Case 1:16-cv-00453-RGA Document 662 Filed 04/05/19 Page 1 of 7 PageID #: 51548
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`IN THE UNITED STATES DISTRICT COURT
`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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`Plaintiff,
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`v.
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`ACTIVISION BLIZZARD, INC.
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`Defendant.
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`ACCELERATION BAY’S OPPOSITION TO ACTIVISION’S
`MOTION FOR LEAVE TO FILE FURTHER SUMMARY JUDGMENT MOTIONS
`
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff
`Acceleration Bay LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`James Hannah
`Yuridia Caire
`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: March 29, 2019
`
`PUBLIC VERSION
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`Public version dated: April 5, 2019
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`

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`Case 1:16-cv-00453-RGA Document 662 Filed 04/05/19 Page 2 of 7 PageID #: 51549
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`INTRODUCTION
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`Activision’s motion for leave to file yet further summary judgment motions (D.I. 654,
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`“Motion”) should be denied because Activision already moved on almost 40 issues and does not
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`identify any new facts that warrant further briefing. Indeed, Activision admits that it already
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`unsuccessfully moved for summary judgment on the very same issues for which it now seeks
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`leave to file additional motions. Motion at 2. To date, Activision has submitted 150 pages of
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`summary judgment and Daubert briefing and had a half-day hearing to address these issues.
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`Activision premises its Motion on supposed “new facts,” but does not identify any new facts
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`relating to infringement. Instead, it points to the damages opinions in Mr. Parr’s supplemental
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`report, which do not raise any new infringement issues and are based on the 2017 infringement
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`opinions of Acceleration Bay’s technical experts. Therefore, the Court should deny Activision’s
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`request for yet another bite at the apple on non-infringement issues.
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`NATURE AND STAGE OF THE PROCEEDINGS
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`The parties have engaged in extensive summary judgment motion practice before the
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`Court. The Court authorized each side to submit 125 pages of briefing on summary judgment
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`and Daubert motions. D.I. 425 (Oral Order re: Page Limits). Activision submitted almost its
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`full allotment of pages of briefing raising approximately forty different issues. See, e.g., D.I. 466
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`(Opening MSJ Brief); D.I. 508 (Reply MSJ Brief). Activision then filed an additional 25 pages
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`of supplemental summary judgment briefing. D.I. 565 (Opening Supp. Brief), D.I. 575 (Reply
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`Supp. Brief). On May 17, 2018, the Court held several hours of oral argument on the parties’
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`motions for summary judgment. Activision did not move for reconsideration when the Court
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`denied its motions for summary judgment in relevant part.
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`Activision included in its prior summary judgment motions the same three issues for
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`which it now seeks additional summary judgment briefing: (1) non-infringement of the method
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`Case 1:16-cv-00453-RGA Document 662 Filed 04/05/19 Page 3 of 7 PageID #: 51550
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`claims, (2) no worldwide infringement, and (3) no infringement of the m-regular limitation. See,
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`e.g., D.I. 466 at 7-9, 31-32, 10-19, 38-39.
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`As authorized by the Court, Acceleration Bay served a supplemental damages report
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`from its expert, Mr. Russell Parr, on December 7, 2018. D.I. 619. Mr. Parr’s report does not
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`raise any new infringement theories.
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`ARGUMENT
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`I.
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`There is No Good Cause For Activision to Have Further Summary Judgment
`Briefing
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`Activision should not be given the opportunity to submit further briefing relating to non-
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`infringement. Indeed, Activision admits that it already submitted voluminous briefing and lost
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`on the same issues for which it now seeks leave to file further motions, namely the m-regular
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`limitation, method claims, and foreign infringement. Motion at 1-2. Activision attempts to tie
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`its Motion to the service of Mr. Parr’s supplemental damages report in December 2018. But Mr.
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`Parr’s report is based on the same infringement theories Acceleration Bay has asserted
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`throughout the case, and Activision’s Motion does not identify any new infringement theory or
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`relevant facts that could possibly justify further summary judgment briefing. Liger6, LLC v.
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`Sarto Antonio, No. 13-4694 (JLL)(JAD), 2017 WL 3574845, at *2-3 (D.N.J. Aug. 17, 2017)
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`(denying motion for leave to file summary judgment where there were no new issues); Bernstein
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`v. Virgin Am., Inc., No. 15-cv-02277-JST, 2017 WL 7156361, at *2 (N.D. Cal. Dec. 29, 2017)
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`(denying motion for leave to file a second summary judgment motion where the “[defendant]
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`makes plain that its proposed second summary judgment motion will address the same
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`arguments that [it] made in its first motion.”).
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`Activision’s failure to identify anything new in Mr. Parr’s supplemental damages report
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`related to infringement also means that Activision cannot show the good cause required to
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`2
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`Case 1:16-cv-00453-RGA Document 662 Filed 04/05/19 Page 4 of 7 PageID #: 51551
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`modify this Court’s scheduling order. Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified
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`only for good cause and with the judge’s consent”); Dow Chem. Canada Inc. v. HRD Corp., 287
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`F.R.D. 268, 270 (D. Del. 2012) (denying request to modify case schedule due to failure to show
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`good cause).1 Activision’s Motion, therefore, should be denied.
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`Activision also argues that it should be permitted to file further motions to “renew the[se]
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`issues” because it only “cursorily briefed” these issues the first time around. Motion at 2, 3.
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`However, Activision’s decision to prioritize some issues over others has nothing to do with the
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`submission of Mr. Parr’s supplemental report, which is the supposed raison d'être for its Motion.
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`More importantly, Activision’s failure to prioritize the issues in its summary judgment briefing is
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`a problem of its own making. Rather than limit its summary judgment briefing to its strongest
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`arguments, Activision took an everything-and-the-kitchen-sink approach to summary judgment,
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`which burdened both the Court and Acceleration Bay. Activision should not be rewarded with
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`further summary judgment briefing and further delay in the progression of this case to trial. Dow
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`Chem. Canada Inc., 287 F.R.D. at 270 (denying modification of scheduling order, recognizing
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`that “[p]rejudice may include the delay of a trial date.”) (citing Redhead v. U.S., 686 F.2d 178,
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`184 (3d Cir. 1982)). Therefore, the Court should hold Activision accountable for its own
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`strategic decisions and deny the Motion.
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`II.
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`There is No Reason to Reconsider Infringement of the Method Claims
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`As explained in the prior summary judgment briefing, Acceleration Bay’s experts, Drs.
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`Mitzenmacher and Medvidovic, demonstrated that Activision directly infringes the method
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`1 Activision makes the irrelevant and incorrect claim that Mr. Parr’s supplemental report presents
`new damages theories not disclosed during discovery. This claim is irrelevant to Activision’s
`Motion, which seeks leave to file renewed motions for summary judgment on infringement
`issues, not damages. Acceleration Bay will demonstrate that it timely disclosed Mr. Parr’s
`damages opinions in its Opposition to Activision’s Motion to Strike Mr. Parr’s report which,
`pursuant to stipulated Order, will be submitted to the Court on April 5, 2019.
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`3
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`Case 1:16-cv-00453-RGA Document 662 Filed 04/05/19 Page 5 of 7 PageID #: 51552
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`claims because its servers perform various of the claimed method steps and its customers’
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`actions are attributable to Activision. D.I. 475 (2/23/18 Acceleration Bay’s Opp. to Defs. MSJ)
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`at 6–7. There is nothing new in Mr. Parr’s damages report that requires reconsideration of this
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`infringement issue by the Court. Acceleration Bay asserts the same method claims that it has
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`been asserting throughout the case, and that were part of Dr. Meyer’s earlier damages reports.
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`Activision’s Motion does not identify anything to the contrary. Motion at 4-5, D.I. 466 at 7-9.
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`III.
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`There is No Reason to Reconsider Infringement Through Worldwide Sales and
`Activity
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`The Court already considered and denied Activision’s request for summary judgment on
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`the issue of infringement through world-wide sales and infringement. See D.I. 466 at 31–32
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`(Activision arguing against worldwide damages); D.I. 505 (Activision’s Reply Motion for
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`Summary Judgment Brief) at 15–16. Acceleration Bay’s infringement experts previously
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`explained why worldwide sales and use of the accused products infringes the asserted patents,
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`including because, even in sessions where the players are located outside of the United States,
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`the claimed steps are performed by Activision’s servers in the United States or are attributed to
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`Activision due to its control over the players. D.I. 475 (Acceleration Bay’s Opp. to Activision’s
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`Motion for Summary Judgment) at 23–25 (citing to various portions of Drs. Medvidovic’s and
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`Mitzenmacher’s infringement reports).
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`These infringement claims have not changed, and Mr. Parr relies on these same
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`infringement facts and analyses to support his damages opinions. For example, Mr. Parr
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`explicitly stated in his report that he is relying on the 2017 infringement reports from
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`Acceleration Bay’s technical experts:
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`Dr. Medvidovic has indicated that people outside the United States are able to
`connect to people inside the United States, such that the games access servers in
`the U.S. during operation. I rely on Dr. Medvidovic’s analysis that, because of
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`4
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`Case 1:16-cv-00453-RGA Document 662 Filed 04/05/19 Page 6 of 7 PageID #: 51553
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`the above and other factors, worldwide sales are infringing for the aforementioned
`infringing products
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`See e.g., D.I. 642, Ex. A, Parr Rpt. at ¶ 214; see also id. at ¶ 215 (relying on Dr. Mitzenmacher’s
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`infringement opinions for worldwide sales).
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`IV.
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`There is No Reason to Reconsider Infringement of the M-Regular Limitations
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`Activision fails to establish that the Court should reconsider its rejection of Activision’s
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`summary judgment argument on infringement of the m-regular limitation. There are no new
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`facts here necessitating further consideration of this issue, which was part of Activision’s
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`unsuccessful first round of summary judgment briefing.2 See D.I. 466 (Activision’s Opening SJ)
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`at 38-39; D.I. 505 (Activision’s Reply Motion for Summary Judgment) at 20.
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`Mr. Parr’s supplemental damages report does not open the door for more infringement
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`briefing on this issue. Mr. Parr’s opinions on this issue are no different from Dr. Meyer’s – both
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`relied on the opinions of Acceleration Bay’s technical experts that Activision’s accused products
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`satisfy the m-regular limitations. Compare, e.g., D.I. 642, Ex. A, Parr Rpt. at ¶ 211
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`(“Additionally, I understand that, for World of Warcraft, infringement comes from the
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`networking of servers, not the networking of players directly, and that this fact is further
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`confirmatory of the assumption that the game is always infringing the Patents-in-Suit.”) with D.I.
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`480, Ex. 69, Meyer Rpt. at ¶ 175 (relying on same opinion).
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`Activision now posits that earlier games in the accused franchise are non-infringing
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`alternatives. Activision’s belated assertion of a new theory is not good cause to reopen summary
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`judgment briefing. Moreover, Activision does not offer any expert opinion (or even fact witness
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`2 Activision’s reference to summary judgment proceedings in the EA case is inapposite. The
`infringement issues and claims in this case are very different from those in the EA case and, in
`any event, the Court recently rejected EA’s motion for summary judgment of non-infringement
`of the m-regular limitations. C.A. No. 16-454-RGA, D.I. 545 at 14-15. Thus, the summary
`judgment proceedings in the EA case do not justify reconsideration of the issue in this case.
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`5
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`Case 1:16-cv-00453-RGA Document 662 Filed 04/05/19 Page 7 of 7 PageID #: 51554
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`testimony) supporting a finding that these earlier games do not infringe, and Acceleration Bay’s
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`identification of the date of the hypothetical negotiation is not in any way a concession that
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`earlier games — which are not at issue in the case — are not infringing. Compare Motion at 6
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`with Ex. 1 hereto (pretrial conference transcript) at 60:11–64:9 (Acceleration Bay is not taking a
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`position on games not at issue in this case).3
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`Thus, Activision’s Motion should be denied.
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`CONCLUSION
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`For the reasons set forth above, the Court should deny Activision’s Motion for leave to
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`file further summary judgment motions.
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`POTTER ANDERSON & CORROON LLP
`
`By: /s/ Philip A. Rovner
`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
`
`Attorneys for Plaintiff
`Acceleration Bay LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`James Hannah
`Yuridia Caire
`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: March 29, 2019
`
`6126749
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`3 For this reason, Acceleration Bay moved to strike the opinions of Activision’s damages expert
`which are premised on the unsupported theory that earlier games must be non-infringing. See
`D.I. 648 (Acceleration Bay’s Opening Br. in Support of its Motion to Strike) at 1–7.
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`6
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`Public version dated: April 5, 2019
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