Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 1 of 49 PageID #: 49217
`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 1 of 49 PagelD #: 49217
`
`EXHIBIT 1
`EXHIBIT 1
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 2 of 49 PageID #: 49218
`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 2 of 49 PagelD #: 49218
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`REDACTED
`REDACTED
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`IN ITS
`ENTIRETY
`ENTIRETY
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`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 3 of 49 PageID #: 49219
`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 3 of 49 PagelD #: 49219
`
`(cid:40)(cid:59)(cid:43)(cid:44)(cid:37)(cid:44)(cid:55) (cid:21)
`EXHIBIT 2
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 4 of 49 PageID #: 49220
`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 4 of 49 PagelD #: 49220
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`REDACTED
`REDACTED
`IN ITS
`IN ITS
`ENTIRETY
`ENTIRETY
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`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 5 of 49 PageID #: 49221
`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 5 of 49 PagelD #: 49221
`
`EXHIBIT 3
`EXHIBIT3
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 6 of 49 PageID #: 49222
`
`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
`SUPPLEMENTAL INITIAL DISCLOSURES PURSUANT TO RULE 26(a)(1)
`
`Plaintiff Acceleration Bay LLC (“Plaintiff”), by its undersigned counsel, hereby submits
`
`the following supplemental initial disclosures to Defendant Activision Blizzard, Inc.
`
`(“Defendant”), pursuant to Rule 26(a)(1) of the Federal Rules of Civil Procedure and Section
`
`1(a) of the Court’s February 27, 2017, Rule 16 Scheduling Order.
`
`These disclosures are based on information now reasonably available to Plaintiff and
`
`represent a good faith effort to identify information that Plaintiff reasonably believes to be
`
`required in these disclosures. Plaintiff is continuing to investigate facts, issues, and law relevant
`
`to this action and expressly reserves the right to modify, amend, supplement and/or correct the
`
`information provided in these disclosures as information becomes available.
`
`In making these disclosures, Plaintiff does not represent that it is identifying every fact,
`
`document, tangible thing, or witness possibly relevant to Plaintiff’s claims. These disclosures
`
`are not intended, and should not be construed, as a waiver of (i) any objection to or protection
`
`from the production, use, or admission into evidence of any document or information, that
`
`Plaintiff may be legally entitled to assert during discovery or any trial of this action; (ii) any
`
`objection to any other discovery involving or relating to the subject matter of this disclosure; (iii)
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 7 of 49 PageID #: 49223
`
`the attorney-client privilege, attorney work product doctrine, or any other applicable privilege or
`
`immunity; or (iv) the right to designate confidential information and materials for appropriate
`
`protection under any Protective Order in this action. Plaintiff also reserves the right to rely upon
`
`additional information as it becomes available through discovery or otherwise, pursuant to Fed.
`
`R. Civ. Proc. 26(e). In addition, Plaintiff reserves the right to call any witness or present any
`
`document or tangible thing at trial that is identified through further investigation or discovery.
`
`1.
`
`Persons Having Knowledge of Facts Relevant to the Claim or Defense of Any Party
`
`After a reasonable investigation and based on currently available information, Plaintiff
`
`identifies the individuals below as persons who may have knowledge relevant to this case.
`
`Plaintiff does not waive the attorney-client privilege, attorney work product privilege, or any
`
`other privileges in connection with the information provided herein. By providing this
`
`information, Plaintiff does not consent to Defendant and/or its counsel communicating with any
`
`of Plaintiff’s current or former employees or agents. Any such individual should be contacted
`
`only through Plaintiff’s counsel of record identified below.
`
`Individual
`
`Joe Ward
`
`Joseph Agiato
`
`Connection to Case and Summary of
`Information Known
`CEO and Founder of Acceleration Bay
`LLC. Knowledge regarding Acceleration
`Bay’s acquisition of the asserted patents
`and business activities.
`Senior Vice President of Acceleration
`Bay. Knowledge regarding Acceleration
`Bay’s operations.
`
`Address/Telephone1
`c/o Kramer Levin Naftalis &
`Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`c/o Kramer Levin Naftalis &
`Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`
`1 The addresses and telephone numbers provided are those last known to Plaintiff. For
`individuals located at corporate entities, the corporate headquarters (or other corporate offices)
`have been provided in cases where the particular business address of the individual is presently
`unknown.
`
`2
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 8 of 49 PageID #: 49224
`
`Individual
`
`Connection to Case and Summary of
`Information Known
`
`John Garland
`
`Knowledge regarding Acceleration Bay’s
`licensing activities.
`
`Fred Holt
`
`Virgil Bourassa
`
`Named inventor. Knowledge regarding
`the technology contained in one or more
`of the asserted patents and/or related
`patents and applications.
`Named inventor. Knowledge regarding
`the technology contained in one or more
`of the asserted patents and/or related
`patents and applications.
`
`Linda Magnotti
`
`Executive at Panthesis, Inc. Knowledge
`regarding Panthesis, Inc.
`
`Albert Erisman (by
`deposition only)
`
`Scott Smith (by
`deposition only)
`
`Robert Abarbanel (by
`deposition only)
`
`Maurice Pirio
`
`Glen Van Datta (by
`deposition only)
`
`Robert Kotick
`
`Dennis Durkin
`
`Former Boeing employee. Knowledge
`regarding the technology contained in
`one or more of the asserted patents and
`regarding Panthesis, Inc.
`Former Boeing employee. Knowledge
`regarding the development of SWAN at
`Boeing, conception, diligence and/or
`reduction to practice.
`Former Boeing employee. Knowledge
`regarding the development of SWAN at
`Boeing, conception, diligence and/or
`reduction to practice.
`Prosecuting attorney. Knowledge
`regarding prosecution of one or more of
`the asserted patents and/or related patents
`and applications.
`Senior Architect of Electronic Arts.
`Knowledge regarding Sony’s license to
`the asserted patents.
`President and CEO of Activision
`Blizzard. Knowledge regarding the
`accused products, infringement and
`damages.
`CFO of Activision Blizzard. Knowledge
`regarding the accused products,
`infringement and damages.
`
`Address/Telephone1
`c/o Kramer Levin Naftalis &
`Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`c/o Kramer Levin Naftalis &
`Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`c/o Kramer Levin Naftalis &
`Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`c/o Kramer Levin Naftalis &
`Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`c/o Kramer Levin Naftalis &
`Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`c/o Kramer Levin Naftalis &
`Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`c/o Kramer Levin Naftalis &
`Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Perkins Coie LLP
`P.O. Box 1247
`Seattle, WA 98111
`Electronic Arts Inc.
`209 Redwood Shores
`Parkway, Redwood City, CA
`94065
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`
`3
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 9 of 49 PageID #: 49225
`
`Individual
`
`Eric Hirshberg
`
`Brian Hodous
`
`Michael Morhaime
`
`Humam Sakhini
`
`Thomas Tippl
`
`Tim Ellis
`
`Patrick Dawson
`
`Pat Griffith
`
`Joe Rumsey
`
`Joel Deanguero
`
`Patrick McKellar
`
`Jay Laugger
`
`Connection to Case and Summary of
`Information Known
`President and CEO of Activision
`Publishing. Knowledge regarding the
`accused products, infringement and
`damages.
`Chief Customer Officer of Activision
`Blizzard. Knowledge regarding the
`accused products, infringement and
`damages.
`CEO of Blizzard Entertainment.
`Knowledge regarding the accused
`products, infringement and damages.
`Chief Strategy and Talent Officer of
`Activision Blizzard. Knowledge
`regarding the accused products,
`infringement and damages.
`COO of Activision Blizzard. Knowledge
`regarding the accused products,
`infringement and damages.
`EVP Chief Marketing Officer at
`Activision. Knowledge regarding the
`accused products, infringement and
`damages.
`Lead Server Engineer for World of
`Warcraft at Activision. Knowledge
`regarding the accused products,
`infringement and damages.
`Vice President of Technology for the
`Central Tech Group at Activision.
`Knowledge regarding the accused
`products, infringement and damages.
`Former Principal Software Engineer at
`Activision. Knowledge regarding Joe’s
`Automated messages (JAM), the accused
`products, infringement and damages.
`Senior Software Engineer at Activision.
`Knowledge regarding the accused
`products, infringement and damages.
`Senior Software Engineer at Activision.
`Knowledge regarding the accused
`products, infringement and damages.
`Engineer for Battle.net. Knowledge
`regarding the accused products,
`infringement and damages.
`
`Address/Telephone1
`
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`
`357 Saint Andrews Ln.,
`Half Moon Bay, CA 94019
`
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`
`4
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 10 of 49 PageID #: 49226
`
`Individual
`
`Mark Gordon
`
`Jason Bell
`
`Ben Strangnell
`
`Tony Hsu
`
`Andy Yoon
`
`Rob Kostich
`
`Andrew Amadi
`
`Roger Wolfson
`
`Neal Hubbard
`
`Kurtis McCathern
`
`Other employees and
`officers of Defendant
`
`Plaintiff’s expert
`witnesses
`
`Connection to Case and Summary of
`Information Known
`Chief Technology Officer of Treyarch.
`Knowledge regarding the accused
`products, infringement and damages.
`Director of Technology of Infinity Ward.
`Knowledge regarding the accused
`products, infringement and damages.
`Senior Director of Online. Knowledge
`regarding the accused products,
`infringement and damages.
`SVP, GM, Destiny Business Unit.
`Knowledge regarding the accused
`products, infringement and damages.
`Director, Finance and Operations at
`Activision (Call of Duty). Knowledge
`regarding the accused products,
`infringement and damages.
`EVP & GM, Call of Duty. Knowledge
`regarding the accused products,
`infringement and damages.
`Sr. Manager, Financial Planning &
`Analysis at Blizzard Entertainment.
`Knowledge regarding the accused
`products, infringement and damages.
`Developer at Bungie. Knowledge
`regarding the accused products,
`infringement and damages.
`SVP Global Marketing, Blizzard
`Entertainment. Knowledge regarding the
`accused products, infringement and
`damages.
`Principal Software Engineer at Blizzard
`Entertainment. Knowledge regarding the
`accused products, infringement and
`damages.
`Knowledge regarding the operation,
`marketing and sales of the accused
`products, services, and networks;
`Defendants’ licensing practices. The
`value of the claimed inventions to
`Defendants.
`Plaintiff’s expert witnesses will be
`disclosed and will provide expert reports
`in connection with this litigation at the
`appropriate time.
`
`5
`
`Address/Telephone1
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`
`Activision Blizzard, Inc.
`3100 Ocean Park Boulevard
`Santa Monica, CA 90405
`
`TBD
`
`TBD
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 11 of 49 PageID #: 49227
`
`Connection to Case and Summary of
`Information Known
`
`TBD
`
`TBD
`
`Address/Telephone1
`
`TBD
`
`TBD
`
`TBD
`
`TBD
`
`Individual
`Any expert witness
`that Defendant retains TBD
`Any person and/or
`entity deposed in
`this case
`Any person or entity
`identified in
`Defendant’s Initial
`Disclosures and/or
`disclosed through
`discovery response or
`documents produced
`in this matter
`As of yet unknown
`representatives of
`third parties.
`
`TBD
`
`Plaintiff will supplement this section as the names and contact information for additional
`
`parties with relevant information become available. Plaintiff reserves the right to seek discovery
`
`from and relating to such additional parties who become known. Plaintiff also reserves the right
`
`to rely on expert testimony regarding infringement of U.S. Patent Nos. 6,701,344; 6,714,966;
`
`6,732,147; 6,829,634; 6,910,069; and 6,920,497 (collectively, the “Patents-in-Suit”), the validity
`
`of the Patents-in-Suit, and damages.
`
`In making these disclosures, Plaintiff does not waive its right to object, pursuant to the
`
`applicable Federal and Local Rules, to discovery of information from any of the individuals
`
`listed above.
`
`2.
`
`Documents Relevant to the Claims or Defenses of Any Party
`
`Plaintiff sets forth the following description of categories of documents in Plaintiff’s
`
`possession, custody, or control that it may use to support its claims or defenses. Because
`
`Defendant has not identified all of the bases for its defenses and counterclaims, and because
`
`6
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 12 of 49 PageID #: 49228
`
`Plaintiff’s review of the allegations in this matter is ongoing, Plaintiff reserves the right to
`
`identify additional documents as discovery proceeds:
`
`(cid:120) The Patents-in-Suit
`
`(cid:120) File histories of the Patents-in-Suit
`
`(cid:120) Documents related to infringement of the Patents-in-Suit, including information
`posted on Defendant’s websites or in product manuals or technical documents.
`
`(cid:120) Relevant emails between Acceleration Bay’s employees or officers.
`
`(cid:120) Acceleration Bay’s public documents, including information posted on its
`website.
`
`(cid:120) Certain licenses related to the Patents-in-Suit or this action.
`
`3.
`
`Computation of Damages
`
`Plaintiff seeks all damages to which it is entitled under the Patent Laws, including 35
`
`U.S.C. § 284, arising from Defendant’s infringement. Plaintiff seeks damages in an amount
`
`adequate to compensate for the infringement, which includes, but is not limited to, a reasonable
`
`royalty for the use of the invention, together with interest and costs fixed by the Court. Plaintiff
`
`additionally seeks an accounting of all infringing sales and revenues. Plaintiff also seeks an
`
`award of attorneys’ fees and expenses under 35 U.S.C. § 285. Such costs, fees, and expenses
`
`cannot be computed at the present time and depend on a variety of factors such as the length and
`
`intensity of the litigation and the positions that Defendant takes.
`
`Since much of the information necessary to make damages calculations is in the
`
`possession of Defendant, Plaintiff reserves its right to identify additional documents as this
`
`matter proceeds. Moreover, Defendant’s patent infringement is ongoing and the amount of
`
`damages to which Plaintiff is entitled continues to grow.
`
`7
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 13 of 49 PageID #: 49229
`
`4.
`
`Insurance Agreements
`
`As presently known, there is no indemnity or insuring agreement under which any person
`
`or entity carrying on an insurance business may be liable to satisfy part or all of a judgment
`
`entered in this action or to indemnify or reimburse for payments made to satisfy the judgment.
`
`POTTER ANDERSON & CORROON LLP
`
`By:
`
` /s/ Philip A. Rovner
`Philip A. Rovner (# 3215)
`Jonathan A. Choa (#5319)
` 1313 North Market Street 6th Floor
`Wilmington, Delaware 19801
`(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: July 14, 2017
`
`8
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 14 of 49 PageID #: 49230
`
`CERTIFICATE OF SERVICE
`
`I, Philip A. Rovner, hereby certify that, prior to 6 p.m. on July 14, 2017, the within
`
`document was served on the following counsel as indicated:
`
`BY E-MAIL
`
`Jack B. Blumenfeld, Esq.
`Stephen J. Kraftschik, Esq.
`Morris, Nichols, Arsht & Tunnell LLP
`1201 N. Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`
`Attorneys for Defendant
`
`Daniel K. Webb, Esq.
`Kathleen B. Barry, Esq.
`Winston & Strawn LLP
`35 W. Wacker Drive
`Chicago, IL 60601
`dwebb@winston.com
`kbarry@winston.com
`
`Co-counsel for Defendant
`
`Michael M. Murray
`Winston & Strawn LLP
`200 Park Avenue
`New York, NY 10166
`mmurray@winston.com
`
`Co-counsel for Defendant
`
`Michael A. Tomasulo, Esq.
`David P. Enzminger, Esq.
`David K. Lin, Esq.
`Gino Cheng, Esq.
`Joe S. Netikosol, Esq.
`Winston & Strawn LLP
`333 S. Grand Avenue
`Los Angeles, CA 90071
`mtomasulo@winston.com
`denzminger@winston.com
`dlin@winston.com
`gcheng@winston.com
`jnetikosol@winston.com
`
`Co-counsel for Defendant
`
`Krista M. Enns, Esq.
`Winston & Strawn, Esq.
`101 California St., 35th Floor
`San Francisco, CA 94111
`kenns@winston.com
`
`Co-counsel for Defendant
`
`Andrew R. Sommer
`Winston & Strawn LLP
`1700 K Street, N.W.
`Washington, DC 20006
`asommer@winston.com
`
`Co-counsel for Defendant
`
`By: /s/ Philip A. Rovner
`Philip A. Rovner
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 15 of 49 PageID #: 49231
`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 15 of 49 PagelD #: 49231
`
`EXHIBIT 4
`EXHIBIT 4
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 16 of 49 PageID #: 49232
`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 16 of 49 PagelD #: 49232
`
`REDACTED
`REDACTED
`IN ITS
`IN ITS
`ENTIRETY
`ENTIRETY
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 17 of 49 PageID #: 49233
`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 17 of 49 PagelD #: 49233
`
`EXHIBIT 5
`EXHIBIT 5
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 18 of 49 PageID #: 49234
`
`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.
`
`LETTER BRIEF IN SUPPORT OF ACCELERATION BAY’S
`OPPOSITION TO ACTIVISION’S MOTION TO STRIKE DAMAGES REPORT
`
`CONFIDENTIAL - OUTSIDE COUNSEL ONLY - SUBMITTED UNDER SEAL
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 19 of 49 PageID #: 49235
`
`Dear Special Master Terrell:
`
`I.
`
`Introduction
`Activision’s baseless motion to strike the damages opinion of Dr. Christine Meyer should
`
`be denied because Acceleration Bay fully disclosed the methodology Dr. Meyer employs and the
`
`relevant facts available to it during discovery. Activision’s motion is a house of cards built on
`
`the incorrect premise that Acceleration Bay did not timely disclose that its damages claim would
`
`be based on (1) a per user royalty, (2) through the expiration of the patents, (3) with the
`
`hypothetical negotiation informed by relevant evidence including from the Uniloc cases and (4)
`
`taking into account the cost savings to Activision.
`
`Activision’s unfounded claims are readily refuted by the record because Acceleration
`
`Bay disclosed each of these points in its interrogatory responses. Activision’s motion is a
`
`fictional historical tale that ignores at least the following disclosures, which are fatal to its
`
`request to strike:
`
`(cid:120) Acceleration Bay stated it would seek “a reasonable royalty based on the
`number of unique users for each of the Accused Products.” Def. Ex. 5 (6/2/17
`Rog. Resp.) at 6, 8 (emphasis added).
`
`(cid:120) Acceleration Bay stated that it would “seek additional damages through the
`remaining lifetime of the patent.” Id. at 10 (emphasis added).
`
`(cid:120) Acceleration Bay disclosed that it would be relying on Uniloc by identifying the
`Uniloc license agreement as relevant to the reasonable royalty analysis. Def. Ex.
`9 (8/18/17 Rog. Resp.) at 11.
`
`(cid:120) Acceleration Bay stated that its expert would take cost savings into account as
`part of the Georgia Pacific damages analysis. Def. Ex. 5 (6/2/17 Rog. Resp.) at 6
`(“Plaintiff may seek damages under at least the following theories … cost savings
`to Defendant from using the Asserted Patents.”)(emphasis added).
`
`Thus, there is no merit to Activision’s claims that it was surprised to learn of these
`
`theories for the first time from Dr. Meyer’s report or that the extreme sanction of exclusion is
`
`warranted. Because Acceleration Bay fully complied with its discovery obligations and
`
`1
`
`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 20 of 49 PageID #: 49236
`
`Activision had notice of Acceleration Bay’s contentions, there is no basis to strike any portion of
`
`Dr. Meyer’s report. Acceleration Bay acted in good faith, as it disclosed the damages theories it
`
`intended to rely on, and then proceeded to rely on such theories in Dr. Meyer’s expert report.
`
`Acceleration Bay went to great lengths, including moving to compel, to obtain discovery from
`
`Defendants on the Uniloc cases, and Activision’s user data and sales projections. Further, any
`
`claims of prejudice are minor at best and are by Activision’s own making due to its efforts to
`
`block this discovery, and from its delay in providing user data and disclosing its Uniloc license
`
`as relevant. Consistent with the case schedule, Activision has seven weeks to provide a rebuttal
`
`expert report, access to all of the relevant data (including far more data than is available to
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`Acceleration Bay), and the ability to take the depositions of Dr. Meyer as well as Drs. Bims and
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`Valerdi.
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`For these reasons and as discussed below the Special Master should deny Activision’s
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`motion.
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`II.
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`Summary of the Facts
`A.
`Acceleration Bay Disclosed its Damages Methodology During Fact Discovery
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`Activision’s claim that Acceleration Bay failed to disclose the basis for Dr. Meyer’s
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`damages report is false. Activision’s Interrogatory No. 1 sought various categories of
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`information regarding Acceleration Bay’s damages case, including:
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`(a) a detailed description of the methodology for determining the damages;
`(b) all facts and reasons that Plaintiff contends it should be awarded more
`than a reasonable royalty; (c) the largest amount of damages that Plaintiff
`will seek from a jury for any infringement found by Defendant; and (d) the
`identity of the owner or assignee of the Asserted Patents and the licensor
`or potential licensor at the time damages are determined.
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`Def. Ex. 5 (6/2/17 Rog. Resp.) at 1-2.
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`2
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`

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`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 21 of 49 PageID #: 49237
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`Acceleration Bay provided a detailed supplemental response to Interrogatory No. 1 on
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`June 2, 2017, addressing each of these points. Acceleration Bay stated it would pursue damages
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`under several alternative methodologies, including “a reasonable royalty based on the number
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`of unique users for each of the Accused Products.” Id. at 6, 8. Acceleration Bay identified a
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`host of factual evidence it would rely upon including “licenses related to the Accused Products, .
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`. . number of unique users, . . . reduction in costs, . . . availability of any non-infringing
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`alternatives, financial statements.” Id. at 6-7. Acceleration Bay specifically identified by bates
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`number a number of exemplary documents corresponding to these categories and stated that it
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`was continuing to seek these documents from Activision. Id. at 7-8. Acceleration Bay disclosed
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`that the royalty rate would be a subject of expert opinion, but would be “based on the number of
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`users” and also take into account “cost savings.” Id. at 8. Having not yet received any
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`disclosure from Activision regarding 2017 financial data or projections for future sales,
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`Acceleration Bay stated that the maximum amount of damages it would seek for the time period
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`through 2016 would be $200,000,000. Id. at 9-10. Acceleration Bay also disclosed that it “will
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`seek additional damages through the remaining lifetime of the patent.” Id.
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`B.
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`Acceleration Bay Timely Supplemented its Response to Interrogatory No. 1
`After Completing Damages Depositions
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`There is no merit to Activision’s allegation that Acceleration Bay’s second supplemental
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`response to Interrogatory No. 1 is untimely. In August, Acceleration Bay timely supplemented
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`its response to Activision’s Interrogatory No. 1 after completing damages discovery to
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`incorporate additional discovery that Activision provided after Acceleration Bay served its first
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`supplemental response to Interrogatory No. 1. Def. Ex. 9 (8/18/17 Rog. Resp.). Specifically,
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`Acceleration Bay identified a number of additional documents as relevant to the damages case,
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`including additional license agreements that Activision identified to Acceleration Bay in a
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`3
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`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 22 of 49 PageID #: 49238
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`supplemental interrogatory response, additional financial documents including user data that
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`Activision produced and testimony from recent 30(b)(6) depositions of Activision on damages
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`issues. Id. at 10-12.
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`To accommodate the convenience of Activision’s witnesses, Acceleration Bay agreed to
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`take some of these depositions (as well as depositions of other Defendants employees) after the
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`close of fact discovery. Acceleration Bay only agreed to do so after Defendants agreed they
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`would not attempt to argue that these depositions — postponed at Defendants’ request — were
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`untimely. Acceleration Bay served its second supplemental response on August 18, 2017, ten
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`days after completing the damages depositions of Activision.
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`C.
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`Acceleration Bay Disclosed its Intention to Rely on the Uniloc Cases
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`Activision’s claim that it was surprised that Acceleration Bay’s expert looked to Uniloc
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`to determine the reasonable royalty is untenable. Acceleration Bay repeatedly disclosed to
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`Activision its intention to do so. Acceleration Bay requested that Activision, as well as EA and
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`Take-Two, produce from the Uniloc cases: the “expert opinions related to the determination of
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`damages for any of the Accused Products, including but not limited to transcripts,
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`correspondence, expert reports, written discovery and responses, and settlements.” Pltf. Ex. 1
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`(6/2/17 RFP) at No. 168. During multiple meet and confers on these requests for production,
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`Acceleration Bay explained the relevance of materials from the Uniloc cases as potential bases
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`for the reasonable royalty analysis.
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`When Defendants refused to produce materials from the Uniloc cases, Acceleration Bay
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`moved to compel. In Acceleration Bay’s briefing on the issue, it further explained the relevance
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`of the Uniloc cases to the damages case as a source for the royalty rate:
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`Acceleration Bay also seeks Defendants’ analyses regarding their
`accused networking technology in the form of an expert report
`
`4
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`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 23 of 49 PageID #: 49239
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`and/or other related discovery from other litigation, including, but
`not limited to, cases filed against them by Uniloc in the U.S.
`District Court for the Eastern District of Texas, which related to
`technology that allowed users to access games from Defendants’
`network. The positions that Defendants took in those litigations
`as to damages will provide insight into the royalty rates that
`Defendants used to determine damages, Defendants’ valuation of
`the technology of the accused products and Defendants’ licensing
`practices. All of this information is responsive and relevant to the
`issue of damages. See, e.g., Georgia-Pacific, 318 F. Supp. at 1120;
`see also Sciele Pharma, Inc. v. Lupin, Ltd., C.A. No. 09-37 (RBK-
`JS), 2013 WL 12161442, at *4 (D. Del. January 31, 2013)
`(ordering production of license agreements, settlement agreements,
`and documents associated with such agreements, such as
`underlying analyses from other litigation). Activision has already
`produced the license agreement that resulted from the Uniloc
`case, but the other Defendants have not produced their license
`agreements with Uniloc. These documents should be produced
`without delay.
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`Pltf. Ex. 2 (7/5/17 Letter Br.) at 14-15 (emphasis added).
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`Activision further demonstrated its appreciation of the relevance of Uniloc when it listed
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`its Uniloc license agreement in response to Acceleration Bay’s Interrogatory No. 1 as a license
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`agreement “comparable or relevant agreements for purposes of a reasonable royalty analysis
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`of damages.” Pltf. Ex. 3 (7/7/17 Rog. Resp.) at 7-8 (identifying Uniloc and Activision
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`Confidential Settlement and License Agreement (ATVI0027591-602))(emphasis added).1
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`Acceleration Bay’s second supplemental interrogatory response identified the Uniloc license
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`agreement as evidence its damages expert would rely upon through its incorporation of
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`1 Activision identified these Uniloc materials in response to Acceleration Bay’s interrogatory
`directed Activision to “Identify all licensing agreements between Defendant and any third party
`regarding patents, proprietary technology, or know-how related to or comparable to the
`technology disclosed in the Asserted Patents, describe the terms of these agreements, and
`identify those agreements that You assert are comparable or relevant agreements for purposes
`of a reasonable royalty analysis of damages.” Pltf. Ex. 3 (7/7/17 Rog. Resp.) at 7 (emphasis
`added).
`
`5
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`

`

`Case 1:16-cv-00453-RGA Document 605-1 Filed 10/23/18 Page 24 of 49 PageID #: 49240
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`Activision’s response to this interrogatory. Def. Ex. 9 (8/18/17 Rog. Resp.) at 11 (incorporating
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`the documents listed in Activision’s interrogatory response regarding comparable license
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`agreement); id. at 12 (citing ATVI0027367 – 0027727). Acceleration Bay further disclosed the
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`relevance of Uniloc to the damages case by questioning Activision’s witnesses about it during
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`depositions. See, e.g., Def. Ex. 4 (Kostich Tr.) at 154:13-155:20.
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`Thus, Acceleration Bay repeatedly disclosed to Activision that Uniloc was part of the
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`damages case.
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`D.
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`Dr. Meyer’s Damages Report
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`Acceleration Bay timely served the opening expert report of Dr. Meyer. Def. Ex. 8
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`(Meyer Report). Dr. Meyer’s damages report is fully supported by Acceleration Bay’s discovery
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`disclosures, discussed above. Dr. Meyer provided a reasonable royalty damages opinion based
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`on the number of users of Activision’s accused products. Id. at ¶ 143. Dr. Meyer determined the
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`appropriate royalty per user through an application of the fifteen-factor Georgia Pacific analysis,
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`a matter of expert opinion. Id. at ¶¶ 59-141. Dr. Meyer considered various sources of evidence
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`including the Uniloc cases involving Activision, EA and Take-Two, the expert opinion of Dr.
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`Bims r