Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 1 of 19 PageID #: 45459
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`M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P
`1201 NORTH MARKET STREET
`P.O. BOX 1347
`WILMINGTON, DELAWARE 19899-1347
`
`(302) 658-9 200
`(302) 658-3 989 FAX
`
`JACK B. BLUMENFELD
`(302) 351-9291
`jblumenfeld@mnat.com
`
`
`
`Originally Filed: April 16, 2018
`Redacted Version Filed: April 23, 2018
`
`The Honorable Richard G. Andrews
`United States District Court
` for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
`Re:
`Acceleration Bay LLC v. Activision Blizzard Inc.
`C.A. No. 16-453 (RGA)
`
`VIA ELECTRONIC FILING
`
`Dear Judge Andrews:
`Activision writes regarding the Court’s Oral Order of last Friday, April 13, concerning
`Plaintiff’s damages expert report. The parties have extensively litigated this issue before the Special
`Master, and the Special Master specifically found that Plaintiff is “bound by” its March 11, 2015
`hypothetical negotiation date. D.I. 227, p. 8. Plaintiff has always known March 2015 is not the date
`of the first alleged infringement. Plaintiff’s own expert reports call the 2004 version of World of
`Warcraft an “infringing product” and state that all Call of Duty versions since 2007 include the
`accused technology.1 Despite knowing that the March 2015 date was legally untenable, Plaintiff
`nevertheless refused to provide any other date even in response to an Order compelling it to provide
`this discovery. Plaintiff did so knowingly and for tactical reasons, including avoiding the
`, avoiding saying exactly what functionality is accused of infringement, or
`admitting that the highly successful earlier versions are noninfringing alternatives. As a result,
`Activision was denied discovery into possible alternative dates and relied on the Special Master’s
`Order binding Plaintiff to that date throughout expert reports and expert discovery. Activision
`believes that it would be inappropriate and unfairly prejudicial to give Plaintiff an opportunity to
`revise its expert report to assert a different date at this time. A change of position by Plaintiff would
`flout the Special Master’s Orders and would severely prejudice Activision.
`
`1 Both Dr. Meyer and Dr. Medvidovic expressly identify the 2004 version as an “infringing”
`product. Meyer Rpt. ¶23 & Ex. 3 (D.I.444, Ex. C-3); Medvidovic Rpt.(D.I. 443, Ex. A-1) ¶2
`(identifying “base version” as infringing), ¶¶70,73 (stating that WoW released in 2004 and “that the
`multiplayer functionality is the same, in relevant part, for WoW and its expansions during the
`relevant time frame.”). Similarly, Dr. Medvidovic states that the accused “Connectivity Graph” has
`been in use since 2007. Medvidovic ¶¶ 161, 190 (“All of CoD games from Call of Duty Modern
`Warfare 4 going forward use the Connectivity Graph Network’s relaying of communications through
`peer applications programs.”).
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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 2 of 19 PageID #: 45460
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`The Honorable Richard G. Andrews
`April 16, 2018
`Page 2
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`Activision’s Interrogatory No. 2 asked Plaintiff to identify the hypothetical negotiation date.
`Exhibit A (Pl. Response to Inter. No. 2), pp.7-9. Plaintiff’s initial response confirmed that it
`understood the law, stating only “The hypothetical license negotiation date is the date on which
`Defendant’s infringement began.” Id. at 8. But Plaintiff did not actually identify any date in its
`response. On April 28, 2017, Activision moved to compel a substantive response and provide an
`actual date for the hypothetical negotiation. In opposing the Motion, Plaintiff confirmed that it
`understood it was required to undertake a bona fide analysis of when the alleged infringement began:
`Acceleration Bay disclosed its contention that the date of the hypothetical negotiation
`is the date infringement began….which encompasses development and testing
`activities. … Once Defendants provide that discovery to Acceleration Bay, it can
`update its response to Interrogatory No. 2.
`Exhibit B. (May 8, 2017 Opp. Brief, pp. 3-4)
`On May 19, 2017, the Special Master ordered Plaintiff to identify the date of the hypothetical
`negotiation in response to Interrogatory No. 2. D.I. 155. That Order was adopted by the Court over
`Plaintiff’s objections. D.I. 193. Instead of answering the interrogatory in the manner it said it would,
`however, Plaintiff changed tack altogether and took the position that, for each Defendant in the three
`related cases, the date of the hypothetical negotiation was the date the respective initial Complaint
`was filed (for Activision: March 2015):
`The hypothetical license negotiation date is the date on which Defendant’s
`infringement began. Defendant’s infringement began in March of 2015.
`Exhibit C. (June 2, 2017 Interrogatory Response).
`This response was both unreasonable and contradicted Plaintiff’s promise to supplement
`based on a bona fide inquiry into the date of first alleged infringement. Plaintiff was well aware that
`the accused products were on sale before March 2015. Plaintiff’s responses to this interrogatory
`amounted to a refusal to comply with the Special Master’s Order. The Defendants went back to the
`Special Master, asking him to preclude the Plaintiff from offering any other date than March of 2015
`for the hypothetical negotiation. Defendants explained the consequences of Plaintiff’s choice of date
`in no uncertain terms:
`Given that there is less than a month to complete fact discovery and Acceleration is
`refusing to provide a proper response to Party Specific Interrogatory No. 2,
`Acceleration should have to live with its response and should be precluded from
`arguing that the date of the hypothetical negotiation is any date other than the date
`Acceleration served the respective Complaints on each Defendant, regardless of any
`future impact that may have on Acceleration’s ability to present its damages case.
`***
`. . . Defendants intend to argue that any damages theory based on a hypothetical
`negotiation of the date of service is not supportable and should be stricken. Plaintiff
`is represented by savvy patent counsel and long ago retained a damages expert. It
`certainly has had every opportunity to provide the date of the hypothetical
`negotiation and has not taken this discovery obligation seriously. . . .
`Exhibit D (Defendants’ July 5, 2015 Brief ISO Motion to Preclude Arguments re Hypothetical Date)
`(original emphasis), p. 1, 3.
`
`

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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 3 of 19 PageID #: 45461
`
`The Honorable Richard G. Andrews
`April 16, 2018
`Page 3
`
`Instead of taking this opportunity to comply with its discovery obligations, Plaintiff doubled
`down and agreed it would be bound to that date, saying that “Defendants do not explain why an
`order is necessary to limit Acceleration Bay to the position it has already taken.” (Exhibit E, July
`12, 2017 Opp. Br. pp. 11-12). The Special Master ruled that Plaintiff was “bound by” its March 11,
`2015 hypothetical negotiation date and, on that basis, found that no further relief was necessary. D.I.
`227, p. 8.2 Even though Plaintiff and its experts all knew that date was incorrect,3 it did not appeal
`the Special Master’s Order. Plaintiff then insisted that its damages expert, Dr. Meyer, use the March
`2015 hypothetical negotiation date.
`Against that backdrop, there is no basis now to give Plaintiff another chance to do what it
`agreed it would not do, in order to block discovery. At all times, Acceleration Bay knew: (1) the
`governing law; (2) that it had deliberately chosen a date that was not the date of first infringement;
`and (3) that Activision would seek to exclude any expert testimony that relied on that date.
`Plaintiff’s decision was designed to prejudice Activision and has had that effect. Many issues
`hinge from the date of the hypothetical negotiation, which Plaintiff has the burden to prove. By
`choosing the March 2015 date, Plaintiff hoped to avoid
`. By
`refusing to state when infringement began, Plaintiff avoided having to state exactly what conduct is
`accused of infringement, and just as importantly, what conduct is not accused. Plaintiff’s current
`position is that there are no non-infringing alternatives to the asserted patents. Yet, based on the
`March 2015 date for first infringement, the versions of the accused games that existed before that
`date are all non-infringing alternatives to the patents.
`Plaintiff’s protracted refusal to answer Activision’s interrogatory and its agreement to be
`bound by its position that the hypothetical negotiation date was the date of filing of the Complaint
`have prevented Activision from taking targeted discovery on damages. If Plaintiff had properly
`answered Activision’s interrogatory during discovery, it would have had to identify when Activision
`allegedly incorporated the purported infringing technology. Disclosure of this information would
`have allowed Activision to engage in targeted discovery relevant to both infringement and damages.
`That would have included expanded discovery from Boeing, the party to the hypothetical
`negotiation.
`A key example of the targeted discovery focuses on the Georgia-Pacific factor concerning
`“utility and advantages of patent property over old modes and devices.” The date of the hypothetical
`negotiation, i.e., the date of first infringement defines what are the “old modes and devices.”
`Activision had been selling video games for many years before Plaintiff’s alleged date of first
`infringement of March 2015. Call of Duty was first released in 2003, and has had similar
`multiplayer capabilities since 2007. World of Warcraft was released in 2004 and has had
`substantially the same technology since then. If Plaintiff had identified a legitimate hypothetical
`negotiation date, Activision’s experts and its fact witnesses could have provided more specifics on
`
`2 Specifically, the Order states “On June 2, 2017, in discovery responses, Plaintiff stated that the date
`of hypothetical negotiation was the date of service of the complaints in the 2015 filed cases. Plaintiff
`is bound by that statement and further relief to Defendants does not seem appropriate at this time.”
`3 See fn. 1.
`
`

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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 4 of 19 PageID #: 45462
`
`The Honorable Richard G. Andrews
`April 16, 2018
`Page 4
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`the technology in the available video games just before the hypothetical negotiation and how that
`non-infringing technology could have been continued or modified to remain non-infringing. Instead,
`Plaintiff has criticized Activision’s experts and witnesses for allegedly not having provided
`sufficient detail about the allegedly non-infringing alternatives. Allowing Plaintiff to go back on its
`word and change the hypothetical negotiation date only days before trial will severely prejudice
`Activision and prevent it from responding to these other issues on the specifics of the technology in
`the available games just before the hypothetical negotiation date. Eagle Harbor Holdings, LLC v.
`Ford Motor Co., No. C11-5503 BHS D.I. 608 (W.D. Wash. Mar. 16, 2015) (striking Plaintiff’s
`expert’s reliance on alternative hypothetical negotiation dates for failure to disclose and noting that
`the defendant was “highly prejudiced” by this failure).
`Now, having agreed to be bound by its tactical choice in order to avoid complying with an
`order of the Special Master, which was affirmed by this Court, Plaintiff should not be permitted to
`reverse course and to set forth a new position on the date of first infringement just days before trial.
`Plaintiff was ordered to provide this discovery and made the strategic decision to refuse to do so.
`Giving Plaintiff another chance would unfairly prejudice Activision by forcing it to defend against a
`theory on which it obtained no discovery. Activision requests that Acceleration not be released from
`the consequences of its intentional refusal to answer critical discovery. If the Court determines not to
`exclude Plaintiff’s damages expert opinion altogether, Activision requests that Plaintiff be forced to
`live with the consequences of its strategic refusal to answer these discovery requests: the Court
`should enter an Order finding that all versions of the Accused Products on sale before March 2015
`are non-infringing alternatives.
`
`
`
`
`
`
`
`JBB/dlw
`Enclosures
`cc:
`All Counsel of Record (Via Electronic Mail; w/ encl.)
`
`
`Respectfully,
`
`/s/ Jack B. Blumenfeld
`
`Jack B. Blumenfeld (#1014)
`
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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 5 of 19 PageID #: 45463
`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 5 of 19 PagelD #: 45463
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`EXHIBIT A
`EXHIBIT A
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`

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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 6 of 19 PageID #: 45464
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-453 (RGA)
`
`))))))))))
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`
`
`
`
`
`
`v.
`
`Plaintiff,
`
`ACTIVISION BLIZZARD, INC.,
`
`
`
`
`
`
`
`Defendant.
`
`PLAINTIFF ACCELERATION BAY LLC’S OBJECTIONS AND RESPONSES
`TO DEFENDANT ACTIVISION BLIZZARD, INC.’S
`FIRST SET OF PARTY SPECIFIC INTERROGATORIES (NOS. 1-4)
`
`Plaintiff Acceleration Bay LLC (“Acceleration Bay” or “Plaintiff”) hereby responds to
`
`the First Set of Party Specific Interrogatories (Nos. 1-4) (the “Interrogatories”) of Defendant
`
`Activision Blizzard, Inc. (the “Defendant”) as follows:
`
`RESERVATION OF RIGHTS AND GENERAL OBJECTIONS
`
`1.
`
`Discovery in this action is continuing and Plaintiff may learn of additional facts
`
`pertaining to the Interrogatories. Therefore, Plaintiff reserves the right to change, amend, or
`
`supplement its objections and responses at a later date. If further evidence is obtained which is
`
`not protected from discovery, Plaintiff reserves the right to present such evidence at the time of
`
`trial.
`
`2.
`
`Plaintiff’s responses are made solely for purposes of this action, and not for
`
`purposes of any other action. These responses are subject to all objections as to competence,
`
`relevance, materiality, propriety, admissibility, and any and all other objections and grounds that
`
`would require the exclusion of evidence disclosed herein if the evidence were produced and
`
`sought to be introduced into evidence in Court; all of which objections and grounds are
`
`1
`
`

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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 7 of 19 PageID #: 45465
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`It is not possible at this time for Plaintiff to make a finalized computation of damages (or
`
`to identify with specificity documents reasonably available that relate to categories of damages)
`
`absent further investigation, discovery, and disclosure by Defendant, particularly because much
`
`of the information necessary to make such a computation is in the possession of Defendant, and
`
`may require expert analysis. For example, Plaintiff is seeking discovery as to the revenues
`
`generated by Defendant’s infringing activities, the number of users, licenses and subscriptions
`
`provided for the infringing products, as well as any cost savings realized through their
`
`infringement and Defendant’s past licensing practices. Information related to the users and their
`
`gameplay activities, and the details regarding the design, structure, operation, features,
`
`development and testing of its multiplayer and networking functionality, without geographic
`
`limitation is relevant. Such information includes any protocols, APIs, libraries, and SDKs that
`
`are used by peers, clients, hosts, nodes, or servers in the network to distribute messages, game
`
`data, voice data, chat data, management data, and QoS data, for the accused products around the
`
`world. Moreover, Defendant’s patent infringement is ongoing and the amount of damages to
`
`which Plaintiff is entitled continues to grow. Accordingly, Plaintiff reserves the right to set forth
`
`and modify its damages theories and calculations as appropriate as the litigation progresses and
`
`in view of information Defendant provides in this case, as well as anticipated expert opinions and
`
`factual information provided related to damages.
`
`Plaintiff’s investigation of this matter is ongoing and it will comply with Fed. R. Civ. P.
`
`26(e) should additional information become known to it.
`
`ACTIVISION INTERROGATORY NO. 2:
`
`Identify the date on which Plaintiff contends the hypothetical license negotiation should
`
`be deemed to have commenced, the full factual basis for that contention, including the product or
`
`7
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`

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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 8 of 19 PageID #: 45466
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`products on which Plaintiff bases its contention, and the documents that support Plaintiff’s
`
`answer or to which You referred in preparing Your answer.
`
`RESPONSE TO ACTIVISION INTERROGATORY NO. 2:
`
`Plaintiff objects to this Interrogatory to the extent it is premature because it seeks
`
`disclosure of documents, information, and expert testimony subject to the schedule in this action.
`
`Plaintiff objects to this Interrogatory to the extent it seeks irrelevant information, particularly
`
`with respect to unnamed “prior products” or products not at issue in this case. Plaintiff objects to
`
`this Interrogatory to the extent it is comprised of multiple subparts, which Plaintiff will count
`
`against Defendant’s limit. Plaintiff objects to this Interrogatory to the extent it calls for a legal
`
`conclusion. Plaintiff objects to this Interrogatory to the extent it seeks information protected by
`
`the attorney-client privilege, the work product doctrine, or any other applicable law, privilege,
`
`doctrine, or immunity. Plaintiff objects to this Interrogatory to the extent it seeks information
`
`within Defendant’s possession, custody, or control, or to the extent it seeks information in the
`
`public domain. Plaintiff objects to this Interrogatory as vague, indefinite, overly broad, unduly
`
`burdensome, and ambiguous, including, inter alia, the terms “the full factual basis for that
`
`contention, including the product or products on which Plaintiff bases its contention, and the
`
`documents that support Plaintiff’s answer or to which You referred in preparing Your answer.”
`
`Subject to and without waiving the foregoing general and specific objections, and to the
`
`extent Plaintiff understands this Interrogatory, Plaintiff responds as follows:
`
`The hypothetical license negotiation date is the date on which Defendant’s infringement
`
`began. Plaintiff requires further investigation, discovery, and disclosure by Defendant,
`
`particularly because the information necessary for identification of when Defendant’s
`
`infringement began is in the possession of Defendant, and may require expert analysis. Plaintiff
`
`8
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`

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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 9 of 19 PageID #: 45467
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`incorporates its Initial Claim Charts and Supplemental Claim Charts and its February 13, 2017
`
`Updated Identification of Accused Products in response to this Interrogatory.
`
`Plaintiff’s investigation of this matter is ongoing, and it will comply with Fed. R. Civ. P.
`
`26(e) should additional information become known to it.
`
`ACTIVISION INTERROGATORY NO. 3:
`
`Identify and describe all facts supporting Your allegations that Defendant’s alleged
`
`infringement was willful and that You are entitled to enhanced damages or attorney’s fees under
`
`35 U.S.C. § 284 and/or 35 U.S.C. § 285.
`
`RESPONSE TO ACTIVISION INTERROGATORY NO. 3:
`
`Plaintiff objects to this Interrogatory to the extent it is premature because it seeks
`
`disclosure of documents, information, and expert testimony subject to the schedule in this action.
`
`Plaintiff objects to this Interrogatory to the extent it calls for a legal conclusion. Plaintiff objects
`
`to this Interrogatory to the extent it seeks information protected by the attorney-client privilege,
`
`the work product doctrine, or any other applicable law, privilege, doctrine, or immunity.
`
`Plaintiff objects to this Interrogatory to the extent it seeks information within Defendant’s
`
`possession, custody, or control, or to the extent it seeks information in the public domain.
`
`Plaintiff objects to this Interrogatory as vague, indefinite, overly broad, unduly burdensome, and
`
`ambiguous, including, inter alia, the term “all facts supporting Your allegations that Defendant’s
`
`alleged infringement was willful and that You are entitled to enhanced damages or attorney’s
`
`fees under 35 U.S.C. § 284 and/or 35 U.S.C. § 285.”
`
`Subject to and without waiving the foregoing general and specific objections, and to the
`
`extent Plaintiff understands this Interrogatory, Plaintiff responds as follows:
`
`9
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`

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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 10 of 19 PageID #: 45468
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`not limited to all versions of the Sony PlayStation gaming system and each and every game that
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`can be played on a Sony gaming system that Plaintiff contends infringe the Asserted Patents.”
`
`Pursuant to the foregoing general and specific objections, Plaintiff cannot answer the
`
`interrogatory as written.
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: March 30, 2017
`
`POTTER ANDERSON & CORROON LLP
`
`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
`
` Attorneys for Plaintiff
`ACCELERATION BAY LLC
`
`11
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`

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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 11 of 19 PageID #: 45469
`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 11 of 19 PagelD #: 45469
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`EXHIBIT B
`EXHIBIT B
`REDACTED IN ITS ENTIRETY
`REDACTEDIN ITS ENTIRETY
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`

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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 12 of 19 PageID #: 45470
`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 12 of 19 PagelD #: 45470
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`EXHIBIT C
`EXHIBIT C
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`

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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 13 of 19 PageID #: 45471
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-454 (RGA)
`
`))))))))))
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.,
`Defendant.
`
`PLAINTIFF ACCELERATION BAY LLC’S FIRST SUPPLEMENTAL OBJECTIONS &
`RESPONSES TO DEFENDANT ACTIVISION BLIZZARD, INC.’S
`FIRST SET OF PARTY SPECIFIC INTERROGATORIES (NOS. 1, 2, 4)
`
`Plaintiff Acceleration Bay LLC (“Acceleration Bay” or “Plaintiff”) hereby further
`
`responds to the First Set of Party Specific Interrogatories (Nos. 1, 2 and 4) (the “Interrogatories”)
`
`of Defendant Activision Blizzard, Inc. (the “Defendant” or “Activision” ) as follows:
`
`RESERVATION OF RIGHTS AND GENERAL OBJECTIONS
`
`Plaintiff incorporates by reference the Reservation of Rights and General Objections set
`
`forth in its Responses to Defendant’s First Set of Interrogatories, served on March 30, 2017.
`
`SUPPLEMENTAL OBJECTIONS AND RESPONSES
`
`ACTIVISION INTERROGATORY NO. 1:
`
`Identify and describe Plaintiff’s damages from Defendant’s alleged infringement
`
`assuming a finding of infringement and validity including but not limited to a royalty, a royalty
`
`rate, and a royalty base. Include in you answer the following information: (a) a detailed
`
`description of the methodology for determining the damages; (b) all facts and reasons that
`
`Plaintiff contends it should be awarded more than a reasonable royalty; (c) the largest amount of
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`damages that Plaintiff will seek from a jury for any infringement found by Defendant; and (d) the
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`1
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`

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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 14 of 19 PageID #: 45472
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`2016, the maximum amount of damages that Plaintiff will seek from a jury if it had to go to trial
`
`at this time based on the information it currently has is $200,000,000 in damages for Defendant’s
`
`infringement through 2016. Plaintiff will seek additional damages through the remaining
`
`lifetime of the patent.
`
`The identity of the owner or assignee of the Asserted Patents and the licensor or
`
`potential licensor at the time damages are determined: This subpart of the interrogatory is
`
`unclear, as Plaintiff is the owner the Asserted Patents, the assignee of the Asserted Patents from
`
`Boeing, and the licensor for damages purposes. To the extent Defendant is asking who will be
`
`the participants in the hypothetical negotiation to determine the reasonable royalty, Plaintiff
`
`responds that the licensor will be Plaintiff and the licensee will be Defendant.
`
`Given the state of discovery and that expert reports are not due until after the close of fact
`
`discovery, Plaintiff objects to the Special Master’s Order to the extent it requires a further
`
`response to this Interrogatory at this time.
`
`Plaintiff’s investigation of this matter is ongoing and it will comply with Fed. R. Civ. P.
`
`26(e) should additional information become known to it.
`
`ACTIVISION INTERROGATORY NO. 2:
`
`Identify the date on which Plaintiff contends the hypothetical license negotiation should
`
`be deemed to have commenced, the full factual basis for that contention, including the product or
`
`products on which Plaintiff bases its contention, the specific features that Plaintiff contends are
`
`present in those product or products that were not present in prior products; and the documents
`
`that support Plaintiff’s answer or to which You referred in preparing Your answer.
`
`10
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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 15 of 19 PageID #: 45473
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`RESPONSE TO ACTIVISION INTERROGATORY NO. 2:
`
`Plaintiff objects to this Interrogatory to the extent it is premature because it seeks
`
`disclosure of documents, information, and expert testimony subject to the schedule in this action.
`
`Plaintiff objects to this Interrogatory to the extent it seeks irrelevant information, particularly
`
`with respect to unnamed “prior products” or products not at issue in this case. Plaintiff objects to
`
`this Interrogatory to the extent it is comprised of multiple subparts, which Plaintiff will count
`
`against Defendant’s limit. Plaintiff objects to this Interrogatory to the extent it calls for a legal
`
`conclusion. Plaintiff objects to this Interrogatory to the extent it seeks information protected by
`
`the attorney-client privilege, the work product doctrine, or any other applicable law, privilege,
`
`doctrine, or immunity. Plaintiff objects to this Interrogatory to the extent it seeks information
`
`within Defendant’s possession, custody, or control, or to the extent it seeks information in the
`
`public domain. Plaintiff objects to this Interrogatory as vague, indefinite, overly broad, unduly
`
`burdensome, and ambiguous, including, inter alia, the terms “the full factual basis for that
`
`contention, including the product or products on which Plaintiff bases its contention, the specific
`
`features that Plaintiff contends are present in those product or products that were not present in
`
`prior products; and the documents that support Plaintiff’s answer or to which You referred in
`
`preparing Your answer.”
`
`Subject to and without waiving the foregoing general and specific objections, and to the
`
`extent Plaintiff understands this Interrogatory, Plaintiff responds as follows:
`
`The hypothetical license negotiation date is the date on which Defendant’s infringement
`
`began. Plaintiff requires further investigation, discovery, and disclosure by Defendant,
`
`particularly because the information necessary for identification of when Defendant’s
`
`infringement began is in the possession of Defendant, and may require expert analysis. Plaintiff
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`11
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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 16 of 19 PageID #: 45474
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`incorporates its Initial Claim Charts and Supplemental Claim Charts and its February 13, 2017
`
`Updated Identification of Accused Products in response to this Interrogatory.
`
`Plaintiff’s investigation of this matter is ongoing and it will comply with Fed. R. Civ. P.
`
`26(e) should additional information become known to it.
`
`SUPPLEMENTAL RESPONSE TO ACTIVISION INTERROGATORY NO. 2:
`
`Plaintiff objects to this Interrogatory to the extent it is premature because it seeks
`
`disclosure of documents, information, and expert testimony subject to the schedule in this action.
`
`Plaintiff objects to this Interrogatory to the extent it seeks irrelevant information, particularly
`
`with respect to unnamed “prior products” or products not at issue in this case. Plaintiff objects to
`
`this Interrogatory to the extent it is comprised of multiple subparts, which Plaintiff will count
`
`against Defendant’s limit. Plaintiff objects to this Interrogatory to the extent it calls for a legal
`
`conclusion. Plaintiff objects to this Interrogatory to the extent it seeks information protected by
`
`the attorney-client privilege, the work product doctrine, or any other applicable law, privilege,
`
`doctrine, or immunity. Plaintiff objects to this Interrogatory to the extent it seeks information
`
`within Defendant’s possession, custody, or control, or to the extent it seeks information in the
`
`public domain. Plaintiff objects to this Interrogatory as vague, indefinite, overly broad, unduly
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`burdensome, and ambiguous, including, inter alia, the terms “the full factual basis for that
`
`contention, including the product or products on which Plaintiff bases its contention, the specific
`
`features that Plaintiff contends are present in those product or products that were not present in
`
`prior products; and the documents that support Plaintiff’s answer or to which You referred in
`
`preparing Your answer.”
`
`12
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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 17 of 19 PageID #: 45475
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`Plaintiff provides this supplemental response to Defendant’s Interrogatory pursuant to the
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`Special Master’s May 19, 2017 Order subject to the objections thereto Plaintiff will file with the
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`Court.
`
`Subject to and without waiving the foregoing general and specific objections, and to the
`
`extent Plaintiff understands this Interrogatory, Plaintiff responds as follows:
`
`The hypothetical license negotiation date is the date on which Defendant’s infringement
`
`began. Defendant’s infringement began in March of 2015. Plaintiff bases this contention on the
`
`Accused Products, which are identified in the March 11, 2015 Complaint and in Acceleration
`
`Bay’s subsequent identifications of accused products.
`
`Acceleration Bay takes no position as to if Defendant’s prior products have features not
`
`present in the Accused Products. Those prior products are not accused of infringement in the
`
`case and have not been the subject of discovery. Plaintiff specifically objects to Special Master
`
`Order No. 3 to the extent it requires Plaintiff to investigate infringement of these products not
`
`accused of infringement in this action.
`
`Plaintiff’s investigation of this matter is ongoing and it will comply with Fed. R. Civ. P.
`
`26(e) should additional information become known to it.
`
`ACITIVISION INTERROGATORY NO. 4:
`
`Identify and describe all products by Sony including but not limited to all versions of the
`
`Sony PlayStation gaming system and each and every game that can be played on a Sony gaming
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`system that Plaintiff contends infringe the Asserted Patents.
`
`RESPONSE TO ACTIVISION INTERROGATORY NO. 4:
`
`Plaintiff objects to this Interrogatory as unintelligible, particularly as to what is meant by
`
`“all products by Sony.” Plaintiff objects to this Interrogatory to the extent it calls for a legal
`
`13
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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 18 of 19 PageID #: 45476
`
`POTTER ANDERSON & CORROON LLP
`
`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
`
`Attorneys for Plaintiff
`ACCELERATION BAY LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: June 2, 2017
`
`16
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`Case 1:16-cv-00453-RGA Document 538 Filed 04/23/18 Page 19 of 19 PageID #: 45477
`Case 1: