`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`C.A. No. 16-453 (RGA)
`
`REDACTED - PUBLIC VERSION
`
`DECLARATION OF KATHLEEN B. BARRY
`IN SUPPORT OF ACTIVISION’S BRIEF IN OPPOSITION TO
`PLAINTIFF’S SUMMARY JUDGMENT AND DAUBERT MOTIONS
`
`VOLUME 1
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`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
`Attorneys for Defendants
`
`OF COUNSEL:
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`David P. Enzminger
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`
`
`Case 1:16-cv-00453-RGA Document 498 Filed 03/08/18 Page 2 of 7 PageID #: 43041
`
`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
`Michael M. Murray
`Anup K. Misra
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`Andrew R. Sommer
`Thomas M. Dunham
`Michael Woods
`Paul N. Harold
`Joseph C. Masullo
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`Original Filing Date: February 23, 2018
`Redacted Filing Date: March 8, 2018
`
`2
`
`
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`Case 1:16-cv-00453-RGA Document 498 Filed 03/08/18 Page 3 of 7 PageID #: 43042
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.,
`
`Defendant.
`
`C.A. No. 16-453 (RGA)
`
`CONFIDENTIAL –
`OUTSIDE COUNSEL ONLY
`FILED UNDER SEAL
`
`DECLARATION OF KATHLEEN B. BARRY
`IN SUPPORT OF ACTIVISION’S BRIEF IN OPPOSITION TO
`PLAINTIFF’S SUMMARY JUDGMENT AND DAUBERT MOTIONS
`
`I, Kathleen B. Barry, declare:
`
`1.
`
`I am a Partner at the law firm of Winston & Strawn LLP and counsel to
`
`Activision Blizzard, Inc. (“Activision”) in the above-captioned matter. I declare that the
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`following statements are true to the best of my knowledge, information, and belief, and that if
`
`called upon to testify, I could and would testify competently thereto. I make this declaration in
`
`support of Activision’s Brief in Opposition to Plaintiff’s Summary Judgment and Daubert
`
`Motions.1
`
`2.
`
`Attached as Exhibit A-11 is a true and correct copy of Additional Source Code
`
`Printouts for World of Warcraft (“WoW”).2
`
`1 Activision’s Brief in Opposition cites to a number of exhibits already provided with Defendant
`Activision Blizzard, Inc.’s Brief In Support of Its Motions for Summary Judgment and Exclude
`Expert Opinions Under FRE 702. D.I. 442. Therefore, this Declaration will continue the
`numbering from my previous Declaration in Support of Activision’s Motions for Summary
`Judgment and Exclusion of Plaintiff’s Expert Witnesses. D.I. 467, 468.
`
`2 Citations to Exhibits A-1 to A-10 will refer to the exhibits filed at D.I. 443. Cf. supra, Note 1.
`
`
`
`Case 1:16-cv-00453-RGA Document 498 Filed 03/08/18 Page 4 of 7 PageID #: 43043
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`3.
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`Attached as Exhibit A-12 is a true and correct copy of the Expert Report of Dr.
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`John P. Kelly, dated November 13, 2017.
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`4.
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`Attached as Exhibit A-13 is a true and correct copy of Plaintiff Acceleration Bay
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`LLC’s Letter Brief in Opposition to Activision’s Motion to Compel, in the above captioned
`
`matter, dated July 12, 2017.
`
`5.
`
`Attached as Exhibit B-5 is a true and correct copy of excerpts from the Expert
`
`Report of Scott Bennett, Ph.D., dated September 20, 2017.3
`
`6.
`
`Attached as Exhibit B-6 is a true and correct copy of excerpts from the
`
`Dissertation Presented to the Faculty of the Graduate School at the University of Southern
`
`California, by Katia Obraczka, dated December 1994.
`
`7.
`
`Attached as Exhibit B-7 is a true and correct copy of copy of excerpts from the
`
`Expert Report of Nenad Medvidović, Ph.D., dated October 5, 2017.
`
`8.
`
`Attached as Exhibit C-6 is a true and correct copy of the Rebuttal Expert Report
`
`of Catharine M. Lawton, dated November 13, 2017.4
`
`9.
`
`Attached as Exhibit C-7 is a true and correct copy of the Declaration of Dr. Harry
`
`Bims in Support of Patent Owner’s Response, in Activision Blizzard Inc., et al. v. Acceleration
`
`Bay, LLC, Case No. IPR2015-01972 (USPTO), for Patent 6,701,344, dated July 17, 2016.
`
`10.
`
`Attached as Exhibit E-16 is a true and correct copy of excerpts from the transcript
`
`of the Videotaped Deposition Upon Oral Examination of Mark A. Terrano, dated October 27,
`
`2017.5
`
`3 Citations to Exhibits B-1 to B-4 will refer to the exhibits filed at D.I. 443. Cf. supra, Note 1.
`
`4 Citations to Exhibits C-1 to C-5 will refer to the exhibits filed at D.I. 444. Cf. supra, Note 1.
`
`5 Citations to Exhibits E-1 to E-15 will refer to the exhibits filed at D.I. 444. Cf. supra, Note 1.
`
`2
`
`
`
`Case 1:16-cv-00453-RGA Document 498 Filed 03/08/18 Page 5 of 7 PageID #: 43044
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`11.
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`Attached as Exhibit E-17 is a true and correct copy of excerpts from the transcript
`
`of the Videotaped Deposition of David Karger, Ph.D, dated January 25, 2018.
`
`12.
`
`Attached as Exhibit E-18 is a true and correct copy of excerpts from the transcript
`
`of the Video Deposition of Daniel Kegel, dated October 23, 2017.
`
`13.
`
`Attached as Exhibit E-19 is a true and correct copy of additional excerpts from the
`
`transcript of the Deposition of Pat Griffith, dated May 17, 2016.
`
`14.
`
`Attached as Exhibit E-20 is a true and correct copy of excerpts from the transcript
`
`of the Videotaped Deposition of Kurtis Andrew McCathern, dated September 8, 2017.
`
`15.
`
`Attached as Exhibit E-21 is a true and correct copy of additional excerpts from the
`
`transcript of the Videotaped Deposition of Patrick Dawson, dated June 2, 2016.
`
`16.
`
`Attached as Exhibit E-22 is a true and correct copy of excerpts from the transcript
`
`of the Videotaped Deposition of Catharine Mary Lawton, dated January 25, 2018.
`
`17.
`
`Attached as Exhibit E-23 is a true and correct copy of excerpts from the transcript
`
`of the Videotaped Deposition of Patrick Conlin, dated December 21, 2017.
`
`18.
`
`Attached as Exhibit E-24 is a true and correct copy of excerpts from the transcript
`
`of the Videotaped Deposition of Nenad Medvidović, Ph.D., dated January 12, 2018.
`
`19.
`
`Attached as Exhibit F-7 is a true and correct copy of the Microsoft Age of
`
`Empires Readme File, dated September 1997.6
`
`20.
`
`Attached as Exhibit F-8 is a true and correct copy of excerpts from a Final
`
`Written Decision of the United States Patent and Trademark Office Trial and Appeal Board, in
`
`Activision Blizzard Inc., et al. v. Acceleration Bay, LLC, Case No. IPR2015-01972, for Patent
`
`6,701,344 B1, entered March 23, 2017.
`
`6 Citations to Exhibits F-1 to F-6 will refer to the exhibits filed at D.I. 444. Cf. supra, Note 1.
`
`3
`
`
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`Case 1:16-cv-00453-RGA Document 498 Filed 03/08/18 Page 6 of 7 PageID #: 43045
`
`I declare under penalty of perjury that the foregoing is true and correct. Executed this
`
`23rd day of February, 2018, in Chicago, Illinois.
`
`/s/ Kathleen B. Barry
`Kathleen B. Barry
`
`4
`
`
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`Case 1:16-cv-00453-RGA Document 498 Filed 03/08/18 Page 7 of 7 PageID #: 43046
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on March 8, 2018, I caused the foregoing to be
`
`electronically filed with the Clerk of the Court using CM/ECF, which will send notification of
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`such filing to all registered participants.
`
`I further certify that I caused copies of the foregoing document to be served on
`
`March 8, 2018, upon the following in the manner indicated:
`
`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
`
`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`Greg Proctor, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
`
`Aaron M. Frankel, Esquire
`Marcus A. Colucci, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Attorneys for Plaintiff
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`/s/ Stephen J. Kraftschik
`Stephen J. Kraftschik (#5623)
`
`