`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`V.
`
`ACTIVISION BLIZZARD INC.,
`
`Defendant.
`
`Civil Action No. 1: 16-cv-00453-RGA
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`ORDER
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`Presently before me are Defendant' s motion to Preclude the New Damages Theories
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`Raised by Plaintiff (D.I. 601) and Plaintiffs Motion for Reargument and Reconsideration (D.I.
`
`602). For the reasons set out below, I will DISMISS Defendant's motion as MOOT and DENY
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`Plaintiffs motion.
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`The Parties completed the current briefing on Plaintiffs damages case in great haste and
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`with a focus on the impending trial. (See D.I. 601 , 603 , 609). The quality of the briefing reflects
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`the circumstances of the drafting. Moreover, I suspect Plaintiffs articulation of its damages case
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`will evolve as it supplements its expert reports and develops its proffer. Briefing directed
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`specifically to Plaintiffs proposed case as articulated in its proffer will be substantially more
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`helpful to me in resolving whether Plaintiff has a legally-sufficient damages theory based on
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`admissible evidence. Therefore, I will dismiss Defendant's motion to Preclude the New
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`Damages Theories Raised by Plaintiff (D .I. 601) as moot.
`
`Plaintiff argues that I committed legal error requiring reconsideration when I precluded
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`introduction of an agreement between Microsoft and Defendant related to use of the Xbox
`
`
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`Case 1:16-cv-00453-RGA Document 620 Filed 10/30/18 Page 2 of 2 PageID #: 49869
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`platform. Reconsideration is appropriate based on " (1) an intervening change in the controlling
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`law; (2) the availability of new evidence that was not available when the court granted the
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`motion . . . ; or (3) the need to correct a clear error of law or fact or to prevent manifest
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`injustice." Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.
`
`1999). I do not agree with Plaintiff that I committed error. When evaluating Plaintiffs proposed
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`method of establishing a reasonable royalty, I held, "[A] document showing a royalty Defendant
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`pays to Microsoft [is] inadmissible to prove a 15.5% royalty rate. " (D.I. 600 at 7). That is, I
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`held that the Microsoft agreement ("Agreement") is not a comparable license such that it might
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`be relevant as an independent basis for a jury to set a reasonable royalty. Plaintiff was and is
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`precluded from pulling a licensing rate from the Agreement and presenting it as comparable to
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`the ultimate rate a jury should apply. It is not a patent license and therefore not a license
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`comparable to the one which would have resulted from a hypothetical negotiation. It is not
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`relevant to the question of comparable licenses. 1 Thus, I will deny Plaintiffs Motion for
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`Reargument and Reconsideration (D.I. 602).
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`Defendant's motion to Preclude the New Damages Theories Raised by Plaintiff (D.I.
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`601) is DISMISSED as MOOT and Plaintiffs Motion for Reargument and Reconsideration
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`(D.I. 602) is DENIED.
`IT IS SO ORDERED this 3u day of October 2018 .
`
`1 Whether an expert is precluded from considering the Agreement among the ancillary indicators
`of the value of the patented invention is not the issue that was presented to me. Thus, I have not,
`and do not now, express any view on that issue.
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`2
`
`
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