Case 1:16-cv-00455-RGA Document 372 Filed 01/17/18 Page 1 of 7 PageID #: 24531
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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,
`
`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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`JOINT REPORT REGARDING PROPOSED PAGE LIMITS FOR SUMMARY
`JUDGMENT AND DAUBERT MOTIONS
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`As requested by the Court at the December 18, 2017 claim construction hearing, the
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`parties have conferred regarding page limits for summary judgment and Daubert motions. The
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`parties did not reach agreement, and respectfully request the Court’s guidance on page limits.
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`

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`Case 1:16-cv-00455-RGA Document 372 Filed 01/17/18 Page 2 of 7 PageID #: 24532
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`The scheduling order in each of the above-referenced actions provides a schedule for
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`briefing summary judgment and Daubert motions. C.A. No. 16-453, D.I. 343. Summary
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`judgment and Daubert motions in the 16-453 action and all motions relating to validity/invalidity
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`in the three related actions are due February 2, 2018. Motions specific to the 16-454 and 16-455
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`cases are respectively due March 23, 2018 and June 15, 2018. Id.
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`Acceleration Bay’s Proposal:
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`Acceleration Bay’s proposal for page limits on all summary judgment and Daubert
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`motions in all three cases will require the parties to focus on discrete issues that are genuinely
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`appropriate for a summary judgment and Daubert motion practice. Acceleration Bay proposes
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`the following for all summary judgment and Daubert motions for the 16-453 action, which will
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`also include all motions related to validity/invalidity:
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`• Opening brief: 50 pages total
`• Opposition brief: 50 pages total
`• Reply brief: 25 pages total
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`Acceleration Bay further proposes that summary judgment and Daubert motions be
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`combined into a single opening, answering and reply brief.
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`For the motions in the 16-454 and 16-455 cases, which will not include any
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`validity/invalidity issues, Acceleration Bay proposes, for each case, the following limits for all
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`summary judgment and Daubert motions:
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`• Opening brief: 40 pages total
`• Opposition brief: 40 pages total
`• Reply brief: 20 pages total
`• The parties may not reargue issues already presented in prior rounds of
`briefing, including validity/invalidity
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`Acceleration Bay further proposes that summary judgment and Daubert motions be
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`combined into a single opening, answering and reply brief.
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`2
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`Case 1:16-cv-00455-RGA Document 372 Filed 01/17/18 Page 3 of 7 PageID #: 24533
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`Plaintiff’s proposed page limits are more than sufficient for the parties to present
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`manageable issues that the Court can address on summary judgment or in connection with a
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`Daubert challenge. Increasing both parties’ (or just Defendants’) page limits for such a brief to
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`80 pages will guarantee an indiscriminate “shotgun” approach, instead of a concise brief
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`addressing only certain discrete issues, and will serve only to increase the burden on the Court.
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`Similarly, delaying a decision regarding the page limits of the briefs for the 16-454 and 16-455
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`cases makes no sense. Defendants have Acceleration Bay’s opening expert reports in all three
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`cases and know what the issues.1 Indeed, setting a page limit now will encourage Defendants to
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`focus on discrete issues, instead of recycling arguments or taking a different spin on unsuccessful
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`arguments.
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`Defendants’ arguments for an excessive number of pages for the 16-453 case highlight
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`why Acceleration Bay’s proposal for all three cases is appropriate. For example, summary
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`judgment motions on the issue of infringement are generally not appropriate because they are
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`fraught with questions of material fact. If Defendants intend to seek summary judgment of non-
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`infringement, they only need to address a single claim element, which should not require
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`substantial briefing. For broader issues, such as willful infringement and damages, those issues
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`are also either questions of fact. Willfulness requires an assessment regarding Defendants’
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`conduct which usually involves a factual dispute and is often assessed by a jury. Similarly,
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`whether worldwide sales are an appropriate measure for damages is a factual dispute based on
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`the nature of Defendants’ infringing conduct in the United States, as well as the benefit
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`Defendants receive from their infringing conduct.
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`1 There is no merit to Defendants' complaints regarding the length of, or citations in,
`Acceleration Bay's expert reports. The reports are well under the page limit set by the Special
`Master and upheld by this Court. Moreover, the Special Master specifically rejected Defendants'
`arguments regarding citations. D.I. 293 (C.A. No. 16-453).
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`3
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`Case 1:16-cv-00455-RGA Document 372 Filed 01/17/18 Page 4 of 7 PageID #: 24534
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`As to Daubert challenges, they are generally more appropriately addressed on cross-
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`examination, as opposed to invoking the Court’s gate-keeping function. Defendants’ citation to
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`Finjan, Inc. v. Blue Coat Sys., Inc., 2018 WL 341882, at *8 (Fed. Cir. Jan. 10, 2018) is curious,
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`as it has no similarity whatsoever to this case and is completely irrelevant.
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`In either case, the claim that a substantial amount of briefing is required on any of these
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`issues cuts against any assertion that there is no disputed issues of material fact or there is truly
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`an issue appropriate for consideration under Daubert. Acceleration Bay’s page limits will force
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`the parties to select issues, and by requiring that they are addressed concisely and avoid having
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`unnecessary issues briefed, so that they cannot be characterized as “summary judgment and other
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`annoying motions.” December 4, 2017 Transcript at 112, lines 17-20 (D.I. 370, C.A. No. 16-
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`453).
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`Defendants’ Proposal:
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`Under the Court’s scheduling order, there will be three sets of briefing. D.I. 343. The
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`first set is due on February 2, 2018. D.I. 343. This set will include joint motions on
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`validity/invalidity, and all other motions with respect to the Activision case. In keeping with the
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`Court’s instruction to focus on significant issues for this set of briefs, Defendants request that the
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`Court allow each side to file opening briefs totaling no more than 80 pages, answering briefs
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`totaling no more than 80 pages, and reply briefs totaling no more than 40 pages. Defendants also
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`do not agree that all issues should be included in a single brief. Defendants believe that the
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`briefs will be more manageable for the Court and the parties if, for example, damages Daubert
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`briefs are not combined with noninfringement summary judgment briefs.
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`Defendants’ requested page allocations for the first set are necessary given the breadth
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`and complexity of Plaintiff’s claims and Defendants’ numerous substantial arguments for
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`4
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`Case 1:16-cv-00455-RGA Document 372 Filed 01/17/18 Page 5 of 7 PageID #: 24535
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`summary judgment and for exclusion under Daubert. Plaintiff asserts 16 claims across six
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`patents against multiple accused products and networks from three distinct product families (Call
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`of Duty, World of Warcraft and Destiny) with separate code bases and methods of operation.
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`Destiny is developed and operated by a third party and Activision only sells the software.
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`In February 2017, when Activision’s counsel raised the breadth of Plaintiff’s claims—
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`that “there could be as many as six patents and three non-overlapping sets of infringement
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`contentions”—the Court remarked that it would “ridiculous” to try “six patents” and the parties
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`were “going to have to get rid of some of them.” D.I. 60 at 21. Plaintiff has not focused its
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`allegations, however, and the breadth of those allegations makes it impossible to address the
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`allegations fully on summary judgment and Daubert. Plaintiff has offered reports from eight
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`experts and its infringement reports alone run hundreds of pages and rely, without line citations,
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`on thousands of pages of source code. In addition to alleging literal infringement of all asserted
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`claims, Plaintiff alleges infringement under the doctrine of equivalents for eighteen of twenty-
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`four limitations for the asserted independent claims of those patents. Fully half of the DOE
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`allegations are directed at claim elements that were amended during prosecution to overcome
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`prior art. Plaintiff even alleges infringement under the doctrine of equivalents for the “m-regular
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`limitations” that were added to secure allowance of the asserted claims. Acceleration also
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`alleges willful infringement (based solely on post-filing conduct) and seeks damages for future
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`and foreign sales.
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`Allowing Activision 80 pages for its opening briefs amounts to only about 13 pages per
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`patent. Indeed, Plaintiff has accused five networks of infringing the six asserted patents. Within
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`the 80 pages, Defendants will make joint arguments as to invalidity, and Activision will focus on
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`5
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`Case 1:16-cv-00455-RGA Document 372 Filed 01/17/18 Page 6 of 7 PageID #: 24536
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`substantial noninfringement and damages arguments, and Daubert arguments.2 Focusing on
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`these issues may make a trial unnecessary and, at minimum, is likely to reduce the trial’s scope.
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`Defendants have no intention of taking a “shotgun” approach to briefing. There are,
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`however, serious issues as to infringement, validity and damages, including Daubert issues, that
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`Defendants intend to raise. Defendants do not believe that 80 pages is excessive given the
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`number of asserted patents and accused products, and the amount at stake here.
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`Finally, Plaintiff’s position that summary judgment on infringement is “generally not
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`appropriate” is unfounded. This Court has granted summary judgment of noninfringement on
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`several occasions. And it is particularly appropriate here where Plaintiff’s claim construction
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`positions have been rejected for many terms. Similarly, Plaintiff’s statement that “Daubert
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`challenges . . are generally more appropriately addressed on cross-examination” is also
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`unfounded. There is no basis for the Court not to exercise its gatekeeping function, particularly
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`on issues such as apportionment and future damages. This Court has granted such motions,
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`particularly with respect to damages experts, on several occasions.
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`Plaintiff has advised us that it would like 50 pages total for its first set of summary
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`judgment and Daubert briefs. Defendants do not object to that allocation for Plaintiff’s briefs,
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`but, for the reasons stated above, believes that amount is insufficient for Defendants’ briefs.
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`The second and third sets of briefs will include motions as to Electronic Arts (EA) and
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`Take-Two, respectively. The motions as to EA are due March 23, 2018, and the motions as to
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`Take-Two are due June 15, 2018. Because expert discovery in these cases is ongoing—the
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`parties have not yet fully exchanged expert reports—Defendants believe that setting page limits
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`2 The damages and other Daubert issues may be substantial, as shown by the Federal Circuit’s
`recent rejection of the damages theory in another case brought by Plaintiff’s counsel just last
`week. See Finjan, Inc. v. Blue Coat Sys., Inc., 2018 WL 341882, at *8 (Fed. Cir. Jan. 10, 2018)
`(opining that Finjan’s damages theory was “plucked from thin air”).
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`6
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`Case 1:16-cv-00455-RGA Document 372 Filed 01/17/18 Page 7 of 7 PageID #: 24537
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`for these sets of briefs would be premature. If, however, the Court is inclined to decide the issue
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`now, EA and Take-Two propose the same page limits as proposed by Activision.
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`POTTER ANDERSON & CORROON LLP
`
`MORRIS, NICHOLS, ARSHT & TUNNELL
`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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`Dated: January 17, 2018
`5604126
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`By: /s/ Jack B. Blumenfeld_____________
`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
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`Attorneys for Defendants
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`7
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