Case 1:16-cv-00453-RGA Document 546 Filed 05/02/18 Page 1 of 3 PageID #: 45859
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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) 658-9200
`
`JACK B. BLUMENFELD
`(302) 351-9291
`jblumenfeld@mnat.com
`
`April 24, 2018 - Original Filing Date
`May 2, 2018 - Redacted Filing Date
`REDACTED - PUBLIC VERSION
`The Honorable Richard G. Andrews
`VIA ELECTRONIC FILING
`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)
`
`Dear Judge Andrews:
`Activision writes to respond briefly to four factual inaccuracies in Plaintiff’s April 17,
`2018 letter regarding the expert reports of Dr. Meyer, which can be found in full at D.I. 480 Ex.
`69 (Sept. 25, 2017 Opening Report), D.I. 444 Ex. C-5 (Dec. 14, 2017 Reply Report), D.I. 534
`(Apr. 18, 2018 Supplemental Report).1
`First, Plaintiff argues incorrectly that “the Special Master already rejected Activision’s
`argument that Acceleration Bay is bound to the March 11, 2015 hypothetical negotiation date.”
`D.I. 525 at 1. The Special Master made no such finding. In fact, Special Master Order 12
`specifically notes: “Dr. Meyer based her damage calculation on the hypothetical negotiation date
`of March 11, 2015.” The Special Master further observed that Plaintiff disclosed this “underlying
`information for calculating the damages” during discovery.2 The Special Master did not, as
`Plaintiff states, repudiate his earlier holding that Plaintiff is “bound by” its March 2015 date for
`the hypothetical negotiation.
`Second, Plaintiff states that its experts did not “endorse Activision’s dates of first
`infringement” and that “Dr. Meyer, a damages expert, never opined or suggested in any manner
`that the 2004 World of Warcraft game … infringes the asserted claims.” D.I. 525 at 2. This is
`
`1 This letter does not address the Daubert issues which persist even in light of Dr. Meyer’s
`April 18, 2018 Supplemental Report. Absent further direction from the Court, Activision
`anticipates addressing the substantive Daubert issues at the hearing, all of which remain
`uncured by Dr. Meyer’s supplemental report.
`2 Specifically, he stated: “As to the hypothetical negotiation date, Plaintiff’s June 2, 2017
`discovery responses stated that the hypothetical license negotiation date is ‘the date on which
`Defendant’s infringement began. Defendant’s infringement began in March of 2015.’ Dr.
`Meyer based her damage calculation on the hypothetical negotiation date of March 11,
`2015.” Special Master Order 12, p. 8 (D.I. 347). In denying Activision’s Motion to Strike, he
`found: “As with Activision’s Motion to Strike Plaintiff’s infringement expert reports,
`Activision cannot meet its burden to compel striking Plaintiff’s damages expert report. The
`law recognizes that experts will elaborate on their opinions, particularly when calculating
`damages. The general theories and underlying information for calculating the damages
`claimed were disclosed to Activision late in the fact discovery in this litigation.”
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`Case 1:16-cv-00453-RGA Document 546 Filed 05/02/18 Page 2 of 3 PageID #: 45860
`
`The Honorable Richard G. Andrews
`April 24, 2018
`Page 2
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`incorrect. Dr. Meyer’s opening expert report expressly states that the 2007, 2008, 2010, 2012,
`2014 and 2016 versions of World of Warcraft games “are infringing products of the World of
`Warcraft franchise.” Exhibit A (pp. 14-16). In her summary chart (Exhibit 3 to her report), she
`refers to the 2004, 2007, 2008, 2010, 2012, 2014 and 2016 versions of World of Warcraft as
`“Accused Products” and identifies the PC on which those games are played as the “Accused
`Infringing Platform.” Exhibit A (Exhibit 3). Regarding Call of Duty, Dr. Medvidovic explicitly
`states that the “relay” technology he alleges meets the flooding and m-regular limitations
`(elements 12(c, d)) has been in use in all games since Call of Duty: Modern Warfare, which was
`released in 2007. Exhibit B para. 161 (“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. See Griffith Tr. 276:4-23.”); see also para. 190 (same).
`Third, Plaintiff incorrectly states that “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.” D.I. 525 at 2. But Activision made available for
`inspection the entire source code of all earlier games in the Call of Duty franchise.3 Exhibit C.
`Dr. Medvidovic personally inspected the source code computer which included the code for
`those earlier games in February 2016. Exhibit D (2/16/16 email from Kramer to Winston re
`source code inspection). Plaintiff’s statement that its “experts did not have access to the earlier
`games” is incorrect.
`Finally, Plaintiff argues that “there is no merit to Activision’s claim that Acceleration
`Bay is trying to avoid the 2006
` because “Dr. Meyer’s expert report
`includes an extensive discussion” why that license is supposedly not “a comparable license.” D.I.
`525 at 2. In fact, Dr. Meyer relies on the hypothetical negotiation date to evade the
` She argues that the “parties entered into the
` many years prior to the launch
`of most of the infringing products in a period when multiplayer gameplay was in an earlier stage
`of prominence,” that “the effective date of the
` is November 19, 2006, nearly nine
`years prior to the hypothetical negotiation date of March 11, 2015,” and that “during that time,
`multiplayer has become an increasingly popular and important game feature.” Exhibit A (pp. 40-
`41). Contrary to Plaintiff’s letter, Dr. Meyer’s first and principal argument is that the 2006
` is not comparable precisely because of the hypothetical negotiation date she
`was instructed to assume.
`On this record, Plaintiff should not be relieved from the Special Master’s Order finding
`that Plaintiff is “bound by” its March 2015 hypothetical negotiation date, and Plaintiff should not
`be allowed to try to remedy the defects in Dr. Meyer’s report. Any prejudice to Plaintiff is
`entirely of its own making. Plaintiff made a knowing and informed decision to choose this
`plainly incorrect date and it must now live with its decision.. Dr. Meyer’s report should be
`excluded for, inter alia, relying on the March 11, 2015 hypothetical negotiation date, as she was
`instructed to do by Plaintiff’s counsel.
`
`3 Moreover, the games themselves are publicly available, which, according to Plaintiff’s
`expert, is sufficient to determine infringement. Dr. Medvidovic testified that he was able to
`determine infringement based only on publicly available information. D.I. 70 (para 8-10)
`(stating that he reviewed “the publicly available information, including technical literature,
`and researched the Accused Products” and “ultimately concluded that Activision’s Accused
`Products infringe the Asserted Patents.”).
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`

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`Case 1:16-cv-00453-RGA Document 546 Filed 05/02/18 Page 3 of 3 PageID #: 45861
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`The Honorable Richard G. Andrews
`April 24, 2018
`Page 3
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`Respectfully,
`
`/s/ Jack B. Blumenfeld
`
`JBB/dlw
`Enclosures
`cc:
`All Counsel of Record (Via Electronic Mail)
`
`Jack B. Blumenfeld (#1014)
`
`