Case 1:16-cv-00453-RGA Document 694 Filed 09/11/19 Page 1 of 4 PageID #: 52333
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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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`JOINT STATUS REPORT
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`As requested by the Court and in view of the September 4, 2019 Order on various
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`damages-related motions (D.I. 693, the “Order”), the parties have met and conferred and submit
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`the following joint status report.
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`Acceleration Bay’s Statement on How the Case Should Proceed:
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`With the Court having resolved the various outstanding damages motions, this case is
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`now ready to proceed to trial. Acceleration Bay proposes that the Court set a date for trial in
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`February or March 2020.
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`Acceleration Bay will present a fact-based damages case based on the already developed
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`fact record and evidence with expert support. Consistent with the Order, Acceleration Bay’s
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`damages expert Russell Parr will summarize key facts and provide opinions which will assist the
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`jury in determining a reasonable royalty. Mr. Parr's opinions to be rendered at trial are contained
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`in his report and were not stricken by the recent decision. Specifically, Mr. Parr will provide
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`facts and opinions regarding: (i) the Georgia-Pacific factors and framework, (ii) the
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`Boeing/Panthesis license as comparable to the hypothetical negotiation for this case, and (iii)
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`revenue and summaries of relevant financial information regarding the alleged infringing games.
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`Acceleration Bay will introduce factual evidence to establish the appropriate apportionment to
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`Case 1:16-cv-00453-RGA Document 694 Filed 09/11/19 Page 2 of 4 PageID #: 52334
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`the footprint of the inventions, as Acceleration Bay is entitled to no less than a reasonable royalty
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`based on the facts of the case.
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`Finally, Acceleration Bay has informed Activision that it intends to file a motion for
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`partial reconsideration of the Order by the September 18, 2019 deadline. Acceleration Bay is
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`prepared to proceed as set forth above, even if the Court does not grant its motion for
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`reconsideration.
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`Activision’s Statement on How the Case Should Proceed:
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`The Court’s September 4, 2019 Order left Acceleration Bay “with no intact damages
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`theories.” (D.I. 692 at 5). Because Acceleration failed in its fourth and “final opportunity” to
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`present “an admissible damages case,” this Court should enter judgment of no damages and end
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`this case. (D.I. 619 p. 2).
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`The Court specifically stated that Acceleration’s proffer would be its “final opportunity”
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`and must “contain a fulsome explanation of all of Plaintiff’s damages theories, all evidence it
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`plans to put on in support of those theories, and citations to Federal Circuit precedent supporting
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`its admissibility and sufficiency.” (Id., pp. 2-3). The Court also continued trial indefinitely to
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`accommodate this process and allowed Acceleration to “use as many pages as it requires to make
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`the proffer.” (Id.) In response, Acceleration set forth seven expert opinions from Mr. Parr, each
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`of which this Court excluded. (D.I. 692).
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`Acceleration’s proffer did not provide any damages theories outside the excluded
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`opinions of Mr. Parr. Specifically, Acceleration’s proffer provides no details, let alone “a
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`fulsome explanation” of the evidence upon which it intends to rely to support a damages award
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`under the “fact-based damages case” or alleged “factual evidence to establish the appropriate
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`apportionment to the footprint of the inventions” it now seeks to present. Acceleration should
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`2
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`Case 1:16-cv-00453-RGA Document 694 Filed 09/11/19 Page 3 of 4 PageID #: 52335
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`not be allowed yet another opportunity to conjure an undisclosed “fact-based damages theory”
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`after failing to do so in its final proffer. See Hampton v. Miller, 933 F.2d 1012 (Table), 1991
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`WL 82838, at *1 (7th Cir. 1991) (“[I]t undercuts the force of a federal court’s orders if ‘final’
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`chances are just preludes to other opportunities”).
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`Nor should the Court allow Acceleration to present opinions from Mr. Parr applying the
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`Boeing/Panthesis rate to the bare un-apportioned revenues of the accused products.1 The Court
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`already excluded Mr. Parr’s revenue-based and user-based opinions on the basis that they were
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`not properly apportioned. (D.I. 692 at 8). Acceleration failed to provide any other
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`apportionment evidence in its proffer and should not be allowed to present a new apportionment
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`theory now.2 Nor can Acceleration present an apportionment theory through a lay witness. (D.I.
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`600, p. 3) (excluding lay opinion on “the appropriate reasonable royalty”).
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`In its pursuit of exorbitant damages numbers, Acceleration failed in its “final
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`opportunity” to disclose an admissible damages case that it can present to the jury.3 Entry of
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`judgment of no damages is therefore appropriate:
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`• Gustafson, Inc. v. Intersystems Indus. Prods., Inc., 897 F.2d 508, 509 (Fed.
`Cir. 1990) (“[W]e find no reversible error in the district court’s . . .
`awarding no damages to [the patentee] because none were proven”);
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`1 Mr. Parr’s discussion of Georgia-Pacific factors separate from his excluded damages opinions
`were not set forth in Acceleration's proffer and in any case are not independently admissible.
`2 Unlike AVM Techs, LLC v. Intel Corp., 15-33-RGA, 2017 WL 1753999 (D. Del. May 1, 2017),
`where this Court allowed a patentee to proceed to trial on damages by calling the defendant’s
`damages expert as a witness, nothing in Acceleration’s final proffer reserves the right to call
`Activision’s damages expert, Cathy Lawton. Even if it had reserved such a right, Ms. Lawton
`did not rely on Activision’s revenues and thus conducted no apportionment exercise on those
`revenues.
`3 Acceleration’s proffer conspicuously omitted other evidence of value that might withstand
`scrutiny and preserve a damages case for the jury—such as Boeing’s patent license with Sony as
`well as its offers to sell these patents—which plainly cannot support the nine-figure values
`Acceleration repeatedly has demanded in this case.
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`3
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`Case 1:16-cv-00453-RGA Document 694 Filed 09/11/19 Page 4 of 4 PageID #: 52336
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`• Promega Corporation v. Life Technologies Corporation, 875 F.3d 651,
`665 (Fed. Cir. 2017) (affirming judgment of no damages: “[The patentee]
`declined to use this opportunity to prove any lesser damages amount. The
`district court acted within its discretion when it concluded that [defendant]
`and the judicial system should not suffer the consequences of [the
`patentee]’s deliberate choice.”);
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`• AVM Techs, LLC v. Intel Corp., 10-610-RGA, D.I. 294 (D. Del. Mar. 29,
`2013) (excluding patentee’s damages proffer and granting judgment against
`patentee, explaining that “although the exclusion of [co-inventor]’s
`testimony will leave [the patentee] without evidence of damages . . . this
`situation is of [the patentee]’s making”); and
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`• Unicom Monitoring, LLC v. Cencom, Inc., No. CIV.A. 06-1166 MLC, 2013
`WL 1704300, at *7-*8 (D.N.J. Apr. 19, 2013) (granting judgment of no
`monetary damages, including because “[the patentee] does not have an
`expert to delve into hypotheticals; [the patentee] does not have an analogous
`practice of licensing that can be uniformly applied; and [the patentee] has
`no rationale to support its suggested reasonable royalty calculation”).
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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
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`MORRIS, NICHOLS, ARSHT &
`TUNNELL LLP
`
`
`By: /s/ Jack B. Blumenfeld
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
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`Attorneys for Plaintiff
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`Attorneys for Defendant
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`4
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