Case 1:16-cv-00455-RGA Document 229 Filed 08/14/17 Page 1 of 5 PageID #: 18703
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-453 (RGA)
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`C.A. No. 16-454 (RGA)
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`C.A. No. 16-455 (RGA)
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`)))))))))
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`))))))))) )))))))))))
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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.
`
`LETTER TO THE HONORABLE RICHARD G. ANDREWS
`FROM PHILIP A. ROVNER, ESQ.
`
`

`

`Case 1:16-cv-00455-RGA Document 229 Filed 08/14/17 Page 2 of 5 PageID #: 18704
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`Dear Judge Andrews:
`
`Since 2015, when Acceleration Bay first asserted these patents, Defendants have sought
`to delay these cases and deny Acceleration Bay its day in court, while taking full advantage of
`judicial and USPTO resources in their unsuccessful attempts to derail these actions. After the
`dismissal without prejudice of the predecessor cases, Defendants extensively delayed these
`proceedings by refusing to continue discovery in the 2016 cases, filing declaratory judgment
`actions in the Northern District of California and filing serial motions to dismiss in lieu of
`answering in this Court, including a Rule 11 motion that was denied. See, e.g., D.I. 13-1 at 11
`(Order from the Northern District of California transferring Defendants’ DJ actions to Delaware:
`“These actions smack of gamesmanship”); see also D.I. 6 (first motion to dismiss), D.I. 18
`(second motion to dismiss), D.I. 21 (third motion to dismiss), D.I. 49 (Activision’s fourth motion
`to dismiss and Rule 11 motion).1 Defendants then attempted to derail the claim construction
`process by proposing more than 50 terms for construction and unsuccessfully moving to strike
`Acceleration Bay’s claim construction positions. See D.I. 206. Defendants also filed eighteen
`petitions for inter partes review of the asserted patents, almost all of which have already
`concluded, with only 2 of the 21 asserted claims remaining subject to Defendants’ IPRs. Now,
`Defendants seek to delay the cases on grounds they manufactured related to claim construction.
`Given the history of delays, Defendants’ request to deviate from the current case schedule, if
`granted, would significantly prejudice Acceleration Bay by further delaying these proceedings.
`No further delay is appropriate and these cases should proceed to trial as scheduled.
`
`Nor is there any compelling reason to deviate from the current case schedule.
`Defendants’ concern is of their own making. Specifically, Defendants selected more than 50
`terms for construction, many of which were entirely straightforward, such as “computer,”
`“connect” and “data.”2 Given the overwhelming number of terms Defendants identified, the
`Court ordered additional limited briefing. D.I. 206. Defendants cannot now use the unnecessary
`extra burden they placed on the Court as grounds to extend the case schedule anywhere from
`seven months to a year. Nor did the Court give any indication that its July 5, 2017 Order on
`Claim Construction Process was intended to broadly modify, let alone effectively stay, the case
`schedule. Id. Moreover, the Court held a hearing on the key claim construction issues, and the
`remaining claim construction disputes are unlikely to have a significant impact on these
`proceedings. Given that these cases have been pending since early 2015, judicial economy is
`best served in maintaining the current schedule, where the trials are scheduled for 2018.
`
`The Limited Briefing on Claim Construction Does Not Impact Upcoming Deadlines.
`The entire basis for Defendants’ request is their contention that claim construction is necessary to
`ensure judicial efficiency for the expert and dispositive motion phases of the case. There are
`multiple flaws with this theory.
`
`1 Docket citations are to C.A. No. 16-453-RGA, and are representative of the filings in the
`related cases.
`2 Many district courts, such as the Northern District of California, limit the number of terms that
`can be construed to ten, irrespective of the number of patents being asserted, to prevent the
`abusive practice of over-identification of claim terms for construction. See D.I. 176 at 11
`(collecting examples of courts limiting construction to ten terms).
`
`

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`Case 1:16-cv-00455-RGA Document 229 Filed 08/14/17 Page 3 of 5 PageID #: 18705
`
`The Honorable Richard G. Andrews
`August 14, 2017
`Page 2
`
`First, the Court already held a hearing on the most substantive claim construction
`disputes, namely the “m-regular,” “m,” and “m-regular network” terms and the eight disputed
`means-plus-function elements. Both sides agreed that these terms required construction, and
`they were the subject of 36 pages of the parties’ joint claim construction brief and 23 pages of
`supplemental briefing. D.I. 186. In fact, Defendants characterized the “m-regular, incomplete
`graph” as “fundamental,” “the key feature” of five of the six asserted patents and the “backbone”
`of the patents. Id. at 4, 5, 6. The parties will have the benefit of the Court’s anticipated claim
`construction order as to these eleven claim terms as they proceed under the current case
`schedule, which is all the claim construction guidance courts often provide to the parties.
`
`Second, there is very little difference between the parties’ constructions for the remaining
`terms, such that even if the Court does not issue supplemental claim construction orders prior to
`expert discovery or summary judgment motions, the parties can address their positions with the
`alternative constructions before the Court. Indeed, in their letter, Defendants did not identify any
`specific terms for which they contend the Court’s selection between the proposed constructions
`would be dispositive. For 11 of the 29 remaining terms, the primary dispute is that Defendants
`seek to incorporate their flawed construction of m-regular into unrelated terms. See D.I. 236-1
`(Joint Claim Chart) at Terms 11, 13, 19, 29, 30, 32-34, 38-40. The Court likely will resolve or at
`least substantially narrow the disputes over these terms when it issues its construction of the m-
`regular terms already before it. For the other terms, the parties’ differing constructions will not
`impact the case, and there will be little additional burden from addressing both side’s alternative
`constructions in expert reports and dispositive motion practice, to the extent even necessary. For
`example, for “computer network,” Acceleration Bay proposes a construction of “a group of
`connected computers and/or computer processes”, while Defendants suggest “at least two
`physical computers that are interconnected.” D.I. 236-1 at Term 9. Since Defendants’ accused
`products all operate on at least two physical computers that are interconnected, the Court’s
`construction will not have any material impact on the case.
`
`Third, most of the other claim construction disputes are not competing proposals, but
`rather Defendants’ contentions that some of the claims are invalid under § 101 or indefinite.
`Many of these arguments were already before the Court at the first Markman hearing, and thus
`have no bearing on Defendants’ request. For example, the six claims that Defendants identify in
`their Exhibit C as “Indefinite MPF” are the subject of the prior claim construction hearing and
`are not part of the additional limited claim construction briefing. See D.I. 253-3 at Col. 3 (listing
`Terms 1-8). To the extent Defendants contend their purported remaining invalidity theories
`should be resolved prior to the commencement of expert reports, Defendants should have
`included those arguments in their series of motions to dismiss. Defendants’ decision not to
`include these theories in their prior motions is an admission that such alleged newfound § 101
`challenges are without merit. Accordingly, any further claim construction will not have any
`meaningful impact on expert reports and dispositive motion practice.3
`
`3 Defendants’ speculation that Acceleration Bay’s expert reports will be inadequate or contain
`new theories is unfounded, hypothetical and, in any event, has no bearing on their request to stay
`these cases. Defendants fail to explain how a second claim construction order will alleviate these
`baseless concerns.
`
`

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`Case 1:16-cv-00455-RGA Document 229 Filed 08/14/17 Page 4 of 5 PageID #: 18706
`
`The Honorable Richard G. Andrews
`August 14, 2017
`Page 3
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`This Court’s Practice Does Not Require a Full Claim Construction Order Before
`Expert Discovery. Defendants’ request fails to take into account that this Court’s practice does
`not require completion of claim construction before proceeding with expert discovery and
`dispositive motion practice. Other Courts have elected to provide scheduling orders where
`deadlines for dispositive motion practice are not set until after the issuance of the claim
`construction order and/or provide for deadlines that are adjusted based on the date the claim
`construction order issues. See, e.g. Ex. 1 (Judge Donato’s Standing Order For Claim
`Construction); Ex. 2 (8/1/16 Scheduling Order setting close of fact discovery “120 days after the
`Court’s claim construction order”). In contrast, the schedule used in this case and the customary
`approach in this District, is to set a schedule with fixed dates and without a guarantee that the
`claim construction order will issue prior to the commencement of expert discovery or dispositive
`motion practice.4 That would be the case here even if the Court had not ordered further claim
`construction briefing. There is nothing special about this case that requires modifying that
`approach. To the contrary, as discussed above, the impact of supplemental claim construction is
`anticipated to be modest.
`
`A Stay of These Actions is Not Warranted. Defendants couch their proposal as an
`“adjustment” of the schedule. However, in reality, it is an extension of the case schedule of
`anywhere from seven months to a year, and even longer if the Court does not issue a second
`claim construction order by February 2018, which is in effect a stay of the case. While
`Defendants propose resuming activity in April, their amended schedule would move the
`Activision trial date by at least nine months, the EA trial date by ten months and the Take-Two
`trial date a full year. See D.I. 253-1. In deciding motions to stay, this District considers the
`following three factors: “(a) [W]hether the granting of a stay would cause the non-moving party
`to suffer undue prejudice from any delay or allow the moving party to gain a clear tactical
`advantage over the non-moving party; (b) whether a stay will simplify the issues for trial; and (c)
`whether discovery is complete and a trial date set.” Peschke Map Techs., LLC v. J.J. Gumberg
`Co., 40 F. Supp. 3d 393, 396 (D. Del. 2014). These factors weigh heavily against staying the
`cases. Acceleration Bay filed suit in early 2015, and it is highly prejudicial to have to wait four
`to four and a half years to present its claims to the jury. Defendants’ alteration of the schedule
`will have no impact whatsoever on the issues for trial, as claim construction will be finally
`settled by trial, with or without an amendment to the schedule. Finally, these cases involve
`products sold in 2015 and developed even earlier, fact discovery concluded July 31, 2017 and
`holding the first trial 18 months later, as Defendants propose, creates a real risk of witnesses
`becoming unavailable for trial or have fading memories Accordingly, the Court should deny
`Defendants’ request, and preserve the current case schedule and trial dates.
`
`4 Judge Robinson’s prior practice to hold a combined Markman and summary judgment hearing
`shows that having the Court’s full claim construction positions before beginning expert
`discovery and briefing dispositive motions is not necessary in every case. While Judge Robinson
`eventually changed her practice, countless parties were able to draft expert reports and brief
`summary judgment motions without her full claim construction order. Given Defendants’
`dilatory tactics and self-made issues, they should be expected to do the same here.
`
`

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`Case 1:16-cv-00455-RGA Document 229 Filed 08/14/17 Page 5 of 5 PageID #: 18707
`
`The Honorable Richard G. Andrews
`August 14, 2017
`Page 4
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`Respectfully,
`
`/s/ Philip A. Rovner
`
`Philip A. Rovner (#3215)
`
`cc:
`
`All Counsel of Record (Via ECF Filing, Electronic Mail)
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`5365391
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`