Case 1:16-cv-00453-RGA Document 541 Filed 04/24/18 Page 1 of 4 PageID #: 45512
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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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`)))))))))
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`ACCELERATION BAY LLC,
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`Plaintiff,
`
`v.
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`ACTIVISION BLIZZARD, INC.
`
`Defendant.
`
`LETTER TO THE HONORABLE RICHARD G. ANDREWS
`FROM PHILIP A. ROVNER, ESQ.
`
`PUBLIC VERSION
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`

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`Case 1:16-cv-00453-RGA Document 541 Filed 04/24/18 Page 2 of 4 PageID #: 45513
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`1313 North Market Street
`P.O. Box 951
`Wilmington, DE 19899-0951
`302 984 6000
`www.potteranderson.com
`
`Philip A. Rovner
`Partner
`provner@potteranderson.com
`(302) 984-6140 Direct Phone
`(302) 658-1192 Fax
`
`April 17, 2018
`
`BY CM/ECF & HAND DELIVERY
`
`The Honorable Richard G. Andrews
`U.S. District Court for the District of Delaware
`U.S. Courthouse
`844 North King Street
`Wilmington, DE 19801
`
`Re:
`
`Acceleration Bay LLC v. Activision Blizzard, Inc.
`D. Del., C.A. No. 16-453-RGA
`
`Dear Judge Andrews:
`
`Acceleration Bay writes in brief response to Activision’s April 16, 2018 letter to the
`Court regarding a supplemental damages report. D.I. 523.
`
`Pursuant to the Court’s Oral Order (D.I. 521), Acceleration Bay intends to serve a short
`supplemental damages expert report by close of business tomorrow, April 18. The Court should
`deny Activision’s request that it reconsider its Oral Order because Activision’s letter is premised
`on a series of incorrect claims that are contrary to the record.
`
`First, the Special Master already rejected Activision’s argument that Acceleration Bay is
`bound to the March 11, 2015 hypothetical negotiation date. Instead, the Special Master
`specifically found that Dr. Meyer may provide opinions based on alternative dates for the
`hypothetical negotiation, including those proposed by Activision, which she has already done
`and will confirm in her supplemental report. D.I. 347 (Special Master Order No. 12) at 7
`(denying Activision’s motion to strike Dr. Meyer’s damages report: “Dr. Meyer allegedly states
`that damages would be the same regardless of the hypothetical negotiation date. According to
`Activision this violates the Special Master Order binding the Plaintiff to the date of service of the
`complaint as the hypothetical negotiation date.”). Activision’s lengthy summary of earlier
`discovery responses and orders critically omits this subsequent order from the Special Master
`which fully resolved this issue in favor of Acceleration Bay. Activision did not object to this
`Order, and it is now the law of the case. Moreover, Activision was not “denied discovery” into
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`PUBLIC VERSION
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`April 24, 2018
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`

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`Case 1:16-cv-00453-RGA Document 541 Filed 04/24/18 Page 3 of 4 PageID #: 45514
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`The Honorable Richard G. Andrews
`April 17, 2018
`Page 2
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`any issues based on the Special Master’s Orders. To the contrary, it extensively deposed Dr.
`Meyer regarding the possible dates for the hypothetical negotiation and their potential impact on
`her damages analysis. See, e.g., Ex. 1 (Meyer Tr.) at 128:9-140:16 (“I have also addressed in …
`this report in various places and in my reply report, that I understand that there’s a disagreement
`as to that [hypothetical negotiation] date and the implications for my analysis”), 233:14-239:1.
`Thus, the primary basis for Activision’s request is wrong.
`
`Second, Activision repeats its unsupported claim that Plaintiff’s expert reports endorse
`Activision’s dates of first infringement. They do not. Indeed, Acceleration Bay’s experts did not
`have access to the earlier games in the franchises in which the current games are accused of
`infringement, and Activision never provided such discovery. For World of Warcraft, Activision
`points to a background statement from Dr. Meyer that the World of Warcraft franchise started in
`2004. Dr. Meyer, a damages expert, never opined or suggested in any manner that the 2004
`World of Warcraft game,
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` infringes the asserted claims. D.I. 503 (3/9/18 Pltf. MSJ Reply) at
`22-23; Ex. 1 (Meyer Tr.) at 239:24-240:9.
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`
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`Third, there is no merit to Activision’s claim that Acceleration Bay is trying to avoid the
` Dr. Meyer’s expert report includes an extensive discussion of that
`license and explains why it is not a comparable license. She also stated that her opinion remains
`the same regardless of the date of the hypothetical negotiation. D.I. 480, Ex. 69 to Andre Decl.
`Opp. MSJ (9/25/17 Report) at ¶¶ 60-67.
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`Fourth, there will be no prejudice to Activision from the service of a supplemental report
`by Dr. Meyer, which will conform her prior opinions with the Court’s Order. Dr. Meyer already
`explicitly opined that different dates for the hypothetical negotiation, including those dates
`proposed by Activision and/or
`, would not change her
`ultimate opinions about damages, and Activision deposed her at length on these exact opinions.
`D.I. 475 (2/23/18 Pltf. MSJ Opp.) at 35-36; D.I. 480, Ex. 69 to Andre Decl. Opp. MSJ (9/25/17
`Report) at ¶ 46, n. 133; D.I. 503 (3/9/18 Pltf. MSJ Reply) at 19-23; Ex. 1 (Meyer Tr.) at e.g.,
`128:9-140:16, 233:14-239:1.
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`Finally, there is no basis for the Court to find that Activision’s pre-March 2015 games are
`somehow non-infringing alternatives. The Special Master already rejected Activision’s claim
`that Acceleration Bay failed to disclose its infringement theories during discovery. D.I. 347 at 7;
`D.I. 276 at 7-8. And Acceleration Bay never agreed that the earlier games are non-infringing,
`nor did Activision provide any evidence to support this claim. To the contrary, Acceleration Bay
`provided detailed interrogatory responses and unrebutted expert opinions explaining that
`Activision did not present any evidence that these earlier products, not at issue in the case, are
`non-infringing or economically acceptable substitutes for the accused products. See, e.g., Ex. 2
`(7/24/17 Resp. to Rog. No. 6) at 4-5; D.I. 454-455, Ex. 40 to Andre Decl. MSJ (9/25/17
`Medvidović Report) at ¶ 642; D.I. 454, Ex. 35 to Andre Decl. MSJ (12/14/17 Mitzenmacher
`Report) at ¶ 456. These two elements are necessary for Activision to even suggest they are non-
`infringing alternatives.
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`Public version dated: April 24, 2018
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`

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`Case 1:16-cv-00453-RGA Document 541 Filed 04/24/18 Page 4 of 4 PageID #: 45515
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`The Honorable Richard G. Andrews
`April 17, 2018
`Page 3
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`Accordingly, the Court should deny Activision’s request to reconsider its order, and
`allow Acceleration Bay’s damages expert to serve a short supplemental expert report consistent
`with her prior reports and the Court’s Order.
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`Respectfully,
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`/s/ Philip A. Rovner
`
`Philip A. Rovner (#3215)
`
`Attachments
`cc:
`All Counsel of Record (Via ECF Filing, Electronic Mail)
`5748092
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`Public version dated: April 24, 2018
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`