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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`V.
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`Civil Action No. 16-453-RGA
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`ACTIVISION BLIZZARD, INC.,
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`Defendant.
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`ORDER
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`The Court has considered Defendant's letter and Plaintiffs letter. (No. 16-453, D.I. 407
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`& 408). The Court has reviewed Mitzenmacher' s Report. It does not seem to offer very much
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`that is new. Therefore, on this record, the Court is not going to strike Mitzenmacher's Report.
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`The Court is, nevertheless, concerned that Plaintiffs national counsel cannot be relied
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`upon for "candor to the tribunal." Two recent incidents highlight the problem.
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`Due Diligence with Hamilton Capital. On February 11, 2016, counsel wrote to the Court,
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`in connection with a discovery dispute, "Acceleration Bay has already represented that there have
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`been no exchanges of diligence information regarding the Asserted Patents between Acceleration
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`Bay and Hamilton Capital or Boeing." (No. 16-455, D.I. 340-1 at 83). As time passed, "no
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`exchanges" have become "limited documents." "Acceleration Bay already produced the limited
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`documents that its counsel provided to Hamilton Capital in connection with due diligence." (No.
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`16-453, D.I. 379, p.1). The dispute now is about whether eight email chains (which Acceleration
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`Bay chooses to label the "Diligence Emails," see No. 16-453, D.I. 379, p.2) that seem to have
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`gone along with these "limited documents" must be produced.
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`Case 1:16-cv-00453-RGA Document 422 Filed 01/17/18 Page 2 of 2 PageID #: 29871
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`Limiting Preamble. Without belaboring the point, counsel for Plaintiff stated that
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`Plaintiff had reached agreement on a claim construction, and that "some terms [could be taken]
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`off the table." (No. 16-453, D.I. 391 at 6). Counsel referred to Defendants' earlier submission
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`(D.I. 381), which had "proposed construction[s] pursuant to Dec. 12 Oral Order." For the two
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`disputed terms, each "proposed construction" began, "The preamble is limiting." In the Court's
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`experience, any honest patent lawyer would agree that whether a preamble is limiting is classic
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`claim construction. Thus, even leaving aside the history alleged in Defendants' most recent
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`submission (No. 16-453, D.I. 420), Plaintiffs lawyers's revisionist history makes no sense. It
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`does not take a term off the table to say that we can continue to dispute whether it is limiting, and
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`it also makes no sense to go through a lengthy hearing and never revisit terms 24 and 25 if
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`counsel honestly thought its limiting status remained in dispute. Counsel's actions speak more
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`loudly than his words.
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`The Court expects better from Plaintiffs counsel.
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`IT IS SO ORDERED this l7 day of January 2018.
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`~Md~-~
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`United States Dstrict Judge
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