Case 1:15-cv-00228-RGA Document 169 Filed 09/08/16 Page 1 of 4 PagelD #: 5200
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`v.
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`ACTIVISION BLIZZARD,INC.,
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`Defendant.
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`v.
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`ELECTRONIC ARTSINC.,
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`Defendant.
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`v.
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`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES,INC. and
`2K SPORTS, INC.,
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`Defendants.
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`NeeeeeeteeeeeeeeeeeeeeNeeeeeeeeeeeeeeeeeeeeeeeeeeeeseeee
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`C.A. No. 15-228 (RGA)
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`C.A. No. 15-282 (RGA)
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`C.A. No. 15-311 (RGA)
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`PLAINTIFF ACCELERATION BAY LLC’S SUR-REPLY
`IN OPPOSITION TO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES
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`

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`Case 1:15-cv-00228-RGA Document 169 Filed 09/08/16 Page 2 of 4 PagelD #: 5201
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`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for PlaintiffAcceleration Bay LLC
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`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`James R. Hannah
`KRAMERLEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M, Frankel
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: August 23, 2016
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`

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`Case 1:15-cv-00228-RGA Document 169 Filed 09/08/16 Page 3 of 4 PagelD #: 5202
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`Plaintiff Acceleration Bay LLC respectfully files this sur-reply in further opposition to
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`Defendants’ Motion For Attorneys’ Fees. (C.A. No. 15-228-RGA, D.I. 157).
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`In their reply
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`brief, Defendantscite for thefirst time TufAmerica, Inc. vy. Diamond, 12-cv-3529-AJN, 2016 WL
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`3866578 (S.D.N.Y. July 12, 2016), which issued after Defendants filed the instant motion.
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`Defendants rely heavily on TufAmerica as supporting their argumentthat they are the
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`prevailing parties, even though they have not received any final determination in their favor.
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`See C.A. No, 15-228-RGA,D.I. 165 at 1, 2, 7. In TufAmerica, the court denied the plaintiffs
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`motion for reconsideration of a fee award. Significantly, the court foundthat the plaintiff
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`“waived the argument that Defendants were not prevailing parties” by not raising it in opposition
`to Defendants’ motion for fees.
`/d., at *1.
`In a footnote, which Defendants quote, the court
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`simply noted that plaintiff's argument, “briefly considered, appears to be without merit.” Jd., at
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`n. 1. Thus, by the court’s own admission,it did not give great consideration to whether the
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`defendants were prevailing parties. Therefore, this dicta should be given no weight.
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`In addition, the facts of the underlying opinion, TufAmerica, Inc. v. Diamond, 12-cv-
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`3529-AJN, 2016 WL 1029553, (S.D.N.Y. Mar. 9, 2016), further demonstrate its irrelevance to
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`Defendants’ motion. First, the court’s decision in 7ufAmerica appears to be based on a lack of
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`constitutional standing, not prudential standing, as was the case here. Second,there is no
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`indication that the court gave plaintiff an opportunity to cure prudential standing by joining
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`additional parties, as the Court did here. Finally, there is no indication that the defendants in
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`TufAmerica saw the need to file mirror declaratory judgmentactionsafter allegedly becoming
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`the “prevailing party,” as Defendants did here.
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`Noris TufAmerica relevant to whether Acceleration Bay acted reasonably. In
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`TufAmerica, the court found that the plaintiff acted unreasonably in pursuing a copyright
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`infringement claim where “the deficiencies of the agreements cited by Plaintiff as conveying an
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`exclusive license were readily apparent, rendering its claim ‘clearly without merit’ and
`299
`‘objectively unreasonable,’” where “one co-owner was not a signatory to one agreement
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`purporting to convey an exclusivelicense,” and a second agreement only “conveyeda bareright
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`Case 1:15-cv-00228-RGA Document 169 Filed 09/08/16 Page 4 of 4 PagelD #: 5203
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`to sue,” not an exclusivelicense. Jd. at *2. The circumstances are markedly different here,
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`where both parties to the agreement intendedto transfer all substantial rights to the patents-in-
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`suit and the Court’s determination that Acceleration Bay lacked prudential standing involved
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`consideration of a multi-factor analysis, not a bright line test. See C.A. No. 15-228-RGA, D.I.
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`162 at 10-15.
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`Finally, TufAmerica supports Acceleration Bay’s opposition in noting that “the purposes
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`of the Copyright Act are served when ‘close infringementcases are litigated. For this reason,
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`district courts are disinclined to award fees in casesthat are close calls or which present novel
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`legal issues or theories.” TufAmerica, 2016 WL 1029553, at *2.
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`Forall these reasons, TufAmerica does not support Defendants’ Motion, which should be
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`denied.
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`POTTER ANDERSON & CORROON LLP
`
`
`By: /s/ Philip A. Rovner
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneysfor PlaintiffAcceleration Bay LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`James R. Hannah
`KRAMERLEVIN NAFTALIS &
`FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS &
`FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: August 23, 2016
`1231647/42020
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`