Case 1:16-cv-00455-RGA Document 401 Filed 02/09/18 Page 1 of 10 PageID #: 30462
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`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,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.,
`
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ELECTRONIC ARTS INC.,
`
`Defendant.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC., and 2K
`SPORTS, INC.,
`
`Defendants.
`
`DECLARATION OF PAUL J. ANDRE IN SUPPORT OF PLAINTIFF
`ACCELERATION BAY LLC’S OPENING SUMMARY JUDGMENT
`AND DAUBERT BRIEF
`
`VOLUME 3 OF 3
`
`[Exhibits 40 part 2-62]
`
`PUBLIC VERSION
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-453 (RGA)
`
`C.A. No. 16-454 (RGA)
`
`C.A. No. 16-455 (RGA)
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`)))))))))
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`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.,
`
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ELECTRONIC ARTS INC.,
`
`Defendant.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC., and 2K
`SPORTS, INC.,
`
`Defendants.
`
`DECLARATION OF PAUL J. ANDRE IN SUPPORT OF PLAINTIFF
`ACCELERATION BAY LLC’S OPENING SUMMARY JUDGMENT
`AND DAUBERT BRIEF
`
`VOLUME 3 OF 3
`
`[Exhibits 40 part 2-62]
`
`PUBLIC VERSION
`
`
`
`Case 1:16-cv-00455-RGA Document 401 Filed 02/09/18 Page 2 of 10 PageID #: 30463
`
`I, Paul J. Andre, hereby declare as follows:
`
`1.
`
`I am an attorney with the law firm Kramer Levin Naftalis & Frankel LLP, counsel
`
`of record for Plaintiff Acceleration Bay LLC (“Acceleration Bay”). I have personal knowledge
`
`of the facts set forth in this declaration and can testify competently to those facts. I submit this
`
`declaration in support of Acceleration Bay’s Opening Summary Judgment and Daubert Brief.
`
`2.
`
`Attached hereto as Exhibit 1 is a true and correct copy the Final Written Decision
`
`from Activision Blizzard, Inc. v. Acceleration Bay LLC, Case IPR2015-01970, Paper 106
`
`(P.T.A.B. Mar. 23, 2017).
`
`3.
`
`Attached hereto as Exhibit 2 is a true and correct copy of the Final Written
`
`Decision from Activision Blizzard, Inc. v. Acceleration Bay LLC, Case IPR2015-01951, Paper
`
`107 (P.T.A.B. Mar. 23, 2017).
`
`4.
`
`Attached hereto as Exhibit 3 is a true and correct copy of U.S. Patent No.
`
`6,701,344, produced by Acceleration Bay LLC, bearing bates numbers AB-AB 000001 – 56.
`
`5.
`
`Attached hereto as Exhibit 4 is a true and correct copy of U.S. Patent No.
`
`6,714,966, produced by Acceleration Bay LLC, bearing bates numbers AB-AB 000291 – 348.
`
`6.
`
`Attached hereto as Exhibit 5 is a true and correct copy of page 14 from
`
`Defendants’ Initial Invalidity Contentions from Acceleration Bay LLC v. Activision Blizzard,
`
`Inc., Case No. 15-cv-00228-RGA, Acceleration Bay LLC v. Electronic Arts Inc., Case No. 15-
`
`cv-00282-RGA, Acceleration Bay LLC v. Take-Two Interactive Software, Inc., Case No. 15-cv-
`
`00311-RGA (D. Del.), dated May 6, 2016.
`
`7.
`
`Attached hereto as Exhibit 6 is a true and correct copy of pages 36-38, 128-129,
`
`169, 182-184, 195-196, 215-216, 243-245, 247, and 379-381 from Expert Report of David R.
`
`
`
`Case 1:16-cv-00455-RGA Document 401 Filed 02/09/18 Page 3 of 10 PageID #: 30464
`
`Karger, Ph.D. Regarding Invalidity of Certain Claims from U.S. Patent Nos. 6,701,344,
`
`6,714,966, 6,829,634, 6,910,069, 6,732,147, and 6,920,497, dated September 25, 2017.
`
`8.
`
`Attached hereto as Exhibit 7 is a true and correct copy of page 28 from the Expert
`
`Report of Scott Bennett, Ph.D. Regarding Prior Art Invalidity of Certain Claims from U.S. Patent
`
`Nos. 6,701,344, 6,714,966, 6,829,634, 6,910,069, 6,732,147, and 6,920,497, dated September 20,
`
`2017.
`
`9.
`
`Attached hereto as Exhibit 8 is a true and correct copy of the Expert Report of
`
`Michael Goodrich, Ph.D., Regarding Validity of U.S. Patent Nos. 6,701,344; 6,829,634;
`
`6,714,966; 6,732,147; 6,920,497; 6,910,069, dated November 13, 2017.
`
`10.
`
`Attached hereto as Exhibit 9 is a true and correct copy of pages 67-68 from the
`
`transcript of the deposition of David Karger, taken on January 25, 2018.
`
`11.
`
`Attached hereto as Exhibit 10 is a true and correct copy of the Decision Denying
`
`Institution of Inter Partes Review from Activision Blizzard, Inc. v. Acceleration Bay LLC, Case
`
`IPR2016-00726, Paper 11 (P.T.A.B. Sept. 9, 2016).
`
`12.
`
`Attached hereto as Exhibit 11 is a true and correct copy of the Decision on
`
`Institution of Inter Partes Review from Activision Blizzard, Inc. v. Acceleration Bay LLC, Case
`
`IPR2015-01972, Paper 8 (P.T.A.B. Mar. 24, 2016).
`
`13.
`
`Attached hereto as Exhibit 12 is a true and correct copy of the Decision Denying
`
`Institution of Inter Partes Review from Activision Blizzard, Inc. v. Acceleration Bay LLC, Case
`
`IPR2016-00931, Paper 13 (P.T.A.B. June 23, 2016).
`
`14.
`
`Attached hereto as Exhibit 13 is a true and correct copy of the Decision on
`
`Institution of Inter Partes Review from Activision Blizzard, Inc. v. Acceleration Bay LLC, Case
`
`IPR2016-00747, Paper 12 (P.T.A.B. Sept. 12, 2016).
`
`2
`
`
`
`Case 1:16-cv-00455-RGA Document 401 Filed 02/09/18 Page 4 of 10 PageID #: 30465
`
`15.
`
`Attached hereto as Exhibit 14 is a true and correct copy of the Final Written
`
`Decision from Activision Blizzard, Inc. v. Acceleration Bay LLC, Case IPR2016-00747, Paper 50
`
`(P.T.A.B. Sept. 6, 2017).
`
`16.
`
`Attached hereto as Exhibit 15 is a true and correct copy of Decision Denying
`
`Institution of Inter Partes Review from Activision Blizzard, Inc. v. Acceleration Bay LLC, Case
`
`IPR2016-00727, Paper 13 (P.T.A.B. Sept. 9, 2016).
`
`17.
`
`Attached hereto as Exhibit 16 is a true and correct copy of a publication by S.
`
`Alagar entitled, “Reliable Broadcast in Mobile Wireless Networks”, produced by Scott Bennett,
`
`bearing bates numbers BENNETT_000627 – 31.
`
`18.
`
`Attached hereto as Exhibit 17 is a true and correct copy of pages 120 and 265-266
`
`from the Reply Expert Report of David R. Karger, Ph.D. Regarding Invalidity of Certain Claims
`
`from U.S. Patent Nos. 6,701,344, 6,714,966, 6,829,634, 6,910,069, 6,732,147, and 6,920,497,
`
`dated December 14, 2017.
`
`19.
`
`Attached hereto as Exhibit 18 is a true and correct copy of pages 23-24 from the
`
`Supplemental Expert Report of David R. Karger, Ph.D. Regarding Invalidity of Certain Claims
`
`from U.S. Patent Nos. 6,701,344, 6,714,966, 6,829,634, 6,910,069, 6,732,147, and 6,920,497,
`
`dated January 23, 2018.
`
`20.
`
`Attached hereto as Exhibit 19 is a true and correct copy of a publication by Daniel
`
`Kegel entitled “NAT and Peer-to-peer networking”, produced by Scott Bennett, bearing bates
`
`numbers BENNETT_000226 – 29.
`
`21.
`
`Attached hereto as Exhibit 20 is a true and correct copy of a webpage produced
`
`by Acceleration Bay LLC, bearing bates numbers AB-AB 014173 – 74.
`
`3
`
`
`
`Case 1:16-cv-00455-RGA Document 401 Filed 02/09/18 Page 5 of 10 PageID #: 30466
`
`22.
`
`Attached hereto as Exhibit 21 is a true and correct copy of a webpage, produced
`
`by Acceleration Bay LLC, bearing bates numbers AB-AB 014175 – 77.
`
`23.
`
`Attached hereto as Exhibit 22 is a true and correct copy of U.S. Patent No.
`
`6,920,497, produced by Acceleration Bay LLC, bearing bates numbers AB-AB 001786 – 843.
`
`24.
`
`Attached hereto as Exhibit 23 is a true and correct copy of pages 100, 108 and
`
`116 of the transcript of the deposition of David Karger, taken on January 25, 2018.
`
`25.
`
`Attached hereto as Exhibit 24 is a true and correct copy of the Declaration of
`
`Daniel R. Karger from Activision Blizzard, Inc. v. Acceleration Bay LLC, Case IPR2016-00724
`
`and IPR2016-00727, dated March 10, 2016.
`
`26.
`
`Attached hereto as Exhibit 25 is a true and correct copy of ActiveNet’s
`
`“default.htm” file produced by Defendants, bearing bates number DEFS-I0025493 (DEFS-
`
`I0025493\anet-archive.zip\anet-archive\unpacked\98-11-10\default.htm).
`
`27.
`
`Attached hereto as Exhibit 26 is a true and correct copy of ActiveNet’s
`
`“default.htm” file produced by Defendants, bearing bates number DEFS-I0028725 (DEFS-
`
`I0028725\99-01-05\default.htm).
`
`28.
`
`Attached hereto as Exhibit 27 is a true and correct copy of screen captures of the
`
`ActiveNet source code file directories. These screen captures show that Defendants produced
`
`multiple versions of ActiveNet.
`
`29.
`
`Attached hereto as Exhibit 28 is a true and correct copy of the Expert Report of
`
`Michael Mitzenmacher, Ph.D., Regarding Infringement by Activision Blizzard Inc. of U.S.
`
`Patent Nos. 6,701,344; 6,829,634; 6,732,147; 6,714,966, 6,920,497; 6,910,069, dated September
`
`23, 2017, including a November 7, 2017 markup of excerpts of that report with red highlighting
`
`indicating withdrawn citations.
`
`4
`
`
`
`Case 1:16-cv-00455-RGA Document 401 Filed 02/09/18 Page 6 of 10 PageID #: 30467
`
`30.
`
`Attached hereto as Exhibit 29 is a true and correct copy of a presentation entitled
`
`“Shared World Shooter”, produced by Bungie, bearing bates numbers BUNGIE_AB_000001 –
`
`133.
`
`31.
`
`Attached hereto as Exhibit 30 is a true and correct copy of a publication by
`
`Michael McWhertor entitled “Destiny: Bungie’s Brave New Worlds,” produced by Acceleration
`
`Bay LLC, bearing bates numbers AB-AB 002681 – 98.
`
`32.
`
`Attached hereto as Exhibit 31 is a true and correct copy of a webpage produced
`
`by Acceleration Bay LLC, bearing bates numbers AB-AB 002797 – 98.
`
`33.
`
`Attached hereto as Exhibit 32 is a true and correct copy of a presentation entitled
`
`“Activities Tour of Activity Technology”, produced by Bungie, bearing bates numbers
`
`BUNGIE_AB_000424 – 98.
`
`34.
`
`Attached hereto as Exhibit 33 is a true and correct copy of pages 52, 55-56, 77-79,
`
`83-85, 88-89, and 93-95 from the transcript of the deposition of Roger D. Wolfson, taken on
`
`May 10, 2017.
`
`35.
`
`Attached hereto as Exhibit 34 is a true and correct copy of pages 27-30, 39-40,
`
`42-43, 190-191, and 195 from the transcript of the deposition of Michael Macedonia, taken on
`
`January 8, 2018.
`
`36.
`
`Attached hereto as Exhibit 35 is a true and correct copy of the Reply Expert
`
`Report of Michael Mitzenmacher, Ph.D., Regarding Infringement by Activision Blizzard Inc. of
`
`U.S. Patent Nos. 6,701,344; 6,829,634; 6,732,147; 6,714,966; 6,920,497; 6,910,069, dated
`
`December 14, 2017.
`
`37.
`
`Attached hereto as Exhibit 36 is a true and correct copy of a webpage produced
`
`by Activision Blizzard, Inc., bearing bates numbers ATVI0030052 – 69.
`
`5
`
`
`
`Case 1:16-cv-00455-RGA Document 401 Filed 02/09/18 Page 7 of 10 PageID #: 30468
`
`38.
`
`Attached hereto as Exhibit 37 is a true and correct copy of a webpage produced
`
`by Acceleration Bay LLC, bearing bates numbers AB-AB 009954 – 63.
`
`39.
`
`Attached hereto as Exhibit 38 is a true and correct copy of a webpage produced
`
`by Acceleration Bay LLC, bearing bates numbers AB-AB 009942 – 53.
`
`40.
`
`Attached hereto as Exhibit 39 is a true and correct copy of pages 47-49, 54, 62,
`
`106, 174-175, 276, and 287 from the transcript of the deposition of Pat Griffith, taken on May
`
`17, 2016.
`
`41.
`
`Attached hereto as Exhibit 40 is a true and correct copy of the Expert Report of
`
`Nenad Medvidovic, Ph.D., Regarding Infringement by Activision Blizzard Inc. of U.S. Patent
`
`Nos. 6,701,344; 6,829,634; 6,732,147; 6,714,966; 6,920,497; 6,910,069, dated September 23,
`
`2017, including a November 7, 2017 markup of excerpts of that report with red highlighting
`
`indicating withdrawn citations.
`
`42.
`
`Attached hereto as Exhibit 41 is a true and correct copy of pages 22-23 and 98
`
`from the transcript of the deposition of Mark Gordon, taken on August 11, 2017.
`
`43.
`
`Attached hereto as Exhibit 42 is a true and correct copy of pages 87-88, 115, 134,
`
`136-138, 148, and 155-156 from the transcript of the deposition of John Kelly, Ph.D., taken on
`
`January 25, 2018.
`
`44.
`
`Attached hereto as Exhibit 43 is a true and correct copy of a webpage produced
`
`by Activision Blizzard, Inc., bearing bates numbers ATVI0026163 – 67.
`
`45.
`
`Attached hereto as Exhibit 44 is a true and correct copy of the Supplemental
`
`Reply Expert Report of Nenad Medvidovic, Ph.D., Regarding Infringement by Activision
`
`Blizzard Inc. of U.S. Patent Nos. 6,701,344; 6,829,634; 6,732,147; 6,714,966; 6,920,497;
`
`6,910,069, dated January 5, 2018.
`
`6
`
`
`
`Case 1:16-cv-00455-RGA Document 401 Filed 02/09/18 Page 8 of 10 PageID #: 30469
`
`46.
`
`Attached hereto as Exhibit 45 is a true and correct copy of pages 22-25, 27, 35,
`
`124-125, 155-156, 189-190, and 275-279 from the transcript of the deposition of Patrick
`
`Dawson, taken on June 2, 2016.
`
`47.
`
`Attached hereto as Exhibit 46 is a true and correct copy of a webpage produced
`
`by Acceleration Bay LLC, bearing bates numbers AB-AB 003208 – 15.
`
`48.
`
`Attached hereto as Exhibit 47 is a true and correct copy of pages 176, 180-181,
`
`and 184-187 from the Expert Report of Dr. John P.J. Kelly Regarding Non-Infringement of U.S.
`
`Patent Nos. 6,701,344; 6,829,634; 6,714,966; and 6,920,497, dated November 13, 2017.
`
`49.
`
`Attached hereto as Exhibit 48 is a true and correct copy of excerpts from a
`
`document produced by Activision Blizzard, Inc., bearing bates numbers ATVI0030436 – 43.
`
`50.
`
`Attached hereto as Exhibit 49 is a true and correct copy of pages 141-142 from
`
`the transcript of the deposition of Kurtis Andrew McCathern, taken on September 8, 2017.
`
`51.
`
`Attached hereto as Exhibit 50 is a true and correct copy of the Reply Expert
`
`Report of Nenad Medvidovic, Ph.D., Regarding Infringement by Activision Blizzard Inc. of U.S.
`
`Patent Nos. 6,701,344; 6,829,634; 6,732,147; 6,714,966; 6,920,497; 6,910,069, dated December
`
`14, 2017.
`
`52.
`
`Attached hereto as Exhibit 51 is a true and correct copy of pages 9-10, 34, 114-
`
`115, 144-160, 346-347, 381-383, 393, 396-401, 408-412, 414-415, 424-426, 436, 442-443, and
`
`452-453 as well as Schedules 1 and 2.2, from the Rebuttal Expert Report of Catharine M.
`
`Lawton, dated November 13, 2017.
`
`53.
`
`Attached hereto as Exhibit 52 is a true and correct copy of a Patent License
`
`Agreement between Boeing Management Company and Sony Computer Entertainment America
`
`Inc., produced by Boeing, bearing bates numbers BOEING 000013 – 23.
`
`7
`
`
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`Case 1:16-cv-00455-RGA Document 401 Filed 02/09/18 Page 9 of 10 PageID #: 30470
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`54.
`
`Attached hereto as Exhibit 53 is a true and correct copy of pages 7-10, 14-15, 21-
`
`27, 33-35, 39-40, 66-69, 86-88, 108-109, 147-150, 182-184, 189-192, 236-238, 246-248, 256-
`
`258, and 270-272 from the transcript of the deposition of Catharine Mary Lawton, taken on
`
`January 25, 2018.
`
`55.
`
`Attached hereto as Exhibit 54 is a true and correct copy of a publication by Mike
`
`Minotti entitled “Here’s who won each console war”, produced by Catharine Lawton, bearing
`
`bates numbers LAWTON-ATVI-0006458 – 64.
`
`56.
`
`Attached hereto as Exhibit 55 is a true and correct copy of pages 21 and 179 from
`
`the transcript of the deposition of Natasha Radovsky, taken on May 4, 2017.
`
`57.
`
`Attached hereto as Exhibit 56 is a true and correct copy of pages 35-36 from the
`
`transcript of the deposition of Glen Van Datta, taken on June 22, 2017.
`
`58.
`
`Attached hereto as Exhibit 57 is a true and correct copy of a webpage produced
`
`by Acceleration Bay LLC, bearing bates numbers AB-AB 003114 – 37.
`
`59.
`
`Attached hereto as Exhibit 58 is a true and correct copy of a webpage produced
`
`by Acceleration Bay LLC, bearing bates numbers AB-AB 003188 – 207.
`
`60.
`
`Attached hereto as Exhibit 59 is a true and correct copy of Defendants’ Rule 26(a)
`
`September 7, 2017 Supplemental Initial Disclosures from Acceleration Bay LLC v. Activision
`
`Blizzard, Inc., Case No. 16-453 (RGA) (D. Del.), dated September 7, 2017.
`
`61.
`
`Attached hereto as Exhibit 60 is a true and correct copy of pages 27-28, 42-43, 58,
`
`83 from the transcript of the deposition of Saralyn Smith, taken on July 25, 2017.
`
`62.
`
`Attached hereto as Exhibit 61 is a true and correct copy of Defendant Activision
`
`Blizzard, Inc.’s Objections and Responses to Plaintiff Acceleration Bay LLC’S First Set of
`
`8
`
`
`
`Case 1:16-cv-00455-RGA Document 401 Filed 02/09/18 Page 10 of 10 PageID #: 30471
`
`Party-Specific Interrogatories (Nos. 1-7) from Acceleration Bay LLC v. Activision Blizzard, Inc.,
`
`Case No. 16-453 (RGA) (D. Del.), dated July 7, 2017.
`
`63.
`
`Attached hereto as Exhibit 62 is a true and correct copy of pages 4-5 and 10 of the
`
`Rebuttal Expert Report of Catharine M. Lawton, dated December 14, 2017.
`
`I declare under penalty of perjury under the laws of the United States of America that the
`
`foregoing is true and correct. Executed on February 2, 2018, in Menlo Park, California.
`
`/s/ Paul J. Andre
` Paul J. Andre
`
`
`
`5617037
`
`9
`
`Public version dated: February 9, 2018
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`
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