of “pre-
 specified parameters” is reasonably ascertainable by a
 skilled artisan.
   AFFIRMED-IN-PART AND REVERSED-IN-PART
