Case 1:16-cv-00455-RGA Document 365 Filed 01/12/18 Page 1 of 4 PageID #: 24332
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`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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`ACCELERATION BAY LLC,
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`Plaintiff,
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`v.
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`ACTIVISION BLIZZARD, INC.,
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`Defendant.
`ACCELERATION BAY LLC,
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`Plaintiff,
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`v.
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`ELECTRONIC ARTS INC.,
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`Defendant.
`ACCELERATION BAY LLC,
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`Plaintiff,
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`v.
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`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC., and 2K
`SPORTS, INC.,
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`Defendants.
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`PLAINTIFF ACCELERATION BAY LLC’S REBUTTAL TO
`DEFENDANTS’ PROPOSED ORDER REGARDING TERMS 24 & 25
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`Defendants’ Proposed Order (D.I. 4121) does not reflect Plaintiff’s agreement. On Friday
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`December 15, 2017, Defendants submitted proposed constructions for Terms 24 and 25. D.I.
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`381. On Monday December 18, 2017, prior to the Markman Hearing, the parties met and
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`conferred regarding Defendants’ newly proposed constructions. Plaintiff did not agree, and has
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`1 Citations to “D.I.__” refer to C.A. No 16-453-RGA unless specifically stated.
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`Case 1:16-cv-00455-RGA Document 365 Filed 01/12/18 Page 2 of 4 PageID #: 24333
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`never agreed, that the preambles identified in Terms 24 and 25 are limitations. Plaintiff only
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`agreed that the constructions proposed by Defendants reflected the plain and ordinary meaning
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`as stated at the Markman Hearing. See Markman Tr. at 6:5-13 (D.I. 391).
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`Further, there is a presumption that preambles are generally not limitations and
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`Defendants bear the burden to show the preambles are limitations. Allen Eng'g Corp. v. Bartell
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`Indus., Inc., 299 F.3d 1336, 1346 (Fed. Cir. 2002) (“Generally, the preamble does not limit the
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`claims.”). To the extent Defendants contend there has been a waiver on this issue, it is
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`Defendants that have waived the issue by failing to argue this point at the Markman Hearing,
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`despite Plaintiff’s statements that it only agreed to the constructions and not Defendants’
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`additional arguments.
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`Specifically, Plaintiff stated at the Markman Hearing that it believed no constructions
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`were needed for these terms, but that it would agree to Defendants’ proposed constructions:
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`THE COURT: All right. Tell me about this happy news.
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`MR. HANNAH: It's indeed happy, Your Honor. So, again, we reiterated
`our position that, you know, these terms and all of the terms in the
`subsequent briefing, the plain and ordinary meaning should apply and
`that would resolve the parties' dispute. However, to the extent the Court
`wishes to construe these terms, we've agreed to the construction of term --
`for term 10.
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`Markman Tr. at 6:5-13 (D.I. 391) (emphasis added).
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`Plaintiff also stated that it did not agree with Defendants’ additional arguments, i.e.,
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`whether Terms 24 and 25 are limitations or invalid:
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`MR. HANNAH: We would agree that defendant's proposed construction,
`which is a computer-readable medium containing instructions that control
`communications of a participant of a broadcast channel within a network
`that does not use routing tables, we would agree with that construction
`for claim, for term 24, which is claim 19 of the '634 patent.
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`Id. at 8:3-9 (emphasis added).
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`2
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`Case 1:16-cv-00455-RGA Document 365 Filed 01/12/18 Page 3 of 4 PageID #: 24334
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`MR. HANNAH: And that was a submission on Friday. We haven't had a
`chance to respond to that and so we analyzed it over the weekend.
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`THE COURT: All right. Yes. I'm not apparently sure I even saw that. All
`right. In any event, whatever is in defendant's letter, you agree with that?
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`MR. HANNAH: Yes, which I just stated.
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`THE COURT: Yes.
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`MR. HANNAH: I mean, I say I agree to the construction. I'm not
`agreeing to the positions that they're taking.
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`Id. at 8:16-9:2 (emphasis added).
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`Plaintiff’s position that Terms 24 and 25 are not limitations has been consistent. Indeed,
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`in submitting its proposed constructions in the Joint Claim Construction Chart (“JCCC”) (D.I.
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`236), Plaintiff did not take the position that the preambles for Terms 24 and 25 are limitations.
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`In contrast, Plaintiff specifically identified other preambles that are limitations, such as Terms 26
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`and 28. Id. This distinction clearly indicated that Plaintiff did not agree that the preambles for
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`Terms 24 and 25 were limitations.
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`Additionally, Defendants’ contention that it makes no sense to construe terms if they are
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`not limitations ignores Plaintiff’s position that no construction was or is required. Plaintiff only
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`proposed constructions after being prompted by the Court, following Defendants’ complaint that
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`Plaintiff proposed the plain and ordinary meaning. D.I. 206 at 2. Defendants should not be
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`permitted to argue that preambles are limitations simply because Plaintiff was required by the
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`Court to propose constructions.
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`3
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`Case 1:16-cv-00455-RGA Document 365 Filed 01/12/18 Page 4 of 4 PageID #: 24335
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`POTTER ANDERSON & CORROON LLP
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`By:
`
` /s/ Philip A. Rovner
`Philip A. Rovner (# 3215)
`Jonathan A. Choa (#5319)
` 1313 North Market Street 6th Floor
`Wilmington, Delaware 19801
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
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` Attorneys for Plaintiff
`ACCELERATION BAY LLC
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`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`James Hannah
`Hannah Lee
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M. Frankel
`Marcus A. Colucci
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: January 12, 2018
`5602171
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`4
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