`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 1 of 139 PageID #: 46338
`1
`
`IN THE UNITED STATES DISTRICT COURT
`IN AND FOR THE DISTRICT OF DELAWARE
`- - -
`
`
`
`CIVIL ACTION
`
`NO. 16-0453-RGA
`
`:::::::::
`
`ACCELERATION BAY, LLC,
`Plaintiff,
`
`vs.
`ACTIVISION BLIZZARD,
`Defendant
`
`- - -
`Wilmington, Delaware
`Thursday, May 17, 2018
`1:13 o'clock, p.m.
`- - -
`BEFORE: HONORABLE RICHARD G. ANDREWS, U.S.D.C.J.
`- - -
`
`
`
`
`
`Valerie J. Gunning
`Official Court Reporter
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 2 of 139 PageID #: 46339
`2
`
`
`
`
`APPEARANCES:
`
`POTTER, ANDERSON & CORROON LLP
`BY: PHILIP A. ROVNER, ESQ. and
`ALAN SILVERSTEIN, ESQ.
`
`-and-
`
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`BY: PAUL J. ANDRE, ESQ. and
`LISA KOBIALKA, ESQ.
`(Menlo Park, California)
`
`-and-
`
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`BY: AARON M. FRANKEL, ESQ.
`(New York, New York)
`
`Counsel for Plaintiff
`Acceleration Bay LLC
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`BY: JACK B. BLUMENFELD, ESQ.
`STEPHEN J. KRAFTSCHIK, ESQ.
`
`-and-
`
`WINSTON & STRAWN LLP
`BY: DAVID P. ENZMINGER, ESQ.
`MICHAEL A. TOMASULO, ESQ.
`(Los Angeles, California)
`
`-and-
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 3 of 139 PageID #: 46340
`3
`
`
`
`
`APPEARANCES (Continued):
`
`WINSTON & STRAWN LLP
`BY: MICHAEL M. MURRAY, ESQ.
`(New York, New York)
`
`-and-
`
`WINSTON & STRAWN LLP
`BY: ANDREW R. SOMMER, ESQ.
`(Washington, D.C.)
`
`-and-
`
`WINSTON & STRAWN LLP
`BY: KATHLEEN R. BARRY, ESQ.
`(Chicago, Illinois)
`
`-and-
`
`SHOOK HARDY & BACON LLP
`BY: JORDAN T. BERGSTEN, ESQ.
`(Kansas City, Missouri)
`
`Counsel for Defendant
`Activision Blizzard, Inc.
`
`- - -
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 4 of 139 PageID #: 46341
`4
`
` P R O C E E D I N G S
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`11:49:41
`
`11:49:43
`
`12:13:58
`
`12:13:58
`
`12:14:00
`
`12:14:01
`
`12:14:06
`
`12:14:12
`
`12:14:18
`
`12:14:21
`
`12:14:22
`
`12:14:27
`
`12:14:30
`
`12:14:34
`
`12:14:38
`
`12:14:39
`
`12:14:41
`
`12:14:42
`
`12:14:49
`
`12:14:50
`
`12:14:53
`
`12:14:58
`
`12:14:59
`
`(Proceedings commenced in the courtroom,
`beginning at 1:12 p.m.)
`
`
`THE COURT: All right. Good afternoon,
`everyone. Please be seated.
`So this is the time that I've scheduled for
`argument on the summary judgment motions in Acceleration Bay
`versus Activision, Blizzard, Civil Action No. 16-453.
`Why don't we have counsel introduce themselves.
`Mr. Rovner?
`MR. ROVNER: Good afternoon, Your Honor. Phil
`Rovner from Potter Anderson on behalf of Acceleration Bay,
`and with me is my co-counsel, Paul Andre, Lisa Kobialka and
`Aaron Frankel, all from Kramer Levin, and my colleague,
`Alan Silverstein.
`THE COURT: All right. Thank you very much.
`Welcome to you all.
`Mr. Blumenfeld?
`MR. BLUMENFELD: Thank you, you. Jack
`Blumenfeld from Morris Nichols for Activision. At counsel
`table, David, Michael Tomasulo, Michael Murray, all from
`Winston & Strawn.
`Behind them, Jordan Bergsten, who is from Shook
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 5 of 139 PageID #: 46342
`5
`
`Hardy & Bacon, Andrew Sommer and Kathleen Berry, who are
`also from Winston & Strawn.
`On the first row, Omer Solik from the company,
`from Activision, and then the third row, Steve Kraftschik
`from Morris Nichols.
`THE COURT: All right. So thank you. Good
`afternoon to you all, too.
`So what I thought was we'd have, I'd hear from
`plaintiff on the motion for summary judgment aspect of their
`motion that I was interested in and a response then from the
`defendant, and then we would do the other issues that I was
`interested in, sort of one at a time, starting with the
`defendant.
`
`1 2 3 4 5 6 7 8 9
`
`
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Is that what you all had in mind?
`MR. ANDRE: That sounds fine, Your Honor.
`MR. ENZMINGER: That's okay, Your Honor.
`THE COURT: Okay. So Mr. Andre?
`MR. ANDRE: Thank you, Your Honor. May it
`please the Court, the issue you asked for summary judgment
`to address is whether or not the two references were
`essentially publicly available, the Kegel and the ActiveNet
`references.
`What we've shown without really any dispute from
`Activision is that Kegel was a piece of prior art that they
`allege was on a website back in, before the priority date of
`
`12:15:03
`
`12:15:08
`
`12:15:10
`
`12:15:13
`
`12:15:17
`
`12:15:19
`
`12:15:21
`
`12:15:22
`
`12:15:29
`
`12:15:33
`
`12:15:36
`
`12:15:40
`
`12:15:43
`
`12:15:44
`
`12:15:47
`
`12:15:48
`
`12:15:50
`
`12:15:52
`
`12:15:56
`
`12:16:01
`
`12:16:10
`
`12:16:14
`
`12:16:15
`
`12:16:20
`
`12:16:26
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 6 of 139 PageID #: 46343
`6
`
`
`
`
`our patent.
`THE COURT: And is the priority date July 31st
`
`of 1999?
`
`MR. ANDRE: That sounds right, Your Honor.
`THE COURT: Okay.
`MR. ANDRE: So what the, the issue here is, they
`have not put forward any evidence that Kegel was actually on
`their website at that time period. What they have is a
`different website, different publication date, and they're
`using that to try to show that that would indicate that
`Kegel was there earlier.
`That just --
`THE COURT: So there's a declaration or
`affidavit or something from this Mr. Kegel. Right?
`MR. ANDRE: Yes.
`THE COURT: Does he say in it that this printed
`thing, whatever it was, was on a website before July 31st of
`1999?
`
`MR. ANDRE: What he says in the declaration, and
`I can't recall verbatim, but essentially what he's saying
`is, is what he has evidence of is this other publication
`that was there and that it was substantially the same than
`what was there earlier. Under the clear and convincing
`standard --
`
`THE COURT: Wait. Just go through that a little
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12:16:31
`
`12:16:32
`
`12:16:35
`
`12:16:37
`
`12:16:38
`
`12:16:40
`
`12:16:45
`
`12:16:48
`
`12:16:53
`
`12:16:59
`
`12:17:03
`
`12:17:05
`
`12:17:05
`
`12:17:08
`
`12:17:10
`
`12:17:11
`
`12:17:21
`
`12:17:25
`
`12:17:26
`
`12:17:29
`
`12:17:32
`
`12:17:36
`
`12:17:40
`
`12:17:43
`
`12:17:43
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 7 of 139 PageID #: 46344
`7
`
`
`
`
`slower.
`
`So there are two different websites that are
`involved here?
`MR. ANDRE: Yes.
`THE COURT: And he says that something was on
`website number two after the priority date.
`MR. ANDRE: Yes.
`THE COURT: And from that he inferred it was on
`website number one before the priority date?
`MR. ANDRE: That's correct. So it is something
`that under the clear and convincing standard they would have
`to show not only that it was, A, on the website, but also
`that it was accessed. It was publicly available.
`They failed on both grounds. What they are
`trying to do is use a different document to show another
`document was prior art and then they put in some hearsay
`evidence to try to show that it was publicly available. It
`was accessed.
`THE COURT: Well, so I saw something in the
`briefing that said it was on some blog and seven people
`or five people or nine people commented on it. Is that
`true?
`
`MR. ANDRE: Maybe on the later publication, but
`I don't see anything -- going back to the original prior,
`the website one, we don't have any evidence of that.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12:17:45
`
`12:17:47
`
`12:17:50
`
`12:17:50
`
`12:17:51
`
`12:17:54
`
`12:17:58
`
`12:17:58
`
`12:18:01
`
`12:18:03
`
`12:18:08
`
`12:18:11
`
`12:18:16
`
`12:18:18
`
`12:18:23
`
`12:18:25
`
`12:18:28
`
`12:18:32
`
`12:18:33
`
`12:18:35
`
`12:18:39
`
`12:18:47
`
`12:18:47
`
`12:18:51
`
`12:18:56
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 8 of 139 PageID #: 46345
`8
`
`So it is something that -- you know, this is a,
`it's kind of a, try and make us prove that it wasn't
`there. It's not our burden. They have to prove it was
`there. Their burden is clear and convincing. It's a high
`standard. So under that ground, we think this is one that's
`ripe for summary judgment because they just have not met
`their burden of proof and they keep trying to shift the
`proof by saying, if you read their opposition to our summary
`judgment, they say, yes, it's different, but it's
`substantially the same.
`They admit --
`THE COURT: Well, part of the reason, I mean, I
`did read their opposition and I think I was having trouble
`just looking at the briefing piecing together what happened,
`because it didn't seem like you all were talking about the
`same things, and maybe that's your point. I don't know.
`MR. ANDRE: Well, that is exactly the point.
`They are talking about a publication that was after our
`priority date. And we're like, okay, we agree. There's a
`publication after our priority date, and that's the one that
`you are trying to use as prior art. So that is the reason
`we think summary judgment is appropriate.
`The parties seem to agree on the facts here,
`
`
`
`that --
`
`THE COURT: Well, I'm not sure about that. So
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12:18:59
`
`12:19:06
`
`12:19:12
`
`12:19:15
`
`12:19:19
`
`12:19:22
`
`12:19:26
`
`12:19:28
`
`12:19:31
`
`12:19:33
`
`12:19:35
`
`12:19:36
`
`12:19:39
`
`12:19:47
`
`12:19:51
`
`12:19:54
`
`12:19:58
`
`12:20:00
`
`12:20:04
`
`12:20:10
`
`12:20:12
`
`12:20:16
`
`12:20:18
`
`12:20:21
`
`12:20:21
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 9 of 139 PageID #: 46346
`9
`
`let me ask you one or two more questions that maybe would
`make sense for me to hear from them because you say it is
`their burden, and to get a better handle at least to me as
`to what they are saying they have proved. But there is one
`thing, there's some kind of declaration of Mr. Kegel, who
`supposedly quotes somebody whose named Mr. Wiesner, and you
`say that is hearsay, which it may well be.
`Can you just give me a little more context as to
`what it is that Mr. Kegel is quoting Mr. Wiesner to prove?
`MR. ANDRE: I believe that is the one where he
`is saying people were accessing the site.
`THE COURT: Okay.
`MR. ANDRE: So --
`THE COURT: So Mr. Kegel doesn't know whether
`people were accessing the site or not. He says Mr. Wiesner
`told him people were?
`MR. ANDRE: I believe that's correct, Your
`
`
`
`Honor.
`
`THE COURT: Okay. All right. So, Mr. Andre,
`why don't I hear from the other side. I will certainly give
`you the opportunity to respond. Okay?
`MR. ANDRE: Do you want me to talk about the
`ActiveNet one as well?
`THE COURT: Yes, yes, yes, yes. Sorry.
`MR. ANDRE: That's okay.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12:20:25
`
`12:20:28
`
`12:20:31
`
`12:20:35
`
`12:20:37
`
`12:20:45
`
`12:20:51
`
`12:20:54
`
`12:20:56
`
`12:21:02
`
`12:21:05
`
`12:21:09
`
`12:21:11
`
`12:21:12
`
`12:21:13
`
`12:21:16
`
`12:21:17
`
`12:21:19
`
`12:21:19
`
`12:21:25
`
`12:21:28
`
`12:21:30
`
`12:21:31
`
`12:21:32
`
`12:21:35
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 10 of 139 PageID #: 46347
`10
`
`THE COURT: You know, apparently, ActiveNet was
`written by Mr. Kegel, too?
`MR. ANDRE: I don't know if he authored it. It
`was source code.
`THE COURT: Right. Right. Hold on. Let me
`just check my notes here.
`(Pause.)
`THE COURT: Yes. Actually, I guess I was
`confused about that, too, so tell me about that.
`MR. ANDRE: So ActiveNet, what is being, trying
`to be used as evidence of prior art as source code, and
`trying to show it was publicly available, they're saying
`this source code was used in a game called Heavy Gear II,
`although there's no evidence actually that code itself was
`actually used in Heavy Gear II, but there's a lot of
`supposition that it may have been used in that.
`So we know source code is not publicly
`available. You can't use that as prior art, but that's what
`they are trying to use as evidence of prior art, the date
`and the code, and they are then trying to extrapolate from
`that to say that this game, which may or may not have the
`source code compiled into it, was evidence of public
`availability.
`THE COURT: Well, so if it were the case that
`the game was publicly available before July 31st of 1999,
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12:21:36
`
`12:21:39
`
`12:21:41
`
`12:21:43
`
`12:21:44
`
`12:21:46
`
`12:21:57
`
`12:22:02
`
`12:22:04
`
`12:22:07
`
`12:22:10
`
`12:22:15
`
`12:22:18
`
`12:22:22
`
`12:22:25
`
`12:22:28
`
`12:22:31
`
`12:22:34
`
`12:22:36
`
`12:22:38
`
`12:22:42
`
`12:22:46
`
`12:22:50
`
`12:22:51
`
`12:22:53
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 11 of 139 PageID #: 46348
`11
`
`and if, in fact, it had the same exact source code that
`their expert says it has whatever features it has, the fact
`that it was in this Heavy Gear II, that would show public
`availability. Right?
`MR. ANDRE: I would disagree, Your Honor,
`because it would show that there was, the game was publicly
`available, but the information and how that game operates is
`not, because in order to be publicly available prior art, it
`has to be enabling. It has to teach someone how to use it.
`The whole idea behind source code is you keep a secret. You
`don't teach people how to use it. The fact that it's in a
`game, that is going to teach one skilled in the art how to
`make that invention.
`THE COURT: Did you make that argument in the
`
`
`
`brief?
`
`MR. ANDRE: Your Honor, I doubt we did.
`THE COURT: Okay. All right.
`MR. ANDRE: I will be honest with you. They put
`in 35 or 40 issues. We have not.
`THE COURT: No. I understand perfectly what you
`
`are saying.
`
`MR. ANDRE: Yes.
`THE COURT: But I was just curious, because it
`didn't sound like something I had read, so, okay.
`MR. ANDRE: So I think that's -- ActiveNet to me
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12:23:01
`
`12:23:06
`
`12:23:17
`
`12:23:23
`
`12:23:23
`
`12:23:26
`
`12:23:29
`
`12:23:32
`
`12:23:35
`
`12:23:39
`
`12:23:42
`
`12:23:45
`
`12:23:49
`
`12:23:49
`
`12:23:50
`
`12:23:51
`
`12:23:53
`
`12:23:54
`
`12:23:56
`
`12:23:58
`
`12:24:00
`
`12:24:00
`
`12:24:01
`
`12:24:06
`
`12:24:10
`
`
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 12 of 139 PageID #: 46349
`12
`
`is a very easy call just because they are saying that it's
`source code based.
`THE COURT: So do you have a case citation for
`the argument that putting that source code in something
`that's publicly available does not establish why that
`would -- that that would not count as public availability
`of the source code or that could be prior art, what you
`are --
`
`MR. ANDRE: Yes. I don't have that at my
`fingertips. We could get you a cite. It's pretty standard
`black letter law that prior art has to be enabling as well.
`Even if it's an obviousness combination, it has to teach
`someone something.
`THE COURT: Well, and I forget. Is this prior
`art supposed to be anticipating or obvious?
`MR. ANDRE: They have this as obviousness. They
`have the ActiveNet --
`THE COURT: Because it's obvious, it doesn't
`require enabling.
`MR. ANDRE: It doesn't repair enabling. It's
`supposed to have a teaching. I've seen case law that says
`they kind of conflate the two, enabling, because if it's a
`prior piece of art, it has to enable the entire invention.
`You still have to teach the entire part of the invention you
`think is there. It has to disclose it in such a way one
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12:24:13
`
`12:24:17
`
`12:24:18
`
`12:24:21
`
`12:24:29
`
`12:24:37
`
`12:24:39
`
`12:24:43
`
`12:24:43
`
`12:24:45
`
`12:24:48
`
`12:24:52
`
`12:24:54
`
`12:24:55
`
`12:24:58
`
`12:25:01
`
`12:25:03
`
`12:25:04
`
`12:25:07
`
`12:25:09
`
`12:25:12
`
`12:25:14
`
`12:25:18
`
`12:25:22
`
`12:25:25
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 13 of 139 PageID #: 46350
`13
`
`would be combining the two references together.
`THE COURT: Okay.
`MR. ANDRE: In this case, it's the ActiveNet and
`Nautical, I believe it is.
`THE COURT: All right. So why don't I hear from
`the other side.
`MR. SOMMER: Thank you, Your Honor. Andrew
`Sommer on behalf of the defendants.
`And I have some slides that will run through
`that. Hopefully will help you through the record.
`THE COURT: That would be helpful.
`MR. SOMMER: As to what the evidence is. I do
`want to address a couple of things that Mr. Andre said
`before we get into the slides though.
`One is that a public use or a sale must be
`enabling and put the public in possession. I believe
`there's an old Supreme Court case about a corset dating way
`back that says it was worn under the clothes, but it was
`still publicly used.
`And I know that the law in this area is a public
`use is still a public use and an offer for sale is an offer
`for sale regardless of whether that is a secret.
`THE COURT: So what you are saying with regards
`to Heavy Gear, if the Heavy Gear has the source code in it
`and it was offered for sale before July 31st, 1999, that
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12:25:28
`
`12:25:33
`
`12:25:33
`
`12:25:35
`
`12:25:37
`
`12:25:39
`
`12:25:45
`
`12:25:48
`
`12:25:50
`
`12:25:53
`
`12:25:56
`
`12:25:58
`
`12:26:00
`
`12:26:02
`
`12:26:04
`
`12:26:08
`
`12:26:12
`
`12:26:16
`
`12:26:21
`
`12:26:23
`
`12:26:25
`
`12:26:28
`
`12:26:31
`
`12:26:33
`
`12:26:38
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 14 of 139 PageID #: 46351
`14
`
`
`
`
`capped it?
`
`MR. SOMMER: That's exactly right, Your Honor.
`THE COURT: Okay.
`MR. SOMMER: The other thing, I think there was
`some confusion about this, the term priority date was used,
`and the priority date that Mr. Andre said was July 31st,
`1999, these patents were first filed in July of 2000. I
`don't think it's highly relevant for this particular motion,
`but I didn't want there to be confusion on that.
`THE COURT: Well, you say the patents were first
`filed. I saw somewhere, I believe it was actually in --
`okay, it was in their brief. That said, "The critical date
`was July 31st of 1999."
`MR. SOMMER: Yes.
`THE COURT: Isn't there some time -- and I saw
`also that you said, yes, your brief that was filed July 31st
`of 2000. Sometimes you get to go back a year?
`MR. SOMMER: You can go back a year and it
`depends on which grounds that you are using for invalidity.
`102(b) is an absolute bar to patentability. They can't
`swear behind the reference if it has been out there for at
`least a year. 102(a), you can swear behind the reference
`and that's within that period.
`THE COURT: Is this anticipation or is this
`obviousness?
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12:26:43
`
`12:26:44
`
`12:26:46
`
`12:26:48
`
`12:26:50
`
`12:26:53
`
`12:26:57
`
`12:27:00
`
`12:27:02
`
`12:27:05
`
`12:27:07
`
`12:27:13
`
`12:27:18
`
`12:27:20
`
`12:27:21
`
`12:27:26
`
`12:27:31
`
`12:27:35
`
`12:27:37
`
`12:27:39
`
`12:27:43
`
`12:27:45
`
`12:27:48
`
`12:27:49
`
`12:27:51
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 15 of 139 PageID #: 46352
`15
`
`MR. SOMMER: This is obviousness, but the
`availability of prior art uses those rules.
`THE COURT: Right. Right.
`MR. SOMMER: So what counts and what doesn't is
`really what's at issue with those dates.
`THE COURT: So the Heavy Gear, which kind of
`thing is that?
`MR. SOMMER: That is 102(b), offer for sale, on
`sale and public use, prior art.
`And in terms of what the record shows, if I may
`move into the record evidence on this.
`THE COURT: Yes.
`MR. SOMMER: Can you please go to the next
`
`
`
`slide.
`
`So this is the Kegel version that Dr. Carver has
`rendered his invalidity opinions about, and we can see here,
`this was last updated 17 July of 1999.
`THE COURT: Right. So I saw that, while not
`actually looking at the declaration or affidavit, I saw it
`paraphrased to say that Mr. Kegel says that he basically
`would change the last updated thing whenever he added
`something new to the website. Right?
`MR. SOMMER: Right, and that's in paragraph 6 of
`his declaration.
`If I can have the next slide. That's this
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12:27:52
`
`12:27:54
`
`12:27:55
`
`12:27:57
`
`12:27:59
`
`12:28:01
`
`12:28:07
`
`12:28:10
`
`12:28:12
`
`12:28:14
`
`12:28:17
`
`12:28:18
`
`12:28:19
`
`12:28:29
`
`12:28:31
`
`12:28:35
`
`12:28:38
`
`12:28:41
`
`12:28:47
`
`12:28:52
`
`12:28:57
`
`12:29:00
`
`12:29:02
`
`12:29:04
`
`12:29:05
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 16 of 139 PageID #: 46353
`16
`
`paragraph that Your Honor is paraphrasing. He said he kept
`a log. That is included as an attachment to his
`declaration. About every time he updated it, he would then
`post it to the site. So this is the last time this
`particular article was updated.
`So this July 17th, 1999 date is the date that he
`will testify he last updated this particular article.
`THE COURT: Okay.
`MR. SOMMER: And that it was posted to the
`Internet as of that time.
`Can I have the next slide, please.
`So Mr. Kegel explains that he originally posted
`this in December of 1998. He made some modifications to it.
`We're not relying on the December of '98 version of this,
`but he began to tell people in the field about how he solved
`this particular problem called NAT traversal. People that
`were playing video games were having difficulty accessing
`and playing multiplayer games because essentially, their
`cable modems were blocking certain traffic.
`May I have the next slide, please.
`So these are a series of posts, and I won't
`belabor them much, but they're attachments to Mr. Kegel's
`declaration that show that he's talking about these and
`saying, hey, you can read about my solution at this web
`page. This particular group was a public group. It had
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12:29:06
`
`12:29:09
`
`12:29:12
`
`12:29:17
`
`12:29:19
`
`12:29:21
`
`12:29:25
`
`12:29:28
`
`12:29:31
`
`12:29:33
`
`12:29:36
`
`12:29:38
`
`12:29:41
`
`12:29:45
`
`12:29:49
`
`12:29:53
`
`12:29:57
`
`12:30:00
`
`12:30:04
`
`12:30:06
`
`12:30:08
`
`12:30:11
`
`12:30:15
`
`12:30:18
`
`12:30:21
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 17 of 139 PageID #: 46354
`17
`
`
`
`
`over 600 --
`
`THE COURT: Wait a minute. Is that something
`Mr. Kegel authored?
`MR. SOMMER: Yes. This is one of his efforts to
`promote his research and his technology. It's from December
`of 1998 and it went to a public group of 656 people.
`So if we go to the next slide, please, this is
`another posting that Mr. Kegel made. He's responding to
`someone named Pat that asked a question. He directs him
`again to his site.
`Next slide, please.
`And there are a number of these. I'm not going
`to go through each one of them.
`Each time he cites to his website, and this is
`the website where the July 1999 version of that paper is.
`There is a footnote in Mr. Kegel's declaration that explains
`what Mr. Andre was talking about, this idea that there are
`two websites.
`And he explains that at some point there was a
`security issue with the original server, and he was actually
`asked by Cal Tech to come back in and help them fix that,
`but what ended up happening is all the alumni's websites got
`moved over to a new server. And that's Footnote 1 in his
`declaration. It's on the first page of it. He explains the
`reason for the multiple websites.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12:30:23
`
`12:30:24
`
`12:30:27
`
`12:30:28
`
`12:30:31
`
`12:30:35
`
`12:30:41
`
`12:30:44
`
`12:30:49
`
`12:30:51
`
`12:30:52
`
`12:30:53
`
`12:30:56
`
`12:30:58
`
`12:31:01
`
`12:31:06
`
`12:31:09
`
`12:31:12
`
`12:31:14
`
`12:31:16
`
`12:31:20
`
`12:31:23
`
`12:31:26
`
`12:31:30
`
`12:31:33
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 18 of 139 PageID #: 46355
`18
`
`THE COURT: What he's saying is the website that
`is on the second server was identical to the website on the
`first server?
`MR. SOMMER: That's what he is saying. The last
`time he updated this article was July 17th, 1999, and we
`don't even need to show that the second server was publicly
`accessible. We can assume that their date is right on that
`second server, because it was publicly accessible in July of
`1999.
`
`1 2 3 4 5 6 7 8 9
`
`
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`THE COURT: When you say their date is right,
`you mean the July 31st date?
`MR. SOMMER: I'm sorry. The 2001 availability
`date that is mentioned in their brief. All we've shown is
`that it was available in 2001.
`THE COURT: That's when it was transferred from
`server number one to server number two?
`MR. SOMMER: Thereabouts. That's what the
`record evidence shows, that there was some transition that
`happened sometime in the early 2000S from one server to
`another, and, you know, it is what it is in terms of that.
`But we don't need to prove anything about the accessibility
`of that second website. It's the first one that we're
`focused on here.
`Next slide.
`These are more examples. This is Attachment 13
`
`12:31:34
`
`12:31:37
`
`12:31:41
`
`12:31:42
`
`12:31:44
`
`12:31:49
`
`12:31:53
`
`12:31:57
`
`12:32:00
`
`12:32:01
`
`12:32:03
`
`12:32:06
`
`12:32:09
`
`12:32:12
`
`12:32:14
`
`12:32:16
`
`12:32:18
`
`12:32:20
`
`12:32:22
`
`12:32:25
`
`12:32:31
`
`12:32:33
`
`12:32:36
`
`12:32:38
`
`12:32:41
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 19 of 139 PageID #: 46356
`19
`
`to Mr. Kegel's declaration. This is a group of individuals
`he is talking about. I've written up my technique at this
`website.
`
`
`
`Next slide. And I am going to flip through --
`oh, is the Wiesner posting that Your Honor had mentioned in
`your discussions with Mr. Andre. And the purpose that we're
`relying on this for is not a hearsay purpose. We don't care
`what Mr. Wiesner says is actually true. We're just showing
`that he was aware of the page and was telling other people
`about it. He has a hyperlink that's highlighted right
`there. It's at alumni Cal Tech WU, and it's followed by
`Mr. Kegel's initials, Dan K, and talks about his peer's NAT
`technology.
`So, Your Honor, based on this, we think a
`reasonable jury could absolutely conclude that the Kegel
`paper was available, that those skilled in the art knew
`how to get to it, and that they could have accessed it
`if they believed. And so publicly, it was publicly
`accessible.
`In terms of --
`THE COURT: And for him, because it's a paper as
`opposed to the on-sale bar, July 31st, 1999 is the relevant
`date?
`
`MR. SOMMER: It is a relevant date. It could
`have been July 20th, 2000 as well. Now, they would get an
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12:32:43
`
`12:32:47
`
`12:32:50
`
`12:32:51
`
`12:32:52
`
`12:32:55
`
`12:33:00
`
`12:33:03
`
`12:33:06
`
`12:33:09
`
`12:33:12
`
`12:33:17
`
`12:33:25
`
`12:33:27
`
`12:33:29
`
`12:33:32
`
`12:33:35
`
`12:33:38
`
`12:33:43
`
`12:33:44
`
`12:33:46
`
`12:33:49
`
`12:33:53
`
`12:33:55
`
`12:33:57
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 20 of 139 PageID #: 46357
`20
`
`opportunity to try to swear behind that, but that's not an
`issue in this case.
`THE COURT: Okay.
`MR. SOMMER: Okay. At least not in the papers
`that are in front of Your Honor.
`Can I have the next slide, please.
`Again, just another person, some David A. Ranch,
`again, referring to this website.
`Next slide, please.
`Next slide, please.
`There are a series of attachments to Mr. Kegel's
`declaration that deal with these new groups where his paper
`was being discussed.
`Next slide, please.
`So, again, there is some implication that Dr.
`Karger has relied on the wrong version in rendering his
`invalidity opinions, the substantive opinions about why
`Kegel is invalidating prior art, at least in part in
`combination with other teachings. And this is an excerpt
`from his expert report, opening report on invalidity, and he
`identifies the July of 1999 version.
`It's difficult for us to understand exactly why
`we're talking about the 2001 version other than the fact
`that there was some snafu at the Patent Office that dealt
`with the declaration of another gentleman, Mr. Butler, that
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12:34:01
`
`12:34:03
`
`12:34:04
`
`12:34:06
`
`12:34:08
`
`12:34:10
`
`12:34:12
`
`12:34:16
`
`12:34:18
`
`12:34:20
`
`12:34:22
`
`12:34:27
`
`12:34:30
`
`12:34:31
`
`12:34:32
`
`12:34:36
`
`12:34:39
`
`12:34:42
`
`12:34:47
`
`12:34:50
`
`12:34:53
`
`12:34:56
`
`12:35:00
`
`12:35:03
`
`12:35:06
`
`
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 21 of 139 PageID #: 46358
`21
`
`has been cited by someone in these proceedings. It may well
`have been Dr. Karger about public accessibility. But Dr.
`Karger doesn't need to prove this document is publicly
`accessible. We have Mr. Kegel for that.
`THE COURT: Okay.
`MR. SOMMER: Okay. Can I have the next slide,
`
`please.
`
`So as to ActiveNet, Mr. Andre is exactly right.
`This is source code. It's combined and it was built into a
`game called Heavy Gear II Demo, and that was the
`demonstration version of Heavy Gear.
`They've deposed Mr. Kegel on these topics and
`this is some of his testimony. He said, ActiveNet is my
`implementation of my technique, so it's this paper
`implemented in software that went into a game.
`Can I have the next slide, please.
`And here he explains that Heavy Gear II Demo was
`released on or before December '98, again, well in advance
`of the July 1999 date.
`THE COURT: Did I see that Mr. Kegel worked
`for Activision or its predecessor or something along the
`way?
`
`MR. SOMMER: He was an Activision employee. I
`don't know what the corporate form was at the time, but he
`worked on ActiveNet while he was at active vision.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12:35:12
`
`12:35:16
`
`12:35:21
`
`12:35:24
`
`12:35:26
`
`12:35:26
`
`12:35:29
`
`12:35:29
`
`12:35:33
`
`12:35:36
`
`12:35:39
`
`12:35:41
`
`12:35:44
`
`12:35:48
`
`12:35:51
`
`12:35:54
`
`12:35:56
`
`12:36:00
`
`12:36:03
`
`12:36:07
`
`12:36:09
`
`12:36:13
`
`12:36:13
`
`12:36:15
`
`12:36:17
`
`
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 22 of 139 PageID #: 46359
`22
`
`THE COURT: Okay.
`MR. SOMMER: My understanding is he's no longer
`employed there.
`THE COURT: So I guess what I'm wondering is,
`how does he know when the dates, when Heavy Gear II was
`released? I presume he can't remember exactly when it was
`released 20 years ago.
`MR. SOMMER: So he has got some corroboration of
`
`that.
`
`May I have the next slide, please.
`So he also posted on the Internet, again talking
`in these Use Net or chat groups in December of 1998. He
`found one of his old posts, and it says, the first games
`known to use this technique are Heavy Gear II Demo. This
`jogs his memory about the time frame. Yes, it was a long
`time ago, but he wrote something back in 1998 telling, hey,
`public, Heavy Gear II Demo used my technique.
`THE COURT: Okay. That works for me.
`MR. SOMMER: Okay.
`May I have the next slide, please.
`He also seems to have access, and I don't know
`exactly the details of this, Your Honor, so if you have
`specific questions, I may not be able to field them, but he
`did some verification of the code.
`My understanding is that he has compiled
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`12:36:21
`
`12:36:24
`
`12:36:25
`
`12:36:26
`
`12:36:28
`
`12:36:34
`
`12:36:40
`
`12:36:42
`
`12:36:44
`
`12:36:44
`
`12:36:46
`
`12:36:48
`
`12:36:53
`
`12:36:56
`
`12:36:59
`
`12:37:02
`
`12:37:07
`
`12:37:11
`
`12:37:12
`
`12:37:13
`
`12:37:14
`
`12:37:16
`
`12:37:19
`
`12:37:21
`
`12:37:24
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`
`
`Case 1:16-cv-00453-RGA Document 560 Filed 05/21/18 Page 23 of 139 PageID #: 46360
`23
`
`versions of the old ActiveNet code available to him to this
`day, and was able to compare what was in the November 1998
`archive that Dr. Karger, our technical expert, is relying
`on, with the code that was actually present in Heavy Gear II
`Demo, and he has concluded that they're indistinguishable.
`Now, that doesn't, my understanding is that
`doesn't allow him to read the actual lines of code. What he
`has to compare is a bunch of zeros and ones. It's the
`compiled code. It's only readable by someone. But he has
`done that exercise in terms of comparing the binaries and
`says there is no difference that would lead him to believe
`that it's different code.
`So we submit based on that, that there's
`adequate evidence for the jury to conclude --
`THE COURT: And so your expert then verifies
`whatever it is that he's talking about here?
`MR. SOMMER: Yes. So he did a different
`exercise, but it's similar.
`May I have the next slide, please. That's here.
`And so Dr. Karger went ahead and he looked at a
`version from January
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
