Case 1:16-cv-00453-RGA Document 698 Filed 10/02/19 Page 1 of 5 PageID #: 52365
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ACCELERATION BAY LLC,
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`ACTIVISION BLIZZARD, INC.,
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`Plaintiff,
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`v.
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`Defendant.
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`C.A. No. 16-453 (RGA)
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`DEFENDANT ACTIVISION BLIZZARD, INC.’S OPPOSITION TO
`ACCELERATION BAY’S MOTION FOR LEAVE TO FILE A REPLY
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`Plaintiff Acceleration Bay’s request for leave to file a reply brief on its motion for
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`reconsideration is an attempt to get the last word on a motion for which the local rules do not
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`allow a reply. D. Del. LR 7.1.5. Acceleration originally accused Activision of making “new
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`arguments” as its ground for requesting a reply (Ex. 1, 9-27-19 email from Acceleration
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`counsel), but its motion is devoid of any such accusation and, instead, makes the unfounded
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`claim that it seeks to address alleged “mischaracterizations” by Activision. (D.I. 697, p. 1).
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`These grounds are baseless, and Acceleration’s proffered reply merely recycles its old
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`unsuccessful arguments and alleges admissions by Activision where none exist.
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`First, Acceleration claims that “[f]or the first time, Activision concedes that the SEER-
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`SEM model is not unreliable.” (D.I. 697-1, p. 1). This is incorrect. Activision merely explained
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`that the reliability of the SEER-SEM software is not an issue before the Court on Acceleration’s
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`motion for reconsideration, because the reliability of that software was not the basis for the Court
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`striking Mr. Parr’s opinions that relied on Dr. Valerdi. Activision continues to believe that the
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`SEER-SEM software is unreliable, as it previously argued, but “Activision does not renew that
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`argument here.” (D.I. 650, p. 23 n.12).
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`Case 1:16-cv-00453-RGA Document 698 Filed 10/02/19 Page 2 of 5 PageID #: 52366
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`Second, Acceleration argues that if the SEER-SEM software is itself reliable, then
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`Dr. Valerdi’s opinions are necessarily admissible because inputs into the software are the
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`province of cross-examination and not exclusion. (D.I. 697-1, p. 1). This, too, is incorrect. As
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`the Court found, by choosing inputs having no relation to the facts of the case (i.e., the number of
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`lines of code to develop a non-infringing alternative that Acceleration contends does not exist),
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`Dr. Valerdi’s fundamental assumptions underlying his purported cost savings model (as opposed
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`to the SEER-SEM software itself) render his opinions unreliable and inadmissible. Such
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`determinations are squarely within the Court’s gatekeeping functions for experts because the law
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`requires that all expert opinions have “a valid scientific connection to the pertinent inquiry as a
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`precondition to admissibility.” (D.I. 692, p. 3) (quoting Schneider ex rel. Estate of Schneider v.
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`Fried, 320 F.3d 396, 404-05 (3d Cir. 2003)).1
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`Third, Acceleration re-hashes its same unsuccessful arguments for why Dr. Valerdi’s
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`inputs to his model are allegedly “tied to the facts of the case.” (D.I. 697-1, p. 1). But
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`Acceleration continues to miss the fundamental point that both Activision and this Court have
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`explained in detail. It is the failure of Acceleration and its experts to establish the existence of a
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`non-infringing network—let alone articulate the characteristics of such a non-infringing
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`network—that makes its “costs savings” model untestable and unreliable. Acceleration adds
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`nothing new when it repeats its same argument that the number of lines of code inputted to
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`1 Acceleration’s reliance on Apple v. Motorola, 757 F.3d 1286, 1319 (Fed. Cir. 2014), is
`inapposite. There, the Federal Circuit noted that the district court “did not point to any specific
`flaws in Napper’s Trackpad comparison” and found that the “expert has applied reliable methods
`to demonstrate a relationship between the benchmark and the infringed claims.” Id. at 1319. In
`sharp contrast, here, the Court correctly found that “Dr. Valerdi provides no justification as to
`why developing an alternative network would, in theory, cost exactly the same amount as
`developing the existing network,” and that “he cannot justify this conclusion because he has no
`basis in fact for concluding that an alternative network might exist at all.” (D.I. 692, p. 7).
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`2
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`Case 1:16-cv-00453-RGA Document 698 Filed 10/02/19 Page 3 of 5 PageID #: 52367
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`Dr. Valerdi’s model was allegedly based on “replicating the same functionality as the infringing
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`network.” (D.I. 697-1, p. 1). Acceleration’s experts were still “estimating the code for a network
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`that, in their opinion, must infringe,” in contravention of the Federal Circuit’s requirements for
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`an admissible cost-savings opinion (D.I. 696, p. 3). That Activision could have replicated
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`Dr. Valerdi’s estimates of rebuilding the same allegedly infringing networks does not render his
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`model “testable and reliable” for estimating the cost of a non-infringing alternative.
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`Fourth, Acceleration accuses Activision of misrepresenting Prism v. Sprint, arguing that,
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`there, the defendant “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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`(D.I. 697-1, p. 2). Activision did not claim otherwise. Rather, Activision merely noted that in
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`Prism, both parties agreed that a backhaul network owned by the Defendant would (1) have the
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`same functionality as the leased backhaul network accused of infringement; but (2) not infringe.
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`(D.I. 696, p. 1).2 Here, as this Court correctly found, Acceleration’s refusal to acknowledge the
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`existence of any non-infringing network, let alone one with the same functionality as
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`Activision’s current network, distinguishes this case and precludes Acceleration from using
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`Dr. Valerdi’s purported costs-savings model. (D.I. 692, p. 6).
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`Activision therefore respectfully requests that the Court deny Acceleration’s request to depart
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`from the rules to file a cumulative (and inaccurate) reply. See Johns Hopkins Univ. v. Alcon
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`Labs., Inc., No. 15-525-LPS-SRF, 2017 WL 5172395, at *3 (D. Del. Nov. 8, 2017) (“The Court
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`sees no basis to deviate from its standard practice to limit briefing on motions for reconsideration
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`only to an opening and answering brief.”).
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`2 See Prism Techs. LLC v. Sprint Spectrum L.P., 849 F.3d 1360, 1376 (Fed. Cir. 2017) (noting
`that the defendant “stipulated not to introduce argument or evidence of a different non-infringing
`alternative”).
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`3
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`Case 1:16-cv-00453-RGA Document 698 Filed 10/02/19 Page 4 of 5 PageID #: 52368
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
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`/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 Defendant
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`OF COUNSEL:
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`B. Trent Webb
`Aaron E. Hankel
`John D. Garretson
`Jordan T. Bergsten
`Maxwell C. McGraw
`SHOOK HARDY & BACON LLP
`2555 Grand Boulevard
`Kansas City, MO 64108
`(816) 474-6550
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`Tanya Chaney
`SHOOK HARDY & BACON LLP
`JPMorgan Chase Tower
`600 Travis Street, Suite 3400
`Houston, TX 77002
`(713) 227-8008
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`October 2, 2019
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`4
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`Case 1:16-cv-00453-RGA Document 698 Filed 10/02/19 Page 5 of 5 PageID #: 52369
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`CERTIFICATE OF SERVICE
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`I hereby certify that on October 2, 2019, I caused the foregoing to be electronically filed
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`with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
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`registered participants.
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`I further certify that I caused copies of the foregoing document to be served on
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`October 2, 2019, upon the following in the manner indicated:
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`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
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`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`Greg Proctor, Esquire
`Michael H. Lee, Esquire
`William Hannah, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
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`Aaron M. Frankel, Esquire
`Marcus A. Colucci, Esquire
`Cristina Martinez, Esquire
`Shannon H. Hedvat, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Attorneys for Plaintiff
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`/s/ Jack B. Blumenfeld
`________________________________
`Jack B. Blumenfeld (#1014)
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