Case 1:16-cv-00455-RGA Document 134 Filed 06/01/17 Page 1 of 27 PageID #: 12934
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Plaintiff,
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`Plaintiff,
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`v.
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`v.
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`ACCELERATION BAY LLC,
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`ACTIVISION BLIZZARD, INC.,
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`Defendant.
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`ACCELERATION BAY LLC,
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`ELECTRONIC ARTS INC.,
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`Defendant.
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`ACCELERATION BAY LLC,
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`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
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`C.A. No. 16-453 (RGA)
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`(cid:53)(cid:40)(cid:39)(cid:36)(cid:38)(cid:55)(cid:40)(cid:39)
`(cid:51)(cid:56)(cid:37)(cid:47)(cid:44)(cid:38)(cid:3)(cid:57)(cid:40)(cid:53)(cid:54)(cid:44)(cid:50)(cid:49)
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`C.A. No. 16-454 (RGA)
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`(cid:53)(cid:40)(cid:39)(cid:36)(cid:38)(cid:55)(cid:40)(cid:39)
`(cid:51)(cid:56)(cid:37)(cid:47)(cid:44)(cid:38)(cid:3)(cid:57)(cid:40)(cid:53)(cid:44)(cid:54)(cid:50)(cid:49)
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`C.A. No. 16-455 (RGA)
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`(cid:53)(cid:40)(cid:39)(cid:36)(cid:38)(cid:55)(cid:40)(cid:39)
`(cid:51)(cid:56)(cid:37)(cid:47)(cid:44)(cid:38)(cid:3)(cid:57)(cid:40)(cid:53)(cid:54)(cid:44)(cid:50)(cid:49)
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`Plaintiff,
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`v.
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`Defendants.
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`DEFENDANTS’ OPENING BRIEF IN SUPPORT OF
`THEIR MOTION TO STRIKE ACCELERATION BAY’S
`UNTIMELY DISCLOSED PROPOSED CLAIM CONSTRUCTIONS
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`

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`Case 1:16-cv-00455-RGA Document 134 Filed 06/01/17 Page 2 of 27 PageID #: 12935
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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
`
`Attorneys for Defendant
`
`
`
`
`OF COUNSEL:
`
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`David P. Enzminger
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`
`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`(cid:50)(cid:85)(cid:76)(cid:74)(cid:76)(cid:81)(cid:68)(cid:79)(cid:3)(cid:41)(cid:76)(cid:79)(cid:76)(cid:81)(cid:74)(cid:3)(cid:39)(cid:68)(cid:87)(cid:72)(cid:29)(cid:3)(cid:3)May 31, 2017
`(cid:3)
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`
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`Redacted Filing Date: June 1, 2017
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`

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`Case 1:16-cv-00455-RGA Document 134 Filed 06/01/17 Page 3 of 27 PageID #: 12936
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`
`
`
`I.
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`II.
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`III.
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`IV.
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`TABLE OF CONTENTS
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`Page
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`NATURE AND STAGE OF THE PROCEEDINGS ......................................................... 1
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`SUMMARY OF ARGUMENT .......................................................................................... 1
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`STATEMENT OF FACTS ................................................................................................. 5
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`ARGUMENT ...................................................................................................................... 9
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`A.
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`B.
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`C.
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`D.
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`E.
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`Legal Standard ........................................................................................................ 9
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`Acceleration Bay Knowingly and Persistently Violated the Scheduling
`Order ..................................................................................................................... 11
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`Acceleration Bay’s Conduct Was Intended to, and Did, Prejudice
`Defendants. ........................................................................................................... 13
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`Acceleration Bay’s Violations of the Scheduling Order Merit Sanctions ............ 18
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`The Sanctions Should Include Striking Acceleration Bay’s Untimely
`Claim Constructions.............................................................................................. 18
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`V.
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`CONCLUSION ................................................................................................................. 20
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`i
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`Case 1:16-cv-00455-RGA Document 134 Filed 06/01/17 Page 4 of 27 PageID #: 12937
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`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Allen v. Bayer Corp. (In re : Phenylpropanolamine (PPA) Prods. Liab. Litig.)
`460 F.3d 1217 (9th Cir. 2006) .................................................................................................19
`
`Brown v. 3M
`265 F.3d 1349 (Fed. Cir. 2001)................................................................................................13
`
`Constant Compliance, Inc. v. Emerson Process Mgmt. Power & Water Solutions,
`Inc.
`598 F. Supp. 2d 842 (N.D. Ill. 2009) .......................................................................................13
`
`eBay Inc. v. MercExchange, L.L.C.
`547 U.S. 388 (2006) .................................................................................................................20
`
`Info. Tech. Innovation, LLC v. Motorola, Inc.
`391 F. Supp. 2d 719 (N.D. Ill. 2005) .......................................................................................12
`
`Integrated Discrete Devices, L.L.C. v. Diodes Inc.
`C.A. No. 08-888-GMS (D. Del. Apr. 28, 2010) ......................................................................10
`
`Jones v. Thompson
`996 F.2d 261 (10th Cir. 1993) .................................................................................................19
`
`Koplove v. Ford Motor Co.
`795 F.2d 15 (3d Cir. 1986).......................................................................................................10
`
`Media Duplication Services, Ltd. v. HDG Software, Inc.
`928 F.2d 1228 (1st Cir. 1991) ..................................................................................................19
`
`Mindek v. Rigatti
`964 F.2d 1369 (3d Cir. 1992).............................................................................................11, 19
`
`Newton v. A.C. & S., Inc.
`918 F.2d 1121 (3d Cir. 1990).....................................................................................................9
`
`Poulis v. State Farm Fire & Casualty Co.
`747 F.2d 863 (3d Cir. 1984).....................................................................................................18
`
`Robertson v. Horton Bros. Recovery, Inc.
`No. 02-1656, 2006 U.S. Dist. LEXIS 73969 (D. Del. Oct. 10, 2006) .....................................11
`
`SanDisk Corp. v. Memorex Prod., Inc.
`415 F.3d 1278 (Fed. Cir. 2005)................................................................................................10
`
`ii
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`

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`Case 1:16-cv-00455-RGA Document 134 Filed 06/01/17 Page 5 of 27 PageID #: 12938
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`
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`Tracinda Corp. v. DaimlerChrysler AG
`502 F.3d 212 (3d Cir. 2007)...............................................................................................11, 18
`
`United States v. 68.94 Acres of Land
`918 F.2d 389 (3d Cir. 1990).....................................................................................................18
`
`Vehicle Operation Techs. LLC v. Am. Honda Motor Co. Inc.
`67 F. Supp. 3d 637 (D. Del. 2014) ...........................................................................................17
`
`Via Vadis LLC v. Skype, Inc.
`Civ. A. No. 11-507-RGA, D.I. 97 (D. Del. Dec. 17, 2012) ...........................................1, 10, 18
`
`Vizio, Inc. v. ITC
`605 F.3d 1330 (Fed. Cir. 2010)................................................................................................13
`
`Statutes
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`35 U.S.C. § 101 ................................................................................................................................6
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`35 U.S.C. § 112(6) ...........................................................................................................................6
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`35 U.S.C. 101 ...................................................................................................................................7
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`Other Authorities
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`Fed. R. Civ. P. 11 ................................................................................................................... passim
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`Fed. R. Civ. P. 16 .......................................................................................................................9, 11
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`Fed. R. Civ. P. 16(b) ........................................................................................................................9
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`Fed. R. Civ. P. 16(f) .............................................................................................................1, 10, 18
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`Fed. R. Civ. P. 37 ...........................................................................................................................18
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`3-16 Moore’s Federal Practice – Civil § 16.15 ..............................................................................11
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`iii
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`

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`Case 1:16-cv-00455-RGA Document 134 Filed 06/01/17 Page 6 of 27 PageID #: 12939
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`
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`I.
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`NATURE AND STAGE OF THE PROCEEDINGS
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`Defendants Activision Blizzard, Inc., Electronic Arts Inc., Take-Two Interactive Software,
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`Inc., Rockstar Games, Inc., and 2K Sports, Inc. (collectively, “Defendants”) move to strike
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`Plaintiff Acceleration Bay LLC’s (“Acceleration Bay”) untimely proposed claim constructions and
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`the expert declaration through which those constructions are offered pursuant to Fed. R. Civ. P.
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`16(f) and for such other relief as the Court may deem appropriate.
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`II.
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`SUMMARY OF ARGUMENT
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`Acceleration Bay has engaged in a strategy of obfuscation with respect to claim
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`construction. Throughout the claim construction disclosure process, Plaintiff refused to provide
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`most of its proposed constructions and refused to substantively meet and confer. Plaintiff
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`steadfastly contended that it was not proposing any constructions, stating that “plain and ordinary
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`meaning” controlled. Defendants repeatedly asked Plaintiff to provide its proposed constructions
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`and to substantively engage, but Plaintiff refused. Only after learning Defendants’ positions,
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`Plaintiff for the first time in its opening brief and supporting expert declaration offered its true
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`proposed claim constructions. This tactic was designed to and did disadvantage Defendants. This
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`Court faced this precise conduct in Via Vadis, LLC v. Skype, Inc., et al. Ex. 2. The same sanctions
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`considered by the Court in that case should be applied here. Id.
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`On February 27, 2017, the Court entered a Scheduling Order requiring the parties to
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`identify all terms for claim construction by March 25 and to provide constructions for all terms
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`identified by either party on April 3, 2017. D.I. 62 (Scheduling Order) § 6.1 The purpose of this
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`disclosure was to require the parties to set forth their respective positions about the meaning of the
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`claims, and to provide notice and an opportunity for the parties to meet and confer in advance to
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`1 All citations to docket entries refer to C.A. No. 16-453 unless otherwise stated.
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`1
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`

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`Case 1:16-cv-00455-RGA Document 134 Filed 06/01/17 Page 7 of 27 PageID #: 12940
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`narrow the disputes to be resolved by the Court.
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`Defendants identified their terms for construction and their proposed constructions as
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`ordered. Exs. 3-4. Acceleration Bay’s disclosures only identified and offered constructions for the
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`eight means-plus-function (“MPF”) terms, which must be construed as a matter of law. Exs. 5-6.
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`Acceleration Bay offered only “plain and ordinary meaning” for all 32 non-MPF claim terms
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`identified by Defendants as potentially requiring construction. Ex. 6.
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`Defendants immediately (and thereafter, repeatedly) asked Plaintiff to provide its
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`constructions. See, e.g., Ex. 7 (Barry Mar. 29 e-mail to Andre); Ex. 8 (Barry Apr. 5 e-mail to
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`Andre). The parties held the Court-ordered meet and confer regarding claim construction on April
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`10, but Acceleration Bay’s designated lawyer quickly stated that he was not on Acceleration Bay’s
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`“tech team” and therefore could not explain Plaintiff’s MPF constructions or how Plaintiff’s “plain
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`and ordinary” positions differed from Defendants’ proposed constructions. See, e.g., Ex. 9 (Barry
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`Apr. 12 e-mail to Frankel), Ex. 10 (Frankel Apr. 13 e-mail to Barry); Ex. 11 (Barry Apr. 17 e-mail
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`to Frankel). Defendants repeatedly asked for a meet and confer with someone on the “tech team”
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`so they could learn Plaintiff’s actual positions, including what, if any, differences existed between
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`Defendant’s constructions and Plaintiff’s “plain and ordinary” positions, but Plaintiff refused. See
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`id. On April 13, the day before the deadline to file the joint chart and after it had time to study
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`Defendants’ proposed constructions, Acceleration Bay for the first time proposed partial
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`constructions for two key claim terms: “m-regular network” and “m-connected network.” Ex. 10
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`(Frankel Apr. 13 e-mail to Barry). But even then, Plaintiff did not provide a construction for “m” –
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`which is part and parcel of how these two terms must be interpreted. Defendants again asked to
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`meet and confer with someone on the “tech team,” and reiterated that Defendants would move to
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`strike any belatedly disclosed constructions or any effort to offer constructions under the guise of
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`2
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`

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`Case 1:16-cv-00455-RGA Document 134 Filed 06/01/17 Page 8 of 27 PageID #: 12941
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`“plain and ordinary meaning.” Again, Plaintiff refused to provide someone from its “tech team” to
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`meet and confer and articulate its positions.
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`Acceleration Bay’s gamesmanship culminated on April 28, 2017, when it served its
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`opening claim construction brief (Ex. 12) and a 52-page expert declaration (Ex. 13). Then, for the
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`first time, Acceleration Bay proposed constructions for nearly every claim term identified by
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`Defendants a month earlier. See Ex. 14 (listing untimely claim constructions). The expert
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`declaration provided constructions for nearly all the most disputed terms, including the “m” portion
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`of the key term “m-regular,” “broadcast channel,” “participant,” “neighbor,” “connection,” and the
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`“flooding limitations.” See id.
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`The decision to withhold these constructions until the last minute was plainly tactical. The
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`constructions seek to vastly expand the scope of the patents. They directly contradict positions
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`Acceleration Bay took in opposing Defendants’ Motions to Dismiss and before the PTAB, further
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`confirming that these constructions should have been provided up front as required by the
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`Scheduling Order. See Ex. 15 (comparing Acceleration Bay’s contradictory claim construction
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`positions). Indeed, these terms are not common words readily defined by any dictionary, scientific
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`or otherwise. Instead, these terms have specific meanings within the Asserted Patents. Plaintiff’s
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`expert admits as much by citing the specification and intrinsic record to support Plaintiff’s
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`proposed constructions. See generally Ex. 13 (Medvidovic Decl.).
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`For example, Plaintiff now proposes a construction of “m” that is “a number of neighbors,”
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`which can change, and a construction for “neighbor” that is “participants who can communicate.”
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`Ex. 13 ¶¶ 44-45, 102 (emphasis added). There is nothing plain or ordinary about these proposed
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`constructions – they are specific constructions designed to vastly expand the scope of the claims
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`beyond the specific network topology that is at the heart of the Asserted Patents.
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`3
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`Case 1:16-cv-00455-RGA Document 134 Filed 06/01/17 Page 9 of 27 PageID #: 12942
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`The breadth of the case and inscrutability of Plaintiff’s infringement contentions compound
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`the obvious prejudice of Plaintiff’s untimely claim construction disclosures. There are six Asserted
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`Patents, more than 20 Asserted Claims, and at least nine distinct lines of Accused Products, each
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`with millions of lines of source code. The Accused Products all use the traditional “full mesh” and
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`client/server architectures that the Asserted Patents disclaim. From the outset, Defendants have
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`rightfully contested exactly how Plaintiff could read the very narrow network topology of the
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`Asserted Patents onto the client/server and full mesh networks of the Accused Products.
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`Defendants’ challenges were explained to the Court at the very first discovery conference (see,
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`e.g., Ex. 16 (2/12/16 Hr’g Tr.) at 8:14-11:22) and have continued through three separate Motions to
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`Compel this basic infringement contention. Acceleration Bay still refuses to provide its
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`contentions. Just two weeks ago, the Special Master issued a third Order compelling Acceleration
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`Bay to provide specific interrogatory responses directed to the very issues impacted by these
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`belated constructions. D.I. 155. All of the Defendants have sent Rule 11 letters to Plaintiff, and
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`Activision’s Rule 11 Motion is set to be heard July 10. Despite the fact that Plaintiff’s opposition
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`characterized Activision’s Rule 11 Motion as a claim construction dispute on March 6, 2017 (D.I.
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`68 at 13-14), Plaintiff did not, until April 28, disclose any of the claim constructions on which it
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`must be basing its case.
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`All of this compounds the prejudice caused by Acceleration Bay’s decision to disclose its
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`claim constructions at the very last minute through a 52-page expert declaration, and after having
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`the chance to refine those positions based on Defendants’ constructions. The fact that those
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`proposed constructions directly contradict the positions Plaintiff has taken over the last 18 months
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`before this Court and the PTAB (see Ex. 15) further compounds the prejudice to Defendants,
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`particularly in view of the shortened schedule entered at Plaintiff’s urging, with discovery set to
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`4
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`

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`Case 1:16-cv-00455-RGA Document 134 Filed 06/01/17 Page 10 of 27 PageID #: 12943
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`close in July 2017 and the first trial in April 2018.
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`If unchecked, Acceleration Bay’s conduct would confer to it an unfair advantage from
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`flouting the Court’s Order. To address Acceleration Bay’s calculated violations of the Court’s
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`Order, and to protect the integrity of the process, Defendants respectfully ask the Court to strike
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`Acceleration Bay’s untimely claim constructions and the portions of its Expert Declaration
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`proffering those constructions, and for such other relief as the Court deems appropriate.
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`III.
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`STATEMENT OF FACTS
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`Acceleration Bay filed its prior cases in early 2015. In connection with those cases, the
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`Court entered a Scheduling Order. Under that Scheduling Order, Acceleration Bay was required to
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`disclose the terms that it believes need constructions by May 25, 2016. Plaintiff stated that no
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`claim terms other than the MPF terms required construction.
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`On February 27, 2017, the Court entered a Scheduling Order setting case deadlines for the
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`current cases, including the “Claim Construction Issue Identification” deadlines set forth in Section
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`6. D.I. 62. That Order required the Parties to “exchange a list of those claim term(s)/phrase(s) that
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`they believe need construction” by March 25 and to “exchange their proposed claim constructions
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`of each term/phrases disclosed by any party” by April 3. Id. Acceleration Bay advocated for the
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`swift schedule. See D.I. 46.
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`Despite having had over two years to consider its proposed construction and taking various
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`claim construction positions with this Court in connection with Defendants’ motions to dismiss and
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`with the PTAB in connection with various inter-partes reviews (“IPR”), see Ex. 15, Plaintiff failed
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`to comply with the first deadline. The parties identified their terms for construction as ordered on
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`March 27. Exs. 3 & 5. Acceleration Bay, however, did not provide any proposed terms for
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`construction other than for MPF terms under 35 U.S.C. § 112(6), which require construction as a
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`5
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`

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`Case 1:16-cv-00455-RGA Document 134 Filed 06/01/17 Page 11 of 27 PageID #: 12944
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`matter of law. Acceleration Bay had explicitly offered constructions in the eight IPRs involving
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`the Asserted Patents and advanced claim construction positions when it opposed Defendants’
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`Motions to Dismiss under 35 U.S.C. § 101 and Federal Rule of Civil Procedure 11, yet none of the
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`previously offered constructions were proposed during claim construction. See Ex. 15.
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`Defendants promptly advised they would seek to strike untimely proposed constructions:
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`We note that Plaintiff only lists a small number of claim terms, and those are only
`means plus functions. And we further note that Plaintiff did not include any of the
`terms you proposed for construction in the PTAB and that Plaintiff purports to
`“reserve the right … to propose additional terms and phrases for construction.”
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`The claim construction schedule clearly sets out the procedures. We will object to
`any attempts to propose additional terms not in your original list and we will object
`to any attempt to propose constructions beyond those offered by Plaintiff on April
`3 pursuant to the schedule.
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`Ex. 7 (emphasis added).
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`On April 3, the parties exchanged proposed constructions. Even though the Scheduling
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`Order required Acceleration Bay to provide its “proposed claim constructions of each term/phrases
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`disclosed by any party,” Acceleration Bay only provided constructions for the MPF terms it had
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`identified and characterized those constructions “for discussion purposes only.” Ex. 6 (Apr. 3
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`exchange) at 2 (emphasis added). On April 5, Defendants again advised Acceleration Bay that its
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`failure to comply with the Scheduling Order was particularly troubling given the claim
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`construction positions it had already taken in the IPRs and in opposition to motions before this
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`Court:
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`Plaintiff did not comply with the Scheduling Order. Pursuant to the Scheduling
`Order, the Court mandated that: “[o]n or before April 3, 2017, the parties shall
`exchange their proposed claim constructions of each term/phrases disclosed by any
`party.” Defendants served their constructions for 41 listed terms that day.
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`In contrast, Plaintiff’s “constructions” were no constructions at all. For every term
`besides the means plus function limitations, Plaintiff offered plain and ordinary
`meaning. Yet, many terms have no simple “plain and ordinary meaning.” Indeed,
`many of the claim terms Defendants identified for construction were terms
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`6
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`

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`Case 1:16-cv-00455-RGA Document 134 Filed 06/01/17 Page 12 of 27 PageID #: 12945
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`Ex. 8.
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`Id.
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`construed by Plaintiff in defense of the IPR proceedings filed by Defendants and
`were
`the subject of vigorous briefing and argument before
`the Patent
`Office. Plaintiff itself chose to construe and rely on certain claim constructions
`before this Court in its opposition to Defendant’s 35 USC 101 Motion. It is likely
`that other invalidity issues may be resolved through claim construction. Further, in
`Plaintiff’s opposition to Activision’s Rule 11 Brief, it argued that many of
`Activision’s positions
`in
`the motion were based on unresolved claim
`construction. Yet, as to all of these issues except the means plus function claims,
`Plaintiff offers no claim constructions that allegedly need to be resolved.
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`Nevertheless, Defendants again encouraged Plaintiff to comply, even if belatedly:
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`Plaintiff has now seen Defendants’ proposed constructions, is aware of how the
`Accused Products operate (including full mesh and client-server topologies) and
`has had the benefit of Defendant’s invalidity contentions for nearly a year,
`including various 101 and 112 issues. Plaintiff’s constructions were due
`Monday. Yet, Plaintiff’s pleading states that “Acceleration Bay provides these
`constructions for discussion purposes only” and suggests that Plaintiff intends to
`provide further constructions before the April 10 deadline for the Joint Claim
`construction statement. But the Schedule does not contemplate an exchange of
`“discussion constructions.” It called for Plaintiff’s actual constructions, including
`all constructions that Plaintiff may rely on to enforce or defend the validity of its
`patents. To the extent plaintiff intends to offer any actual constructions, or ever
`intends to expand on or explain the so-called “plain and ordinary meaning” of any
`claim term at any point in the claim construction process or otherwise, it should do
`so this week. While such tactics are plainly improper, we will at least consider any
`late-disclosed positions and whether we will agree to allow Plaintiff to supplement
`its April 3 claim construction pleading and include those positions in the April 10
`joint statement.
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`Defendants also emphasized that they would seek to strike any undisclosed contentions,
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`including any elaboration on the supposedly “plain and ordinary meaning”:
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`To the extent that Plaintiff asserts that its disclosure accurately reflects its position
`that terms and phrases in the asserted claims should be accorded their plain and
`ordinary meaning, then the parties should proceed through claim construction
`briefing and the rest of the case on that basis. As we noted in an email on this
`subject last week, however, if Plaintiff seeks to adopt claim constructions other than
`plain and ordinary meaning or to elaborate on what exactly is meant by “plain and
`ordinary meaning” or otherwise contend that a claim should be construed a
`particular way (e.g. to find infringement or to avoid invalidity or indefiniteness),
`Defendants again give notice that they will object to any such change in position
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`7
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`

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`Case 1:16-cv-00455-RGA Document 134 Filed 06/01/17 Page 13 of 27 PageID #: 12946
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`Id.
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`and will seek the full range of remedies for noncompliance with the scheduling
`order, including striking such positions.
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`Again, Acceleration Bay did not respond. On April 10, the Parties held a Court-ordered
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`meet and confer regarding a variety of issues, including claim construction. Although Acceleration
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`Bay’s lead counsel was on the phone initially, he dropped off for the discussion regarding claim
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`construction, leaving that to another lawyer. That lawyer quickly stated, however, that he was not
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`the “right lawyer” to address claim construction issues because he was not a member of
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`Acceleration Bay’s “tech team.” See Exs. 9-11. He also claimed that Acceleration Bay was
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`reserving the right to propose new claim constructions. Defendants verbally and later in writing
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`requested a proper meet and confer with someone on the “tech team” so that Defendants could
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`understand what difference, if any, there was between Defendants’ constructions and the supposed
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`“plain and ordinary meaning”:
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`The meet and confer process is not a one way street. We were prepared to, and did,
`answer your questions regarding Defendants’ positions. You asked us to explain
`why certain claim terms were indefinite, and we did so. In contrast, we received no
`information from Plaintiff regarding its positions.
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`We also note that this is a continuation of the conduct described in my prior
`emails. From start to finish, plaintiff has refused to comply with either the letter or
`spirit of the Scheduling Order as it pertains to claim construction.
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`Accordingly, we request a meet and confer in compliance with the Scheduling
`Order tomorrow with someone from your “tech team” who is prepared to and
`capable of addressing the foregoing issues, including any differences between our
`proposed constructions and your “plain and ordinary” position, any belated
`constructions Plaintiff intends to offer and the specific algorithms, if any, that
`supposedly provide the requisite structure for the means plus function elements. A
`proper meet and confer would undoubtedly reduce the number of claim terms to be
`briefed and, more importantly, is what the Scheduling Order required.
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`Ex. 9.
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`8
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`Acceleration Bay refused to further meet and confer and instead offered partial
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`constructions on two key claims terms, “m-regular network” and “m-connected network.” Ex. 10.
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`Even these belated constructions were incomplete, because they did not address the construction of
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`“m.” Defendants again objected to Acceleration Bay’s conduct, requested for a third time to meet
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`and confer with someone on Plaintiff’s “tech team,” and advised they would “move to strike any
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`effort by Plaintiff to use the concept of ‘plain and ordinary meaning’ to import a claim construction
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`into the case.” Ex. 11. Plaintiff did not respond.
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`Then, on April 28, Acceleration Bay served its opening claim construction brief, (Ex. 12)
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`which incorporated a 52-page expert declaration (Ex. 13). Through that expert declaration, for the
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`first time, Acceleration Bay proposed constructions for almost all of the 32 non-MPF terms
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`identified by Defendants, including the most important claim terms. Ex. 14.
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`IV. ARGUMENT
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`A.
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`Legal Standard
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`Scheduling orders are an essential feature of substantially all Federal Court litigation. See
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`Fed. R. Civ. P. 16(b); see also Fed. R. Civ. P. 16 advisory committee’s notes of 1983 (“The most
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`significant change in Rule 16 is the mandatory scheduling order described in Rule 16(b).”). The
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`reasons for requiring a scheduling order include “to stimulate litigants to narrow the areas of
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`inquiry and advocacy to those they believe are truly relevant and material.” Fed. R. Civ. P. 16
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`advisory committee’s notes of 1983; see also Newton v. A.C. & S., Inc., 918 F.2d 1121, 1126 (3d
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`Cir. 1990) (“The purpose of Rule 16 is to maximize the efficiency of the court system by insisting
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`that attorneys and clients cooperate with the court and abandon practices which unreasonably
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`interfere with the expeditious management of cases.”). As the Third Circuit has explained, “Rule
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`16 recognizes [that] scheduling orders are at the heart of case management. If they can be
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`9
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`Case 1:16-cv-00455-RGA Document 134 Filed 06/01/17 Page 15 of 27 PageID #: 12948
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`disregarded without a specific showing of good cause, their utility will be severely impaired.”
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`Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3d Cir. 1986).
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`The Scheduling Order details a strict claim construction protocol. D.I. 62. Judges in this
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`District have enforced these requirements, including by striking belatedly disclosed positions,
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`especially when the conduct was unfair or appeared to constitute “gamesmanship.” See, e.g., Ex.
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`1, Integrated Discrete Devices, L.L.C. v. Diodes Inc., C.A. No. 08-888-GMS, Tr. of Markman
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`Hr’g at 3-5 (D. Del. Apr. 28, 2010) (refusing to consider a plaintiff’s untimely constructions,
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`holding that “a party cannot revise the constructions it advocated for in the final joint claim chart
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`without leave of Court,” and summarily adopting the defendant’s proposed construction for the
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`terms that the plaintiff ‘improperly revised”). This Court has specifically indicated that a broad
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`range of sanctions could be appropriate for failure to comply with the claim construction disclosure
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`provisions of the Scheduling Order. Via Vadis LLC v. Skype, Inc. et al., Civ. A. No. 11-507-RGA,
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`D.I. 102 (D. Del. Jan. 2, 2013) (Ex. 2) (noting range of sanctions Court was considering in
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`analogous situation).
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`As the Federal Circuit has made clear with respect to untimely claim construction
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`arguments pursuant to the local patent rules and a trial court’s scheduling order, the Federal Circuit
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`“gives broad deference to the trial court’s application of local procedural rules in view of the trial
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`court’s need to control the parties and flow of litigation before it.” SanDisk Corp. v. Memorex
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`Prod., Inc., 415 F.3d 1278, 1292 (Fed. Cir. 2005). Indeed, adherence to scheduling orders has
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`been deemed so important that the Federal Rules expressly empower courts to sanction violations
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`(see Fed. R. Civ. P. 16(f)) in addition to the “inherent powers” otherwise available (see 3-16
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`Moore’s Federal Practice – Civil § 16.15). Rule 16 mandates “monetary sanctions for
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`noncompliance with Rule 16 pretrial orders . . . absent a showing that the violation was
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`10
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`‘substantially justified’ or the award of expenses is ‘unjust’ under the circumstances of the case.”
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`Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212, 241 (3d Cir. 2007). Other available
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`sanctions include “striking pleadings” and “disallowing support [for contentions].” Robertson v.
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`Horton Bros. Recovery, Inc., No. 02-1656, 2006 U.S. Dist. LEXIS 73969, at *6 (D. Del. Oct. 10,