`
`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)
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`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.
`
`DECLARATION OF AARON M. FRANKEL IN SUPPORT OF
`PLAINTIFF ACCELERATION BAY’S OPPOSITION TO
`DEFENDANTS’ MOTION TO STRIKE PROPOSED CLAIM CONSTRUCTIONS
`
`
`
`Case 1:16-cv-00455-RGA Document 143 Filed 06/14/17 Page 2 of 4 PageID #: 13778
`
`I, Aaron M. Frankel, hereby declare as follows:
`
`1.
`
`I am an attorney with the law firm Kramer Levin Naftalis & Frankel LLP, counsel
`
`of record for Plaintiff Acceleration Bay LLC (“Acceleration Bay”). I have personal knowledge
`
`of the facts set forth in this declaration and can testify competently to those facts.
`
`2.
`
`Pursuant to the Scheduling Order, on April 10, 2017, the parties held a meet and
`
`confer regarding their respective claim construction positions. On behalf of Acceleration Bay, I
`
`spoke with counsel for Defendants for well over an hour.
`
`3.
`
`During the meet and confer, I objected to the sheer number of Defendants’
`
`proposed constructions and explained that construction of 56 terms was unwieldy and
`
`unnecessary. With the exception of the MPF terms, I explained that the remaining terms had
`
`plain and ordinary meanings and no constructions were needed. For example, I explained that
`
`terms such as “computer” and “network” had well understood meanings and did not require any
`
`constructions. In addition, I explained why various of Defendants’ constructions were overly
`
`narrow and improperly imported limitations.
`
`4.
`
`I stated during the meet and confer that Acceleration Bay would provide a
`
`counter-proposal to Defendants’ new and overly narrow constructions for “m-regular” and “m-
`
`connected.” Acceleration Bay provided its counter-proposals for those two terms three days later
`
`(April 13, 2017).
`
`5.
`
`During the meet and confer, I addressed all questions raised by Defendants
`
`regarding the “m-regular” and “m-connected” terms and the forty six terms for which
`
`Acceleration Bay proposed a plain and ordinary meaning. I was asked the details for why certain
`
`citations Acceleration Bay identified in its claim construction disclosure supported some of its
`
`means-plus-function constructions. In response, I stated that, while other members of the “tech
`
`
`
`Case 1:16-cv-00455-RGA Document 143 Filed 06/14/17 Page 3 of 4 PageID #: 13779
`
`team” had worked on this issue, Acceleration Bay identified in its disclosure to Defendants all
`
`the citations to the specification upon which it would rely as the structures corresponding to
`
`those limitations. I did not reference other members of the team in connection with any other
`
`issue discussed during the meet and confer.
`
`6.
`
`Attached hereto as Exhibit A is a chart comparing Acceleration Bay’s proposed
`
`constructions in the Joint Claim Construction Chart with Acceleration Bay’s proposed
`
`constructions in its claim construction briefing and the supporting Declarations of Nenad
`
`Medvidović.
`
`7.
`
`Attached hereto as Exhibit 1 is a true and correct copy of an Order filed on
`
`December 3, 2014 in the case Microbix Biosystems, Inc. v. Novartis Vaccines and Diagnostics,
`
`Inc., No. 6:14-cv-00003-JDL, D.I. 65 (E.D. Tex. Dec. 3, 2014).
`
`8.
`
`Attached hereto as Exhibit 2 is a true and correct copy of an Order filed on March
`
`13, 2017 in the case Sound View Innovations, LLC v. Facebook, Inc., C.A. No. 16-116-RGA,
`
`D.I. 85 (D. Del. March 13, 2017) and a true and correct copy of an Order filed on September 9,
`
`2014 in the case EMC Corp. v. Pure Storage Inc., C.A. No. 13-1985-RGA, D.I. 66 (D. Del. Sept.
`
`19, 2014).
`
`9.
`
`Attached hereto as Exhibit 3 is a true and correct copy of an excerpt of the United
`
`States District Court for the Northern District of California’s Patent Local Rule 4.1(b).
`
`10.
`
`Attached hereto as Exhibit 4 is a true and correct copy of Skype Defendants’
`
`Opening Brief in Support of their Motion to Strike Via Vadis’s Untimely Disclosed Proposed
`
`Claim Constructions filed on November 20, 2012 in the case Via Vadis LLC v. Skype Inc., C.A.
`
`No.11-507-RGA, D.I. 91 (D. Del. Nov. 20, 2012).
`
`2
`
`
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`Case 1:16-cv-00455-RGA Document 143 Filed 06/14/17 Page 4 of 4 PageID #: 13780
`
`I declare under penalty of perjury under the laws of the United States of America that the
`
`foregoing is true and correct. Executed on June 14, 2017 in New York, New York.
`
`/s/ Aaron M. Frankel
` Aaron M. Frankel
`
`
`
`5245755
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`3
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`
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