Case 1:16-cv-00453-RGA Document 592 Filed 10/16/18 Page 1 of 15 PageID #: 48622
`
`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.
`
`PLAINTIFF ACCELERATION BAY LLC’S OPPOSITION TO
`ACTIVISION’S MOTION TO PRECLUDE DAMAGES CLAIMS AND EVIDENCE
`
`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
`James Hannah
`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: October 8, 2018
`
`PUBLIC VERSION
`
`Public version dated: October 16, 2018
`
`

`

`Case 1:16-cv-00453-RGA Document 592 Filed 10/16/18 Page 2 of 15 PageID #: 48623
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`TABLE OF CONTENTS
`
`Page
`
`A.
`
`B.
`
`C.
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`VI.
`
`Introduction ................................................................................................................... 1
`
`Background ................................................................................................................... 2
`
`Acceleration Bay Provided a Detailed Disclosure of its Damages Claims and
`Evidence in an Interrogatory Response ........................................................................ 2
`
`The Special Master Rejected Activision’s Challenges to the Very Damages Claims
`Acceleration Bay Will Present at Trial ......................................................................... 3
`
`Acceleration Bay Voluntarily Provided a Damages Disclosure to Activision After the
`Court’s Daubert Order .................................................................................................. 4
`
`Acceleration Bay Timely Disclosed its Damages Claims and Evidence ...................... 5
`
`Acceleration Bay’s Damages Claims and Evidence are Admissible ............................ 7
`
`Activision’s Motion Improperly Re-litigates Issues Which it Already Lost .............. 11
`
`Conclusion .................................................................................................................. 11
`
`i
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`

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`Case 1:16-cv-00453-RGA Document 592 Filed 10/16/18 Page 3 of 15 PageID #: 48624
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Apple Inc. v. Motorola, Inc.,
`757 F.3d 1286 (Fed. Cir. 2014)........................................................................................ passim
`
`AVM Techs, LLC v. Intel Corp.,
`927 F. Supp. 2d 139 (D. Del. 2013) .........................................................................................10
`
`CPG Prods. Corp. v. Pegasus Luggage, Inc.,
`776 F.2d 1007 (Fed. Cir. 1985)..................................................................................................8
`
`Dow Chem. Co. v. Mee Indus., Inc.,
`341 F.3d 1370 (Fed. Cir. 2003)..............................................................................................1, 7
`
`GlobespanVirata, Inc. v. Texas Instruments, Inc.,
`Civ. No. 03-2854, 2005 WL 1638136 (D. N.J. July 12, 2005) .............................................6, 7
`
`Golden Bridge Tech. v. Apple Inc.,
`No. 5:12-cv-04882-PSG, 2014 WL 4057187 (N.D. Cal. June 1, 2014) ....................................8
`
`Quinn v. Consol. Freightways Corp. of Del.,
`283 F.3d 572 (3d Cir. 2002) ......................................................................................................7
`
`Statutes
`
`35 U.S.C. § 285 ................................................................................................................................3
`
`ii
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`

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`Case 1:16-cv-00453-RGA Document 592 Filed 10/16/18 Page 4 of 15 PageID #: 48625
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`I.
`
`Introduction
`
`Activision’s motion to preclude Acceleration Bay’s damages case ignores a fundamental
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`principle of patent law – once a patentee proves infringement, 35 U.S.C. § 284 “requires the
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`court to award damages ‘in no event less than a reasonable royalty.’” Apple Inc. v. Motorola,
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`Inc., 757 F.3d 1286, 1327 (Fed. Cir. 2014); see also Dow Chem. Co. v. Mee Indus., Inc., 341
`
`F.3d 1370, 1381 (Fed. Cir. 2003) (“The statute is unequivocal that the district court must award
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`damages in an amount no less than a reasonable royalty.”). Even if the Court had struck the
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`testimony of Acceleration Bay’s damages expert in its entirety (and it did not), the Federal
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`Circuit has held that “there is a presumption of damages where infringement has been
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`established” and the trial court should consider “other evidence in the record” in determining a
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`reasonable royalty. Dow Chemical, 341 F.3d at 1381. Thus Activision’s premise that the partial
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`exclusion of Dr. Meyer’s damages opinions negates Acceleration Bay’s damages claims is
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`contrary to the Federal Circuit’s clear directives.
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`Activision’s motion also should be denied because Acceleration Bay timely disclosed its
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`damages claims and evidence. Significantly, Activision already unsuccessfully moved for much
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`of the relief it seeks in this Motion and is attempting to revive already rejected arguments.
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`Contrary to Activision’s claim that it learned the substance of Acceleration Bay’s
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`damages case “just five weeks before trial,” Acceleration Bay disclosed its facts and claims in an
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`August 2017 interrogatory response, fourteen months ago. Ex. 1 (2nd Supp. Resp. to Rog. No. 1,
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`the “Damages Rog Response”). This Damages Rog Response specifically stated that “the
`
`royalty rate will be 15.5%.” and that the royalty based would be “total revenues…, a royalty
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`based on the number of users or sessions, and/or cost savings.” Id. at 8. These are the very same
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`fact-based damages claims that Acceleration Bay will present at trial.
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`

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`Case 1:16-cv-00453-RGA Document 592 Filed 10/16/18 Page 5 of 15 PageID #: 48626
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`There is also no merit to Activision’s belated claim that Acceleration Bay’s damages
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`claims and evidence are inadmissible as allegedly unsupported (something that is addressed
`
`through cross-examination not the severe sanction of exclusion). The crux of Activision’s
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`argument is that Acceleration Bay should only be permitted to present damages through a
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`damages expert. Beyond the fact that Acceleration Bay can still offer the testimony of its
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`damages expert, the Federal Circuit has definitively held otherwise, confirming that even where
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`the entirety of a plaintiff’s damages expert’s opinion is excluded (which is not the case here), the
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`plaintiff is still permitted to present a fact-based damages claim. Apple Inc. v. Motorola, Inc.,
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`757 F.3d 1286, 1330 (Fed. Cir. 2014) (“if a patentee’s damage expert is excluded, that fact does
`
`not automatically deny a patentee a right to recover damages.”). Activision’s remaining
`
`objections go to weight of the evidence and can be addressed through cross-examination, but are
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`not a basis to preclude evidence in limine.
`
`Finally, the Court need not even reach the merits of Activision’s infirm Motion because it
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`seeks to re-litigate issues it already unsuccessfully presented to the Special Master and the Court
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`for which it never filed objections, thereby waiving further complaints now a few weeks before
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`trial. D.I. 226 at 7; D.I. 347 at 6-9.
`
`For these reasons and as discussed below, the Court should deny Activision’s Motion.
`
`II.
`
`Background
`
`A.
`
`Acceleration Bay Provided a Detailed Disclosure of its Damages Claims and
`Evidence in an Interrogatory Response
`
`More than one year ago during fact discovery, Acceleration Bay provided a detailed
`
`disclosure of its damages claims and evidence in response to an Interrogatory from Activision
`
`(the “Damages Rog Response”). Ex. 1 (2nd Supp. Resp. to Rog. No. 1). Acceleration Bay twice
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`supplemented its Damages Rog Response as it obtained additional discovery from Activision.
`
`2
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`

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`Case 1:16-cv-00453-RGA Document 592 Filed 10/16/18 Page 6 of 15 PageID #: 48627
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`Id. Acceleration Bay’s Damages Rog Response discloses its (1) damages methodologies, (2)
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`support for such methodologies, (3) claim for more than a reasonable royalty (based on
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`Activision’s willful infringement and under 35 U.S.C. § 285), (4) maximum amount of damages,
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`and (5) evidence in support thereof. Id. As demonstrated in Section III below, Acceleration
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`Bay’s Damages Rog Response fully disclosed each damages claims it will assert at trial and the
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`supporting evidence.
`
`B.
`
`The Special Master Rejected Activision’s Challenges to the Very Damages
`Claims Acceleration Bay Will Present at Trial
`
`Activision filed several motions with the Special Master in 2017 to preclude Acceleration
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`Bay’s damages case as disclosed in Acceleration Bay’s Damages Rog Response, arguing it was
`
`not sufficiently disclosed, and expert reports, arguing they were not supported by the Damages
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`Rog Response. The Special Master ultimately denied Activision’s motions, finding that
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`Acceleration Bay sufficiently disclosed it damages case in its Damages Rog Response, and
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`Activision never objected to the final Orders, leaving them the law of the case. D.I. 227 (Special
`
`Master Order No. 6) at 7; D.I. 347 (Special Master Order No. 12) at 6-9.
`
`During those 2017 proceedings before the Special Master, Activision acknowledged that
`
`it fully understood that Acceleration Bay intended to present a damages claim based on the same
`
`15.5% royalty rate applied to the same royalty bases that Activision now contends it was
`
`unaware of until two weeks ago. Ex. 2 (10/20/17 Br.) at 2. For example, Activision stated in its
`
`brief that, “During discovery, and in response to an Order of the Special Master, Plaintiff
`
`disclosed a damages theory based on 15.5% of revenue.” Id. (emphasis added) Activision even
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`went as far as to argue to the Special Master that these damages claims were the only damages
`
`claims that Acceleration Bay should be permitted to assert at trial:
`
`3
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`

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`Case 1:16-cv-00453-RGA Document 592 Filed 10/16/18 Page 7 of 15 PageID #: 48628
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`MS. BARRY: … it's important to think about … the procedural
`history here. We served these Interrogatories 1 and 2. One asks for their
`damages theory. … They provided a response…. But what we are asking
`here for you today is not to decide whether or not they are deficient but to
`hold them to these Interrogatory responses. And holding them to these
`Interrogatory responses means that they don't get to make changes in
`these Interrogatory responses because such changes would be -- or to add
`new facts to things in their expert report because it would be highly
`prejudicial to our clients, as we won't have had any opportunity to conduct
`discovery on these issues.
`And I'll point to two primary examples, one of which is plaintiff has
`said that all of the clients -- all of my clients owe a 15 and a half percent
`royalty on revenue. And plaintiff has cited one document for such a royalty.
`It is a website. It's Exhibit-22 to their opposition. And if that's all they've
`got, that's fine, but they shouldn't be allowed to come up with more at this
`point. …. And to say that 15 and a half percent is the basis, they've got
`that document, they should be stuck with it.
`
`Ex. 3 (7/14/17 Tr.) at 125:15-127:8 (emphasis added).
`
`After Acceleration Bay served its damages expert reports in September 2017, Activision
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`filed a second motion with the Special Master asking for a ruling that Acceleration Bay should be
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`limited to presenting the 15.5% royalty-rate damages claims it presented in the Damages Rog
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`Response. D.I. 329 at 1.
`
`Accordingly, Activision cannot be surprised by Acceleration Bay’s assertion of a 15.5%
`
`starting point for the reasonable royalty at trial or contend that Acceleration Bay did not timely
`
`disclose this claim. Certainly, there can be no prejudice to Activision, given its knowledge for
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`well over a year that Acceleration Bay had a 15.5% royalty rate in mind.
`
`C.
`
`Acceleration Bay Voluntarily Provided a Damages Disclosure to Activision
`After the Court’s Daubert Order
`
`Though not required by any rule or order, after the Court partially excluded the opinions
`
`of its damages expert relating to Uniloc, Activision requested that Acceleration Bay explain why
`
`the Daubert Order did not negate its damages case. As a good faith gesture, Acceleration Bay
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`voluntarily provided Activision with such a letter (the “Damages Letter”), even though all of this
`
`4
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`

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`Case 1:16-cv-00453-RGA Document 592 Filed 10/16/18 Page 8 of 15 PageID #: 48629
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`information had previously been disclosed. Ex. 4. Acceleration Bay’s Damages Letter identified
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`the same damages claims and evidence presented in its August 2017 Damages Rog Response and
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`expert reports, outlining to Activision the following: (1) the damages Acceleration Bay will seek
`
`at trial, (2) the applicable royalty bases, (3) royalty rate, and (4) apportionment, in addition to (5)
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`a list of expert opinions relating to damages that Acceleration Bay will offer at trial. Id. In each
`
`instance, Acceleration Bay provided pinpoint citations to the Damages Rog Response from
`
`August, 2017, expert reports served in September 2017, and other discovery material showing
`
`that Acceleration Bay timely disclosed each of these claims and the supporting evidence during
`
`discovery. Id. Proving the old saying that “no good deed goes unpunished,” Activision
`
`leveraged this good faith disclosure as an opportunity to yet again try to preclude Acceleration
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`Bay’s damages case, filing the instant Motion.
`
`III.
`
`Acceleration Bay Timely Disclosed its Damages Claims and Evidence
`
`Acceleration Bay timely disclosed its damages claims and evidence during discovery, and
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`there is no merit to Activision’s demonstrably false claim that “It is now a month from trial and
`
`Activision is just learning for the first time about the damages theories Acceleration [Bay]
`
`intends to present at trial.” Br. at 8. Activision’s Motion ignores the specific citations in the
`
`Damages Letter that demonstrate Acceleration Bay timely disclosed these claims and evidence to
`
`Activision over a year ago.
`
`Activision’s Case Specific Interrogatory No. 1 asked Acceleration Bay to “[i]dentify and
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`describe Plaintiff’s damages from Defendant’s alleged infringement … including but not limited
`
`to a royalty, a royalty rate, and a royalty base.” Ex. 1 (Damages Rog Response) at 1-2.
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`Activision requested, in relevant part, “a detailed description of the methodology for determining
`
`the damages … the largest amount of damages that Plaintiff will seek from a jury for any
`
`5
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`

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`Case 1:16-cv-00453-RGA Document 592 Filed 10/16/18 Page 9 of 15 PageID #: 48630
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`infringement found by Defendant.” Id. During proceedings before the Special Master,
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`Activision also pressed for disclosure of the royalty rate and base that Acceleration Bay would
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`claim. Acceleration Bay twice supplemented its Damages Rog Response. The table below
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`demonstrates that Acceleration Bay disclosed each component of its damages case in its 2017
`
`Damages Rog Response.
`
`Damages Letter
`
`Corresponding Disclosure in
`2017 Damages Rog Response
`
`“(1) a reasonable royalty based on
`Defendant’s revenue from the Accused
`Products … (2) based on the number of
`unique users/units sold of the Accused
`products … and (3) a reasonably royalty
`based on the cost savings to Defendant from
`using the Asserted Patents.” Ex. 4 at 1.
`
`Royalty Base:
` “(1) a reasonable royalty based on
`Defendant’s revenue from the Accused
`Products, (2) a reasonable royalty based on the
`number of units sold of the Accused Products,
`(3) a reasonable royalty based on the number
`of unique users for each of the Accused
`Products; … and (5) cost savings to Defendant
`from using the Asserted Patents.” Ex. 1 at 6.
`Royalty Rate:
`“[T]he estimated royalty rate applied to the
`“Plaintiff estimates that the royalty rate will be
`royalty base is 15.5%.” Ex. 4 at 2-3.
`15.5%.” Ex. 1 at 8.
`
`“Dr. Meyer discloses her opinions on
`apportionment in her expert reports as being
`between 57-62%. … Pursuant to the Daubert
`Order, the 57-62% is an appropriate
`percentage to use for apportionment.” Ex. 4
`at 3.
`
`Apportionment:
`Dr. Meyer disclosed her 57-62% apportionment
`opinion in her expert report. Ex. 5 (Meyer Rpt.)
`at 81, 87-90, Exhibit 10.
`
`Maximum Amount of Damages Claimed:
`“[T]he maximum amount of damages
`“[T]he maximum amount of damages that
`Acceleration Bay will seek for infringement
`Plaintiff will seek … based on the information
`through 2016 (and based on revenue
`it currently has is
`in damages for
`information provided through 2016), is
`Defendant’s infringement through 2016.
` Ex. 4 at 3.
`Plaintiff will seek additional damages through
`the remaining lifetime of the patent.” Ex. 1 at
`10.
`
`
`
`Accordingly, Acceleration Bay timely disclosed during fact discovery all of the damages
`
`claims and evidence it will present at trial, including the royalty rate, royalty base,
`
`6
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`

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`Case 1:16-cv-00453-RGA Document 592 Filed 10/16/18 Page 10 of 15 PageID #: 48631
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`apportionment, and maximum amount of damages claimed. And Activision’s claim that
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`Acceleration Bay deliberately withheld its damages case is fully without merit.
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`To the extent there was some failure to disclose by Acceleration Bay, which is not the
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`case, the Third Circuit’s Pennypack factors, unaddressed by Activision, control.
`
`GlobespanVirata, Inc. v. Texas Instruments, Inc., Civ. No. 03-2854, 2005 WL 1638136 at *2 (D.
`
`N.J. July 12, 2005) (citing Quinn v. Consol. Freightways Corp. of Del., 283 F.3d 572 at 577(3d
`
`Cir. 2002)). These factors include (1) the prejudice or surprise to a party against whom the
`
`evidence is offered; (2) ability of the injured party to cure the prejudice; (3) likelihood of
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`disruption of trial; (4) bad faith or willfulness involved in not complying with the disclosure
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`rules; and (5) importance of the evidence to the proffering party. Id. When applied to this case,
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`the Pennypack factors weigh heavily against preclusion. Acceleration Bay timely provided the
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`Damages Rog Response during discovery, proving its good faith in complying with the Court’s
`
`disclosure rules, and providing Activision with a fair opportunity to take any discovery it needed
`
`on these damages claims. Indeed, the underlying facts, such as Activision’s revenues, expenses,
`
`and units sold, are all within the possession of Activision, without the need for any third-party
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`discovery. Given this good faith disclosure over a year ago, there is no prejudice or surprise to
`
`Activision and no need to disrupt the trial date nor impose the extreme and unwarranted result of
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`precluding Acceleration Bay’s long-disclosed damages case.
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`IV.
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`Acceleration Bay’s Damages Claims and Evidence are Admissible
`
`Acceleration Bay’s damages claims and evidence are admissible. Activision’s primary
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`argument is its fundamentally flawed notion that Acceleration Bay should be precluded from
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`offering a damages case at trial because one portion of its damages expert’s opinion (relating to
`
`Uniloc) was precluded. Not so. The Federal Circuit has been clear that expert testimony is
`
`7
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`

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`Case 1:16-cv-00453-RGA Document 592 Filed 10/16/18 Page 11 of 15 PageID #: 48632
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`permissive and is not required to present a damages case to a jury. See Apple Inc., 757 F.3d at
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`1327. A jury may rely on all the record evidence to determine damages, regardless of whether it
`
`comes through an expert. Id. at 1330 (expert evidence not necessary for determining a
`
`reasonable royalty); see also Dow Chem., 341 F.3d at 382 (“[§] 284 is clear that expert testimony
`
`is not necessary to the award of damages, but rather ‘may [be] receive[d]…as an aid’”); CPG
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`Prods. Corp. v. Pegasus Luggage, Inc., 776 F.2d 1007, 1010-11 (Fed. Cir. 1985) (non-expert
`
`trial evidence sufficient to rule on royalty rate).
`
`The Federal Circuit also articulated that “if a patentee’s damage expert is excluded, that
`
`fact does not automatically deny a patentee a right to recover damages.” Id. This is “[b]ecause
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`no less than a reasonable royalty is required [and] the fact finder must determine what royalty is
`
`supported by the record . . . If a patentee’s evidence fails to support its specific royalty estimate,
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`the fact finder is still required to determine what royalty is supported by the record.” Id. Thus,
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`the Federal Circuit’s directive is unmistakable — in instances in which a damages expert has
`
`been excluded, a plaintiff should still be allowed to present fact evidence supporting the
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`determination of a reasonable royalty. See also Golden Bridge Tech. v. Apple Inc., No. 5:12-cv-
`
`04882-PSG, 2014 WL 4057187, at *2 (N.D. Cal. June 1, 2014) (after excluding an expert, the
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`district court permitted the trial to proceed based on evidence from other fact witnesses: plaintiff
`
`is “free to offer evidence of its damages from other, fact witnesses”).
`
`Activision ignores this unambiguous directive from the Federal Circuit, and attempts to
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`make new law based on an unsupported requirement, supposedly unique to this case, that
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`Acceleration Bay can only present an expert-based damages case, representing that “[m]ultiple
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`Orders of this Court required Acceleration [Bay] to present support for this rate in its expert
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`reports if it intended to present it at trial.” Br. at 7, citing D.I. 62 (Scheduling Order) and D.I.
`
`8
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`

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`Case 1:16-cv-00453-RGA Document 592 Filed 10/16/18 Page 12 of 15 PageID #: 48633
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`155 (Special Master Order No. 3) at 8. Activision misstates the record. The Scheduling Order
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`simply provides the due dates for expert reports, and says nothing about how a party may present
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`its damages case. D.I. 62 at 8-9. The cited Special Master Order simply states that Acceleration
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`Bay must disclose the facts behind its damages claim in response to Defendants Interrogatory
`
`No. 1, which Acceleration Bay did (as discussed above). D.I. 155 at 8 (“Interrogatory 1 seeks
`
`discovery as to Plaintiff’s damages theories and all the facts that Plaintiff intends to reply upon to
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`support each of its theories.”). Neither document precludes Acceleration Bay from presenting a
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`fact-based damages claim at trial, as fully disclosed during discovery, or requires an expert-based
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`damages case.
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`Activision ignores the record again in claiming that Acceleration Bay’s 15.5% starting
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`point for the reasonably royalty negotiation is unsupported and thus inadmissible. Activision
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`claims that fact witness John Garland “professed ignorance of this rate or its source.” Br. at 4.
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`To the contrary, Mr. Garland testified that Acceleration Bay’s target rate for royalty negotiations
`
`came from its CEO, Joe Ward. Ex. 6 (6/6/17 Garland Tr.) at 27:6-13 (“I'm familiar with the rate
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`from a discussion with Joe Ward.”) (emphasis added). Inexplicably, Activision elected not to
`
`ask Mr. Ward a single question about the source of the rate during his deposition. Whatever
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`tactics were behind Activision’s decision not to question Mr. Ward on this topics, it cannot
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`blame Acceleration Bay for that decision not to inquire into Mr. Ward’s bases for the rate.
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`Acceleration Bay’s witnesses will provide factual testimony in support of this rate at trial,
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`including how it is consistent with industry practices and Acceleration Bay’s licensing efforts.
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`Activision omits from its Motion Mr. Garland’s testimony where he testified that, based on his
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`decades of experience licensing intellectual property, the 15.5% starting point rate is consistent
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`with his prior experience and the “high profit, low cost” nature of licensing software. Id. at
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`9
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`

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`Case 1:16-cv-00453-RGA Document 592 Filed 10/16/18 Page 13 of 15 PageID #: 48634
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`29:19-30:9; Ex. 7 (Garland Dep. Ex. 103) (showing licensing experience). Mr. Ward will also
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`provide testimony regarding the rate. Further support for the rate comes from the industry report
`
`regarding royalty rates Acceleration Bay had in its files when researching industry rates, as well
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`as Activision’s own documents showing that it pays a similar 15-17% royalty to Microsoft for its
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`games. Acceleration Bay specifically identified both documents in its Damages Rog Response
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`as documents it would rely upon to support its damages case. Ex. 8 (AB-AB 4474-4477:
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`Royalty Document); Ex. 9 (Beede Dep. Ex. 18: Microsoft Publisher Agreement) at 28-30; Ex. 1
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`(Damages Rog Response) at 11-12 (citing to exhibits from Beede deposition and AB-AB 4474).
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`It is premature for the Court to evaluate this evidence before Acceleration Bay has an
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`opportunity to present its damages case in full at trial.
`
`Activision cites the Court’s decision in AVM Techs, for the proposition that “[r]easonable
`
`royalty calculations are ‘the providence of expert analysis’” and that a lay witness should not
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`offer an opinion on “ultimate patent damages.” Br. at 8, quoting AVM Techs, LLC v. Intel Corp.,
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`927 F. Supp. 2d 139, 146 (D. Del. 2013). But Acceleration Bay does not seek to use a fact
`
`witness to provide reasonable royalty calculations or opinions on ultimate patent damages. The
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`fact witnesses will provide factual testimony, as discussed above. The Court found such
`
`testimony admissible in a subsequent decision in ACM Techs., permitting the plaintiff to provide
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`evidence from “a variety of source from which a jury could find a reasonable royalty” including
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`testimony from fact witnesses regarding “historical facts, such as how much [plaintiff] paid for
`
`the patent, what its licensing approach was.” Ex. 10, AVM Techs, LLC v. Intel Corp., 1:15-cv-
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`00033-RGA (D. Del. May 1, 2017). And Dr. Meyer can guide the jury as to how the Georgia-
`
`Pacific factors apply to these case, as fully disclosed in her expert reports and not impacted by
`
`the Court’s Daubert Order.
`
`10
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`

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`Case 1:16-cv-00453-RGA Document 592 Filed 10/16/18 Page 14 of 15 PageID #: 48635
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`Accordingly, there is no basis to preclude Acceleration Bay’s damages case. The
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`concerns that Activision raises, at most, go to the weight of the evidence that can be addressed
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`through cross-examination.
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`V.
`
`Activision’s Motion Improperly Re-litigates Issues Which it Already Lost
`
`Finally, Activision’s Motion should also be denied because Activision is improperly
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`moving for reconsideration of issues on which it already lost.
`
`In 2017, Activision unsuccessfully moved the Special Master to preclude Acceleration
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`Bay’s damages case based on the Damages Rog Response, arguing that it did not sufficiently
`
`disclose Acceleration Bay’s damages claims and evidence. D.I. 226 at 6. The Special Master
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`denied Activision’s motion. Id. Activision then moved for sanctions and for “an order
`
`precluding Plaintiff from relying on information or arguments not disclosed in its discovery
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`responses” and to preclude in their entirety the opinions of Drs. Meyer and Valerdi. D.I. 329 at
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`1, 3-7. The Special Master again denied Activision’s motion. D.I. 347 at 6-9. Activision failed
`
`to object to the Special Master’s Orders, leaving them the law of the case.
`
`In its Daubert Motion, Activision unsuccessfully moved the Court to preclude the cost-
`
`savings opinions of Dr. Valerdi and Dr. Meyer’s reliance on Dr. Valerdi’s cost-savings opinions.
`
`D.I. 578 at 30-31 (denying motion to exclude opinions of Dr. Valerdi). Activision did not move
`
`for reconsideration, and should not now be permitted to attack these opinions or revive its
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`already rejected arguments through its Motion.
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`VI.
`
`Conclusion
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`For the reasons set forth above, the Court should deny Activision’s Motion.
`
`11
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`

`

`Case 1:16-cv-00453-RGA Document 592 Filed 10/16/18 Page 15 of 15 PageID #: 48636
`
`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
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`James Hannah
`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: October 8, 2018
`
`5955143
`
`12
`
`Public version dated: October 16, 2018
`
`