`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-453 (RGA)
`
`C.A. No. 16-454 (RGA)
`
`C.A. No. 16-455 (RGA)
`
`)))))))))
`
`)))))))))
`
`)))))))))))
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.,
`
`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 ACCELERATION BAY LLC’S
`RESPONSE TO DEFENDANTS’ NOTICE REGARDING INTER PARTES REVIEW
`
`Plaintiff Acceleration Bay LLC (“Acceleration Bay”) hereby responds to the April 4, 2017
`
`Notice Regarding Inter Partes Review of Defendants Activision Blizzard, Inc., Electronic Arts
`
`Inc., Take-Two Interactive Software, Inc., Rockstar Games, Inc. and 2K Sports, Inc. (CA 16-453,
`
`D.I. 106; CA 16-454, D.I. 78; CA 16-455, D.I. 77, the “IPR Notice”).
`
`
`
`Case 1:16-cv-00455-RGA Document 79 Filed 04/05/17 Page 2 of 3 PageID #: 2582
`
`Defendants’ IPR Notice mischaracterizes the record in the IPR proceedings in two
`
`important respects.
`
`First, the Patent Trial and Appeal Board (“PTAB”) has not made any findings that any
`
`asserted (or unasserted) claims are invalid as indefinite. Instead, the PTAB declined to institute
`
`review of claims 13-15 of U.S. Patent No. 6,701,344, claim 13 of U.S. Patent No. 6,714,966 and
`
`claims 9 and 16 of U.S. Patent No. 6,920,497. The PTAB found that these claims contain means-
`
`plus function limitations that it was unable to construe based on only the limited preliminary
`
`briefing in Defendants’ Petitions and Acceleration Bay’s Preliminary Responses and that, “neither
`
`party provides much analysis in support of its respective position.” See, e.g., IPR 2015-01970,
`
`Paper 9 at 9-10; IPR2015-01953, Paper 8 at 10 (“we are unable to construe claim 13, and dependent
`
`claims 14 and 15, for purposes of this decision.”) (emphasis added). The parties will be fully
`
`briefing the construction of these claim limitations to the Court in connection with the claim
`
`construction procedures set forth in the Scheduling Order.
`
`Second, Defendants incorrectly identify as “asserted claims found invalid by PTAB” claim
`
`7 of U.S. Patent No. 6,701,344, claim 7 of U.S. Patent No. 6,714,966 and claim 5 of U.S. Patent
`
`No. 6,829,634. All three claims were narrowed through amendment during the IPR proceedings
`
`and confirmed valid over the prior art asserted by Defendants.
`
`Acceleration Bay is not asserting any claims found unpatentable by the PTAB. Earlier
`
`today, Acceleration Bay served an Amended Preliminary Election of Asserted Claims on
`
`Defendants, noting the continued assertion of the three asserted claims narrowed through
`
`amendment during the IPR proceedings, adding two claims confirmed valid during the IPR
`
`proceedings and withdrawing the asserted claims found unpatentable by the PTAB. The two
`
`2
`
`
`
`Case 1:16-cv-00455-RGA Document 79 Filed 04/05/17 Page 3 of 3 PageID #: 2583
`
`claims added do not raise any new claim construction issues, especially in view of Defendants’
`
`prior identification of 41 terms and groups of terms requiring construction.
`
`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
`
`Attorneys for Plaintiff
`Acceleration Bay LLC
`
`OF COUNSEL:
`Paul J. Andre
`Lisa Kobialka
`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: April 5, 2017
`1249770
`
`3
`
`
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