Case 1:16-cv-00453-RGA Document 628-1 Filed 11/20/18 Page 1 of 15 PageID #: 49970
`Case 1:16-cv-00453-RGA Document 628-1 Filed 11/20/18 Page 1 of 15 PagelD #: 49970
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`EXHIBIT A
`EXHIBIT A
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`Case 1:16-cv-00453-RGA Document 628-1 Filed 11/20/18 Page 2 of 15 PageID #: 49971
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 16-453 (RGA)
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`))))))))))
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`ACCELERATION BAY LLC,
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`ACTIVISION BLIZZARD, INC.,
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`Defendant.
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`Plaintiff,
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`v.
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`PLAINTIFF ACCELERATION BAY LLC’S SECOND SUPPLEMENTAL
`OBJECTIONS & RESPONSES TO DEFENDANT ACTIVISION BLIZZARD, INC.’S
`FIRST SET OF PARTY SPECIFIC INTERROGATORIES (NO. 1)
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`Plaintiff Acceleration Bay LLC (“Acceleration Bay” or “Plaintiff”) hereby further
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`responds to the First Set of Party Specific Interrogatories (No. 1) (the “Interrogatories”) of
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`Defendant Activision Blizzard, Inc. (the “Defendant” or “Activision” ) as follows:
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`RESERVATION OF RIGHTS AND GENERAL OBJECTIONS
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`Plaintiff incorporates by reference the Reservation of Rights and General Objections set
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`forth in its Responses to Defendant’s First Set of Interrogatories, served on March 30, 2017 and
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`First Supplemental Responses to Defendant’s First Set of Interrogatories, served on June 2, 2017.
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`SUPPLEMENTAL OBJECTIONS AND RESPONSES
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`ACTIVISION INTERROGATORY NO. 1:
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`Identify and describe Plaintiff’s damages from Defendant’s alleged infringement
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`assuming a finding of infringement and validity including but not limited to a royalty, a royalty
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`rate, and a royalty base. Include in you answer the following information: (a) a detailed
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`description of the methodology for determining the damages; (b) all facts and reasons that
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`Plaintiff contends it should be awarded more than a reasonable royalty; (c) the largest amount of
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`1
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`damages that Plaintiff will seek from a jury for any infringement found by Defendant; and (d) the
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`identity of the owner or assignee of the Asserted Patents and the licensor or potential licensor at
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`the time damages are determined.
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`RESPONSE TO ACTIVISION INTERROGATORY NO. 1:
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`Plaintiff objects to this Interrogatory to the extent it calls for a legal conclusion. Plaintiff
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`objects to this Interrogatory to the extent it is comprised of multiple subparts, which Plaintiff will
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`count against Defendant’s limit. Plaintiff objects to this Interrogatory to the extent it seeks
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`information beyond Plaintiff’s actual knowledge, custody, or control. Plaintiff objects to this
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`Interrogatory to the extent it is incomprehensible or ambiguous, particularly as to what is meant
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`by “should be awarded more than a reasonable royalty.” Plaintiff objects to this Interrogatory to
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`the extent it seeks information protected by the attorney-client privilege, the work product
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`doctrine, or any other applicable law, privilege, doctrine, or immunity. Plaintiff objects to this
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`Interrogatory to the extent it seeks information within Defendant’s possession, custody, or
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`control, or to the extent it seeks information in the public domain. Plaintiff objects to this
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`Interrogatory as unintelligible, overly broad, unduly burdensome, and ambiguous, including,
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`inter alia, the terms “including but not limited to,” “detailed description of the methodology,”
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`“all facts and reasons,” and “the identity of the owner or assignee of the Asserted Patents and the
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`licensor or potential licensor at the time the damages are determined.”
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`Plaintiff objects to this Interrogatory as premature because it seeks disclosure of
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`documents, information, and expert testimony subject to the schedule in this action. Specifically,
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`the Scheduling Order provides that Plaintiff will serve an expert report on damages after the
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`completion of fact discovery. Plaintiff incorporates by reference into this response the expert
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`report it will serve on damages.
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`2
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`Case 1:16-cv-00453-RGA Document 628-1 Filed 11/20/18 Page 4 of 15 PageID #: 49973
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`Subject to and without waiving the foregoing general and specific objections, and to the
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`extent Plaintiff understands this Interrogatory, Plaintiff responds as follows:
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`Plaintiff seeks all damages to which it is entitled under U.S. patent laws, including 35
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`U.S.C. § 284, arising from Defendant’s infringement. Plaintiff seeks damages in an amount
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`adequate to compensate for the infringement, which includes, but is not limited to, a reasonable
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`royalty for the use of the invention, together with interest and costs fixed by the Court.
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`Additionally, Plaintiff seeks an accounting of all infringing sales and revenues.
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`Plaintiff also seeks an award of attorneys’ fees and expenses associated with the present
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`action under 35 U.S.C. § 285, as well as enhanced damages under 35 U.S.C. § 284. Such costs,
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`fees, and expenses cannot be computed at the present time and depend on a variety of factors,
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`such as the length and intensity of the litigation and the positions that Defendant take. Plaintiff
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`incorporates by reference its response to Interrogatory No. 3.
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`It is not possible at this time for Plaintiff to make a finalized computation of damages (or
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`to identify with specificity documents reasonably available that relate to categories of damages)
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`absent further investigation, discovery, and disclosure by Defendant, particularly because much
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`of the information necessary to make such a computation is in the possession of Defendant, and
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`may require expert analysis. For example, Plaintiff is seeking discovery from Defendant as to
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`the revenues generated by Defendant’s infringing activities, the number of users, licenses and
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`subscriptions provided for the infringing products, as well as any cost savings realized by
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`Defendant through their infringement and Defendant’s past licensing practices. Information
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`related to the users and their gameplay activities, and the details regarding the design, structure,
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`operation, features, development and testing of its multiplayer and networking functionality,
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`without geographic limitation is relevant. Such information includes any protocols, APIs,
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`3
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`Case 1:16-cv-00453-RGA Document 628-1 Filed 11/20/18 Page 5 of 15 PageID #: 49974
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`libraries, and SDKs that are used by peers, clients, hosts, nodes, or servers in the network to
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`distribute messages, game data, voice data, chat data, management data, and QoS data for the
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`accused products around the world. Moreover, Defendant’s patent infringement is ongoing and
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`the amount of damages to which Plaintiff is entitled continues to grow. Accordingly, Plaintiff
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`reserves the right to set forth and modify its damages theories and calculations as appropriate as
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`the litigation progresses and in view of information Defendant provides in this case, as well as
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`anticipated expert opinions and factual information provided related to damages.
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`Plaintiff’s investigation of this matter is ongoing and it will comply with Fed. R. Civ. P.
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`26(e) should additional information become known to it.
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`FIRST SUPPLEMENTAL RESPONSE TO ACTIVISION INTERROGATORY NO. 1:
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`Plaintiff objects to this Interrogatory to the extent it calls for a legal conclusion. Plaintiff
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`objects to this Interrogatory to the extent it is comprised of multiple subparts, including (1)
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`disclosure of a royalty, a royalty rate, and a royalty base; (2) a detailed description of the
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`methodology for determining the damages; (3) all facts and reasons that Plaintiff contends it
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`should be awarded more than a reasonable royalty; (4) the largest amount of damages that
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`Plaintiff will seek from a jury for any infringement found by Defendant; and (5) the identity of
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`the owner or assignee of the Asserted Patents and the licensor or potential licensor at
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`the time damages are determined. Plaintiff will count this interrogatory as five interrogatories
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`against Defendant’s limit. Plaintiff objects to this Interrogatory to the extent it seeks information
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`beyond Plaintiff’s actual knowledge, custody, or control. Plaintiff objects to this Interrogatory to
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`the extent it is incomprehensible or ambiguous, particularly as to what is meant by “should be
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`awarded more than a reasonable royalty.” Plaintiff objects to this Interrogatory to the extent it
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`seeks information protected by the attorney-client privilege, the work product doctrine, or any
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`4
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`Case 1:16-cv-00453-RGA Document 628-1 Filed 11/20/18 Page 6 of 15 PageID #: 49975
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`other applicable law, privilege, doctrine, or immunity. Plaintiff objects to this Interrogatory to
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`the extent it seeks information within Defendant’s possession, custody, or control, or to the
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`extent it seeks information in the public domain. Plaintiff objects to this Interrogatory as
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`unintelligible, overly broad, unduly burdensome, and ambiguous, including, inter alia, the terms
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`“including but not limited to,” “detailed description of the methodology,” “all facts and reasons,”
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`and “the identity of the owner or assignee of the Asserted Patents and the licensor or potential
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`licensor at the time the damages are determined.”
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`Plaintiff objects to this Interrogatory as premature because it seeks disclosure of
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`documents, information, and expert testimony subject to the schedule in this action. Specifically,
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`the Scheduling Order provides that Plaintiff will serve an expert report on damages after the
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`completion of fact discovery. Plaintiff incorporates by reference into this response the expert
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`report it will serve on damages.
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`Plaintiff provides this supplemental response to Defendant’s Interrogatory pursuant to the
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`Special Master’s May 19, 2017 Order subject to the objections thereto Plaintiff will file with the
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`Court.
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`Subject to and without waiving the foregoing general and specific objections, and to the
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`extent Plaintiff understands this Interrogatory, Plaintiff responds as follows:
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`Plaintiff’s Damages Theories:
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`Plaintiff seeks all damages to which it is entitled under U.S. patent laws, including 35
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`U.S.C. § 284, arising from Defendant’s infringement. Plaintiff seeks damages in an amount
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`adequate to compensate for the infringement, which includes, but is not limited to, a reasonable
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`royalty for the use of the invention, together with interest and costs fixed by the Court.
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`Additionally, Plaintiff seeks an accounting of all infringing sales and revenues.
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`5
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`Plaintiff may seek damages under at least the following theories: (1) a reasonable royalty
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`based on Defendant’s revenue from the Accused Products, (2) a reasonable royalty based on the
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`number of units sold of the Accused Products, (3) a reasonable royalty based on the number of
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`unique users for each of the Accused Products; (4) a reasonable royalty based on the number of
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`sessions by Defendant’s customers using the Accused Products; and (5) cost savings to
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`Defendant from using the Asserted Patents. Plaintiff is actively seeking discovery on each of
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`these theories and conferring with its damages expert, who will address them, along with the
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`factors set forth in Georgia Pacific Corp. v. United States Plywood Corp., 318 F. Supp. 1116
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`(S.D.N.Y. 1970), in an expert report after the close of fact discovery.
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`Plaintiff also seeks an award of attorneys’ fees and expenses associated with the present
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`action under 35 U.S.C. § 285, as well as enhanced damages under 35 U.S.C. § 284. Such costs,
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`fees, and expenses cannot be computed at the present time and depend on a variety of factors,
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`such as the length and intensity of the litigation and the positions that Defendant take. Plaintiff
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`incorporates by reference its response to Interrogatory No. 3.
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`Relevant Evidence:
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`Plaintiff’s damages will be based on evidence developed during discovery and at trial.
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`Such evidence will include the confidential information of the parties’ documents, testimony of
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`fact witnesses and expert testimony. For example, some of the documents with relevant
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`information regarding damages include those identified in Defendant’s discovery responses,
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`documents regarding consumer demand for the Accused Products and any associated surveys,
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`licenses related to the Accused Products, the number of sessions, number of unique users,
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`number of requests to the match making server or portal computer, reduction in costs,
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`subscription time, in-game purchases, availability of any non-infringing alternatives, financial
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`6
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`statements, pricing, valuations and non-monetary benefits attributable to the Accused Products,
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`the extent of use of Plaintiff’s technology, the extent to which the sale of the patented technology
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`drives the sales of bundled products and services.
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`Plaintiff’s patented technology offers a great number of benefits, including simultaneous
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`sharing of information among computers that are widely distributed, tailoring a network for high
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`speed game play, decreasing latency between nodes, balancing network data distribution to
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`ensure a consistent game experience, optimizing an overlay network at the application layer, and
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`allowing flexible connections and disconnections, all of which result in a reduction in costs,
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`distribution of information in a timely manner and with greater reliability, and overall improving
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`customers’ experience by reducing latency and improving reliability, thereby increasing demand
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`for the games and add-on offerings,. The associated technical and economic benefits of
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`Plaintiff’s technology will be the subject of expert reports.
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`Relevant information is also included in the deposition testimony and exhibits to those
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`depositions taken in this litigation (and any relevant deposition or trial testimony in other
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`litigations that contains relevant information), including but not limited to the depositions of
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`Activision’s witnesses. See, e.g., Griffith Tr. 246:19-253:9, 57:10-60:4; Dawson Tr. 116:10-
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`119:12, 132:11-132:25, 159:13-159:15, 161:13-162:13, 162:23-163:24; Yaney Tr. 18-19, 112-
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`114; Wolfson Tr. 54:2-57:10, 84:1-85:3, 115:25-116:18, 119:3-14, 150:14-152:4, 155:10-156:3,
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`165:23-166:18, 167:18-168:24. It is also expected that the upcoming depositions of Tony Hsu,
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`Andy Yoon, Rob Kostich, Andrew Amadi and Neal Hubbard will be relevant to damages.
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`Activision identified these witnesses as being knowledgeable regarding sales, marketing,
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`financial matters, revenue and costs for the Accused Products.
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`7
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`Case 1:16-cv-00453-RGA Document 628-1 Filed 11/20/18 Page 9 of 15 PageID #: 49978
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`Based on discovery to date, Plaintiff identifies the following exemplary documents in
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`which damages related information is included, including revenue information, server usage
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`information and marketing materials: Defendant’s Response and any supplemental responses to
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`Plaintiff’s Common Interrogatory Nos. 2, 3, 7; ATVI0024805-846; ATVI0027728;
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`ATVI0024803-04; ATVI0027728-31; ATVI0027358-60; ATVI0029908-946; ATVI0029962-
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`986; ATVI0029414-870; ATVI0029686-734; ATVI0030009-51; ATVI0024187-24660;
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`BUNGIE_AB000001 at 26-29, 88, 93.
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`Defendants have not provided updated financial documents for first quarter of 2017 and
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`have not provided any financial data for the updated versions of its products identified of
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`infringement on February 13, 2017, which are the subject of a pending motion to compel.
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`Defendant has yet to produce information regarding the number of users, cost saving,
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`connections, networks, and sessions, which are also part of Plaintiff’s damages case. Lastly, as
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`Defendant produced data in spreadsheets without adequate explanation or key, Acceleration Bay
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`will need additional information from Defendant to properly analyze the data.
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`Royalty, Royalty Rate and Royalty Base and Methodology For Determining
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`Damages: As described above, Plaintiff will seek a reasonable royalty. The royalty base may
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`be the total revenues related to the Accused Products, the cost savings realized from use of the
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`Asserted Patents, the number of units sold, number of unique users or the number of sessions
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`played. Plaintiff will seek guidance from its expert as to an appropriate apportionment and
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`royalty rate. At this time, Plaintiff estimates that the royalty rate will be 15.5% of total revenues
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`based on industry information, a royalty based on the number of users or sessions, and/or cost
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`savings. Plaintiff cannot calculate the total royalty without knowing the total base (which
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`Defendant has not provided), the apportionment amount (which is a subject of expert opinion)
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`8
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`and royalty rate (which is a subject of expert opinion and ongoing discovery). Plaintiff
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`specifically objects to Special Master Order No. 3 to the extent it requires disclosure of this
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`information at this time.
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`All facts and reasons that Plaintiff contends it should be awarded more than a
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`reasonable royalty: Plaintiff incorporates by reference its response to Interrogatory No. 3,
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`which sets forth the basis for its claim for enhanced damages, attorneys’ fees and expenses
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`associated with the present action under 35 U.S.C. §§ 284, 285. Specifically, Defendant’s
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`infringement is willful at least as of June 17, 2016, the filing date of the complaint in this case, if
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`not earlier, because Defendant continued to infringe after being put on notice of their
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`infringement after the first case was filed in 2015, Acceleration Bay LLC v. Activision Blizzard,
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`Inc., Case No. 15-cv-00228-RGA (D. Del. 2015). Defendant’s ongoing infringement, the
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`substantive weakness of its positions, particularly after the PTAB decisions on the asserted
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`patents, and its failure to cooperate in discovery renders this case exceptional under 35 U.S.C.
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`§ 285.
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`Acceleration Bay’s costs, fees, and expenses cannot be computed at the present time and
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`depend on a variety of factors, such as the length and intensity of the litigation and the positions
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`that Defendant take.
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`The largest amount of damages that Plaintiff will seek from a jury for any
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`infringement found by Defendant: Plaintiff cannot determine the largest amount of damages
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`that it will seek from a jury for Defendant’s infringement at least because (1) Defendant’s
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`infringement is ongoing and continues to increase, (2) Defendant has not provided any discovery
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`on the Accused Products identified in Plaintiff’s February 13, 2017 Updated Identification of
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`Accused Products, and (3) Plaintiff cannot calculate the total royalty without knowing the total
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`9
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`Case 1:16-cv-00453-RGA Document 628-1 Filed 11/20/18 Page 11 of 15 PageID #: 49980
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`base (which Defendant has not provided), the apportionment amount (which is a subject of
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`expert opinion) and royalty rate (which is a subject of expert opinion and ongoing discovery).
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`Subject to the foregoing, Plaintiff estimates that, based on revenue information provided through
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`2016, the maximum amount of damages that Plaintiff will seek from a jury if it had to go to trial
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`at this time based on the information it currently has is $200,000,000 in damages for Defendant’s
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`infringement through 2016. Plaintiff will seek additional damages through the remaining
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`lifetime of the patent.
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`The identity of the owner or assignee of the Asserted Patents and the licensor or
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`potential licensor at the time damages are determined: This subpart of the interrogatory is
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`unclear, as Plaintiff is the owner the Asserted Patents, the assignee of the Asserted Patents from
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`Boeing, and the licensor for damages purposes. To the extent Defendant is asking who will be
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`the participants in the hypothetical negotiation to determine the reasonable royalty, Plaintiff
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`responds that the licensor will be Plaintiff and the licensee will be Defendant.
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`Given the state of discovery and that expert reports are not due until after the close of fact
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`discovery, Plaintiff objects to the Special Master’s Order to the extent it requires a further
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`response to this Interrogatory at this time.
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`Plaintiff’s investigation of this matter is ongoing and it will comply with Fed. R. Civ. P.
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`26(e) should additional information become known to it.
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`SECOND SUPPLEMENTAL RESPONSE TO ACTIVISION INTERROGATORY NO. 1:
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`Acceleration Bay incorporates its prior served objections and responses to this
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`Interrogatory, and further responds as follows:
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`Acceleration Bay is entitled to no less than a reasonable royalty for Defendants’
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`infringement of the Patents-in-Suit. Acceleration Bay’s damages will be based on evidence
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`10
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`Case 1:16-cv-00453-RGA Document 628-1 Filed 11/20/18 Page 12 of 15 PageID #: 49981
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`developed during discovery and at trial. In addition to the evidence identified in Acceleration
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`Bay’s prior responses to this Interrogatory, such evidence will include documents with relevant
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`information regarding damages cited in Defendants’ responses and supplemental responses to
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`Acceleration Bay’s Common Interrogatory Nos. 1, 3, 6, 7 (regarding generally versions and
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`releases of accused products, revenues, sales, costs and profits, geographical location of
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`manufacture and development, and additional revenue received for the accused products),
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`Defendants’ responses and supplemental responses to Acceleration Bay’s Case Specific
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`Interrogatory Nos. 1, 2, 3, 4, 5, 9, (regarding generally license agreements, alleged non-
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`infringing alternatives, projections build costs or valuations regarding network, damages and
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`royalties owed, hypothetical negotiation dates, and foreign downloads and users related to
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`activity in the United States) and documents regarding revenues, sales, pricing, costs, profits,
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`number of users, number of downloads, number of sessions, extent of use of infringing
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`technology, market share, cost-savings, industry standards and royalty rates within the gaming
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`industry, license agreements and Defendants’ positions taken in other litigations with respect to
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`royalties and value of accused products (Acceleration Bay identified representative examples of
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`these documents in its prior responses to this Interrogatory and identifies further documents,
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`recently obtained from Defendant, below). Additional information is included in the testimony
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`of the parties’ witnesses at depositions and exhibits marked at those depositions, including, but
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`not limited to the transcripts of John Garland, Robert Kostich, Saralyn Smith, Natasha Radovsky,
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`Byron Beede, John Kirk, Joseph Rumsey, Joe Ward, Mark Gordon and Glen Van Datta.
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`Representative and non-limiting exemplary citations to these transcripts include Kirk Tr. at
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`201:10-19; Rumsey Tr. at 82:9-19; Smith Tr. at 28:7-9, 32:9-16, 35:2-5, 64:5-85:7, 87:18-90:7,
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`95:5-97:4, 100:14-22; Kostich Tr. at 13:19-18:13, 66:5-69:8, 125:8-133:12, 136:14-137:4, Beede
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`11
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`Rough Tr. at 22:4-57:25, 66:8-68:25, 73:16-100:22, 166:14-22; Van Datta Tr. 28:4-50:10, 53:2-
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`64:22, 65:15-78:14, 80:10-80:18.
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`Pursuant to Rule 33(d) of the Federal Rules of Civil Procedure, additional information
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`responsive to this interrogatory may be derived or ascertained from the parties’ document
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`productions in this matter regarding licensing, valuations, marketing, financials, pricing, industry
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`and market reports, cost-savings, comparable royalty rates, extent of use of infringing
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`technology, virtual currency, costs related to the accused products, number of users, number of
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`sessions, number of discs, number of downloads, profits, including, but not limited to, the
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`following bates-labeled documents: ATVI0024187 – 0024660, AB-AB 002368-3252,
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`ATVI0027728 – 0027731, ATVI0027367 – 0027727, ATVI0029414 – 0029871, ATVI0029872
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`– 0030073, ATVI0031014 – 0031015, ATVI0031440 – 0033307, ATVI0033308 – 0033497,
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`ATVI0033750, ATVI0024803 – 0024805, ATVI0027358-60, AB-AB 004552-966, AB-AB
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`004967-009798, AB-AB 009810-9861, AB-AB 004474-483.
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`Acceleration Bay further incorporates its forthcoming expert reports in this matter.
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`Acceleration Bay’s investigation of this matter is ongoing and it will comply with Fed. R. Civ. P.
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`26(e) should additional information become known to it.
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`12
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`Case 1:16-cv-00453-RGA Document 628-1 Filed 11/20/18 Page 14 of 15 PageID #: 49983
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`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: August 18, 2017
`
`
`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
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`13
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`Case 1:16-cv-00453-RGA Document 628-1 Filed 11/20/18 Page 15 of 15 PageID #: 49984
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`CERTIFICATE OF SERVICE
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`
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`I, Philip A. Rovner, hereby certify that, on August 18, 2017, the within document was
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`served on the following counsel as indicated:
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`BY E-MAIL
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`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
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`Attorneys for Defendant
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`Daniel K. Webb, Esq.
`Kathleen B. Barry, Esq.
`Winston & Strawn LLP
`35 W. Wacker Drive
`Chicago, IL 60601
`dwebb@winston.com
`kbarry@winston.com
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`Co-counsel for Defendant
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`Michael M. Murray
`Winston & Strawn LLP
`200 Park Avenue
`New York, NY 10166
`mmurray@winston.com
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`Co-counsel for Defendant
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`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
`
`
`
`14
`
`