Case 1:16-cv-00455-RGA Document 358 Filed 01/03/18 Page 1 of 2 PageID #: 24314
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`1313 North Market Street
`P.O. Box 951
`Wilmington, DE 19899-0951
`302 984 6000
`www.potteranderson.com
`
`Philip A. Rovner
`Partner
`provner@potteranderson.com
`(302) 984-6140 Direct Phone
`(302) 658-1192 Fax
`
`January 3, 2018
`
`BY CM/ECF & HAND DELIVERY
`
`The Honorable Richard G. Andrews
`U.S. District Court for the District of Delaware
`U.S. Courthouse
`844 North King Street
`Wilmington, DE 19801
`
`Re:
`
`Acceleration Bay LLC v. Activision Blizzard, Inc. et al.
`D. Del., C.A. No. 16-453-RGA, 16-454-RGA, 16-455-RGA
`
`Dear Judge Andrews:
`
`Acceleration Bay writes in brief response to Defendants’ letter, dated January 2, 2018
`(D.I. 401 in C.A. No. 16-453-RGA).
`
`The Court’s construction of Term 27 does not render invalid claims 19 and 22 of the ‘634
`Patent or Claims 11, 14, 15 and 16 of the ‘147 Patent. Defendants misstate the record in
`claiming that Acceleration Bay agreed that these claims are invalid if the Court’s construction of
`“computer readable medium” included carrier waves. In particular, Defendants omit counsels’
`statements that “the case law is not as clear as defendants have made it out to be” and “I just
`want to put on the record that we don't agree that even if carrier waves was included that the
`patent would be invalid. . . . it might be a consideration, but there's a Hughes case that
`specifically says that carrier waves can be patent eligible, subject matter.” 11/21/17 Hearing Tr.
`at 64:24-65:11, 87:13-23. Thus, the validity of these claims remains a disputed issue.
`
`In their letter, Defendants ask the Court to determine now whether all computer readable
`medium claims are invalid based on three-page letter briefs. However, summary judgment briefs
`on validity issues are due on February 2, 2018 in all three cases, and may not be filed more than
`ten days before that date without leave of the Court. C.A. No. 16-453-RGA, D.I. 62 at § 11.
`Defendants already filed one dispositive motion on patent eligibility, which the Court denied,
`and their latest theory of invalidity should be addressed in accordance with the case schedule.
`D.I. 276. Deviation from the Scheduling Order in these cases and Defendants’ proposed
`draconian page limit is unwarranted, especially given that: (1) there are six claims at issue; (2)
`resolution of this issue will require consideration of the intrinsic record (and likely expert
`opinion as well); and (3) the parties are in the middle of expert discovery.
`
`

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`Case 1:16-cv-00455-RGA Document 358 Filed 01/03/18 Page 2 of 2 PageID #: 24315
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`The Honorable Richard G. Andrews
`January 3, 2018
`Page 2
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`Accordingly, to the extent Defendants intend to file a motion for summary judgment on
`validity, they should do so in accordance with the existing case schedule.
`
`Respectfully,
`
`/s/ Philip A. Rovner
`
`Philip A. Rovner (#3215)
`
`cc:
`5597039
`
`All Counsel of Record (Via ECF Filing, Electronic Mail)
`
`