Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 1 of 27 PageID #: 49769
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-453 (RGA)
`
`JURY TRIAL DEMANDED
`
`))))))))))
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`
`
`
`
`
`
`v.
`
`Plaintiff,
`
`ACTIVISION BLIZZARD, INC.,
`
`
`
`
`
`
`
`Defendant.
`
`SUPPLEMENTAL JOINT PROPOSED PRETRIAL ORDER
`[VOLUME I of II]
`Exhibits
` - 2
`
`POTTER ANDERSON & CORROON LLP
`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
`
`OF COUNSEL:
`Paul J. Andre
`Lisa Kobialka
`James R. Hannah
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`jhannah@kramerlevin.com
`
`MORRIS, NICHOLS, ARSHT &
`TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`
`OF COUNSEL:
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`David P. Enzminger
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`
`PUBLIC VERSION
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 2 of 27 PageID #: 49770
`
`Aaron M. Frankel
`Cristina Martinez
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
` (212) 715-9100
`afrankel@kramerlevin.com
`cmartinez@kramerlevin.com
`
`Attorneys for Acceleration Bay LLC
`
`Dated: October 16, 2018
`
`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
`
`Michael M. Murray
`Anup K. Misra
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`
`Andrew R. Sommer
`Thomas M. Dunham
`Paul N. Harold
`Joseph C. Masullo
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`B. Trent Webb
`Aaron E. Hankel
`Jordan T. Bergsten
`Maxwell C. McGraw
`SHOOK HARDY & BACON
`2555 Grand Blvd.
`Kansas City, Missouri 64108
`(816) 474-6550
`
`Attorneys for Activision Blizzard, Inc.
`
`Public version dated: October 25, 2018
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 3 of 27 PageID #: 49771
`
`TABLE OF SCHEDULES
`
`Item
`
`Joint Statement of Undisputed Facts
`Acceleration Bay’s Statement of Issues of Fact that Remain to be Litigated
`Activision’s Statement of Issues of Fact that Remain to be Litigated
`Acceleration Bay’s Statement of Issues of Law that Remain to be Litigated
`Activision’s Statement of Issues of Law that Remain to be Litigated
`Acceleration Bay’s Trial Witness List
`Activision’s Trial Witness List
`Acceleration Bay’s Deposition Designations
`Activision’s Deposition Designations
`Acceleration Bay’s Trial Exhibit List
`Activision’s Trial Exhibit List
`Joint Trial Exhibit List
`Acceleration Bay’s Brief Statement of Intended Proofs
`Activision’s Brief Statement of Intended Proofs
`Acceleration Bay’s Motions in Limine; Activision's Oppositions Thereto
`Activision's Motions in Limine; Acceleration Bay’s Oppositions Thereto
`
`Schedule
`A
`B1
`B2
`C1
`C2
`D1
`D2
`E1
`E2
`F1
`F2
`F3
`G1
`G2
`H1
`H2
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 4 of 27 PageID #: 49772
`
`On April 20, 2018, counsel for Plaintiff Acceleration Bay LLC (“Acceleration Bay”) and
`
`Defendant Activision Blizzard, Inc. (“Activision”) participated in a pretrial conference before this
`
`Court pursuant to Rule 16 of the Federal Rules of Civil Procedure and Local Rule 16.3.
`
`Acceleration Bay and Activision will participate in a further pretrial conference on October 19, 2018
`
`at 8:30 a.m. In advance of the October 19, 2018 pretrial conference, the parties submit this
`
`supplemental pretrial order.
`
`Pursuant to this Court’s Oral Order (D.I. 545), a jury trial will take place beginning on
`
`October 29, 2018 at 9:30 a.m. This jury trial will address Acceleration Bay’s claims that (i)
`
`Activision directly infringes, literally and/or under the doctrine of equivalents, certain asserted
`
`claims of U.S. Patent Nos. 6,701,344 (“‘344 Patent”), 6,714,966 (“‘966 Patent”), 6,920,497 (“‘497
`
`Patent”), 6,732,147 (“‘147 Patent”), and 6,910,069 (“‘069 Patent”), (collectively, the “Asserted
`
`Patents”), (ii) Activision’s infringement is willful, and (iii) Acceleration Bay is entitled to damages
`
`in the amount of no less than a reasonable royalty for Activision’s infringement. Acceleration Bay
`
`seeks from the Court findings that (iv) this case is exceptional and Acceleration Bay is entitled to its
`
`costs and reasonable attorneys’ fees as provided by 35 U.S.C. §§ 284 and 285; (v) it is entitled to
`
`injunctive relief; and (vi) it is entitled to an accounting of all of Activision’s infringing sales and
`
`revenues, together with post-judgment interest and pre-judgment interest from the first date of
`
`Activision’s infringement. This jury trial will also address Activision’s defenses to the claims,
`
`including that the asserted claims are invalid. Activision contends this case is exceptional and
`
`Activision is entitled to its costs and reasonable attorneys’ fees as provided by 35 U.S.C. §§ 284 and
`
`285. There are no counterclaims to be addressed at trial.
`
`[DISPUTED ISSUE: Activision: On August 29, 2018, the Court excluded the only expert
`
`opinion Plaintiff ever disclosed providing a reasonable royalty calculation. [D.I. 578]. Acceleration
`
`disclosed that it intends to offer at trial a royalty rate of 15.5% taken by Acceleration from an
`
`unauthenticated, third-party website having nothing to do with the patents in suit. Activision moved
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 5 of 27 PageID #: 49773
`
`to preclude Acceleration from presenting the new rate and the new damages theories and any other
`
`damages theory not fulsomely described in a timely expert report. Briefing is complete, and the
`
`briefs can be found at D.I. 581, 583 and 587. Acceleration Bay: Acceleration Bay’s disagreement
`
`with Activision’s position is set forth in its opposition to Activision’s motion, wherein Acceleration
`
`Bay explained that it provided Activision with a detailed explanation of how the Court’s Daubert
`
`Order does not preclude the damages case it will present at trial and that Acceleration Bay fully
`
`disclosed its damages claims and evidence during the discovery period. D.I. 583. Moreover, the
`
`15.5% royalty rate has been disclosed since the outset of the case and is the rate used by
`
`Acceleration Bay to negotiate licenses.]
`
`The following matters as to the conduct of the trial have been stipulated by the parties and
`
`are hereby ordered by the Court:
`
`I.
`
`NATURE OF ACTION & PLEADINGS
`
`A.
`
`1.
`
`Pleadings, Motions, & Orders Related to Acceleration’s Claims
`
`On June 17, 2016, Acceleration Bay filed its Complaint for Patent Infringement. In
`
`its Complaint, Acceleration Bay accused Activision of directly infringing the Asserted Patents.
`
`Acceleration Bay sought a judgment of infringement (literally and/or under the doctrine of
`
`equivalents), a judgment of willful infringement, damages in the amount of no less than a reasonable
`
`royalty, injunctive relief, an award of treble damages, costs (including reasonable attorney fees), an
`
`accounting of all infringing sales and revenues, pre- and post-judgment interest, and any other relief
`
`as the Court may deem just and proper. Id. Acceleration Bay demanded a jury trial. Id.
`
`2.
`
`The Court entered a scheduling order on February 27, 2017, which stated “Plaintiff
`
`shall not be entitled to seek damages for alleged infringement prior to the dates the Complaints were
`
`served in the 2015 Cases, namely: For Activision: March 12, 2015 ….” D.I. 62.
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 6 of 27 PageID #: 49774
`
`3.
`
`The following table shows the list of claims that are being asserted from each
`
`Asserted Patent (the “Asserted Claims”), the Accused Products for each Asserted Patent and the
`
`invalidity arguments that Activision is asserting as to those claims:
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 7 of 27 PageID #: 49775
`
`Patent
`
`‘344 Patent
`
`Asserted
`Claims
`12, 13, 14, 15 World of Warcraft
`
`Accused Product
`
`‘966 Patent
`
`12, 13
`
`World of Warcraft
`
`‘147 Patent
`
`1
`
`Call of Duty: Black Ops III;
`Call of Duty: Advanced
`Warfare; Destiny
`
`‘069 Patent
`
`1, 11
`
`Call of Duty: Black Ops III;
`Call of Duty: Advanced
`Warfare; Destiny
`
`Invalidity Arguments
`
`Lack of written description
`(35 U.S.C. § 112)
`[Acceleration Bay:
`Acceleration Bay requested
`Activision disclose the §
`112 arguments it intends to
`present at trial. Activision
`declined to do so.
`Activision: The written
`description defense is
`explained in the expert
`report of Dr. Karger.]
`Lack of written description
`(35 U.S.C. § 112)
`[Acceleration Bay:
`Acceleration Bay requested
`Activision disclose the §
`112 arguments it intends to
`present at trial. Activision
`declined to do so.
`Activision: The written
`description defense is
`explained in the expert
`report of Dr. Karger.]
`Lack of written description
`(35 U.S.C. § 112)
`[Acceleration Bay:
`Acceleration Bay requested
`Activision disclose the §
`112 arguments it intends to
`present at trial. Activision
`declined to do so.
`Activision: The written
`description defense is
`explained in the expert
`report of Dr. Karger.]
`Lack of written description
`(35 U.S.C. § 112)
`[Acceleration Bay:
`Acceleration Bay requested
`Activision disclose the §
`112 arguments it intends to
`present at trial. Activision
`declined to do so.
`Activision: The written
`description defense is
`explained in the expert
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 8 of 27 PageID #: 49776
`
`Patent
`
`Asserted
`Claims
`
`Accused Product
`
`Invalidity Arguments
`
` ‘497 Patent
`
`9, 16
`
`World of Warcraft
`
`report of Dr. Karger.]
`Lack of written description
`(35 U.S.C. § 112)
`[Acceleration Bay:
`Acceleration Bay requested
`Activision disclose the §
`112 arguments it intends to
`present at trial. Activision
`declined to do so.
`Activision: The written
`description defense is
`explained in the expert
`report of Dr. Karger.]
`
`B.
`
`4.
`
`Pleadings, Motions, & Orders Related to Activision’s Defenses
`
`On September 12, 2017, Activision filed its Answer (D.I. 301) to Acceleration Bay’s
`
`Complaint, in which it denied infringement of the Asserted Patents and asserted defenses of
`
`invalidity under 35 U.S.C. §§ 101, 102, 103, and/or 112, failure to state a claim for relief, failure to
`
`provide notice and/or failure to mark, no injunctive relief, waiver, estoppel, and limited damages.
`
`5.
`
`On October 3, 2017, Activision filed its Amended Answer (D.I. 323), in which
`
`Activision provided more detailed allegations regarding its estoppel defense, including file history
`
`estoppel and ensnarement.
`
`6.
`
`7.
`
`Activision demanded a jury trial on all issues triable by a jury.
`
`Activision is now only asserting at trial invalidity for lack of written description
`
`under 35 U.S.C. § 112.
`
`C.
`
`8.
`
`Claim Construction
`
`The parties filed an initial claim construction brief on June 21, 2017. D.I. 186, as
`
`well as supplemental letters related thereto. D.I. 220, 222, 225, 237, 240.
`
`9.
`
`Thereafter, following motion practice, letter briefing by the parties, the Court held
`
`five claim construction hearings on July 10, 2017, November 21, 2017, December 4, December 18,
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 9 of 27 PageID #: 49777
`
`2017 and January 29, 2018. The Court issued the following memoranda and orders regarding claim
`
`construction:
`
`(a)
`
`(b)
`
`(c)
`
`Memorandum Opinion, issued on August 29, 2017 (D.I. 275) and
`Claim Construction Order, issued September 6, 2017 (D.I. 287);
`
`Memorandum Opinions, issued on December 20, 2017 (D.I. 386 and
`387) and Supplemental Claim Construction Order, issued December
`28, 2017 (D.I. 398); and
`
`Memorandum Opinion, issued January 17, 2018 (D.I. 423) and
`Second Supplemental Claim Construction Order, issued January 24,
`2018 (D.I. 432).
`
`(d)
`
`Memorandum Opinion, issued April 10, 2018 (D.I. 519).
`
`D.
`
` Summary Judgment and Daubert Motions
`
`10.
`
`On February 2, 2018, Acceleration Bay filed a motion for summary judgment of
`
`infringement and validity and to exclude the testimony of Activision’s damages expert, Catharine
`
`M. Lawton. D.I. 439. On August 29, 2018, the Court denied this motion. D.I. 578.
`
`11.
`
`On February 2, 2018, Activision moved for summary judgment of non-infringement
`
`of the Asserted Patents (both literally and under the doctrine of equivalents), for summary judgment
`
`of no willful infringement and for summary judgment that activity related to the Accused Products
`
`outside the United States does not infringe the Asserted Patents. See, e.g., D.I. 440, 442. Activision
`
`also moved for summary judgment of invalidity of the ’344, ’966, ’069, and ’147 patents. Id.
`
`Activision further moved to exclude certain opinions of Acceleration Bay’s technical experts (Drs.
`
`Medvidovic and Mitzenmacher) and damages experts (Drs. Valerdi, Bims, and Meyer). Id.
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 10 of 27 PageID #: 49778
`
`E.
`
`12.
`
`Activision’s Additional Summary1
`
`On August 29, 2018, the Court issued a Memorandum Opinion granting in part and
`
`denying in part Activision’s summary judgment and Daubert motions (D.I. 578). Specifically, the
`
`Court held, inter alia: all asserted claims of the ’634 patent are invalid; claims 11, 15, and 16 of the
`
`’147 patent are invalid; the accused CoD and Destiny games do not infringe the ’344, ’966, and ’497
`
`patents; that Dr. Meyer cannot use the Uniloc jury verdict to establish a royalty; that Drs. Meyer and
`
`Bims cannot testify about the value of the Asserted Patents as compared to the Uniloc patent; and
`
`that Dr. Meyer must properly apportion any other royalty base she uses.
`
`13.
`
`On August 24, 2017, the Court granted Activision’s motion to dismiss games used on
`
`Sony platforms for lack of subject matter jurisdiction. D.I. 268.
`
`14.
`
`Four orders requiring Plaintiff to disclose its infringement theories were entered on
`
`April 19, 2016, March 15, 2017, May 19, 2017, and June 23, 2017. D.I. 155 at 7 (“Plaintiff shall
`
`provide as full, clear and complete responses as possible …. that: 1. Identify, individually and with
`
`specificity, all accused methods, broadcast channels and networks, including by separately
`
`identifying each and every participant and connection for each network or broadcast channel and
`
`explaining how each is alleged to be m-regular and incomplete.”); see also D.I. 77, 193; see also
`
`C.A. No. 15-228, D.I. 129.] Activision will object and/or move to preclude any infringement theory
`
`or network not properly disclosed in response to these orders.
`
`15.
`
`The Special Master entered at least four orders regarding Activision’s Interrogatories
`
`1 and 2 directed to Plaintiff’s damages theories and the date of the hypothetical negotiation. An
`
`1 Acceleration Bay: Activision’s following purported summary of additional orders is a gratuitous,
`misleading and one-sided summary of various discovery disputes that are no longer at issue. Over
`the pendency of this case, the Special Master heard many discovery disputes, and both granted and
`denied many motions filed by both sides. Activision lists some discovery orders relating to
`Acceleration Bay’s discovery responses, but fails to inform the Court that the Special Master found
`that Acceleration Bay’s expert reports are fully supported by the discovery provided in this case and
`denied Activision’s motion to strike portions of those reports based on the same purported
`deficiencies that Activision raises in its summary below. D.I. 347.
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 11 of 27 PageID #: 49779
`
`order requiring Plaintiff to disclose its damages theory and the date of the hypothetical negotiation
`
`was entered on May 19, 2017. D.I. 155. That Order was adopted by the Court over Plaintiff’s
`
`objections. D.I. 193. On July 17, 2017, the Special Master Order denied Activision’s Motion for
`
`preclusion as premature, noting that “the test of whether Plaintiff is withholding information that
`
`should have been disclosed in interrogatory No. 1 will better be known when Plaintiff submits its
`
`expert reports.” D.I. 227, p.7. Regarding the hypothetical negotiation date, the Special Master found
`
`“On June 2, 2017, in discovery responses, Plaintiff stated that the date of hypothetical negotiation
`
`was the date of service of the complaints in the 2015 filed cases. Plaintiff is bound by that statement
`
`and further relief to Defendants does not seem appropriate at this time.” D.I. 227, p. 8. Special
`
`Master Order No. 12 also addresses these interrogatories. D.I. 347, pp. 6-9. On April 13, 2018, the
`
`Court issued an order stating: “[t]he Court is likely to exclude damages testimony based on the date
`
`of filing of the complaint as the date of the hypothetical negotiation, inasmuch as the law is clear
`
`that the date of first infringement is the relevant date for a hypothetical negotiation.” D.I. 521.
`
`[Acceleration Bay: The Court denied Activision’s Daubert motion as to the date for the
`
`hypothetical negotiation in this case. D.I. 578 at 27 (Acceleration Bay’s “supplementation fixes the
`
`hypothetical negotiation date problems.”). Morever, Acceleration Bay has done an analysis utilizing
`
`a different date of the hypothetical negotiation. Activision: The Court rejected Acceleration Bay’s
`
`suggestion that the date for the hypothetical negotiation in this case could be the date of the filing of
`
`the complaints. Acceleration Bay’s experts have offered no opinion as to the proper date of the
`
`hypothetical negotiation.]
`
`16.
`
`In its order on Activision’s Daubert motion, the Court excluded any damages
`
`opinions based on the jury verdict in the Uniloc v. Electronic Arts case. Following that opinion,
`
`Activision believes that Plaintiff does not have any remaining damages theory in its expert reports.
`
`Activision reserves the right to challenge any damages. [Acceleration Bay: Acceleration Bay
`
`provided Activision with a detailed explanation of how the Court’s Daubert Order does not preclude
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 12 of 27 PageID #: 49780
`
`the damages case it will present at trial and that Acceleration Bay fully disclosed its damages claims
`
`and evidence during the discovery period in response to an explicit request from Activision. The
`
`issue Activision now raises has been briefed to the Court. D.I. 583. Activision: Acceleration Bay’s
`
`“detailed explanation” shows that it has no admissible evidence to support the amount of its
`
`damages claim and should be precluded from presenting any evidence of the amount of damages.
`
`D.I. 581]
`
`II.
`
`FEDERAL JURISDICTION
`
`17.
`
`This is a civil action for patent infringement arising under the patent laws of the
`
`United States, Title 35, United States Code, and this Court has subject matter jurisdiction over this
`
`action pursuant to 35 U.S.C. §§ 271, et seq., and 28 U.S.C. §§ 1331 and 1338. No party contests
`
`personal or subject matter jurisdiction.
`
`18.
`
`Venue is proper in this Court under 28 U.S.C. §§ 1391(b) and (c) and 28 U.S.C. §
`
`1400(b). No party contests venue.
`
`III.
`
`STATEMENT OF ADMITTED FACTS
`
`19.
`
`The parties’ Joint Statement of Undisputed Facts is attached as Schedule A.
`
`IV.
`
`STATEMENT OF ISSUES OF FACT THAT REMAIN TO BE LITIGATED
`
`20.
`
`Acceleration Bay’s Statement of Issues of Fact that Remain to be Litigated is
`
`attached as Schedule B1.2
`
`21.
`
`Activision’s Statement of Issues of Fact that Remain to be Litigated is attached as
`
`Schedule B2.
`
`22.
`
`If the Court determines that any issue identified in a party’s statement of issues of
`
`fact that remain to be litigated is more properly considered an issue of law, it should be so
`
`considered.
`
`2 Acceleration Bay: Activision did not disclose during discovery any opinion of counsel that it is
`relying upon. Activision: Acceleration Bay did not identify any alleged pre-suit willfulness. See
`3/30/2107 Acceleration Bay’s Response to Activision’s Party Specific Interrogatory No. 3 at 10.
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 13 of 27 PageID #: 49781
`
`23.
`
`The parties reserve the right to modify or supplement their statements of facts that
`
`remain to be litigated to the extent necessary to fairly reflect the Court’s rulings on any motions or
`
`subsequent orders of the Court or by agreement of the parties.
`
`V.
`
`STATEMENT OF ISSUES OF LAW THAT REMAIN TO BE LITIGATED
`
`24.
`
`Acceleration Bay’s Statement of Issues of Law that Remain to be Litigated is
`
`attached as Schedule C1.
`
`25.
`
`Activision’s Statement of Issues of Law that Remain to be Litigated is attached as
`
`Schedule C2.
`
`26.
`
`If the Court determines that any issue identified in a party’s statement of issues of
`
`law that remain to be litigated is more properly considered an issue of fact, it should be so
`
`considered.
`
`27.
`
`The parties reserve the right to modify or supplement their statements of issues of law
`
`that remain to be litigated to the extent necessary to fairly reflect the Court’s rulings on any motions
`
`or subsequent orders of the Court or by agreement of the parties.
`
`VI.
`
`LIST OF WITNESSES
`
`28.
`
`Acceleration Bay’s list of witnesses that it may call to testify at trial either in person
`
`or by deposition is attached as Schedule D1, and Acceleration Bay’s list of deposition designations
`
`is attached as Schedule E1. Also included in Schedule E1 are Activision’s objections and counter-
`
`designations to the offered testimony and Acceleration Bay’s objections to Activision’s counter-
`
`designations.
`
`29.
`
`Activision’s list of witnesses that it may call at trial to testify either in person or by
`
`deposition is attached as Schedule D2, and Activision’s list of deposition designations is attached as
`
`Schedule E2. Also included in Schedule E2 are Acceleration Bay’s objections and counter-
`
`designations to the offered testimony and Activision’s objections to Acceleration Bay’s counter-
`
`designations.
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 14 of 27 PageID #: 49782
`
`30.
`
`DISPUTED ISSUE: [Acceleration Bay: Acceleration Bay, in compliance with the
`
`Court’s Standing Order, identified in April 2018 the witnesses it intends to call live and by
`
`deposition at trial in Schedule D1, and repeatedly informed Activision that this accurately identifies
`
`Acceleration Bay’s live, will call list of trial witness. Activision’s claim that it “has been for several
`
`weeks asking Plaintiff to provide a will call/may call list” is incorrect, as Acceleration Bay provided
`
`its live, will call list six months ago in April. In contrast, Activision has refused to provide its good
`
`faith list of will call witnesses, and instead only provided a list of 30 witnesses without identifying
`
`which will be called live or by deposition, and which witnesses are are on Activision’s will call list..
`
`Given the time limits in this case, it is unlikely that Activision will call more than a fraction of these
`
`witnesses at trial. Activision should immediately provide a list of the witnesses it actually intends to
`
`call at trial.] [Activision: Activision timely provided its witness list on April 3, in accordance with
`
`the rules. Activision has previously asked Plaintiff to provide a will call/may call list so that the
`
`parties have an accurate understanding as to which witnesses will be called live. Plaintiff insists that
`
`its will call/may call list is represented by its disclosure of 12 live witnesses and 20 witnesses by
`
`deposition designation that it “intends” to call. Activision contends that an indication that
`
`Acceleration “intends” to call a witness is not the will call/may call lists that parties exchange in
`
`these types of cases. For instance, Plaintiff’s list indicates both that it will call the inventors live and
`
`by deposition. Plaintiff reteained the inventors as litigation consultants and plainly has the ability to
`
`bring them to trial. Planitiff should be required to state whether its witnesses will testify live or by
`
`deposition. Activision askes that the Court to enter an order as follows: Plaintiff shall provide its
`
`will call/may call list of witnesses to Activision on October 22, and Activision will provide its will
`
`call/may call list October 26. The lists will specifically indicate which witnesses a party will call,
`
`which it may call, and specify whether the witness will appear live or by deposition. The lists may
`
`be modified only for good cause based on future rulings.]
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 15 of 27 PageID #: 49783
`
`31.
`
`Acceleration Bay objects to use by Activision or its witnesses of testimony from,
`
`conversations with or information provided by Pat Griffith, Saralyn Smith or Bill Chinn, as set forth
`
`in Acceleration Bay’s motion in limine #1. [DISPUTED ISSUE: Acceleration Bay: Acceleration
`
`Bay objects to Activision calling as a witness (live or by deposition) Scott Bennett, Dan Kegel and
`
`Mark Terrano. These witnesses are only relevant to issues of prior art, and Activision is not
`
`presenting a prior-art based invalidity defense at trial. Activision’s rebuttal experts did not offer
`
`opinions regarding the relevance of state of the art to damages, and such an opinion could only be
`
`presented at trial through a rebuttal expert. Activision: Activision reserves the right to call Dan
`
`Kegel and Mark Terrano, who can provide testimony about the state of the art before the patents
`
`were filed as well as non-infringing online multiplayer videogame technology that existed prior to
`
`the patents and remains available today, which is plainly relevant to Acceleration’s claims that no
`
`alternative technology exists to enable online multiplayer games. Non-infringing technology is
`
`certainly relevant to whether there are alternatives to the patented technology that were known and
`
`used by the industry at the time of the hypothetical negotiation. That testimony is relevant to
`
`Acceleration’s doctrine of equivilents arguments as well as damages, including but not limited to
`
`Georgia-Pacific factor nos. 9 and 10. Activision notes that Acceleration did not present a Motion in
`
`Limine on this issue.]
`
`32.
`
`Activision further objects to the inclusion of John Yaney in Acceleration Bay’s list of
`
`witnesses and deposition designations. Mr. Yaney relates to a product that is no longer accused in
`
`this case.
`
`33.
`
`Any witness not listed in Schedules D1 or D2 will be precluded from testifying,
`
`absent good cause shown.
`
`34.
`
`The listing of a witness on a party’s witness list does not require that party to call that
`
`witness to testify, either in person or by deposition.
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 16 of 27 PageID #: 49784
`
`35.
`
`Acceleration Bay requests that Fed. R. Evid. 615 be invoked for all applicable fact
`
`witnesses.3
`
`36. With respect to those witnesses who are expected to testify by deposition rather than
`
`in person, each party has designated the specific pages and lines of deposition testimony that it may
`
`read or play during trial. No deposition testimony not previously designated pursuant to this Order
`
`may be later added for these witnesses, absent good cause shown.
`
`37.
`
`If a party designates deposition testimony, and the other party counter-designates,
`
`then the designations and counter-designations will be read or played by video in chronological
`
`order. Regardless of whether deposition testimony is read or played by video, the time available for
`
`each party’s trial presentation shall be reduced by the length of its designations and counter-
`
`designations.
`
`38.
`
`Absent leave of Court, all irrelevant and redundant material such as objections,
`
`colloquy between counsel and long pauses will be eliminated when the deposition is read or viewed
`
`at trial.
`
`39.
`
`Any party may use testimony that is designated or counter-designated by either party,
`
`to the same effect as if it had initially designated the testimony as its own, subject to all objections.
`
`40.
`
`The parties may offer some or all of the deposition testimony set forth herein at trial.
`
`A party’s decision not to introduce some or all of the testimony of a witness designated herein shall
`
`not be commented upon at trial.
`
`41.
`
`Any deposition testimony may be used at trial for the purpose of impeachment,
`
`regardless of whether a party identified that testimony on its list of deposition designations, if the
`
`testimony is otherwise competent for such purpose.
`
`3 Activision: Activision contends that at least Pat Griffith and Kurtis McCathern are not applicable
`witnesses under Fed. R. Evid. 615.
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 17 of 27 PageID #: 49785
`
`VII. LIST OF EXHIBITS
`
`42.
`
`Acceleration Bay’s trial exhibit list is attached as Schedule F1. Acceleration Bay
`
`identified its exhibits with PTX numbers, starting with PTX1.
`
`43.
`
`Activision’s trial exhibit list is attached as Schedule F2. Activision identified its
`
`exhibits with DTX numbers, starting with DTX1.
`
`44.
`
`Joint trial exhibits will be identified with JTX numbers, starting with JTX1. The joint
`
`trial exhibit list is attached as Schedule F3.
`
`45.
`
`Each party may use a subset of an exhibit as a standalone exhibit, subject to
`
`evidentiary objections (e.g., FED. R. EV. 106). Each such Subset Exhibit shall marked with the
`
`entire exhibit’s number followed by a letter (e.g., PTX1-A, DTX12-A).
`
`46.
`
`A party’s failure to introduce any exhibit appearing on its list shall not be commented
`
`on during trial.
`
`47.
`
`Each party may use an exhibit that is listed on the other party’s exhibit list, to the
`
`same effect as though it were listed on its own exhibit list, subject to objections. Any exhibit, once
`
`admitted, may be used equally by each party. The listing of an exhibit by a party on its exhibit list
`
`does not waive any objections to that exhibit by the listing party should the opposing party attempt
`
`to offer it into evidence. In other words, a party does not waive its objections to an exhibit by
`
`including that exhibit on its own exhibit list.
`
`48.
`
`The parties agree that any date listed on an exhibit list is provided for convenience
`
`only and is neither evidence nor an admission of the date of the document, and that failing to list a
`
`date on an exhibit list is neither evidence nor an admission of whether the document is dated.
`
`49.
`
`The parties agree that any description of a document listed on an exhibit list is
`
`provided for convenience only and shall not be used as an admission or otherwise as evidence
`
`regarding that document.
`
`

`

`Case 1:16-cv-00453-RGA Document 617 Filed 10/25/18 Page 18 of 27 PageID #: 49786
`
`50.
`
`Legible photocopies of United States patents may be offered and received into
`
`evidence in lieu of certified copies thereof, subject to all other objections which might be made to
`
`the admissibility of certified copies. Likewise, legible photocopies of United States patent
`
`applications may be offered and received into evidence in lieu of certified copies thereof, subject to
`
`all other objections which might be made to the admissibility of certified copies.
`
`51.
`
`Legible photocopies of documents may be offered and received in evidence in lieu of
`
`originals thereof, subject to all foundational requirements and other objections that might be made to
`
`the admissibility of originals, and subject to the right of the party against whom it is offered to
`
`inspect an original upon request reasonably in advance of any proposed use of the photocopy.
`
`52.
`
`The parties have agreed that the demonstrative exhibits the parties intend to use at
`
`trial need not be included on their respective lists of trial exhibits to be filed with the Court.
`
`53.
`
`[DISPUTED ISSUE] Four days before the first day of trial, the parties shall make
`
`available for inspection physical exhibits to be used at trial, labeled with an exhib