Case 1:15-cv-00311-RGA Document 42 Filed 12/07/15 Page 1 of 11 PageID #: 898
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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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`C.A. No. 15-282 (RGA)
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`C.A. No. 15-311 (RGA)
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`)))))))))
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`))))))))) )))))))))))
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`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
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`ACTIVISION BLIZZARD, INC.
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`Defendant.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ELECTRONIC ARTS INC.,
`
`Defendant.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
`
`Defendants.
`
`PLAINTIFF’S MOTION FOR RECONSIDERATION
`OF THE COURT’S DECEMBER 1, 2015 ORDER
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`

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`Case 1:15-cv-00311-RGA Document 42 Filed 12/07/15 Page 2 of 11 PageID #: 899
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`I.
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`INTRODUCTION
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`Pursuant to Local Rule 7.1.5, Plaintiff Acceleration Bay LLC (“Plaintiff”) moves for
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`reconsideration or clarification of the Court’s December 1, 2015 Order (D.I. 471) concerning the
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`disputes set forth in the November 23, 2015 Joint Letter from Defendants Take-Two Interactive
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`Software, Inc., Rockstar Games, Inc., and 2K Sports, Inc.’s (collectively, “Defendants”) and
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`Plaintiff regarding the proposed protective order (the “Protective Order”) (D.I. 44). Specifically,
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`Plaintiff requests that the Court reconsider its adoption of Defendants’ proposed Prosecution Bar
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`in paragraph 10.7 of the Protective Order and/or clarify Defendants’ definition of “Restricted
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`Confidential – Source Code Material” in paragraph 1.10 of the Protective Order. As written,
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`these provisions impose undue prejudice on Plaintiff by preventing it from employing its counsel
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`of choice, maintaining a cohesive litigation strategy, avoiding duplicated efforts and increased
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`costs, and preparing its case for trial. For example, given Defendants’ definition of Source Code
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`Material in paragraph 1.10, litigation counsel are effectively precluded from participating in any
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`manner in the inter partes review (“IPR”) proceedings. The breadth of the preclusive effect of
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`the Protective Order as currently worded would necessarily result in a manifest injustice,
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`especially when considering this Court’s previously rulings, the Patent Office’s procedures
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`designed specifically to permit litigation counsel’s participation in IPR proceedings, and that far
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`less restrictive measures available to the Court to protect Defendants’ highly confidential
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`materials.
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`II.
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`LEGAL STANDARD
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`Delaware District Court Local Rule 7.1.5 allows a party to move for reconsideration of an
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`opinion or decision within fourteen days of its entry. The Court may amend its order or decision
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`1 All docket references at to the docket in Acceleration Bay LLC v. Activision Blizzard Inc., C.A.
`No. 15-228-RGA.
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`

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`Case 1:15-cv-00311-RGA Document 42 Filed 12/07/15 Page 3 of 11 PageID #: 900
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`where the movant demonstrates a need to prevent manifest injustice or correct a clear error of
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`law or fact. In re DaimlerChrysler A.G. Securities Litig., 200 F. Supp. 2d 439, 442 (D. Del.
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`2002) (citing Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)).
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`III.
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`ARGUMENT
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`A. The Prosecution Bar is Overly Restrictive and Contrary
`to this Court’s Precedent
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`Plaintiff will suffer manifest injustice if the Court enters the Protective Order’s
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`Prosecution Bar (¶ 10.7) in its current scope. As written, the Prosecution Bar prevents Plaintiff
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`from hiring its counsel of choice to defend against post-grant proceedings before the Patent
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`Office, including the six IPR petitions Defendants recently filed on the patents-in-suit. This
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`outcome is unjust to Plaintiff and will impede its “strong interest” in maintaining a coherent
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`litigation strategy and avoiding duplicative efforts and increased costs. Xerox Corp. v. Google
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`Inc., 270 F.R.D. 182, 185 (D. Del. 2010) (recognizing the importance of reexamination
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`proceedings and the “significant” harm in denying plaintiff its choice of counsel, and thereby a
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`coherent litigation strategy, while refusing to “force plaintiff to split its resources between two
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`fronts of the same war” by ordering a post-grant prosecution bar). See also Two-Way Media Ltd.
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`v. Comcast Cable Commc’ns LLC, C.A. No. 14-1006-RGA, 2015 WL 7257915, at *2 (D. Del.
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`Nov. 17, 2015) (denying a post-grant prosecution bar and holding: “The attenuated risk of
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`inadvertent disclosure or competitive use must be balanced with the potential harm in denying
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`Plaintiff its choice of counsel in post-grant proceedings.”); Grobler v. Apple Inc., No. 12-cv-
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`01534 JST (PSG), 2013 WL 3359274, at *1 (N.D. Cal. May 7, 2013) (holding “any prosecution
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`bar should serve only to mitigate the risk of inadvertent use of proprietary information by a
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`patentee, not to unduly burden a patentee with additional expense”); EPL Holdings, LLC v.
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`2
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`Case 1:15-cv-00311-RGA Document 42 Filed 12/07/15 Page 4 of 11 PageID #: 901
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`Apple Inc., 12-cv-04306 JST (JSC), 2013 WL 2181584, at *3 (N.D. Cal. May 20, 2013) (noting
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`that a total ban on trial counsel from post-grant proceedings “would burden a patentee”).
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`The Patent Office recognized that many patents subject to IPR proceedings are also
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`involved in District Court litigation, and that parties often want litigation counsel to represent
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`them in IPR proceedings for consistency and efficiency reasons. As such, an expanded PTAB
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`panel issued an order authorizing a motion for pro hac vice admission pursuant to 37 CFR §
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`42.10 and set forth guidelines for timing and content of motion for pro hac vice admission. See
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`Exhibit 1 attached hereto, Motorola Mobility, LLC v. Michael Arnouse, IPR2013-00010, Paper
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`No. 6 (PTAB Oct. 15, 2012). However, if District Courts were to enter overly preclusive
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`Prosecution Bars, as the one Defendants propose here, then there would be no possible way for
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`litigation counsel to participate in both the IPR proceedings and District Court litigation.
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`Accordingly, the Court should at the very least proscribe limits that would permit litigation
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`counsel to aid in the pending IPR petitions.
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`Defendants’ Prosecution Bar is also inconsistent with this Court’s prior decisions. See,
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`e.g., Two-Way Media, 2015 WL 7257915, at *2 (further discussed below); Eon Corp. IP
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`Holdings v. Flo TV Inc., C.A. No.10-812-RGA, D.I. 580, slip op. at 1 (D. Del. Aug. 29, 2013)
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`(aff'g Special Master’s Rulings and Recommendations (D.I. 542)) (denying a post-grant
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`prosecution bar and holding that a defendant’s confidential information is “basically irrelevant”
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`to a reexamination proceeding); Xerox, 270 F.R.D. at 185 (“The court concludes that the risk of
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`inadvertent or competitive use of defendants’ confidential information by plaintiff’s trial counsel
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`in evaluating potential claim amendments on reexamination is outweighed in this case by the
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`potential harm in denying plaintiff the full benefit of its trial counsel in that venue.”); ALZA
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`3
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`

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`Case 1:15-cv-00311-RGA Document 42 Filed 12/07/15 Page 5 of 11 PageID #: 902
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`Corporation, et al., v. Par Pharmaceutical Inc., C.A. No. 13-1104-RGA, transcript ruling
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`(attached hereto as Exhibit 2) (“ALZA ruling”) at 17-19 (D. Del. Dec. 13, 2013).
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`In the recent Two-Way Media case, which contained similar facts to the instant dispute,
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`this Court rejected a prosecution bar that would have prevented the plaintiff’s trial counsel from
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`participating in post-grant proceedings involving the patents in suit. In doing so, this Court
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`noted that “only narrowing claim amendments may be made during post-grant proceedings” and
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`that, after prosecution of the patents in suit closes, there is “little risk that confidential
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`information learned in litigation will be competitively used to draft claims that read on
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`Defendants’ products.” Two-Way Media, 2015 WL 7257915, at *2.
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`Just as in Two Way Media, prosecution in the instant matter has closed. Plaintiff is
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`unable to expand the scope of its asserted claims in post-grant proceedings, or convert
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`Defendants’ source code to competitive use, regardless of whether or not its trial counsel has
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`access to that code. Any perceived risk to Defendants is far outweighed by the “significant”
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`harm in denying Plaintiff the full benefit of its trial counsel in post-litigation proceedings,
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`thereby damaging its ability to maintain a coherent legal strategy and minimize duplicative costs
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`and efforts. Xerox, 270 F.R.D. at 185. Furthermore, Defendants did not present any special or
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`unique circumstances in this case that would compel such a draconian result. See D.I. 44 at 3.
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`Accordingly, the Court should reconsider its December 1, 2015 Order and issue a “post-grant
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`proceedings exception” to the Prosecution Bar, which will allow Plaintiff’s attorneys who have
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`access to Defendants’ source code to participate in post-grant proceedings involving the patents
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`in suit.
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`4
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`

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`Case 1:15-cv-00311-RGA Document 42 Filed 12/07/15 Page 6 of 11 PageID #: 903
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`B. At Most, the Protective Order Should Only Prevent Select
`Trial Counsel from Amending the Asserted Claims
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`As an alternative to the post-grant proceedings exception described above, Plaintiff
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`requests that the Court issue an order allowing Plaintiff’s attorneys who have access to
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`Defendants’ source code to participate in post-grant proceedings, so long as those attorneys do
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`not participate in amending the claims at issue. Courts routinely adopt this approach in patent
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`infringement cases, finding that defendants are “suitably protected by an order” barring those
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`attorneys “from any involvement in drafting any new claims or claim amendments.” LifeScan
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`Scotland, Ltd. v. Shasta Techs., LLC, No. 11-cv-4494-WHO, 2013 WL 5935005, at *6 (N.D.
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`Cal. Nov. 4, 2013). See also Dragon Intellectual Property LLC v. Apple Inc., et al., C.A. Nos.
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`13-2058; 13-2061 through 13-2069-RGA, transcript ruling (attached hereto as Exhibit 3) at 24-
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`25 (D. Del. Aug. 6, 2014); Voice Domain Technologies, LLC v. Apple, Inc., No. 13–40138–TSH,
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`2014 WL 5106413, at *9 (D. Mass. Oct. 8, 2014) (ruling that a prosecution bar could permit trial
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`counsel to participate in post-grant proceedings, but not assist with claim amendments or
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`proposing new claims); Endo Pharms. Inc. v. Actavis Inc., No. 12-CIV-8985 (TPG), 2014 WL
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`3950900, at *1-*4 (S.D.N.Y. Aug. 13, 2014) (ruling that a patentee’s trial counsel could
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`participate in an inter partes review proceeding, but such participation could not include
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`collaborating on claim amendments); EPL Holdings, LLC v. Apple Inc., 12-cv-04306 JST (JSC),
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`2013 WL 2181584, at *4 (N.D. Cal. May 20, 2013) (allowing litigation counsel to participate in
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`PTO review proceedings “so long as counsel is prohibited from assisting in any crafting or
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`amendment of patent claims”); Grobler, 2013 WL 3359274, at *2 (noting that “if the PTO and
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`district court are just two fronts in the same battle, allowing a limited role for a patentee’s
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`litigation counsel while prohibiting counsel from crafting or amending claims is only
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`reasonable”) (emphasis added); Shared Memory Graphics, LLC v. Apple, Inc., No. C-10-2475
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`5
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`

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`Case 1:15-cv-00311-RGA Document 42 Filed 12/07/15 Page 7 of 11 PageID #: 904
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`VRW (EMC), 2010 WL 4704420, at * 4 (N.D. Cal. Nov. 12, 2010) (allowing trial counsel to
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`participate in reexamination proceedings so long as the proceedings were not initiated by the
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`patent owner and counsel did not rely on any confidential information in arguments before the
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`PTO). Cf. Paice, LLC v. Hyundai Motor Co., No. WDQ-12-0499, 2014 WL 3773666, *3-*6 (D.
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`Md. July 29, 2014) (ruling that a patent prosecution bar did not apply to inter partes review
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`proceedings, but the prohibition on recipients who received confidential information from
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`participating in amending claims in any PTO proceedings would apply to trial counsel who
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`participated in the inter partes review).
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`Where trial counsel does not participate in claim amendments, there is no reason to
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`impose a post-grant proceedings prosecution bar. Grobler, 2013 WL 3359274, at *2
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`(“Especially where, as here, reexamination or review proceedings are really nothing more than
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`an extension of the litigation in the district court, there is even less of a reason to impose a total
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`ban of the kind [defendant] seeks.”). Therefore, at minimum, Plaintiff requests an order allowing
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`its trial counsel to participate in post-grant proceedings, so long as Plaintiff’s trial counsel that
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`reviews Defendants’ actual source code does not participate in amending any asserted claims.
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`C. The Definition of Source Code Material Hinders Plaintiff’s Trial Preparation
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`As written, the Protective Order’s definition of “Restricted Confidential – Source Code
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`Material” (¶ 1.10) advanced by Defendants and adopted by the Court is ambiguous and allows
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`Defendants to unfairly over-designate a wide expanse of materials as “source code.” The
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`commonly understood, dictionary definition of source code is: “a computer program in its
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`original programming language (as FORTRAN or C) before translation into object code usually
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`by a compiler.” See Exhibit 4. By stark contrast, Defendants’ definition includes documents that
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`are not written in any “original programming language” and do not contain any of Defendants’
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`6
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`Case 1:15-cv-00311-RGA Document 42 Filed 12/07/15 Page 8 of 11 PageID #: 905
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`actual source code. Instead, Defendants’ definition encompasses, among other things, any
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`“engineering specifications, or schematics that define or otherwise describe in detail the
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`algorithms or structure of software, disclosure of which to another Party or Non-Party would
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`create a substantial risk of serious harm that could not be avoided by less restrictive means.”
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`Such definition is overbroad and places an undue burden on Plaintiff to treat what is likely to be
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`thousands of documents as “source code,” when those documents might only contain
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`architectural diagrams, flow charts, or descriptions of the functionality of the accused products.
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`Additionally, the phrase “creates a substantial risk of serious harm” is entirely subjective and
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`leaves too much open to self-serving interpretation. Such definition gives Defendants unjustified
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`leave to over-designate numerous documents as “source code,” thereby further precluding
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`Plaintiff’s trial counsel from fairly participating in post-grant proceedings, as discussed above.
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`Under Defendants’ Prosecution Bar, any of Plaintiff’s attorneys who view any schematic
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`that describes the algorithm or structure of Defendants’ software in detail will be barred from
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`participating in any post-grant proceedings regarding the patents in suit. Moreover, even under
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`the basic source code-handling provisions of the Protective Order, Plaintiff’s trial counsel will
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`also be barred from disclosing any of these documents to any professional vendor, jury
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`consultant, trial consultant, mock juror, mediator, arbitrator, or more than three of Plaintiff’s
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`experts or consultants. See Protective Order at ¶¶ 3, 5, 8. Because at least some of these
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`schematics and descriptions of Defendants’ software are likely to be critical to Plaintiff’s burden
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`of proving infringement, restriction of these documents – that do not contain any actual source
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`code or programming language – from disclosure to the individuals described above severely
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`hinders Plaintiff’s counsel from preparing this case for trial.
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`7
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`Case 1:15-cv-00311-RGA Document 42 Filed 12/07/15 Page 9 of 11 PageID #: 906
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`Defendants’ definition of “source code” is also inconsistent with the Court’s comments
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`on source code, expressed at the October 13, 2015 Case Management Conference, where the
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`Court stated: “Right. Documents describe how [the products] work. That’s usually how I hear
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`the core technical production described . . . and so my impression is that the things that are
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`produced in core technical discovery don’t produce the same risk to the defendants as production
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`of the compiled source code?” See Exhibit 5 (Oct. 13, 2015 Hearing Transcript at 33:1-8). The
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`Court went on to say, “when I see source code like that, I think of the stuff that you put in a
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`secure location and a standalone computer.” Id. at 34:11-13. However, Defendants’ definition
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`includes far more than the actual programming language presented on a standalone computer,
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`and goes well beyond the Court’s own interpretation of source code, to encompass documents
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`that describe how the products work and should be produced as part of Defendants’ core
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`technical production. Id. at 33:1-8.
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`The Protective Order’s provision for sensitive (non-source code) materials designated
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`“Confidential – Outside Counsel Only” is more than sufficient to protect Defendants’ documents
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`that do not contain any actual source code. The Protective Order limits disclosure of such
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`materials only to Plaintiff’s outside counsel and their experts or consultants, professional
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`vendors, arbitrators, witnesses, Court personnel, and jury consultants. Because over-designating
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`important documents as source code will severely hinder Plaintiff’s counsel from preparing its
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`case for trial – by impairing its use of experts, consultants, vendors, and jury consultants – the
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`current Protective Order results in manifest injustice to Plaintiff. As such, the Court should
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`reconsider its December 1, 2015 Order and define source code material as only those documents
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`containing Defendants’ actual source code, or the revisions and comments thereto.
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`8
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`Case 1:15-cv-00311-RGA Document 42 Filed 12/07/15 Page 10 of 11 PageID #: 907
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`Finally, Defendants relied heavily on Judge Robinson’s prosecution bar in Versata
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`Software, Inc. v. Callidus Software Inc., “which provide[d] for a source code-based ‘limited
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`prosecution bar’ for post-grant proceedings applying only to those people who have reviewed
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`Defendants’ highly confidential source code.” November 23, 2015 Joint Letter (D.I. 44 ) at 3.
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`However, in Versata, the source-code designation was limited to actual programming language.
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`See Versata Entered Protective Order (Exhibit 6 attached hereto) at ¶ 8 (“To the extent
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`production of source code becomes necessary in this case, a Producing Party may designate
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`source code as HIGHLY CONFIDENTIAL – SOURCE CODE if it comprises or includes
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`confidential, proprietary or trade secrete source code.”) (emphasis added). Furthermore, Judge
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`Robinson expressly stated that she did not include within the prosecution bar “documents
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`designated as ‘HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY,’ given the liberal
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`use of this designation in litigation.” Versata Software, Inc. v. Callidus Software Inc., C.A. No.
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`12–931–SLR, 2014 WL 1117804, at *2 n. 3 (D. Del. March 12, 2014) (Attached as exhibit DX 7
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`to D.I. 44); see also Exhibit 2 attached hereto, ALZA ruling at 18:4-10 (taking into account that
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`the prosecution bar was narrowly tailored to a specific drug and not “too broad”).
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`Here, Defendants’ broad definition of “Source Code” has the same risk of liberal use as
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`the highly confidential designation in Versata. Coupling Defendants’ broad definition of “source
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`code” with the prosecution bar from Versata, will essentially eliminate Plaintiff’s trial counsel
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`from participating in the IPRs, a result seemingly without precedent in this Court.
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`IV.
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`CONCLUSION
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`The Protective Order’s Prosecution Bar (¶ 10.7) is unjust and contrary to this Court’s
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`precedent. Such a provision will prevent Plaintiff from employing its counsel of choice,
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`maintaining a cohesive litigation strategy, and avoiding duplicated costs and efforts, all of which
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`9
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`Case 1:15-cv-00311-RGA Document 42 Filed 12/07/15 Page 11 of 11 PageID #: 908
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`are “significant” burdens this Court has previously held outweigh the associated risks to
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`defendants. Similarly, the Protective Order’s definition of “Restricted Confidential – Source
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`Code Material” (¶ 1.10) is inconsistent with the Court’s own interpretation, grants an unfair
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`advantage to Defendants in post-grant proceedings when combined with the Prosecution Bar,
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`and will impair Plaintiff’s ability to prepare for trial through the use of experts, consultants,
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`witnesses, vendors, and mock jurors. Each of these provisions results in manifest injustice to
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`Plaintiff. As a result, Plaintiff respectfully requests that the Court reconsider its December 1,
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`2015 Order concerning the Protective Order.
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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
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`Attorneys for Plaintiff Acceleration Bay LLC
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`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`James R. Hannah
`KRAMER LEVIN 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: December 7, 2015
`1211113
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`10