Case 1:16-cv-00453-RGA Document 697-1 Filed 09/27/19 Page 1 of 4 PageID #: 52361
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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,
`
`Plaintiff,
`
`v.
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`ACTIVISION BLIZZARD, INC.,
`
`Defendant.
`
`ACCELERATION BAY LLC’S REPLY IN FURTHER SUPPORT
`OF ITS MOTION FOR RECONSIDERATION OF THE COURT’S
`MEMORANDUM OPINION (D.I. 692) STRIKING THE
`SEER-SEMMETHODOLOGY USED BY DR. RICARDO VALERDI
`
`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
`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: September 27, 2019
`
`

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`Case 1:16-cv-00453-RGA Document 697-1 Filed 09/27/19 Page 2 of 4 PageID #: 52362
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`Acceleration Bay offers the following reply in further support of its Motion for
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`Reconsideration (D.I. 695) (the “Motion”).
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`Activision now concedes SEER-SEM is a reliable methodology, confirming it should
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`not be excluded under Daubert. For the first time, Activision concedes that the SEER-SEM
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`model is not unreliable and that it is only challenging the inputs. Opposition at 4. Challenging the
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`particular inputs Dr. Valerdi selected to use with his model is properly an issue for cross-
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`examination, not exclusion of his analysis. Apple Inc. v. Motorola Inc., 757 F.3d 1286, 1319 (Fed.
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`Cir. 2014), citing Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000) (explaining that
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`disagreements about the factual underpinnings of an expert’s analysis go to weight, not
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`admissibility).
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`Dr. Valerdi’s inputs are testable and tied to the facts of this case. In opposing the
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`Motion, Activision incorrectly contends that “Dr. Valerdi’s model used untestable inputs with no
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`connection to the facts of the case.” Opposition at 1. This is incorrect. Dr. Valerdi’s model is
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`testable because he disclosed each of the input variables and input them into the SEER-SEM
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`deterministic model, which is available in the open market. Activision could replicate his results
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`precisely, as well as test how changing his inputs and assumptions would modify the output of the
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`SEER-SEM model. Dr. Valerdi’s inputs are tied to the facts of the case. He selected them based
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`on evidence specific to the case and on the opinions of the other technical experts and their analysis
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`of the source code for the accused products, which provides their functionality. Dr. Valerdi’s
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`selection of the number of lines of code to use in his estimate was based on, at a minimum,
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`replicating the same functionality as the infringing network, and his selection of the various other
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`inputs into the model (discussed in the Motion) are objective, reproducible by Activision and
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`unchallenged by Activision in its Opposition or motion to preclude Dr. Valerdi. D.I. 601, Ex. 3
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`(Valerdi Tr.) at 49:24- 51:22, 71:5-72:9.
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`

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`Case 1:16-cv-00453-RGA Document 697-1 Filed 09/27/19 Page 3 of 4 PageID #: 52363
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`Activision mischaracterizes Prism. Activision attempts to distinguish Prism v. Sprint,
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`which approved a similar methodology to that offered by Acceleration Bay, by incorrectly
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`contending that it was based on “an agreed upon, acceptable, non-infringing alternative.”
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`Opposition at 3. Sprint challenged every aspect of Prism’s damages case, including the use of
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`actual leasing costs as a basis for estimating the cost of a hypothetical, non-infringing network.
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`Prism Techs. LLC v. Sprint Spectrum LP, 849 F.3d 1360, 1377 (Fed. Cir. 2017). Activision also
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`incorrectly contends that the cost-estimate in Prism was somehow more testable than Dr. Valerdi’s
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`analysis here. In Prism, actual backhaul costs were used as the basis for estimated costs of the
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`hypothetical non-infringing network, just as here, actual lines of code are used as an input into the
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`estimate of the costs of the hypothetical non-infringing alternative. In fact, Dr. Valerdi’s model,
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`which Activision now concedes is reliable and widely used in industry, is far more detailed,
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`testable and established than Dr. Minor’s “no less than two to three times” cost estimate approved
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`by the Federal Circuit in Prism. Id.
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`For the reasons and as set forth in the Motion, the Court should reconsider its opinion
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`striking the SEER-SEM methodology used by Dr. Valerdi.
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`2
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`

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`Case 1:16-cv-00453-RGA Document 697-1 Filed 09/27/19 Page 4 of 4 PageID #: 52364
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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
`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: September 27, 2019
`6418166
`
`3
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