Case 1:15-cv-00311-RGA Document 130 Filed 05/04/16 Page 1 of 4 PagelD #: 4031
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`1313 North MarketStreet
`Wilmington, DE 19899-0951
`302 984 6000
`www.potteranderson.com
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`P.O. Box 951
`
`Philip A. Rovner
`Partner
`provner@potteranderson.com
`(302) 984-6140 Direct Phone
`(302) 658-1192 Fax
`
`pl Potter
`— Anderson
`val
`Corroon tu
`
`May 4, 2016
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`BY CM/ECF & HAND DELIVERY
`
`The Honorable Richard G. Andrews
`U.S. District Court for the District of Delaware
`U.S. Courthouse
`844 North King Street
`Wilmington, DE 19801
`
`Re:
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`Acceleration Bay LLC v. Activision Blizzard, Inc.
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`D. Del., C.A. No. 15-228-RGA
`Re:—Acceleration Bay LLC v. Electronic Arts Inc.
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`D. Del., C.A. No. 15-282-RGA
`Re:—Acceleration Bay LLC v. Take-Two Interactive Software,Inc., et al.,
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`D. Del., C.A. No. 15-311-RGA
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`Dear Judge Andrews:
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`Defendants’ motionto stay these cases that have been pending for more than oneyearis
`based entirely on the legally and factually flawed argument that Acceleration Bayis just a
`licensee and not the ownerof the Holt Patents. As established at the hearing and in Acceleration
`Bay’s briefing, Acceleration Bay is the ownerof the Holt Patents (as Boeing, the defendants in
`IPR proceedings, and the PTAB haveall stated). Thus, by definition, Acceleration Bayhasall
`substantial rights in the patents and prudential standing does not comeinto play. Evenif the
`clear intent of the parties to the contract is ignored, then, as demonstrated in Acceleration Bay’s
`opposition to Defendants’ motion to dismiss, Acceleration Bay has prudential standing because it
`is the only party that has the right to sue these Defendants on these claims. Further, even if the
`Court found otherwise, Defendants’ motion to dismiss is not necessarily case dispositive, which
`is sufficient grounds alone to deny Defendants’ request for a stay. Because Acceleration Bay
`may cure any defect in prudential standing, there is no benefit to staying the cases while the
`motionis resolved.!
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`' Defendants’ constitutional standing arguments are also not case dispositive because they are
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`

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`Case 1:15-cv-00311-RGA Document 130 Filed 05/04/16 Page 2 of 4 PagelD #: 4032
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`The Honorable Richard G. Andrews
`May4, 2016
`Page 2
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`The true impetuous behind Defendants’ motionis to thwart the discovery that the Special
`Masterrecently ordered them to provide. Indeed, Defendants have gone to great lengthsto stall
`discovery in this case, forcing Acceleration Bay to file multiple motions to compel depositions
`and discovery with the Court and the Special Master. Defendants first received the Boeing
`Purchase Agreementthat is the basis of their motion to dismiss on January 15, 2016. Since that
`time there have been three discovery hearings, one with this Court and two with the Special
`Master. At no time during any of those hearings did Defendantsraise the issue of a stay. The
`Defendantsalso failed to raise it in their motion to dismiss. Then, on April 19, 2016, after
`briefing on the motion to dismiss wasfinished, the Special Master issued Order Number2 (D.I.
`129), ordering Defendants to provide witnesses for deposition and allow source code inspection
`of additional products. Defendants’ three month delay in moving for a stay only highlights their
`true motivation of continuing to stall discovery.
`
`The three factors the Court considers when deciding a motion to stay do not support
`granting Defendants’ motion. FMC Corp. v. Summit Agro USA, LLC, Civil Action No. 14-51-
`LPS, 2014 WL 3703629,at *2 (D. Del. July 21, 2014) ((1) whethergrantingthestay will
`simplify the issuesfortrial (it will not, as noted above, given Acceleration Bay’s ability to cure);
`(2) the status ofthe litigation, particularly the stage of discovery and whethera trial date has
`beenset; and (3) whether a stay would cause the non-movantto suffer undue prejudice from any
`delay, or allow the movantto gain a clear tactical advantage).
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`While there is no benefit to be obtained from granting Defendants’ requestfora stay,
`doing so would be highly disruptive to the case schedule. Claim construction deadlines begin on
`May 25, 2016, and were intended to be done with the benefit of significant discovery into the
`accused products. The deadlineto file motions to join other parties and to amend or supplement
`the pleadings is July 22, 2016, document production is to be completed by September 14, 2016,
`and the close offact discovery is set for January 20, 2017. The parties are also in the process of
`negotiating ESI search terms. Trial dates have been set in all three cases. Indefinitely
`postponing depositions and other discovery would be prejudicial to all of these deadlines.
`
`The prejudice from a stay is exacerbated by Defendants’ failures to cooperate with
`deposition discovery. These cases were all filed well over a year ago, and core technical
`discovery was scheduled to begin in December 2015. The Defendants have producedlittle in the
`wayofrelevant technical documents (Blizzard and Take Two have not producedany technical
`documentsatall), relying instead on offering source code for inspection. Since January 5, 2016,
`Acceleration Bay has been attempting to take the depositions of Defendants on the accused
`products to advance discovery. After initially agreeing to depositions well in advance of
`Acceleration Bay’s initial infringement claim charts, Defendants reneged, forcing Acceleration
`Bay to move the Court to compel depositions. Even though the Court ordered Defendants to
`proceed with depositions after Acceleration Bayservedits initial claim charts on March 2, 2016,
`Defendants declined to do so. 2/12/16 Hearing Tr. at 15:18-16:7. Acceleration Bay soughtrelief
`from the Special Master, who ordered Defendants to proceed with depositions on April 19, 2016.
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`Acceleration Bay LLC vy. Activision Blizzard Inc., C.A. No. 15-228-RGA,D.I. 109 (“Opposition
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`Case 1:15-cv-00311-RGA Document 130 Filed 05/04/16 Page 3 of 4 PagelD #: 4033
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`The Honorable Richard G. Andrews
`May4, 2016
`Page 3
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`D.I. 129. Notwithstanding these orders from the Court and Special Master, Defendantsstill have
`yet to confirm the date for a single deposition. Granting the stay would reward Defendants’
`dilatory approachto discovery and furtherstall progress of this case. In contrast, Defendantsfail
`to identify any specific harm they would suffer from a denial of their stay, beyond the
`incremental cost of ongoing discovery, which is always presentin litigation.
`
`Underthese circumstances, a stay is not warranted. Kraft Foods Grp. Brands LLC vy. TC
`Heartland LLC, C.A. No. 14-28-LPS, D.I. 32 (D. Del. Jan. 7, 2015) (oral order denying
`defendants’ request to stay entry of a scheduling order due to a pending motion to dismiss). In
`particular, Chief Judge Stark denied a request for a stay under similar circumstances where a
`motion for lack of prudential standing was not case dispositive, the case was advancedanda stay
`would disrupt upcoming case deadlines:
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`A stay would not necessarily simplify the issuesfor trial, as the Court may permit
`[Plaintiff] to amend its Complaint in lieu of dismissing it should the Court
`ultimately find that [Plaintiff] lacks prudential standing. A stay would unduly
`prejudice [Plaintiff] because, at the time [Defendant] filed its motion,the parties
`had already invested significant time over several months, including two Rule 16
`conferences,in finalizing the Scheduling Order .
`.
`. The Scheduling Order .
`.
`. was
`entered before the parties were donebriefing the motiontostay, andit has set a
`trial date for June 2017. Currently, opening claim construction briefs in the three
`coordinated cases .. . are due in 18 days. Further, [Defendant] has not explained
`how it would be unduly prejudiced in the absenceofa stay.
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`Orthophoenix LLC vy. Stryker Corp., No. 1:13-cv-01628 (D. Del. Aug. 31, 2015) (oral order).
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`Other courts have similarly denied requests to stay discovery where a motion to dismiss
`is pending. See e.g., Sonix Tech. Co., Ltd. v. Kenji Yoshida, No. 12-cv-380 (S.D. Cal. Nov.25,
`2015) (denying request to stay expert discovery where “the filing of Defendants’ motion to
`dismiss [was] not an extraordinary circumstance warranting further delay of discovery”); White
`Knuckle, IP, LLC v. Electronic Arts Inc., No. 1:15-cv-00036-64 (D. Utah Aug. 23, 2015)
`(denying stay even where“if the [motion] is successful the case may be dismissed” because
`““Ts|taying discovery [] may only serve to slow downlitigation and delay the case’s resolution’”)
`(citations omitted); Homesafe Inspection, Inc. v. John Hayes, No. 3:14-cv-209 (N.D. Miss. Mar.
`19, 2015) (denying request to stay because “the parties are expected to promoteefficiency in
`th[e] litigation” and if a discovery stay is appropriate, the court “should determine [as such] after
`ruling on the motions”); WDJ, Inc. v. Beneterra, No. 1:09-cv-0164 (D. Wy. Nov. 4, 2009)
`(denying defendant’s motion to stay discovery, noting that, “it is markedly uncommonfor courts
`to grant dispositive motions which fully dispose of the case”).
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`For the forgoing reasons, Acceleration Bay respectfully requests that the Court deny
`Defendants’ requestfor a stay.
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`Case 1:15-cv-00311-RGA Document 130 Filed 05/04/16 Page 4 of 4 PagelD #: 4034
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`The Honorable Richard G. Andrews
`May4, 2016
`Page 4
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`Respectfully,
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`/s/ Philip A. Rovner
`
`Philip A. Rovner (#3215)
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`PAR/mah/1222973
`cc: All Counsel of Record — by CM/ECFand E-mail
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