Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 1 of 19 PageID #: 990
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 15-228 (RGA)
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`JURY TRIAL DEMANDED
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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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`ACTIVISION BLIZZARD, INC.’S ANSWER TO
`AMENDED COMPLAINT AND AFFIRMATIVE DEFENSES
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`Defendant Activision Blizzard, Inc. (“Activision”) submits the following answer and
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`affirmative defenses to the Amended Complaint for Patent Infringement filed by Plaintiff
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`Acceleration Bay LLC (“Acceleration Bay”).
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`As of July 13, 2015, there are two motions to dismiss relevant to this Answer. As
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`referenced in this Answer, the Court has dismissed Acceleration Bay’s indirect infringement
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`allegations (Counts IV, VII, and IX) (D.I. 19), and therefore the allegations concerning Counts
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`IV, VII, and IX require no response. Additionally, Activision joined in and incorporated by
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`reference Electronic Arts’ motion to dismiss Plaintiff’s claims of joint infringement and its
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`Opening Brief in support thereof. (D.I. 17.) Specifically, Activision seeks dismissal of Counts
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`III, VI, and VIII of Plaintiff’s Amended Complaint, asserting that Activision infringes the
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`method claims of U.S. Patent Nos. 6,732,147, 6,910,069 and 6,920,497 based on a theory of joint
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`infringement. (Id.) Acceleration Bay did not oppose Activision’s joinder. (D.I. 18.) Despite the
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`pending motion to dismiss Counts III, VI, and VIII, Activision will answer to allegations and
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`seek to amend its answer at a later date.
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`C.A. No. 15-228 (RGA)
`
`JURY TRIAL DEMANDED
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`ACTIVISION BLIZZARD, INC.
`
`
`
`
`
`Defendant.
`
`
`
`ACTIVISION BLIZZARD, INC.’S ANSWER TO
`AMENDED COMPLAINT AND AFFIRMATIVE DEFENSES
`
`
`
`
`
`Defendant Activision Blizzard, Inc. (“Activision”) submits the following answer and
`
`affirmative defenses to the Amended Complaint for Patent Infringement filed by Plaintiff
`
`Acceleration Bay LLC (“Acceleration Bay”).
`
`As of July 13, 2015, there are two motions to dismiss relevant to this Answer. As
`
`referenced in this Answer, the Court has dismissed Acceleration Bay’s indirect infringement
`
`allegations (Counts IV, VII, and IX) (D.I. 19), and therefore the allegations concerning Counts
`
`IV, VII, and IX require no response. Additionally, Activision joined in and incorporated by
`
`reference Electronic Arts’ motion to dismiss Plaintiff’s claims of joint infringement and its
`
`Opening Brief in support thereof. (D.I. 17.) Specifically, Activision seeks dismissal of Counts
`
`III, VI, and VIII of Plaintiff’s Amended Complaint, asserting that Activision infringes the
`
`method claims of U.S. Patent Nos. 6,732,147, 6,910,069 and 6,920,497 based on a theory of joint
`
`infringement. (Id.) Acceleration Bay did not oppose Activision’s joinder. (D.I. 18.) Despite the
`
`pending motion to dismiss Counts III, VI, and VIII, Activision will answer to allegations and
`
`seek to amend its answer at a later date.
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`
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 2 of 19 PageID #: 991
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`GENERAL DENIAL
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`Unless specifically admitted below, Activision denies each and every allegation in the
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`Amended Complaint.
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`AS TO THE PARTIES
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`1.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 1 and therefore, denies them.
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`2.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 2 and therefore, denies them.
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`3.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 3 and therefore, denies them.
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`4.
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`Activision admits it is a corporation organized and existing under the laws of the
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`State of Delaware and that it has its principal place of business located in Santa Monica,
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`California.
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`5.
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`Denied.
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`AS TO JURISDICTION AND VENUE
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`6.
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`Paragraph 6 contains conclusions of law and not averments of fact to which an
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`answer is required, but insofar as an answer may be deemed required, Activision admits that
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`Acceleration Bay purports to be bringing an action for patent infringement allegedly under
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`35 U.S.C. §§ 101 et seq, and that 28 U.S.C. §§ 1331 and 1338 provide the Court with subject
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`matter jurisdiction over federal questions and patent infringement actions. Except as expressly
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`admitted, Activision denies the remainder of the allegations in paragraph 6.
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`7.
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`Paragraph 7 contains conclusions of law that are not averments of fact to which an
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`answer is required, but insofar as an answer may be deemed required, Activision does not contest
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`2
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 3 of 19 PageID #: 992
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`that venue may lie in this District; however, venue may be more appropriate in another district
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`for the convenience of the parties. Except as expressly admitted, Activision denies the remainder
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`of the allegations in paragraph 7.
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`8.
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`Activision does not contest that the Court has personal jurisdiction in this action.
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`Activision admits that it has transacted business in this district. Activision admits it is a
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`corporation organized and existing under the laws of the State of Delaware. Activision denies
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`any acts of patent infringement have taken place in this district, or elsewhere. The remaining
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`allegations of paragraph 8 contains conclusions of law that are not averments of fact to which an
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`answer is required, but insofar as an answer may be deemed required, Activision denies the
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`remaining allegations in paragraph 8.
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`AS TO THE PATENTS-IN-SUIT
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`9.
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`Activision admits that the Amended Complaint asserts the following six patents:
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`U.S. Patent Nos. 6,701,344, 6,714,966, 6,732,147, 6,829,634, 6,910,069, and 6,920,497.
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`Activision lacks knowledge or information sufficient to form a belief as to the truth of the
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`remaining allegations set forth in paragraph 9 and, therefore, denies them.
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`10.
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`Activision admits that U.S. Pat. No. 6,701,344 (“the ’344 Patent”) is entitled
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`“DISTRIBUTED GAME ENVIRONMENT” (a copy of which appears to be Exhibit 1), and that
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`the face of the patent indicates that it was issued on March 2, 2004. Activision lacks knowledge
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`or information sufficient to form a belief as to the truth of the remaining allegations set forth in
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`paragraph 10 and therefore denies them.
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`11.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 11 and therefore denies them.
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`12.
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`Denied.
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`3
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 4 of 19 PageID #: 993
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`13.
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`Activision admits that U.S. Pat. No. 6,714,966 (“the ’966 Patent”) is entitled
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`“INFORMATION DELIVERY SERVICE” (a copy of which appears to be Exhibit 2), and that
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`the face of the patent indicates that it was issued on March 30, 2004. Activision lacks
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`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
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`set forth in paragraph 13 and therefore denies them.
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`14.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 14 and therefore denies them.
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`15.
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`Denied.
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`16.
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`Activision admits that U.S. Pat. No. 6,732,147 (“the ’147 Patent”) is entitled
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`“LEAVING A BROADCAST CHANNEL” (a copy of which appears to be Exhibit 3), and that
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`the face of the patent indicates that it was issued on May 4, 2004. Activision lacks knowledge or
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`information sufficient to form a belief as to the truth of the remaining allegations set forth in
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`paragraph 16 and therefore denies them.
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`17.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 17 and therefore denies them.
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`18.
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`Denied.
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`19.
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`Activision admits that U.S. Pat. No. 6,829,634 (“the ’634 Patent”) is entitled
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`“BROADCASTING NETWORK” (a copy of which appears to be Exhibit 4), and that the face of
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`the patent indicates that it was issued on December 7, 2004. Activision lacks knowledge or
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`information sufficient to form a belief as to the truth of the remaining allegations set forth in
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`paragraph 19 and therefore denies them.
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`20.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 20 and therefore denies them.
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`4
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 5 of 19 PageID #: 994
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`21.
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`Denied.
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`22.
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`Activision admits that U.S. Pat. No. 6,910,069 (“the ’069 Patent”) is entitled
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`“JOINING A BROADCAST CHANNEL” (a copy of which appears to be Exhibit 5), and that
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`the face of the patent indicates that it was issued on June 21, 2005. Activision lacks knowledge
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`or information sufficient to form a belief as to the truth of the remaining allegations set forth in
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`paragraph 22 and therefore denies them.
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`23.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 23 and therefore denies them.
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`24.
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`Denied.
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`25.
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`Activision admits that U.S. Pat. No. 6,920,497 (“the ’497 Patent”) is entitled
`
`“CONTACTING A BROADCAST CHANNEL” (a copy of which appears to be Exhibit 6), and
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`that the face of the patent indicates that it was issued on July 19, 2005. Activision lacks
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`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
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`set forth in paragraph 25 and therefore denies them.
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`26.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 26 and therefore denies them.
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`AS TO THE ACCUSED PRODUCTS
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`27.
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`Denied.
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`28.
`
`Denied.
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`29.
`
`Denied.
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`30.
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`Denied.
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`5
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 6 of 19 PageID #: 995
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`31.
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`Activision admits that certain World of Warcraft products include or have
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`included features relating to multiple realms but denies that such technology has ever infringed
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`any of the Patents-in-Suit. Activision denies the remaining allegations of paragraph 31.
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`32.
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`Denied.
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`33.
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`Activision admits that at least one version of the World of Warcraft Downloader
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`included features relating to peer-to-peer technology but denies that any such technology has
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`ever infringed any of the Patents-in-Suit. Activision denies the remaining allegations of
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`paragraph 33.
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`34.
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`Denied.
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`35.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 35 and therefore denies them.
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`36.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 36 and therefore denies them.
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`37.
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`Denied.
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`38.
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`Denied
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`AS TO ACTIVISION BLIZZARD’S ALLEGED INFRINGEMENT
`OF ACCELERATION BAY’S PATENTS
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`39.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 39 as it relates to Destiny and therefore denies
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`them. Activision denies the remaining allegations of paragraph 39.
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`40.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 40 as it relates to Destiny and therefore denies
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`them. Activision denies the remaining allegations of paragraph 40.
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`6
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 7 of 19 PageID #: 996
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`AS TO COUNT I
`(Alleged Direct Infringement of the ’344 Patent)
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`41.
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`Activision hereby incorporates by reference the responses of the preceding
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`paragraphs.
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`42.
`
`Denied.
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`43.
`
`Denied.
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`44.
`
`Denied.
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`45.
`
`Denied.
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`46.
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`Denied.
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`47.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 47 and therefore denies them.
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`48.
`
`Denied.
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`49.
`
`Denied.
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`50.
`
`Denied.
`
`AS TO COUNT II
`(Alleged Direct Infringement of the ’966 Patent)
`
`51.
`
`Activision hereby incorporates by reference the responses of the preceding
`
`paragraphs.
`
`52.
`
`Denied.
`
`53.
`
`Denied.
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`54.
`
`Denied.
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`55.
`
`Denied.
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`56.
`
`Denied.
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`57.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 57 and therefore denies them.
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`7
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 8 of 19 PageID #: 997
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`58.
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`Denied.
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`59.
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`Denied.
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`60.
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`Denied.
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`AS TO COUNT III
`(Alleged Direct Infringement of the ’147 Patent)
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`61.
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`Activision hereby incorporates by reference the responses of the preceding
`
`paragraphs.
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`62.
`
`Denied.
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`63.
`
`Denied.
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`64.
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`Denied.
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`65.
`
`Denied.
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`66.
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`Activision admits that it provides Terms of Use for its products and services
`
`(copies of which appear to be Exhibits 17 and 18). The remaining allegations in paragraph 66
`
`constitute conclusions of law to which no response of Activision is required; to the extent a
`
`response is required, Activision denies the remaining allegations of paragraph 66.
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`67.
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`Denied.
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`68.
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`Denied.
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`69.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 69 and therefore denies them.
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`70.
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`Denied.
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`71.
`
`Denied.
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`72.
`
`Denied.
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`8
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 9 of 19 PageID #: 998
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`AS TO COUNT IV
`(Alleged Indirect Infringement of the ’147 Patent)
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`73.
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`Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
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`dismissed; therefore the allegations concerning Count IV require no response. To the extent any
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`response is required, Activision denies the allegations of paragraph 73.
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`74.
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`Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
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`dismissed; therefore the allegations concerning Count IV require no response. To the extent any
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`response is required, Activision denies the allegations of paragraph 74.
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`75.
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`Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
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`dismissed; therefore the allegations concerning Count IV require no response. To the extent any
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`response is required, Activision denies the allegations of paragraph 75.
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`76.
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`Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
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`dismissed; therefore the allegations concerning Count IV require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 76.
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`77.
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`Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count IV require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 77.
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`78.
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`Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count IV require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 78.
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`79.
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`Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count IV require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 79.
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`9
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 10 of 19 PageID #: 999
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`80.
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`Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
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`dismissed; therefore the allegations concerning Count IV require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 80.
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`81.
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`Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count IV require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 81.
`
`AS TO COUNT V
`(Alleged Direct Infringement of the ’634 Patent)
`
`82.
`
`Activision hereby incorporates by reference the responses of the preceding
`
`paragraphs.
`
`83.
`
`Denied.
`
`84.
`
`Denied.
`
`85.
`
`Denied.
`
`86.
`
`Denied.
`
`87.
`
`Denied.
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`88.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 88 and therefore denies them.
`
`89.
`
`Denied.
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`90.
`
`Denied.
`
`91.
`
`Denied.
`
`AS TO COUNT VI
`(Alleged Direct Infringement of the ’069 Patent)
`
`92.
`
`Activision hereby incorporates by reference the responses of the preceding
`
`paragraphs.
`
`93.
`
`Denied.
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`10
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 11 of 19 PageID #: 1000
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`94.
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`Denied.
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`95.
`
`Denied.
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`96.
`
`Denied.
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`97.
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`Activision admits that it provides Terms of Use for its products and services
`
`(copies of which appear to be Exhibits 17 and 18). The remaining allegations in paragraph 97
`
`constitute conclusions of law to which no response of Activision is required; to the extent a
`
`response is required, Activision denies the remaining allegations of paragraph 97.
`
`98.
`
`Denied.
`
`99.
`
`Denied.
`
`100. Activision lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations set forth in paragraph 100 and therefore denies them.
`
`101. Denied.
`
`102. Denied.
`
`103. Denied.
`
`AS TO COUNT VII
`(Alleged Indirect Infringement of the ’069 Patent)
`
`104. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count VII require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 104.
`
`105. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count VII require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 105.
`
`
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`11
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 12 of 19 PageID #: 1001
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`106. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count VII require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 106.
`
`107. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count VII require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 107.
`
`108. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count VII require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 108.
`
`109. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count VII require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 109.
`
`110. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count VII require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 110.
`
`111. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count VII require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 111.
`
`112. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count VII require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 112.
`
`
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`12
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 13 of 19 PageID #: 1002
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`AS TO COUNT VIII
`(Alleged Direct Infringement of the ’497 Patent)
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`113. Activision hereby incorporates by reference the responses of the preceding
`
`paragraphs.
`
`114. Denied.
`
`115. Denied.
`
`116. Denied.
`
`117. Denied.
`
`118. Activision admits that it provides Terms of Use for its products and services
`
`(copies of which appear to be Exhibits 17 and 18). The remaining allegations in paragraph 118
`
`constitute conclusions of law to which no response of Activision is required; to the extent a
`
`response is required, Activision denies the remaining allegations of paragraph 118.
`
`119. Denied.
`
`120. Denied.
`
`121. Activision lacks knowledge or information sufficient to form a belief as to the
`
`truth of the allegations set forth in paragraph 121 and therefore denies them. Activision denies
`
`the remaining allegations of paragraph 121.
`
`122. Denied.
`
`123. Denied.
`
`124. Denied.
`
`AS TO COUNT IX
`(Alleged Indirect Infringement of the ’497 Patent)
`
`125. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count IX require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 125.
`
`
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`13
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 14 of 19 PageID #: 1003
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`126. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
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`dismissed; therefore the allegations concerning Count IX require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 126.
`
`127. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count IX require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 127.
`
`128. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count IX require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 128.
`
`129. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count IX require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 129.
`
`130. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count IX require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 130.
`
`131. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
`
`dismissed; therefore the allegations concerning Count IX require no response. To the extent any
`
`response is required, Activision denies the allegations of paragraph 131.
`
`132. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
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`dismissed; therefore the allegations concerning Count IX require no response. To the extent any
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`response is required, Activision denies the allegations of paragraph 132.
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`
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`14
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 15 of 19 PageID #: 1004
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`133. Pursuant to the Court’s Order (D.I. 19), all indirect infringement allegations are
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`dismissed; therefore the allegations concerning Count IX require no response. To the extent any
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`response is required, Activision denies the allegations of paragraph 133.
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`AS TO PLAINTIFF’S PRAYER FOR RELIEF
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`These Paragraphs set forth the statement of relief requested by Plaintiff, to which no
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`response is required. To the extent that these paragraphs require a response, Activision denies
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`that Plaintiff is entitled to any of the requested relief and denies any allegations contained herein.
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`Activision requests that a take-nothing judgment be entered in its favor and against Plaintiff on
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`the entire Amended Complaint and its remaining counts.
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`AS TO PLAINTIFF’S DEMAND FOR JURY TRIAL
`
`This section purports to request a trial by jury and does not require a response.
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`AFFIRMATIVE DEFENSES
`
`Further answering the Amended Complaint, Activision asserts the following affirmative
`
`defenses, undertaking the burden of proof only as to those defenses required by law, regardless
`
`of how such defenses are denominated here. Activision reserves the right to amend its answer
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`with additional affirmative defenses as further information is obtained. Activision asserts each
`
`of these affirmative defenses in the alternative, without admitting that Activision is in any way
`
`liable to Plaintiff, that Plaintiff has been or will be injured or damaged in any way, or that
`
`Plaintiff is entitled to any relief whatsoever. As a defense to the Amended Complaint and each
`
`and every allegation contained in it, Activision alleges as follows:
`
`FIRST AFFIRMATIVE DEFENSE
`(Failure to State a Claim for Relief)
`
`The Amended Complaint fails to state a claim upon which relief may be granted against
`
`Activision, and fails to allege sufficient facts.
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`
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`15
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 16 of 19 PageID #: 1005
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`SECOND AFFIRMATIVE DEFENSE
`(Invalidity)
`
`The Patents-in-Suit are invalid and void, at least, for failure to meet one or more of the
`
`conditions for patentability set forth in 35 U.S.C. §§ 101 et seq., including but not limited to
`
`failure to comply with the requirements of 35 U.S.C. §§ 101, 102, 103, and 112.
`
`THIRD AFFIRMATIVE DEFENSE
`(Failure to Provide Notice and/or Failure to Mark)
`
`By reason of Plaintiff’s failure to meet the requirements of 35 U.S.C. § 287, Plaintiff is
`
`precluded from seeking damages from Activision for any and all alleged infringement prior to
`
`the filing of the Complaint. Any claim for damages is limited by the requirements of 35 U.S.C.
`
`§ 287(a).
`
`FOURTH AFFIRMATIVE DEFENSE
`(Claim Is Not Entitled to Injunctive Relief)
`
`Plaintiff is not entitled to injunctive relief because any alleged injury to them is not
`
`immediate or irreparable, and because Plaintiff has an adequate remedy at law for any claims it
`
`can prove.
`
`FIFTH AFFIRMATIVE DEFENSE
`(Laches / Waiver / Estoppel)
`
`Plaintiff’s claims against Activision are barred and unenforceable against Activision, in
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`whole or in part, by one or more of the equitable doctrines of laches, waiver and estoppel.
`
`Activision reserves the right to rely upon any additional defenses that become available
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`or apparent during discovery, and reserves its right to amend this Answer and to assert such
`
`additional defenses or, if appropriate, delete additional defenses as discovery proceeds, including
`
`the right to assert claims for inequitable conduct.
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`
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`16
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 17 of 19 PageID #: 1006
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`PRAYER FOR RELIEF
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`WHEREFORE, Activision respectfully requests that the Court enter a judgment in its
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`favor and against Acceleration Bay as follows:
`
`A.
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`An order declaring and entering judgment that Activision has not infringed and
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`does not infringe directly (or under the doctrine of equivalents) any valid and
`
`enforceable claim of the Patents-in-Suit;
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`B.
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`C.
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`An order declaring and entering judgment that the Patents-in-Suit are invalid;
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`An order dismissing with prejudice all of Acceleration Bay’s claims against
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`Activision;
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`D.
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`An order declaring that Activision is a prevailing party and that this is an
`
`exceptional case, awarding Activision its costs, expenses, disbursements, and
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`reasonable attorneys’ fees under 35 U.S.C. §§ 284 and 285;
`
`E.
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`An order compelling Acceleration Bay to pay all costs associated with this action;
`
`and
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`F.
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`An order granting Activision any such other and further relief as the Court deems
`
`just and proper.
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`DEMAND FOR JURY TRIAL
`
`Defendant Activision demands a jury trial on all issues so triable.
`
`
`
`17
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 18 of 19 PageID #: 1007
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`
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`
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`
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Stephen J. Kraftschik
`
`
`
`
`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
`
`Attorneys for Defendant
`
`
`
`OF COUNSEL:
`
`Michael A. Tomasulo
`David P. Enzminger
`Dae Hee Cho
`David K. Lin
`WINSTON & STRAWN LLP
`333 S. Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`Daniel K. Webb
`WINSTON & STRAWN LLP
`35 W. Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`July 13, 2015
`9302169
`
`
`
`18
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`Case 1:15-cv-00228-RGA Document 21 Filed 07/13/15 Page 19 of 19 PageID #: 1008
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`
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on July 13, 2015, I caused the foregoing to be electronically
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`
`
`
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`filed with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
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`registered participants.
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`
`
`
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`I further certify that I caused copies of the foregoing document to be served on
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`July 13, 2015, upon the following in the manner indicated:
`
`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
`
`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
`
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`
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`
`
`
`
`
`
`
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`
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`
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`/s/ Stephen J. Kraftschik
`
`
`
`
`
`Stephen J. Kraftschik (#5623)
`
`
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`
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`
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`9302169
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`
`19
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