Case 3:17-cv-05659-WHA Document 237-11 Filed 11/19/18 Page 1 of 4
`Case 3:17-cv-05659-WHA Document 237-11 Filed 11/19/18 Page 1 of 4
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`EXHIBIT 11
`EXHIBIT 11
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`Case 3:17-cv-05659-WHA Document 237-11 Filed 11/19/18 Page 2 of 4
`Case 1:16-cv-00453-RGA Document 607 Filed 10/23/18 Page 1 of 12 PageID #: 49422
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`ACCELERATION BAY LLC,
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`ACTIVISION BLIZZARD INC.,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`DEFENDANT’S OPPOSITION TO
`PLAINTIFF’S MOTION FOR REARGUMENT AND RECONSIDERATION
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`Plaintiff,
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`Defendant.
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`C.A. No. 16-453 (RGA)
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
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`Attorneys for Defendants
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`v.
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`OF COUNSEL:
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
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`David P. Enzminger
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
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`Dan K. Webb
`Kathleen B. Barry
`Sean H. Suber
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
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`Case 3:17-cv-05659-WHA Document 237-11 Filed 11/19/18 Page 3 of 4
`Case 1:16-cv-00453-RGA Document 607 Filed 10/23/18 Page 7 of 12 PageID #: 49428
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`Activision’s Motion to Dismiss was not based on the Sony Publisher Agreement in any
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`respect. Rather, Activision’s Motion to Dismiss was based exclusively on the Boeing-Sony
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`Patent License Agreement. D.I. 19. Indeed, Activision specifically limited its Motion to
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`Dismiss to issues of constitutional standing (which is plaintiff’s burden to establish) and avoided
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`the affirmative defense of licensing so that the issue could be resolved on a motion to dismiss at
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`the outset of the case rather than years later during summary judgment. D.I. 235 (7/10/17
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`Hearing Tr.) at 36:20-37:19. Neither the Motion to Dismiss nor the Court’s Order granting the
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`Motion was based on the Sony Publisher Agreement. D.I. 268. Of course, even if Activision
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`had relied on the Sony Publisher Agreement for its standing argument, that reliance could not by
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`some magic transform all publisher agreements into comparable licenses relevant to damages
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`because no one opined such agreements are comparable. The Special Master, plaintiff’s
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`damages expert, and this Court have all agreed that there is no comparability. Acceleration’s
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`motion should be denied.2
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`B. The Court Reached The Correct Conclusion in Excluding the Microsoft
`Publisher Agreement.
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`Both the Court and Special Master correctly concluded that the Microsoft Publisher
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`Agreement is not relevant to damages. As a matter of law, the Microsoft Publisher Agreement is
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`not relevant to a reasonable royalty analysis,3 because the agreement is not a comparable license
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`2 Even if Acceleration were correct, the history of the Motion to Dismiss and the Sony Publisher
`Agreement were known for over a year. Acceleration did not raise these issues in its opposition
`brief. D.I. 583. Acceleration has therefore has waived these arguments.
`3 Acceleration notes that Activision “did not redact the royalty rate or other information from the
`Microsoft Publisher Agreement.” Mot. at 4. Activision produced the agreement because it was
`relevant to identifying who “makes” allegedly infringing products. 35 U.S.C. § 271(a).
`Activision disclosed the royalty rate so to avoid an unnecessary discovery dispute, not because it
`believed the royalty rate to be relevant. Sony objected to the production of its publisher
`agreement without redaction and intervened to oppose Acceleration’s motion to compel. D.I.
`278.
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`5
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`Case 3:17-cv-05659-WHA Document 237-11 Filed 11/19/18 Page 4 of 4
`Case 1:16-cv-00453-RGA Document 607 Filed 10/23/18 Page 8 of 12 PageID #: 49429
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`agreement — i.e., it is not comparable to the hypothetical patent license agreement that the
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`would-be licensor (Boeing) and the would-be licensee (Activision) would have entered for a
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`license under the patents-in-suit, had the parties negotiated and entered into a patent license on
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`the eve of the alleged infringement. The Microsoft Publisher Agreement is not a patent license
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`and does not relate to or cover the patents-in-suit. The Microsoft Publisher Agreement
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`establishes the terms under which Activision may publish video games for use on Microsoft’s
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`video-game platforms, such as the XBox console. The multifaceted agreement covers issues
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`like: (1) a license to Microsoft’s software development tools; (2) loans of hardware from
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`Microsoft to Activision; (3) Microsoft’s right of approval for any games and marketing material
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`to be released on Microsoft’s platforms; (4) requirements that the games be localized for foreign
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`markets; and (5) post-release bug-fixing obligations. Pltf’s Ex. 1 at ATVI0030937–940. The
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`agreement also provides that Microsoft oversees the manufacturing of the finished games and
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`their distribution on Microsoft’s online services. Id. at ATVI0030941. Therefore, the Microsoft
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`Publisher Agreements sets forth a complex business relationship between Activision and
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`Microsoft having nothing to do with a patent license, let alone a license for the patents-in-suit
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`within the context of a hypothetical negotiation between Activision and Boeing on the eve of
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`infringement.
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`No witness has testified that the Microsoft agreement is technically or economically
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`comparable to the patented technology. In fact, as the Court correctly observed, Plaintiff’s
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`experts made no effort at all to tie the Microsoft Publisher Agreement to a royalty in this case.
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`D.I. 600 at 6-7. Moreover, Acceleration’s damages expert, Dr. Meyer, admitted the Microsoft
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`Agreement was “not directly comparable to a patent license.” Meyer Report (D.I. 444, Ex. C-3)
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`¶¶ 11, 72. Plaintiff now argues that Dr. Meyer opined that it provides “valuable insight” into the
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`6
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