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`v.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`
`ACTIVISION|BLIZZARD, INC.’S ANSWER TO
`COMPLAINT AND AFFIRMATIVE DEFENSES
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`C.A. No. 16-453 (RGA)
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`JURY TRIAL DEMANDED
`
`ACCELERATION BAY LLC,
`
`
`
`
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`ACTIVISION BLIZZARD, INC.,
`
`
`
`Plaintiff,
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`Defendant.
`
`
`
`Defendant Activision|Blizzard, Inc. (“Activision”) submits the following answer and
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`affirmative defenses to the Complaint for Patent Infringement (D.I. 1) filed by Plaintiff
`
`Acceleration Bay LLC (“Acceleration Bay”).
`
`On October 4, 2016, Activision moved to dismiss all the accused Sony products from the
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`case because Plaintiff lacks standing, and the Court granted the motion on August 24, 2017 (D.I.
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`237). Therefore, the allegations relating to the accused Sony products no longer require a
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`response.
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`GENERAL DENIAL
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`Unless specifically admitted below, Activision denies each and every allegation in
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`Plaintiff’s Complaint.
`
`AS TO THE BACKGROUND
`
`1.
`
`Activision admits that Acceleration Bay previously asserted U.S. Patent No.
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`6,701,344, U.S. Patent No. 6,714,966, U.S. Patent No. 6,732,147, U.S. Patent No. 6,829,634,
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`U.S. Patent No. 6,910,069, and U.S. Patent No. 6,920,497 (the “Patents-in-Suit” or the
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`“Acceleration Bay Patents”) against Activision in C.A. No. 15-228 (D. Del.), and that the
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`
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`Case 1:16-cv-00453-RGA Document 301 Filed 09/12/17 Page 2 of 15 PageID #: 25034
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`District Court issued an Order in that previous case finding that Acceleration Bay lacked
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`standing. Except as expressly admitted, Activision denies the remainder of the allegations in
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`paragraph 1.
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`AS TO THE PARTIES
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`2.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 2 and therefore, denies them.
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`3.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 3 and therefore, denies them.
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`4.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 4 and therefore, denies them.
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`5.
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`Activision admits it is a corporation organized and existing under the laws of the
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`State of Delaware and that its principal place of business is located in Santa Monica, California.
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`6.
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`Denied.
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`AS TO JURISDICTION AND VENUE
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`7.
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`Paragraph 7 contains conclusions of law and not averments of fact to which an
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`answer is required, but insofar as an answer may be deemed required, Activision admits that
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`Acceleration Bay purports to be bringing an action for patent infringement allegedly under
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`35 U.S.C. §§ 101 et seq, and that 28 U.S.C. §§ 1331 and 1338 provide the Court with subject
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`matter jurisdiction over federal questions and patent infringement actions. Except as expressly
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`admitted, Activision denies the remainder of the allegations in paragraph 7.
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`8.
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`Paragraph 8 contains conclusions of law that are not averments of fact to which an
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`answer is required, but insofar as an answer may be deemed required, Activision does not contest
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`that venue may lie in this District; however, venue may be more appropriate in another district
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`2
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`Case 1:16-cv-00453-RGA Document 301 Filed 09/12/17 Page 3 of 15 PageID #: 25035
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`for the convenience of the parties. Except as expressly admitted, Activision denies the remainder
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`of the allegations in paragraph 8.
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`9.
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`Activision does not contest that the Court has personal jurisdiction in this action.
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`Activision admits that it has transacted business in this district. Activision admits it is a
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`corporation organized and existing under the laws of the State of Delaware. Activision denies
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`any acts of patent infringement have taken place in this district, or elsewhere. The remaining
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`allegations of paragraph 9 contains conclusions of law that are not averments of fact to which an
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`answer is required, but insofar as an answer may be deemed required, Activision denies the
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`remaining allegations in paragraph 9.
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`AS TO THE PATENTS-IN-SUIT
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`10.
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`Activision admits that the Complaint asserts the following six patents: U.S. Patent
`
`Nos. 6,701,344, 6,714,966, 6,732,147, 6,829,634, 6,910,069, and 6,920,497. Except as expressly
`
`admitted, Activision denies the remainder of the allegations in paragraph 10.
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`11.
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`Activision admits that U.S. Pat. No. 6,701,344 (“the ’344 Patent”) is entitled
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`“DISTRIBUTED GAME ENVIRONMENT” (a copy of which appears to be Exhibit 1), and that
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`the face of the patent indicates that it was issued on March 2, 2004. Activision lacks knowledge
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`or information sufficient to form a belief as to the truth of the remaining allegations set forth in
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`paragraph 11 and therefore denies them.
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`12.
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`13.
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`14.
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`Denied.
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`Denied.
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`Activision admits that U.S. Pat. No. 6,714,966 (“the ’966 Patent”) is entitled
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`“INFORMATION DELIVERY SERVICE” (a copy of which appears to be Exhibit 2), and that
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`the face of the patent indicates that it was issued on March 30, 2004. Activision lacks
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`3
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`Case 1:16-cv-00453-RGA Document 301 Filed 09/12/17 Page 4 of 15 PageID #: 25036
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`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
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`set forth in paragraph 14 and therefore denies them.
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`15.
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`16.
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`17.
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`Denied.
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`Denied.
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`Activision admits that U.S. Pat. No. 6,732,147 (“the ’147 Patent”) is entitled
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`“LEAVING A BROADCAST CHANNEL” (a copy of which appears to be Exhibit 3), and that
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`the face of the patent indicates that it was issued on May 4, 2004. Activision lacks knowledge or
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`information sufficient to form a belief as to the truth of the remaining allegations set forth in
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`paragraph 17 and therefore denies them.
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`18.
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`19.
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`20.
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`Denied.
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`Denied.
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`Activision admits that U.S. Pat. No. 6,829,634 (“the ’634 Patent”) is entitled
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`“BROADCASTING NETWORK” (a copy of which appears to be Exhibit 4), and that the face of
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`the patent indicates that it was issued on December 7, 2004. Activision lacks knowledge or
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`information sufficient to form a belief as to the truth of the remaining allegations set forth in
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`paragraph 20 and therefore denies them.
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`21.
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`22.
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`23.
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`Denied.
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`Denied.
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`Activision admits that U.S. Pat. No. 6,910,069 (“the ’069 Patent”) is entitled
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`“JOINING A BROADCAST CHANNEL” (a copy of which appears to be Exhibit 5), and that
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`the face of the patent indicates that it was issued on June 21, 2005. Activision lacks knowledge
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`or information sufficient to form a belief as to the truth of the remaining allegations set forth in
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`paragraph 23 and therefore denies them.
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`4
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`Case 1:16-cv-00453-RGA Document 301 Filed 09/12/17 Page 5 of 15 PageID #: 25037
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`24.
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`25.
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`26.
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`Denied.
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`Denied.
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`Activision admits that U.S. Pat. No. 6,920,497 (“the ’497 Patent”) is entitled
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`“CONTACTING A BROADCAST CHANNEL” (a copy of which appears to be Exhibit 6), and
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`that the face of the patent indicates that it was issued on July 19, 2005. Activision lacks
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`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
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`set forth in paragraph 26 and therefore denies them.
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`27.
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`28.
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`29.
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`30.
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`31.
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`32.
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`AS TO THE ACCUSED PRODUCTS
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Activision admits that certain World of Warcraft products include or have
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`included features relating to multiple realms but denies that such technology has ever infringed
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`any of the Patents-in-Suit. Activision denies the remaining allegations of paragraph 32.
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`33.
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`34.
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`Denied.
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`Activision admits that at least one version of the World of Warcraft Downloader
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`included features relating to peer-to-peer technology but denies that any such technology has
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`ever infringed any of the Patents-in-Suit. Activision denies the remaining allegations of
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`paragraph 34.
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`35.
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`Denied.
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`5
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`Case 1:16-cv-00453-RGA Document 301 Filed 09/12/17 Page 6 of 15 PageID #: 25038
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`36.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 36 and therefore denies them.
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`37.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 37 and therefore denies them.
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`38.
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`39.
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`40.
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`Denied.
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`Denied.
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`Denied.
`
`AS TO ACTIVISION BLIZZARD’S ALLEGED INFRINGEMENT
`OF ACCELERATION BAY’S PATENTS
`
`41.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 41 as it relates to Destiny and therefore denies
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`them. Activision denies the remaining allegations of paragraph 41.
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`AS TO COUNT I
`(Alleged Direct Infringement of the ’344 Patent)
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`42.
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`Activision hereby incorporates by reference the responses of the preceding
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`paragraphs.
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`43.
`
`44.
`
`45.
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`46.
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`47.
`
`48.
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`49.
`
`50.
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`51.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
`
`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`6
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`Case 1:16-cv-00453-RGA Document 301 Filed 09/12/17 Page 7 of 15 PageID #: 25039
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`52.
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`Denied.
`
`AS TO COUNT II
`(Alleged Direct Infringement of the ’966 Patent)
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`53.
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`Activision hereby incorporates by reference the responses of the preceding
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`paragraphs.
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`54.
`
`55.
`
`56.
`
`57.
`
`58.
`
`59.
`
`60.
`
`61.
`
`62.
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`63.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
`
`AS TO COUNT III
`(Alleged Direct Infringement of the ’147 Patent)
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`64.
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`Activision hereby incorporates by reference the responses of the preceding
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`paragraphs.
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`65.
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`66.
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`67.
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`68.
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`69.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Activision admits that it provides Terms of Use for its products and services
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`(copies of which appear to be Exhibits 10 and 11). The remaining allegations in paragraph 69
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`7
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`Case 1:16-cv-00453-RGA Document 301 Filed 09/12/17 Page 8 of 15 PageID #: 25040
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`constitute conclusions of law to which no response of Activision is required; to the extent a
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`response is required, Activision denies the remaining allegations of paragraph 69.
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`70.
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`71.
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`72.
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`Denied.
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`Denied.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 72 and therefore denies them.
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`73.
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`74.
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`75.
`
`76.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
`
`AS TO COUNT IV
`(Alleged Direct Infringement of the ’634 Patent)
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`77.
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`Activision hereby incorporates by reference the responses of the preceding
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`paragraphs.
`
`78.
`
`79.
`
`80.
`
`81.
`
`82.
`
`83.
`
`Denied.
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`Denied.
`
`Denied.
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`Denied.
`
`Denied.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 83 and therefore denies them.
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`84.
`
`85.
`
`86.
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`Denied.
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`Denied.
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`Denied.
`
`8
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`Case 1:16-cv-00453-RGA Document 301 Filed 09/12/17 Page 9 of 15 PageID #: 25041
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`87.
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`Denied.
`
`AS TO COUNT V
`(Alleged Direct Infringement of the ’069 Patent)
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`88.
`
`Activision hereby incorporates by reference the responses of the preceding
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`paragraphs.
`
`89.
`
`90.
`
`91.
`
`92.
`
`93.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
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`Activision admits that it provides Terms of Use for its products and services
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`(copies of which appear to be Exhibits 10 and 11). The remaining allegations in paragraph 93
`
`constitute conclusions of law to which no response of Activision is required; to the extent a
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`response is required, Activision denies the remaining allegations of paragraph 93.
`
`94.
`
`95.
`
`96.
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`Denied.
`
`Denied.
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`Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 96 and therefore denies them.
`
`97.
`
`98.
`
`99.
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`Denied.
`
`Denied.
`
`Denied.
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`100. Denied.
`
`AS TO COUNT VI
`(Alleged Direct Infringement of the ’497 Patent)
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`101. Activision hereby incorporates by reference the responses of the preceding
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`paragraphs.
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`9
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`Case 1:16-cv-00453-RGA Document 301 Filed 09/12/17 Page 10 of 15 PageID #: 25042
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`102. Denied.
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`103. Denied.
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`104. Denied.
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`105. Denied.
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`106. Activision admits that it provides Terms of Use for its products and services
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`(copies of which appear to be Exhibits 10 and 11). The remaining allegations in paragraph 106
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`constitute conclusions of law to which no response of Activision is required; to the extent a
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`response is required, Activision denies the remaining allegations of paragraph 106.
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`107. Denied.
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`108. Denied.
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`109. Activision lacks knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 109 and therefore denies them.
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`110. Denied.
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`111. Denied.
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`112. Denied.
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`113. Denied.
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`AS TO PLAINTIFF’S PRAYER FOR RELIEF
`
`These Paragraphs set forth the statement of relief requested by Plaintiff, to which no
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`response is required. To the extent that these paragraphs require a response, Activision denies
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`that Plaintiff is entitled to any of the requested relief and denies any allegations contained herein.
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`Activision requests that a take-nothing judgment be entered in its favor and against Plaintiff on
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`the entire Complaint.
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`AS TO PLAINTIFF’S DEMAND FOR JURY TRIAL
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`This section purports to request a trial by jury and does not require a response.
`
`10
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`Case 1:16-cv-00453-RGA Document 301 Filed 09/12/17 Page 11 of 15 PageID #: 25043
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`AFFIRMATIVE DEFENSES
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`Further answering the Complaint, Activision asserts the following affirmative defenses,
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`undertaking the burden of proof only as to those defenses required by law, regardless of how
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`such defenses are denominated here. Activision reserves the right to rely upon any additional
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`defenses that become available or apparent during discovery, and reserves its right to amend this
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`Answer and to assert such additional defenses or, if appropriate, delete additional defenses as
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`discovery proceeds, including the right to assert claims for inequitable conduct. Activision
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`asserts each of these affirmative defenses in the alternative, without admitting that Activision is
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`in any way liable to Plaintiff, that Plaintiff has been or will be injured or damaged in any way, or
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`that Plaintiff is entitled to any relief whatsoever. As a defense to the Complaint and each and
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`every allegation contained in it, Activision alleges as follows:
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`FIRST AFFIRMATIVE DEFENSE
`(Failure to State a Claim for Relief)
`
`The Complaint fails to state a claim upon which relief may be granted against Activision,
`
`and fails to allege sufficient facts.
`
`SECOND AFFIRMATIVE DEFENSE
`(Invalidity)
`
`The Patents-in-Suit are invalid and void, at least, for failure to meet one or more of the
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`conditions for patentability set forth in 35 U.S.C. §§ 101 et seq., including but not limited to
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`failure to comply with the requirements of 35 U.S.C. §§ 101, 102, 103, and 112.
`
`THIRD AFFIRMATIVE DEFENSE
`(Failure to Provide Notice and/or Failure to Mark)
`
`By reason of Plaintiff’s failure to meet the requirements of 35 U.S.C. § 287, Plaintiff is
`
`precluded from seeking damages from Activision for any and all alleged infringement prior to
`
`11
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`Case 1:16-cv-00453-RGA Document 301 Filed 09/12/17 Page 12 of 15 PageID #: 25044
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`the filing of the Complaint. Any claim for damages is limited by the requirements of 35 U.S.C.
`
`§ 287(a).
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`FOURTH AFFIRMATIVE DEFENSE
`(Claim Is Not Entitled to Injunctive Relief)
`
`Plaintiff is not entitled to injunctive relief because any alleged injury to them is not
`
`immediate or irreparable, and because Plaintiff has an adequate remedy at law for any claims it
`
`can prove.
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`FIFTH AFFIRMATIVE DEFENSE
`(Waiver / Estoppel)
`
`Plaintiff’s claims against Activision are barred and unenforceable against Activision, in
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`whole or in part, by one or more of the equitable doctrines of waiver and estoppel.
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`SIXTH AFFIRMATIVE DEFENSE
`(Damage Limitation)
`
`Plaintiff shall not be entitled to seek damages for alleged infringement prior to March 12,
`
`2015.
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`PRAYER FOR RELIEF
`
`WHEREFORE, Activision respectfully requests that the Court enter a judgment in its
`
`favor and against Acceleration Bay as follows:
`
`A.
`
`An order declaring and entering judgment that Activision has not infringed and
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`does not infringe directly (or under the doctrine of equivalents) any valid and
`
`enforceable claim of the Patents-in-Suit;
`
`B.
`
`C.
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`An order declaring and entering judgment that the Patents-in-Suit are invalid;
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`An order dismissing with prejudice all of Acceleration Bay’s claims against
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`Activision;
`
`12
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`Case 1:16-cv-00453-RGA Document 301 Filed 09/12/17 Page 13 of 15 PageID #: 25045
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`D.
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`An order declaring that Activision is a prevailing party and that this is an
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`exceptional case, awarding Activision its costs, expenses, disbursements, and
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`reasonable attorneys’ fees under 35 U.S.C. §§ 284 and 285;
`
`E.
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`An order compelling Acceleration Bay to pay all costs associated with this action;
`
`and
`
`F.
`
`An order granting Activision any such other and further relief as the Court deems
`
`just and proper.
`
`DEMAND FOR JURY TRIAL
`
`Defendant Activision demands a jury trial on all issues so triable.
`
`
`
`
`
`
`
`OF COUNSEL:
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`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
`
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`
`/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
`
`Attorneys for Defendants
`
`13
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`
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`Case 1:16-cv-00453-RGA Document 301 Filed 09/12/17 Page 14 of 15 PageID #: 25046
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`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
`
`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`
`Andrew R. Sommer
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`September 12, 2017
`
`14
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`
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`Case 1:16-cv-00453-RGA Document 301 Filed 09/12/17 Page 15 of 15 PageID #: 25047
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`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on September 12, 2017, I caused the foregoing to be
`
`
`
`
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`electronically filed with the Clerk of the Court using CM/ECF, which will send notification of
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`such filing to all registered participants.
`
`
`
`
`
`I further certify that I caused copies of the foregoing document to be served on
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`September 12, 2017, upon the following in the manner indicated:
`
`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
`
`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`Greg Proctor, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
`
`Aaron M. Frankel, Esquire
`Marcus A. Colucci, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Attorneys for Plaintiff
`
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`
`
`
`
`
`
`/s/ Stephen J. Kraftschik
`Stephen J. Kraftschik (#5623)
`
`
`
`
`
`