`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-453 (RGA)
`
`))))))))
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.
`
`Defendant.
`
`ACCELERATION BAY LLC’S OPPOSITION TO ACTIVISION BLIZZARD, INC’S
`MOTION FOR SUMMARY JUDGMENT AS TO THE MEANS PLUS FUNCTION
`CLAIMS OF U.S. PATENT NOS. 6,701,344 AND 6,714,966
`
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(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: May 2, 2018
`
`
`
`Case 1:16-cv-00453-RGA Document 547 Filed 05/02/18 Page 2 of 3 PageID #: 45868
`
`NATURE AND STAGE OF THE PROCEEDINGS
`
`On April 10, 2018, the Court provided a modified construction for Term 4 (“means for
`
`connecting to the identified broadcast channel”), which appears in certain asserted claims in U.S.
`
`Patent Nos. 6,701,344 (“‘344 Patent”) and 6,714,966 (“‘966 Patent”) (the “New Construction”).
`
`D.I. 519. On April 18, 2018, the Court granted Activision leave to submit its supplemental
`
`summary judgment motion based on the New Construction. D.I. 533. The Court also allowed
`
`Acceleration Bay to supplement its infringement expert reports to address the New Construction.
`
`Id.
`
`ARGUMENT
`
`The Court should deny Activision’s supplemental motion for summary judgment based
`
`on the New Construction as moot. The only basis for Activision’s supplemental motion is that
`
`Acceleration Bay’s infringement expert reports, served in 2017, purportedly did not address the
`
`Court’s New Construction, which issued on April 10, 2018. This argument is now moot because
`
`Acceleration Bay served supplemental infringement reports, as expressly authorized by the
`
`Court, addressing infringement under the New Construction. Declaration of Paul Andre, Ex. 1
`
`(Supplemental Infringement Report of Dr. Medvidovic); id., Ex. 2 (Supplemental Infringement
`
`Report of Dr. Mitzenmacher). See Carrier Corp. v. Goodman Global, Inc., 64 F. Supp. 3d 602,
`
`612-13 (D. Del. 2014) (denying motion for summary judgment of non-infringement where the
`
`accused infringer provided only attorney argument against infringement expert analysis).
`
`Further, no additional depositions or motions for summary judgment based on these
`
`reports are necessary because the supplemental reports rely on the same underlying infringement
`
`theories and evidence as in the original infringement reports, and confirm that the accused
`
`products continue to infringe under the New Construction. See, e.g., Andre Decl., Ex. 1 at ¶ 10
`
`
`
`Case 1:16-cv-00453-RGA Document 547 Filed 05/02/18 Page 3 of 3 PageID #: 45869
`
`(“The Court’s 4/10/18 Claim Construction Order . . . does not change my prior analysis of this
`
`claim element because the Accused Products have functionality corresponding to these
`
`structures, which I already discussed in my prior reports.”); id., Ex. 2 at ¶ 10 (same). Because
`
`Activision already had a chance to depose Drs. Medvidovic and Mitzenmacher on their
`
`infringement opinions based on the same functionalities and structures, Activision should not be
`
`allowed to take additional depositions on these experts. Additionally, the parties already
`
`submitted 250 pages of summary judgment and Daubert briefs. Activision’s motion covered
`
`virtually every issue in the case and it should not be permitted any further briefing. Thus,
`
`Activision’s supplemental motion for summary judgment should be denied and no further
`
`summary judgment or Daubert motion briefing permitted.
`
`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: May 2, 2018
`5767969
`
`POTTER ANDERSON & CORROON LLP
`
`By: /s/ Philip A. Rovner
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff
`Acceleration Bay LLC
`
`2
`
`
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