Case 1:16-cv-00453-RGA Document 705 Filed 01/29/20 Page 1 of 4 PageID #: 52423
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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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`Plaintiff,
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`V.
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`ACTIVISION BLIZZARD INC.,
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`Defendant.
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`Civil Action No . 1: 16-cv-00453-RGA
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`MEMORANDUM ORDER
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`Pending before the Court are Acceleration Bay's Motion for Reconsideration of the
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`Court's Memorandum Opinion (D.I. 692) Striking the SEER-SEM Methodology Used by Dr.
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`Ricardo Valerdi (D.I. 695) and Motion for Leave to File Reply (D.I. 697) . I have reviewed the
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`parties' briefing and related papers. (D.I. 695, 696, 697, 698, 701 ).
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`I.
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`BACKGROUND
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`In my September 4, 2019 Memorandum Opinion, I excluded Dr. Parr' s "cost saving"
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`reasonable royalty opinions as they depended entirely on Dr. Valerdi 's calculations. (D.I. 692 at
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`7). I determined that Dr. Valerdi' s cost savings conclusions were "inherently untestable"
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`because "Dr. Valerdi does not articulate any characteristics of a non-infringing network and,
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`indeed, adopts the position that such a network does not exist." (Id.) . I concluded that, because
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`Dr. Valerdi's opinion was "speculative, untestable, and divorced from the facts of the case," it
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`was not a proper basis for assessing costs saved by using an accused infringing technology.
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`(Id.) . Plaintiff now asks me to reconsider this decision. (D.I. 695).
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`Case 1:16-cv-00453-RGA Document 705 Filed 01/29/20 Page 2 of 4 PageID #: 52424
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`II.
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`LEGALSTANDARD
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`A motion for reconsideration is only appropriate to "correct a clear error of law or to
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`prevent a manifest injustice in the District Court's original ruling. Such motions are granted for
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`' compelling reasons,' such as a change in the law which reveals that an earlier ruling was
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`erroneous, not for addressing arguments that a party should have raised earlier." United States v.
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`Dupree, 617 F.3d 724, 732 (3d Cir. 2010) (cleaned up). Accordingly, the movant must show:
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`"(1) an intervening change in the controlling law; (2) the availability of new evidence that was
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`not available when the court granted the motion ... ; or (3) the need to correct a clear error of
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`law or fact or to prevent manifest injustice." Max 's Seafood Cafe ex rel. Lou-Ann, Inc. v.
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`Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).
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`III. DISCUSSION
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`Plaintiff asks that I reconsider my decision to strike the SEER-SEM methodology used
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`by Dr. Valerdi because I "misapprehended" the SEER-SEM methodology. (D.I. 695 at 1).
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`Plaintiffs motion explains that the SEER-SEM methodology is widely used to estimate the cost
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`of building new software, but the motion fails to show that I "need to correct a clear error of . ..
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`fact. " (Id. at 3-4).
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`Plaintiff has not demonstrated that clear error led me to determine that Dr. Valerdi ' s cost
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`savings conclusions do "not articulate any characteristics of a non-infringing network." (D.I.
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`692 at 7). Plaintiffs reliance on Prism Techs. LLC v. Sprint Spectrum LP, 849 F.3d 1360 (Fed.
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`Cir. 2017), ignores the fact that the expert's estimation in that case was "based on [the
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`defendant's] particular technical requirements" as opposed to generic ones. Prism, 849 F.3d at
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`1376. Because Plaintiff has not established that Dr. Valerdi ' s cost savings opinion was reliable
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`Case 1:16-cv-00453-RGA Document 705 Filed 01/29/20 Page 3 of 4 PageID #: 52425
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`in estimating the cost of building any particular non-infringing alternative, Plaintiff has not
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`demonstrated that I made a clear error in need of correction.
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`Plaintiff has similarly made no showing of clear error in my exclusion of Mr. Parr's
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`maintenance cost-based damages opinion. This opinion relies on Dr. Valerdi's calculations of
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`the "cost of ongoing maintenance for the theoretical non-infringing alternative." (D.I. 695 at 10).
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`It is no more reliable to calculate the cost of maintaining a theoretical non-infringing network(cid:173)
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`which might not be able to exist-than it is to calculate the cost of building that same theoretical
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`non-infringing network.
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`Plaintiff does not claim an intervening change in controlling law or that new evidence has
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`become available since September 4, 2019 which would warrant reconsideration. Plaintiff has
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`failed to demonstrate that there is error of law that requires my correction or that manifest
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`injustice would otherwise result. See Max 's Seafood Cafe, 176 F.3d at 677.
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`A word about what I did or did not do in the original opinion. I did not find SEER-SEM
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`methodology unreliable or unacceptable. Indeed, the original opinion does not mention once the
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`word "SEER-SEM" and I think it is fair to say that I expressed no opinion about it as a
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`methodology. Plaintiff states, and I have no reason to disagree, that it is an accepted
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`methodology for estimating the cost of writing new software. (See, e.g., D.I. 695 at 8).
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`What I did say in the original opinion, perhaps not as clearly as I could have, is that the
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`cost of writing new software is irrelevant when there is no evidence that the cost of writing new
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`software could result in a non-infringing alternative. The "cost savings" approach to damages, as
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`recited in Federal Circuit caselaw that I cited in the original opinion (see D.I. 692 at 6), compares
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`the cost difference between what the defendant did that was infringing with a non-infringing
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`alternative that the defendant could have done. Thus, in Hanson v. Alpine Valley Ski Area, Inc.,
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`Case 1:16-cv-00453-RGA Document 705 Filed 01/29/20 Page 4 of 4 PageID #: 52426
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`718 F.2d 1075 (Fed. Cir. 1983), the comparison was with a prior art machine. In Prism, the
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`comparison was with a "backhaul structure" that would not have been infringing had the
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`defendant owned it. In Powell v. Home Depot US. A., Inc., 663 F.3d 1221 (Fed. Cir. 2011 ), the
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`comparison was with a prior art radial arm saw.
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`In this case, however, there was no evidentiary basis to conclude that what Dr. Valerdi
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`was estimating the cost of would solve the problem, and, indeed, Plaintiffs position was that it
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`would not. (See D.I. 695 at 6). Since a cost savings opinion requires that there be a comparison
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`with a non-infringing alternative, Dr. Valerdi was not making such a comparison, and Plaintiffs
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`position is that he could not make such a comparison, Dr. Valerdi ' s opinion does not fit the facts
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`of this case, and was therefore excluded.
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`IV.
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`CONCLUSION
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`For the reasons above, Acceleration Bay' s Motion for Reconsideration of the Court' s
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`Memorandum Opinion (D.I. 692) Striking the SEER-SEM Methodology Used by Dr. Ricardo
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`Valerdi (D.I. 695) is DENIED. Acceleration Bay' s Motion for Leave to File Reply (D.I. 697) is
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`DENIED.
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`IT IS SO ORDERED this -Jj_ day of January, 2020.
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