Case 1:16-cv-00453-RGA Document 612 Filed 10/24/18 Page 1 of 2 PageID #: 49478
`
`1313 North Market Street
`P.O. Box 951
`Wilmington, DE 19899-0951
`302 984 6000
`www.potteranderson.com
`
`Philip A. Rovner
`Partner
`Attorney at Law
`provner@potteranderson.com
`302 984-6140 Direct Phone
`302 658-1192 Firm Fax
`
`October 24, 2018
`
`BY CM/ECF & HAND DELIVERY
`
`The Honorable Richard G. Andrews
`U.S. District Court for the District of Delaware
`U.S. Courthouse
`844 North King Street
`Wilmington, DE 19801
`
`Re:
`
`Acceleration Bay LLC v. Activision Blizzard Inc.
`D. Del., C.A. No. 16-453-RGA
`
`Dear Judge Andrews:
`
`In response to the Court’s inquiry earlier today, Acceleration Bay respectfully requests
`that the Court bifurcate damages and proceed with the trial on liability as scheduled. Doing so
`will promote judicial economy and conserve the resources of the Court and the parties.
`
`Resolving liability now will either confirm that the Court needs to resolve damages issues
`(should Acceleration Bay prevail on its infringement claims) or moot the question of damages
`(should the jury find there is no infringement). Conversely, deferring next week’s trial will not
`obviate the need for a trial on liability at a later date. For example, if the Court continues the
`trial and subsequently finds that Acceleration Bay is precluded from presenting its damages
`claims, Acceleration Bay would still be entitled to present its infringement claims, including to
`support its claims for willful infringement, an award of attorney’s fees and for an accounting of
`infringing sales and revenues.
`
`Bifurcating damages would result in no prejudice to Activision. Indeed, if anything,
`Activision should support a bifurcated trial in light of its claim that the large damages numbers
`could prejudice the jury. Bifurcation would also moot Activision’s contention that it is surprised
`by Acceleration Bay’s damages claims. A bifurcated trial would eliminate those concerns and
`afford Activision ample time to fully consider Acceleration Bay’s damages claims. Moreover, to
`the extent the Court identifies any concerns with Acceleration Bay’s damages case, bifurcation
`would provide an opportunity for Acceleration Bay to address those concerns through
`supplemental reports.
`
`

`

`Case 1:16-cv-00453-RGA Document 612 Filed 10/24/18 Page 2 of 2 PageID #: 49479
`The Honorable Richard G. Andrews
`October 24, 2018
`Page 2
`
`Finally, proceeding with the trial on liability would conserve the parties’ resources. Both
`sides are prepared to try liability on Monday. Acceleration Bay, a small company with limited
`resources, and likely Activision as well, have already borne the expense to bring large numbers
`of fact witnesses, company representatives, expert witnesses and counsel to Delaware, and made
`non-refundable payments for blocks of hotel rooms, rental cars, computer equipment and other
`expenses necessary for trial. Continuing the trial would result in forfeiture of those significant
`resources.
`
`Should Your Honor have any further questions, counsel are available at the Court’s
`convenience.
`
`Respectfully,
`
`/s/ Philip A. Rovner
`
`Philip A. Rovner (#3215)
`
`Enclosure
`cc: All Counsel of Record
`5974719
`
`