Case 1:15-cv-00228-RGA Document 53 Filed 12/28/15 Page 1 of 9 PageID #: 1506
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`ACCELERATION BAY LLC,
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`Defendants.
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`DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATION
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
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`Attorneys for Defendant
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`December 28, 2015
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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,
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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 ARTS 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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`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
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`Case 1:15-cv-00228-RGA Document 53 Filed 12/28/15 Page 2 of 9 PageID #: 1507
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`INTRODUCTION
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`As directed by the Court, the parties submitted a three-page joint letter addressing the
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`disputed provisions of the proposed protective order. (D.I. 44).1 Unhappy with the Court’s
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`resolution of the dispute (D.I. 47), Plaintiff has filed a 10-page motion for reconsideration simply
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`repeating its arguments with more words. (D.I. 48). Plaintiff identifies no change in law, error,
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`or newly discovered evidence to justify reconsideration; and ignores the showing required to
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`show manifest injustice. Plaintiff does not explain how barring any of Plaintiff’s counsel who
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`actually review Defendants’ source code from participating in patent prosecution proceedings is
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`manifestly unjust or clearly erroneous. (D.I. 47). Nor does Plaintiff explain why this Court’s
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`adoption of a source code definition used the Northern District of California’s Model Protective
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`Order is “manifestly unjust.” The motion should be denied.
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`ARGUMENT
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`I.
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`Plaintiff Has Not Even Attempted To Demonstrate The “Manifest Injustice”
`Required For Reconsideration.
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`Plaintiff presents no change in controlling law, new evidence or clear error of law or fact
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`in its motion for reconsideration. Am. Civil Liberties Union Found. v. Dep’t of Correction, C.A.
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`No. 09-179-SLR, 2015 WL 1951360, at *1 (D. Del. Apr. 29, 2015).2 Although Plaintiff uses the
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`words “manifest injustice” in attacking this Court’s resolution of the disputed protective order
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`provisions regarding source code and inter partes review proceedings, it ignores the legal
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`1
`All citations to docket entries refer to C.A. No. 15-228 unless otherwise indicated.
`2
`As Judge Robinson explained, a motion for reargument under Local Rule 7.1.5 is the
`“functional equivalent” of a motion to alter or amend judgment under Federal Rule of
`Civil Procedure 59(e). Id. The standard for obtaining relief under Rule 59(e) is “difficult
`to meet” and is only appropriate if the movant demonstrates: “(1) a change in the
`controlling law; (2) a need to correct a clear error of law or fact or to prevent manifest
`injustice; or (3) availability of new evidence not available when the judgment was
`granted.” Id.
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`1
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`Case 1:15-cv-00228-RGA Document 53 Filed 12/28/15 Page 3 of 9 PageID #: 1508
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`meaning of those words in its motion. Plaintiff does not allege that the Court has abused its
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`discretion or that it has made an indisputable error. Instead, it just complains that the Court’s
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`order will burden Plaintiff’s trial strategy. Although Plaintiff’s motion doesn’t actually say how
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`the protective order language adopted by the Court hinders its trial strategy, a burden on trial
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`strategy does not equate to manifest injustice. As one sister court explained:
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`“manifest injustice” is an error in the trial court that is direct, obvious, and
`observable, such as a defendant’s guilty plea that is involuntary or that is based on
`a plea agreement that the prosecution rescinds. A party may only be granted
`reconsideration based on manifest injustice if the error is apparent to the point of
`being indisputable. In order for a court to reconsider a decision due to “manifest
`injustice,” the record presented must be so patently unfair and tainted that the
`error is manifestly clear to all who view it.
`Teri Woods Pub., L.L.C. v. Williams, C.A. No. 12–04854, 2013 WL 6388560, at *2 (E.D. Pa.
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`Dec. 6, 2013); see also In re Titus, 479 B.R. 362, 367-68 (Bankr. W.D. Pa. 2012); Oto v. Metro.
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`Life Ins. Co., 224 F.3d 601 (7th Cir. 2000) (manifest error is the “wholesale disregard,
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`misapplication, or failure to recognize controlling precedent”). Manifest injustice is only rarely
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`found and generally requires a showing of a factual impossibility. SeeMax’s Seafood Cafe v.
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`Quinteros, 176 F.3d 669, 678 (3d Cir. 1999). Plaintiff’s motion simply re-hashes earlier
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`arguments and does not even attempt to describe the sort of “‘direct, obvious, and observable’
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`error that the term manifest injustice evokes.” Conway v. A.I. DuPont Hosp. for Children, C.A.
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`No. 04-4862, 2009 WL 1492178, at *7 (E.D. Pa. May 26, 2009).
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`II. The Court Correctly Found That A Prosecution Bar Should Be Extended To
`Post Grant Proceedings To Protect Defendants’ Valuable Source Code.
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`The parties agreed that a prosecution bar was necessary. Defendants proposed extending
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`a prosecution bar to prevent those who actually review highly confidential source code from
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`participating in post-grant review proceedings. As Judge Robinson and the Federal Circuit have
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`recognized, “‘strategically amending or surrendering claim scope during prosecution’ can
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`2
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`Case 1:15-cv-00228-RGA Document 53 Filed 12/28/15 Page 4 of 9 PageID #: 1509
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`implicate competitive decision-making, thus giving rise to a risk of inadvertent use of
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`confidential information learned in litigation.” Versata Software, Inc. v. Callidus Software Inc.,
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`C.A. No. 12-931-SLR, 2014 WL 117804, at *1 (D. Del. Mar. 12, 2014) (quoting In re Deutsche
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`Bank Trust Co., 605 F.3d 1373, 1380 (Fed. Cir. 2010)). Plaintiff, in contrast, originally argued
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`that the provisions imposed undue prejudice on Plaintiff by restricting its counsel of choice,
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`maintaining a cohesive litigation strategy, avoiding duplicated efforts and increased costs, and
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`preparing its case for trial. The Court considered the parties’ positions and correctly determined
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`that a source-code based prosecution bar should extend to post-grant proceedings (e.g., inter
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`partes reviews).
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`Plaintiff does not attempt to explain how this Court’s decision regarding the prosecution
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`bar could be considered so erroneous as to constitute manifest injustice. In fact, Plaintiff does
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`not even argue that this Court made an “indisputable” error or that it acted outside its discretion.
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`Nor does Plaintiff cite any case law supporting its position that the Court’s decision on the
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`prosecution bar constitutes an “error [that] is apparent to the point of being indisputable” such
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`that it could be considered manifest injustice warranting reconsideration. Teri Woods, 2013 WL
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`6388560, at *2.
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`Instead, Plaintiff repeats its original argument based on largely the same cases (EON,
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`Xerox and Two-Way Media) to allege that the prosecution bar is “overly restrictive and contrary
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`to this Court’s precedent.” (D.I. 48 at 2). Not only are Plaintiff’s arguments insufficient to
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`establish manifest injustice, they are simply incorrect. The Court’s decision was correct and
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`plainly supported by case law in this District. Specifically, as addressed in the original
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`submission, the proposed post-grant prosecution bar is directed to the protection of Defendants’
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`highly valuable source code assets. Far from being contrary to this Court’s precedent, the
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`3
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`Case 1:15-cv-00228-RGA Document 53 Filed 12/28/15 Page 5 of 9 PageID #: 1510
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`language of Defendants’ prosecution bar itself was taken directly from Judge Robinson’s
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`decision in Versata. 2014 WL 117804, at *1. There, the prosecution bar was tailored to protect
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`source code by preventing attorneys who actually accessed confidential source code materials
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`from participating in post-grant proceedings. Id. Indeed, consistent with Deutsche Bank, this
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`Court and others in this District have imposed even more restrictive post-grant prosecution bars
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`than the one ordered here. See CallWave Commc’ns, LLC v. AT&T Mobility, LLC, C.A. No. 12-
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`1701, Tr. at 36-39 (D. Del. Apr. 9, 2014) (extending prosecution bar to post-grant proceedings)
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`(Exhibit A); Bear Creek Techs. Inc. v. Verizon Servs. Corp., MDL No. 12-2344-GMS, 2012 WL
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`3190762, at *2 & n.6 (D. Del. July 25, 2012). Notably, in both CallWave and Bear Creek Tech.,
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`the Court rejected the very arguments Plaintiff advances here about competitive decision making
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`and litigation burden to Plaintiff.
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`The cases cited by Plaintiff are not controlling and are distinguishable in any event. For
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`instance, none of those cases involve the present situation where: (1) the Defendants’ principal
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`assets are source code, (2) the post-grant prosecution bar is tailored to protect the source code
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`assets, and (3) the Plaintiff does not have a long term relationship with its counsel. Moreover,
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`according to its website, Plaintiff’s law firm has nearly 50 lawyers in its intellectual property
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`group, and Plaintiff does not explain why barring only those attorneys who actually access
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`Defendants’ source code from participating in the IPRs constitutes manifest injustice. These
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`facts, among others, distinguish the cases Plaintiff cites.
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`Finally, Plaintiff attempts to take a second bite at the apple by offering a “compromise”
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`position that it could have offered earlier but for some reason did not. Specifically, Plaintiff now
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`argues in the alternative that attorneys who access source code should be permitted to participate
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`in post-grant proceedings except that they would not be permitted to participate in the actual
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`4
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`Case 1:15-cv-00228-RGA Document 53 Filed 12/28/15 Page 6 of 9 PageID #: 1511
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`amendment of asserted claims. But whether or not a particular attorney actually participates in
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`amendment of claims does not eliminate the possibility that information gleaned from source
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`code will be inadvertently misused. For example, even Plaintiff’s new alternative position does
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`not exclude counsel who has viewed source code from participating in discussions of whether
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`and which claims should be amended.
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`III. The Court Correctly Defined “Source Code” By Adopting The Definition
`From The Northern District’s Model Protective Order.
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`Consistent with other district courts, this Court adopted Defendants’ proposal to use the
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`definition of “source code” found in the Northern District of California Model Protective Order,
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`which protects both the code itself and documents associated with the code that reveal highly
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`sensitive information about the code. See, e.g., Telebuyer, LLC v. Amazon.com, Inc., C.A. No.
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`13-1677, 2014 WL 5804334, at *3 (W.D. Wash. July 7, 2014) (adopting the definition of source
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`code from the Northern District of California’s model protective order which “reflects the
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`cumulative wisdom of the court and the bar in that jurisdiction”).
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`Plaintiff does not explain how this definition of source code could possibly evoke
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`“manifest injustice.” Plaintiff only asserts this source code definition would “hinder Plaintiff’s
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`counsel from preparing its case for trial,” but does not say why. (D.I. 48 at 7). The order allows
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`Plaintiff’s trial counsel and its experts to see everything.
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`Rather than identifying any actual hindrance, Plaintiff’s argument rehashes its
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`speculation that Defendants may over-designate material as source code and that could lead to
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`some future harm. (D.I. 44 at 1-2). Speculation about that possibility is not sufficient to
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`demonstrate manifest injustice. The source code definition allows Defendants to designate only
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`engineering specifications and schematics as source code if those documents “define or
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`otherwise describe in detail the algorithms or structure of software or hardware designs” and if
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`5
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`Case 1:15-cv-00228-RGA Document 53 Filed 12/28/15 Page 7 of 9 PageID #: 1512
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`the disclosure of those documents “would create a substantial risk of serious harm that could not
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`be avoided by less restrictive means.” (D.I. 44, Ex. 1 ¶ 1.10). Should Plaintiff believe that
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`Defendants’ confidentiality designations are too restrictive, the Protective Order allows for
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`challenges to confidentiality designation, if necessary. (See Id. ¶ 13.) Plaintiff makes no
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`argument why this safeguard is inadequate.
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`Plaintiff’s complaint that it will be barred from “disclosing any of these documents to any
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`professional vendor, jury consultant, trial consultant, mock juror, mediator, arbitrator, or more
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`than three of Plaintiff’s experts or consultants” rings hollow. (D.I. 44 at 78). Plaintiff agreed to
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`the restrictions on who was entitled to see highly confidential source code. As noted, if Plaintiff
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`has an issue with any particular designation, the Protective Order contains a mechanism to
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`resolve the issue.
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`Plaintiff’s attempt to distinguish Judge Robinson’s source code designation provision in
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`Versata is also wrong. Judge Robinson’s source code designation provision is substantially
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`similar to Defendants’ because it covers not only source code but anything that “comprises or
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`includes source code.” See D.I. 47, Ex. 6 ¶ 8 (emphasis added). Moreover, there is no
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`indication that provision was disputed.
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`IV. CONCLUSION
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`The Court should reject Plaintiff’s motion for reconsideration because it does not even
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`attempt to meet the standard required for reconsideration. Rewarding Plaintiffs in this instance
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`will simply encourage unhappy litigants to try to rehash every interim order. And more
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`importantly, the Court should deny Plaintiff’s motion because the Court’s ruling was correct and
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`within its proper discretion the first time. Defendants respectfully request entry of the proposed
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`Protective Order filed by Defendants which complies with the Court’s earlier order (D.I. 49).
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`6
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`Case 1:15-cv-00228-RGA Document 53 Filed 12/28/15 Page 8 of 9 PageID #: 1513
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
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`/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
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`Attorneys for Defendant
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`OF COUNSEL:
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`Michael A. Tomasulo
`David P. Enzminger
`Gino Cheng
`David K. Lin
`WINSTON & STRAWN LLP
`333 S. Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
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`Daniel K. Webb
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
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`December 28, 2015
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`Case 1:15-cv-00228-RGA Document 53 Filed 12/28/15 Page 9 of 9 PageID #: 1514
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`CERTIFICATE OF SERVICE
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`I hereby certify that on December 28, 2015, I caused the foregoing to be electronically
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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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`I further certify that I caused copies of the foregoing document to be served on December
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`28, 2015, upon the following in the manner indicated:
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`/s/ Stephen J. Kraftschik
`Stephen J. Kraftschik (#5623)
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`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street
`Hercules Plaza, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
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`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`KRAMER KEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
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`Aaron M. Frankel, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Attorneys for Plaintiff