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`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 1 of 41 PagelD #: 52009
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`EXHIBIT A
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`FULLY REDACTED
`
`

`

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`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 2 of 41 PagelD #: 52010
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`EXHIBIT B
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`FULLY REDACTED
`
`

`

`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 3 of 41 PageID #: 52011
`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 3 of 41 PagelD #: 52011
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`EXHIBIT C
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`FULLY REDACTED
`
`

`

`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 4 of 41 PageID #: 52012
`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 4 of 41 PagelD #: 52012
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`EXHIBIT D
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`FULLY REDACTED
`
`

`

`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 5 of 41 PageID #: 52013
`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 5 of 41 PagelD #: 52013
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`EXHIBIT E
`
`

`

`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 6 of 41 PageID #: 52014
`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 6 of 41 PagelD #: 52014
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`Civil Action No. 15-453-RGA
`
`) ) ) ) )
`
`) )
`
`) ) )
`
`ACCELERATION BAY, LLC
`
`Plaintiff,
`
`Vv.
`
`ACTIVISION BLIZZARD,
`
`INC.,
`
`Defendant.
`
`J. Caleb Boggs Courthouse
`844 King Street
`Wilmington, Delaware
`
`Friday, October 19, 2018
`8:32 a.m.
`Pretrial Hearing
`
`BEFORE:
`
`THE HONORABLE RICHARD G. ANDREWS
`United States District Court Judge
`
`APPEARANCES:
`
`PHILIP A. ROVNER, ESQUIRE
`POTTER ANDERSON & CORROON, LLP
`1313 N. Market Street, 6th Floor
`Hercules Building
`Wilmington, Delaware
`
`19899
`
`-and-
`
`PAUL ANDRE, ESQUIRE
`LISA KOBIALKA, ESQUIRE
`AARON M. FRANKEL, ESQURE
`KRAMER LEVIN NAFTALIS & FRANKEL, LLP
`990 Marsh Road
`Menlo Park, California
`For the Plaintiff
`
`94025
`
`be
`
`No
`
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`
`d
`
`ol
`
`OV
`
`~]
`
`co
`
`Oo
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`ni)
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 7 of 41 PageID #: 52015
`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 7 of 41 PagelD #: 52015
`
`45
`
`experts, your technical experts are going to say. And so
`
`that's what I'm inclined to do.
`
`But
`
`I do want to check some of these documents
`
`that I may not have fully checked just yet, and so it's
`
`possible that I could -- so I'll put something in writing
`
`which may be just an Order, but that's what I'm inclined to
`
`do.
`
`All right. Let's go on to Saralyn Smith and the
`
`hypothetical negotiation date.
`
`near eon
`where do we
`
`bout what
`
`—
`
`No
`
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`a O
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`r
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`oY
`
`~~]
`
`co
`
`©
`
`09:
`
`30:
`
`28
`
`09:
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`30:
`
`35
`
`09:
`
`30
`
`238
`
`09:
`
`30
`
`243
`
`09:
`
`30:
`
`46
`
`09:
`
`30:
`
`50
`
`09:
`
`30:
`
`56
`
`09;
`
`30;
`
`56
`
`09:
`
`31:
`
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`
`09:
`
`31:
`
`1010
`
`09:
`
`31:
`
`i511
`
`FRANKEL:
`
`09:
`
`31:
`
`1g 12
`
`09:
`
`31:
`
`2013
`
`09:
`
`31:
`
`2314
`
`09:
`
`31
`
`:2615
`
`09:
`
`31
`
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`
`09;
`
`31:
`
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`
`09:
`
`31:
`
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`
`
`
`09:
`
`31:
`
`4219
`
`09:
`
`31:
`
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`
`09:
`
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`
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`
`09:
`
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`
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`
`09:
`
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`
`:0223
`
`09;
`
`32
`
`:0424
`
`09:
`
`32
`
`20725
`
`Now, what Activision has done is taken
`
`Ms. Smith's view that World of War Craft began to infringe
`
`in 2004.
`
`Now, Ms. Smith was identified as a marketing and
`
`sales witness.
`
`She was not disclosed.
`
`THE COURT: Mr. Frankel,
`
`let me just interrupt
`
`for a second.
`
`So you say World of Warcraft,
`
`the
`
`hypothetical negotiation date is sometime in 2013.
`
`

`

`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 8 of 41 PageID #: 52016
`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 8 of 41 PagelD #: 52016
`
`156
`
`STATE OF DELAWARE)
`
`NEW CASTLE COUNTY)
`
`CERTIFICATE OF REPORTER
`
`I, Heather M. Triozzi, Registered Professional
`Reporter, Registered Merit Reporter, and Notary Public, do
`hereby certify that there on October 19, 2018 proceedings
`were held and taken down by me in Stenotype notes and
`thereafter transcribed by use of computer-aided
`transcription and computer printer under my direction.
`
`I further certify that I am not counsel,
`attorney, or relative of either party, or otherwise
`interested in the event of this suit.
`
`Heather M. Triozzi, RPR, RMR
`
`he
`
`NO
`
`Ww
`
`a o
`
`n
`
`ON
`
`~~]
`
`co
`
`Oo
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`i
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 9 of 41 PageID #: 52017
`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 9 of 41 PagelD #: 52017
`
`EXHIBIT F
`
`FULLY REDACTED
`
`

`

`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 10 of 41 PageID #: 52018
`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 10 of 41 PagelD #: 52018
`
`EXHIBIT G
`
`FULLY REDACTED
`
`

`

`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 11 of 41 PageID #: 52019
`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 11 of 41 PagelD #: 52019
`
`EXHIBIT H
`
`FULLY REDACTED
`
`

`

`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 12 of 41 PageID #: 52020
`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 12 of 41 PagelD #: 52020
`
`EXHIBIT I
`
`FULLY REDACTED
`
`

`

`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 13 of 41 PageID #: 52021
`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 13 of 41 PagelD #: 52021
`
`EXHIBIT J
`
`

`

`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 14 of 41 PageID #: 52022
`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 14 of 41 PagelD #: 52022
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`Vv.
`
`ACTIVISION BLIZZARD, INC.,
`
`Defendant.
`
`NewNeeeeeeeeeeeeee”
`
`C.A. No. 16-453 (RGA)
`
`DEFENDANT ACTIVISION BLIZZARD, INC.’S OBJECTIONS AND RESPONSES TO
`PLAINTIFF ACCELERATIONBAY LLC’S FIRST SET OF
`PARTY-SPECIFIC INTERROGATORIES (NOS. 1-7
`
`
`
`Pursuant to Fed. R. Civ. P. 26 and 33, and L.R. 5.4, Defendant Activision Blizzard,Inc.
`
`(“Activision” or “Defendant”), by and through its undersigned attorneys, serve(s) these
`
`Objections and Responses to Plaintiff Acceleration Bay LLC’s First Set of party specific
`
`Interrogatories (Nos. 1-7) (the “Interrogatories”).
`
`Defendant reserves the right to amend or supplement these Objections and Responses
`
`in the event that further information or documents are discovered. In addition, Defendant’s
`
`Responses are given without prejudice to its rights to introduce at trial evidence of any
`
`subsequently discovered orunintentionally omitted facts or documents.
`
`Defendant’s Objections and Responsesshall not constitute an admission by Defendant
`
`that any Interrogatory, or the answerthereto, is admissible as evidence in anytrial or other
`
`proceeding. Defendantspecifically reserves the right to object on any groundsat any time to
`
`the admission of any Interrogatory, or any response or document produced in connection
`
`therewith, in any trial or other proceeding.
`
`

`

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`
`Defendant’s Responses are madefor the purpose of this pending action only.
`
`The following general objections apply to the Interrogatories as a whole as well as
`
`GENERAL OBJECTIONS
`
`to each and every individual Interrogatory propounded byPlaintiff, and they are incorporated
`
`by reference into each response by Defendantasif set forth fully therein:
`
`1.
`
`Defendant objects to each Interrogatory, definition, and instruction,
`
`to the
`
`extent
`
`that
`
`it
`
`is
`
`vague,
`
`ambiguous,
`
`overbroad,
`
`unduly
`
`burdensome,
`
`harassing,
`
`incomprehensible, and seeks information that is neither relevant nor reasonably calculated to
`
`lead to the discovery of relevant evidence and is not proportional to the needsofthe case.
`
`2,
`
`Defendant objects to each Interrogatory, definition, and instruction,
`
`to the
`
`extent that it is not reasonably limited in time or scope. Subject to and without waiving its
`
`objections, Defendant will provide information for the period of March 12, 2015 to present
`
`unless otherwise noted.
`
`3.
`
`Defendant objects to each Interrogatory, definition, and instruction to the
`
`extent that it seeks information protected from disclosure by the attorney-client privilege,
`
`the work- product doctrine,
`
`the common interest privilege, Fed. R. Civ. P. 26(6)(4)(A),
`
`or any other privilege or immunity, The inadvertent production of any privileged document
`
`or information shall not constitute a waiver of any applicable objection or privilege. For
`
`the
`
`purposes of
`
`responding to these Interrogatories, Defendant will
`
`interpret
`
`such
`
`Interrogatory, definition, and instruction as excluding information subject to privilege.
`
`4,
`
`Defendant objects to each Interrogatory, definition, and instruction to the
`
`extent that it seeks to elicit confidential and/or proprietary information of third parties and/or
`
`information that
`
`is subject to or precluded by restrictions of confidentiality imposed by,
`
`

`

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`
`or
`
`pursuant to, agreements between Defendantand third parties in the absence of permission
`
`by thosethird parties to reveal such information to Plaintiff.
`
`5.
`
`Defendant objects to each Interrogatory, definition, and instruction to the
`
`extent that it seeks information that is not relevantto the claim or defense of anyparty.
`
`6.
`
`Defendant objects to each Interrogatory, definition, and instruction to the
`
`extent
`
`that
`
`it contains multiple subparts or
`
`renders an Interrogatory compound, Such
`
`Interrogatories constitute separate Interrogatories that count toward the limit on Interrogatories
`
`that Plaintiff is permitted to propound. Defendant objects to each and every Interrogatory
`
`that would exceed suchlimit.
`
`7.
`
`Defendant objects to each Interrogatory, definition, and instruction to the
`
`extent that
`
`it calls for a legal conclusion. Any response by Defendant shall not be
`
`construed as providing a legal conclusion regarding the meaningor application of any terms
`
`or phrases used in Plaintiff’s Interrogatories, definitions, or instructions,
`
`8.
`
`Defendant objects to each Interrogatory, definition, and instruction to the
`
`extent that the information requested therein is not within the possession, custody, or control
`
`of the Defendant.
`
`9.
`
`Defendant objects to each Interrogatory, definition, and instruction to the
`
`extentthat it purports to impose obligations on Defendant(s) that exceed the obligations imposed
`
`upon a responding party under the Federal Rules of Civil Procedure or other applicable law.
`
`10.
`
`Defendant objects to each Interrogatory, definition, and instruction to the
`
`extent that it purports to require Defendantto do anything beyondthat whichis required by the
`
`Federal Rules of Civil Procedure, Court’s Scheduling Order, Protective Order, or the Local
`
`

`

`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 17 of 41 PageID #: 52025
`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 17 of 41 PagelD #: 52025
`
`Rules.
`
`11.
`
`Defendant objects to each Interrogatory, definition, and instruction to the
`
`extent that
`
`it
`
`is cumulative and duplicative of other forms of discovery that are more
`
`convenient and less burdensome. Defendant further objects to each Interrogatory, definition,
`
`and instruction to the extent that it seeks to require Defendant to do more than conduct an
`
`examination of those files or sources that reasonably may be expected to yield responsive
`
`information, or an inquiry of those persons who may be reasonably expected to possess
`
`responsive information.
`
`12.
`
`Defendant objects to each Interrogatory, definition, and instruction to the
`
`extent that it improperly and prematurely seeks discovery of expert opinions. Such information
`
`will be disclosed within the timeframe outlined by the Court’s Scheduling Order.
`
`13.
`
`Defendant objects to each Interrogatory, definition, and instruction to the
`
`extent that it prematurely requests discovery of materials and information in advance oftheir
`
`respective deadlines under
`
`the Court’s Scheduling Order. Defendant objects
`
`to each
`
`Interrogatory as unfairly prejudicial and premature to the extent
`
`that
`
`it would require
`
`Defendant to formulate its full contentions on various topics in order to answerat this stage in
`
`the litigation.
`
`14.
`
`Defendant objects to each Interrogatory, definition, and instruction to the
`
`extent that it purports to place an obligation on Defendant to obtain or provide information
`
`that is as readily available to Defendant asit is to Plaintiff.
`
`15,
`
`Defendant objects to the definitions of the terms “Defendants,” “You,” “Your,”
`
`and “Activision,” “EA,” and “Take-Two,” as vague and ambiguous as the scope of the terms
`
`“present
`
`and
`
`former,”
`
`“directors,”
`
`“officers,”
`
`“employees,”
`
`“parent organization(s),”
`
`

`

`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 18 of 41 PageID #: 52026
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`
`“subsidiary organization(s),” “predecessors in interest,” “successors in interest,” “divisions,”
`99)
`66
`99
`668
`99
`66
`99
`66
`99
`66
`investigators,”
`
`“servants,”
`
`“agents,”
`
`“attorneys,”
`
`“consultants,”
`
`“partners,”
`
`“associates,
`
`“representatives,”
`
`“accountants,” “financial advisors,” “distributors,” and “any other person
`
`acting on their behalf, pursuant to its authority or subject to its control,” is unclear. Defendant
`
`further objects to the definitions of the terms “Defendants,” “You,” and “Your” as overly
`
`broad and unduly burdensometo the extent that the definitions (in combination with the
`
`individual Interrogatories):
`
`(i) seek to encompass information that
`
`is neither relevant nor
`
`reasonably calculated to lead to the discovery of relevant evidence; (ii) are not reasonably
`
`limited in time or scope;
`
`(iii) seek to encompass information not within Defendant’s
`
`possession, custody, or control; and/or (iv) seek to encompass information protected from
`
`disclosure by the attorney-client privilege, the work product doctrine, the commoninterest
`
`privilege, Fed. R. Civ. P. 26(b)(4)(A), or any other applicable privilege or immunity.
`
`Defendant also objects to these definitions to the extent that they presumethat Defendanthas
`
`knowledge of each of the personsor entities within the scope of these definitions, Any request
`
`that purports to require Defendantto ascertain the knowledge ofall of the individuals contained
`
`in the definitions of “Defendants,” “You,” and “Your” is overbroad, harassing, and unduly
`
`burdensome.
`
`16.
`
`Defendant objects to the definition of the terms “Plaintiff and “Acceleration
`
`Bay” as vague and ambiguous as the scope of the terms “present and former,” “directors,”
`
`“officers,” “employees,” “parent organization(s),” “subsidiary organization(s),” “predecessors
`
`in
`
`interest,”
`
`“successors
`
`in
`
`interest,”
`
`“divisions,”
`
`“servants,”
`
`“agents,”
`
`“attorneys,”
`
`“consultants,”
`
`“partners,
`
`” “associates,” “investigators,” “
`
`representatives,”
`
`me
`
`“accountants,”
`
`“financial advisors,” “distributors,” and “any other person acting on their behalf, pursuant to
`
`

`

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`
`its authority or subject to its control,” is unclear. Defendant further objects to these definitions
`
`as overly broad and unduly burdensometo the extent that the definitions (in combination with
`
`the individual Interrogatories): (i) seek to encompassinformation that is neither relevant nor
`
`reasonably calculated to lead to the discovery of relevant evidence; (ii) are not reasonably
`
`limited in time or scope;
`
`(iii) seek to encompass information not within Defendant’s
`
`possession, custody, or control; and/or (iv) seek to encompass information protected from
`
`disclosure by the attorney-client privilege, the work product doctrine, the common interest
`
`privilege, Fed. R. Civ. P. 26(b)(4)(A), or any other applicable privilege or immunity.
`
`Defendantalso objects to these definitions to the extent that they presumethat Defendant has
`
`knowledgeof each ofthe personsorentities within the scope of these definitions. Any request
`
`that purports to require Defendant to ascertain the knowledge of all of the individuals
`
`contained in the definitions of “Plaintiff? and/or “Acceleration Bay” is overbroad, harassing,
`
`and unduly burdensome.
`
`17.
`
`Defendant objects to the definition of the terms “Patents-in-Suit,” “’344 Patent,”
`
`“°066 Patent,” “’147 Patent,” “634 Patent,” “’069 Patent,” and “’497 Patent,” as overly broad
`
`and unduly burdensometo the extent that the definitions include patents and/or patent claims
`
`that are not asserted against Defendantin this action.
`
`18.
`
`Defendant objects to the definition of the terms “Activision Products” or
`39
`46
`
`“Accused Products” as:
`
`(i) vague and ambiguous as the terms “current,”
`
`“previous and
`
`contemplated versions,” “releases,” and “continuations” are undefined; (ii) overly broad and
`
`unduly burdensome to the extent
`
`that
`
`the definition (in combination with the individual
`
`Interrogatories) seeks to encompass information that
`
`is neither
`
`relevant nor reasonably
`
`calculated to lead to the discovery of relevant evidence;
`
`(iii) overly
`
`broad and unduly
`
`

`

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`
`burdensome to the extent
`
`that
`
`the definition (in combination with the
`
`individual
`
`Interrogatories) seeks to encompass products that have not specifically been accused of
`
`infringement by Plaintiff; (iv) inconsistent with Plaintiff's Complaint, (v) inconsistent with
`
`Plaintiff's Identification of Accused Products and Patents served to Defendant on February
`
`13, 2017 pursuant to the Scheduling Order in this action, and (vi) inconsistent with the Orders
`
`from the Special Master.
`
`The following Responses are based on information reasonably available to
`
`Defendant as of the date of these Responses. Defendant’s investigation is continuing and
`
`ongoing and Defendant expressly reserves the right to revise and/or supplementits responses
`
`based on information discovered after the date of these Responses and to use such information
`
`in defending Plaintiffs claims at trial or for any other purpose in this litigation. Defendant's
`
`Responsesto these Interrogatories shall not constitute a waiver of any objectionto: (1) the use
`
`of any information provided by Defendant in its Responses by Plaintiff, for any purpose; or
`
`(2) the admissibility, materiality, or relevance of such information to this case.
`
`These General Objections shall be deemed to be incorporatedin full into each one ofthe
`
`individual Responsesset forth below.
`
`INTERROGATORIES
`
`INTERROGATORYNO, 1:
`
`Identify all licensing agreements between Defendant and anythird party regarding patents,
`
`proprietary technology, or know-how related to or comparable to the technology disclosed in the
`
`Asserted Patents, describe the terms of these agreements, and identify those agreements that You
`
`assert are comparable or relevant agreements for purposes of a reasonable royalty analysis of
`
`damages.
`
`

`

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`
`RESPONSE:
`
`Activision objects to this Interrogatory on the groundsthat it is vague and ambiguous and
`
`fails to specifically identify the information requested.
`
`In particular, the terms “related to or
`
`comparable to the technology disclosed in the Asserted Patents”is vague and ambiguousandfails
`
`to specifically identify the technology sought. Activision also objects to this Interrogatory asit
`
`calls for information that is not relevant and not likely to lead to the discovery of relevant
`
`information.
`Subject to and without waiverof the foregoing objections, Activision responds pursuant to
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`Fed. R. Civ. P. 33(d) that
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`licenses which may be responsive to the broad request of this
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`interrogatory can be found in the following bates ranges:
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`ATVI10027367-ATV10027387;
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`ATVI0027388-ATV10027403;
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`ATVI10027404-
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`ATVI0027419; ATVI0027420-ATV10027435; ATVI0027436-ATV10027446; ATV10027447-
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`ATVI0027460; ATV10027461-ATV10027474; ATVI0027475-ATVI0027492; ATVI0027493-
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`ATVI0027502; ATV10027503-ATV10027519; ATVI0027520-ATVI0027531; ATV1I0027532-
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`ATVI0027542; ATVI0027543-ATV10027552; ATVI0027553-ATV10027564; ATVI0027565-
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`ATVI0027578; ATVI0027579-ATVI0027590; ATVI0027591-ATVI0027602; ATV10027603-
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`ATVI0027613; ATVI0027614-ATV10027626; ATVI0027627-ATVI0027635; ATVI0027636-
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`ATVI0027639; ATVI0027640-ATVI0027648; ATVI0027649-ATVI0027659; ATV10027660-
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`ATVI10027669; ATVI0027670-ATV10027670; ATVI0027671-ATVI0027679; ATVI0027680-
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`ATV10027696.
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`Defendant further notes that the November 19, 2006 patent licensing agreement between the
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`Boeing Management Company (a wholly owned subsidiary of The Boeing Company) and Sony
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`Computer Entertainment AmericaInc.is highly relevant to a reasonable royalty analysis of damages.
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`See BOEING000013- BOEING000023.
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`

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`The information provided in response to this interrogatory is based on Defendant’s current
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`knowledge and information. Defendant is continuing its investigation and reservesall rights to amend,
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`modify, or supplement the information provided here.
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`INTERROGATORYNO. 2:
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`Describe in detail any non-infringing alternative or design around that you contend
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`Defendant could use to modify or as an alternative to the Accused Products to avoid infringement.
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`Youridentification should include a description of the technology that allows the non-infringing
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`alternative product or design around to achieve the same functionality as the Accused Products
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`and the costs to develop, use, manufacture or implement such non-infringing alternative or design
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`around,
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`RESPONSE:
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`Activision objects to this Interrogatory on the groundsthatit is: (i) compound,in thatit
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`seeks disparate and unrelated information; (ii) vague and ambiguous, as the scope of the terms
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`“alternative product,” “design around,” and “technology” are not defined in any sets of
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`interrogatories served byPlaintiff, and are therefore unclear;(iii) vague and ambiguous,as Plaintiff
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`has not provided Activision with a coherent infringement theory, and therefore Activision cannot
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`ascertain what may or maynot beinfringing underPlaintiff's definition; (iv) overly broad and
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`unduly burdensomeas it seeks information that is not in the possession, custody, or control of
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`Activision; (v) overbroad, unduly burdensome, and oppressive to the extent it seeks information
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`not relevant to any claim or defense of any party and/or not reasonably calculated to lead to the
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`discovery of relevant evidence; (vi) vague, as the Interrogatory fails to provide the specific time
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`period within which it pertains;
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`and (vii) potentially seeking information relating to
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`communications protected from disclosure by the attorney-client privilege, the work-product
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`

`

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`doctrine, the commoninterest privilege, Fed. R. Civ. P. 26(b)(4)(A), or any other applicable
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`privilege or immunity. The absence of any specific and intelligible infringement theory from
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`Plaintiff makes this Interrogatory vague, directed toward irrelevant
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`information and unduly
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`burdensome to answer. Activision also objects that this Interrogatory includes multiple subparts
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`under Rule 33 of the Federal Rules.
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`Subject to and without waivingits foregoing objections, andto the extent Activision can
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`understand this Interrogatory, Activision respondsas follows:
`
`I.
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`ate on which Plaintiff contends infringement began
`Activision games available before the d
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`
`
`
`
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`Plaintiff took the position that the date of the hypothetical negotiation, which is when the
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`first infringement began, occurred on the date Plaintiff served its complaint against Activision in
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`the prior case i.e, March 12, 2015. Under this assertion,
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`it logically follows that any products
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`available before Plaintiff served the Complaint do not infringe including the Accused Products.
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`Accordingly, Activision contendsthatall similar products available before March 12, 2015
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`constitute non-infringing alternatives to the Accused Products. For example, CoD: Advance
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`Warfare, WoW, and Destiny were available before March 12, 2015, and include the same or
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`similar multiplayer functionalities as the Accused Products;
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`in many cases, they are nearly
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`identical. Therefore, these earlier games available beforethefiling ofthe complaint do notinfringe.
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`II.
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`Games with topologies Plaintiff disavowed during prosecution
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`During the proceedings before the Patent Trial and Appeal Board (“PTAB”), Plaintiff
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`specifically disclaimed: 1) client-server topology, and 2) full mesh topology. As such, Activision
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`contends that any gamesthat use the disclaimed client-server or full mesh topologies constitute
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`non-infringementalternatives to the Accused Products. The prosecution history also specifically
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`disclaims network topologies with m-less than 3. Accordingly, another non-infringing alternative
`
`10
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`

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`would include network topologies with m equal to 2. All non m-regular topologies would also be
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`non-infringing alternatives.
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`Ill.
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`Game engine fromthird parties
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`In the online gaming space, other multiplayer game networking engines that include
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`services necessary for operating a multiplayer gamewereavailable for licensing. One example of
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`this was a game networking engine from Raknet. Raknet provided a cross platform game
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`networking engine with key features present in the Accused Products, including the network
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`topologies (e.g., client-server and fully connected mesh), voice communication,
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`lobby, NAT
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`traversal, and host migration. Because games having these disclaimed topologies constitute non-
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`infringing alternatives to the Accused Products for the reasons stated above, Raknet also
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`constitutes a non-infringing alternative becauseit uses client server and full mesh topologies.
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`INTERROGATORYNO. 3:
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`Identify all projections, build costs, or valuations related to the technology for Defendant’s
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`networkthat allows for players to connect, communicate, play against, or otherwise interact with
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`other players, for the Accused Products for the period of time from 2015 to 2020.
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`RESPONSE:
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`Activision objects to this Interrogatory on the groundsthatit is: (i) overbroad, unduly
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`burdensome, and oppressive becauseit seeks information not relevant to any claim or defense of
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`any party and/ornot reasonably calculated to lead to the discoveryof relevant evidence;(ii) vague
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`and ambiguous, as to the meaning of the terms “projections,” “build costs,” “valuations,”
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`“networks,” “connect,” “communicate,” and “interact,” which are not defined in any sets of
`
`interrogatories served by Plaintiff, and is therefore unclear;(iii) vague, as the Interrogatory seeks
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`information that
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`is outside the relevant
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`time period;
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`(iv)
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`fails to particularly identify the
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`1]
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`

`

`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 25 of 41 PageID #: 52033
`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 25 of 41 PagelD #: 52033
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`information requested; (v) compound, in that it seeks disparate and unrelated information;and(vi)
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`potentially seeking information relating to communications protected from disclosure by the
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`attorney-client privilege, the work-product doctrine, the commoninterest privilege, Fed. R. Civ.
`
`P. 26(b)(4)(A), or any other applicable privilege or immunity. Activision also objects that this
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`interrogatory includes multiple subparts under Rule 33 of the Federal Rules.
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`Subject to and without waiving its foregoing objections, Activision does not understand
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`this Interrogatory. Activision is available to meet and confer regarding the information requested
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`and the scope and nature of a response.
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`INTERROGATORYNO. 4:
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`Identify and describe Plaintiff’s damages from Defendant’s alleged infringement assuming
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`a finding ofinfringement and validity including but not limited to a royalty, a royalty rate, and a
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`royalty base. Include in you answer the following information: (a) a detailed description of the
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`methodology for determining the damages; (b) all facts and reasons that relate to Defendant’s
`
`determination of damages; (c) the largest amount of damages that Defendant contendsPlaintiff is
`
`entitled to seek from a jury for Defendants’ infringement; and (d) the identity of the owner or
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`assignee of the Asserted Patents and the licensor or potential licensor at the time damages are
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`determined.
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`RESPONSE:
`
`Activision objects to this Interrogatory on the grounds thatit is: (i) compound,in thatit
`
`seeks disparate and unrelated information; (ii) vague and ambiguous, as the scope of the terms
`
`“royalty,” “royalty rate,” and “royalty base” are not defined in any sets of interrogatories served
`
`by Plaintiff, and are therefore unclear; (iii) seeking premature expert disclosure for damage; (iv)
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`overly broad and unduly burdensomeasit seeks information thatis not in the possession, custody,
`
`12
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`

`

`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 26 of 41 PageID #: 52034
`Case 1:16-cv-00453-RGA Document 674-1 Filed 04/15/19 Page 26 of 41 PagelD #: 52034
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`or control of Activision; (v) overbroad, unduly burdensome, and oppressive to the extentit seeks
`
`information not relevant to any claim or defense of any party and/or not reasonablycalculated to
`
`lead to the discovery of relevant evidence; (vi) vague, as the Interrogatory fails to provide the
`
`specific time period within which it pertains; and (vii) potentially seeking informationrelating to
`
`communications protected from disclosure by the attorney-client privilege, the work-product
`
`doctrine, the commoninterest privilege, Fed. R. Civ. P. 26(b)(4)(A), or any other applicable
`
`privilege or immunity, Activision notes that Plaintiff, not Activision, has the burden of proving
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`damages. Activision also objects that this interrogatory includes multiple subparts under Rule 33
`
`of the Federal Rules.
`
`Subject to and without waivingits foregoing objections, and to the extent Activision can
`
`understand this Interrogatory, Activision respondsas follows:
`
`Defendant responds that Plaintiff is not entitled to damages because the asserted patents
`
`are not infringed by the accused products and because the asserted patents are not valid. Further,
`
`Defendant responds that games playable on the Sony PlayStation system are licensed pursuant to
`
`the license between Boeing and Sony. As Plaintiff has explained, “Sony is a licensee to the
`
`Asserted Patents, and games that Sony sells subject to that license do not infringe the Asserted
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`Patents.” Plaintiff's Response To Defendant’s Party Specific Interrogatory No. 4.
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`Even if Plaintiff were entitled to damages, Plaintiff has the burden of proof to establish
`
`damages. Although respondingto this Interrogatory, Defendant does not assume any burden with
`
`respect to damagesandwill hold Plaintiff strictly to its proofs.
`
`Damages must beassessed from the date of the hypothetical negotiation.
`
`In its response
`
`to Defendant’s Interrogatory No. 2, Plaintiff has asserted that the date of the hypothetical
`
`negotiation is the date that Plaintiff served Defendant with a complaintalleging infringement in
`
`13
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`

`

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`2015. Asa matter of law, Defendant does not believe the date of service of the prior complaint
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`could be the dateoffirst infringement. Defendant incorporates its response to Interrogatory No, 5
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`regarding the date of the hypothetical negotiation.
`
`Defendant further states that the Patent Act prescribes damages to be determined as a
`
`reasonable royalty pursuant to a hypothetical negotiation that occurs just prior to the date of first
`
`infringement, Defendant states that the following are someofthe facts that would be considered
`
`in the hypothetical negotiation:
`
`e The November19, 2006 patent licensing agreement between the Boeing Management
`
`Company (a wholly owned subs