Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 1 of 20 PageID #: 52440
`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 1 of 20 PagelD #: 52440
`
`EXHIBIT A
`EXHIBIT A
`
`
`
`
`
`

`

`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 2 of 20 PageID #: 52441
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`V.
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES , INC., and 2K
`SPORTS, INC.,
`
`Defendants.
`
`Civil Action No. 16-455-RGA
`
`MEMORANDUM OPINION
`
`Philip A. Rovner and Jonathan A. Choa, POTTER ANDERSON & CORROON LLP,
`Wilmington, DE; Paul J. Andre, Lisa Kobialka, and James Hannah, KRAMER LEVIN
`NAFT ALIS & FRANKEL LLP, Menlo Park, CA; Aaron M. Frankel and Marcus A. Colucci,
`KRAMER LEVIN NAFT ALIS & FRANKEL LLP, New York, NY, attorneys for Plaintiff.
`
`Jack B. Blumenfeld and Stephen J. Kraftschik, MORRIS, NICHOLS , ARSHT & TUNNELL
`LLP, Wilmington, DE; Michael A. Tomasulo, Gino Cheng, David K. Lin, and Joe S. Netikosol,
`WINSTON & STRAWN LLP, Los Angeles, CA; David P. Enzminger and Louis L. Campbell,
`WINSTON & STRAWN LLP, Menlo Park, CA; Daniel K. Webb and Kathleen B. Barry,
`WINSTON & STRAWN LLP, Chicago, IL; Michael M. Murray, WINSTON & STRAWN LLP,
`New York, NY; Andrew R. Sommer, Paul N. Harold, and Joseph C. Masullo, WINSTON &
`STRAWN LLP, Washington, DC, attorneys for Defendants.
`
`March 23 , 2020
`
`

`

`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 3 of 20 PageID #: 52442
`
`/s/ Richard G. Andrews
`ANDREWS, U.S. DISTRICT JUDGE:
`
`This is a patent case about three video games: Grand Theft Auto Online, NBA 2K15, and
`
`NBA 2K16. Currently before me is the Motion for Summary Judgment of Non-Infringement
`
`filed by Defendant Take-Two Interactive Software, Inc. and its subsidiaries, Defendants
`
`Rockstar Garnes, Inc. and 2K Sports, Inc. (D.I. 462). I have considered the parties' briefing (D.I.
`
`463 , 472, 477), and I heard oral argument on February 4, 2020 (D.I. 490). Because no reasonable
`
`jury could conclude Defendants infringed the asserted patents, it is "game over" for Plaintiff
`
`Acceleration Bay, LLC' s infringement claims. The Motion for Summary Judgment is granted.
`
`I.
`
`BACKGROUND
`
`A. The Patents
`
`Plaintiff alleges online features of the three accused video games infringe five patents:
`
`U.S. Patent Nos. 6,701,344 ('344 patent), 6,714,966 ('966 patent), 6,920,497 ('497 patent),
`
`6,732,147 ('147 patent), and 6,910,069 ('069 patent). Plaintiff initially sued Defendants for
`
`infringing these patents in 2015. Acceleration Bay LLC v. Take-Two Interactive Software Inc.,
`
`No. 15-cv-311-RGA (D. Del.). I dismissed that case because Plaintiff lacked standing to assert
`
`the patents. No. 15-cv-311-RGA, D.I. 149. Plaintiff resolved the standing issue by reaching a
`
`new patent purchase agreement with the Boeing Company, which was the original owner of the
`
`patents. (D.I. 1 at 1). The parties agree Plaintiff cannot seek damages for any infringement that
`
`occurred before April 2015. (D.I. 463 at 43 ; D.I. 472 at 14).
`
`Plaintiff asserts the following claims:
`
`•
`•
`•
`•
`
`' 344: Claims 12, 13, 14, and 15;
`' 966: Claims 12 and 13;
`'497: Claims 9 and 16;
`'147: Claim 1; and
`
`1
`
`

`

`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 4 of 20 PageID #: 52443
`
`Them-regular limitation is also part of the asserted '344 and ' 966 claims. Summary
`
`judgment is therefore appropriate for those claims on two bases: because Defendants' products
`
`do not meet them-regular limitation, and, as discussed above, because Defendants did not
`
`"make," "sell," "offer to sell" or "use" those claimed inventions.
`
`Because the games operate differently, I discuss each in turn.
`
`1. Grand Theft Auto Online
`
`Plaintiffs infringement theory is that the GTAO software applies various rules and
`
`constraints that cause the gameplay network to "converge to the same number of connections for
`
`each participant." (D.I. 472 at 3). In his report, Plaintiffs expert Dr. Nenad Medvidovic
`
`explained that the GT AO software is "configured to have a maximum number of participants, a
`
`maximum number of connections, reserved connections, [and] limited available ports."
`
`(Medvidovic Report ,r 163 ). The software also uses "load balancing rules, including prioritized
`
`channels, to distribute the flow of data evenly between participants." (Id.). Dr. Medvidovic
`
`concluded the combination of these constraints "drives the formation of an incomplete and m(cid:173)
`
`regular network." (Id.) . Dr. Michael Mitzenmacher, also a Plaintiff's expert, similarly concluded:
`
`"Because these rules and constraints cause the network to converge to the same optimal number
`
`of connections, each player tends to send data to the same number of participants during game
`
`play." (D.I. 464, Ex. A-2, "Mitzenmacher Report" ,r 121 ). These rules and constraints exist when
`
`players wander through the online open-world mode and when they compete in specific games,
`
`but the limits are more restrictive in the specific games. (Medvidovic Report ,r 163).
`
`Part of Plaintiffs theory is that GTAO transfers data based on the players' positions in
`
`the virtual world. When two players' avatars are closer together, there is a higher rate of data
`
`exchange between those two players. (D.I. 473 , Ex. 2, "Conlin Report" ,r 26). According to Dr.
`
`13
`
`

`

`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 5 of 20 PageID #: 52444
`
`Mitzenmacher, "when the players are geographically dispersed throughout the gameplay area,
`
`the proximity connection rules will cause the network to form m-regular graphs." (Mitzenmacher
`
`Report 1 121 ). At his deposition, Dr. Mitzenmacher further explained that "in the course of
`
`players wandering through the environment, there will be various local data available to subsets
`
`of players, and there will be the natural configurations when players are distributed
`
`geographically where the resulting network will be m-regular ... . Again, I think that just arises
`
`naturally. Again, in the course of gameplays, the players are moving throughout the game." (D.I.
`
`464, Ex. E-5 , "Mitzenmacher Tr." at 173:24-174:5, 175 : 17-19).
`
`Even viewing this evidence in the light most favorable to Plaintiff, no reasonable jury
`
`could find GTAO meets the m-regular limitation. Under my claim construction, a network is not
`
`m-regular if the participants just happen to connect to the same number of other participants
`
`occasionally. Rather, the network must be "configured to maintain" an m-regular state. In my
`
`claim construction opinion, I explained: "My construction does not require the network to have
`
`each participant be connected tom neighbors at all times; rather, the network is configured (or
`
`designed) to have each participant be connected to m neighbors. In other words, if the network
`
`does not have each participant connected to m neighbors, this is fine so long as, when
`
`appropriate, it tries to get to that configuration." (D.I. 244 at 14).
`
`Plaintiff's experts are not describing a network that meets this construction. They have
`
`not identified any source code that directs the participants to connect to the same number of other
`
`participants. Dr. Medvidovic concluded that the combination of various rules and constraints
`
`"drives the formation" of an m-regular network. (Medvidovic Report 1163). Dr. Mitzenmacher
`
`concluded that each participant "tends" to connect to the same number of other participants.
`
`(Mitzenmacher Report 1121 ). Those descriptions are not enough to show that the network is
`
`14
`
`

`

`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 6 of 20 PageID #: 52445
`
`"configured to maintain" an m-regular state. It might be true that GT AO players are sometimes,
`
`or even often, connected to the same number of other players. But Plaintiff's evidence does not
`
`suggest it is the default state of the network or that the network is in that state substantially all
`
`the time.
`
`My construction does not require Plaintiff to show that the accused networks are m (cid:173)
`
`regular 100 percent of the time. For example, ifthere is a split-second transition after a player
`
`disconnects from the game, that would not be enough to make the network not m-regular.
`
`Plaintiff's evidence, however, suggests far greater variation. Plaintiff has not shown (and does
`
`not try to show) that if the network falls out of them-regular state, the network responds by
`
`immediately trying to return to that configuration. Rather, it seems that the network might return
`
`tom-regular or it might not, depending on various factors.
`
`A reasonable jury could not find that the "proximity connection rules" make the networks
`
`m-regular. The players control their own avatars and choose where to move throughout the game
`
`environment. The fact that players share more data when they are near each other does not
`
`suggest that the network ism-regular. Instead, it suggests that the players' actions determine how
`
`connections are formed, and the network is not "configured to maintain" any particular state. Dr.
`
`Mitzenmacher said at his deposition that the infringing state "just arises naturally [as] ... the
`
`players are moving throughout the game." (Mitzenmacher Tr. at 17 5: 17-19). But if a system is
`
`designed to achieve a desired result, one would not normally say the result "just arises naturally ."
`
`The result would be designed, not natural.
`
`The doctrine of equivalents does not save Plaintiff's infringement theory. Dr.
`
`Mitzenmacher concluded GT AO performs "substantially the same function" as the m-regular
`
`claim element because it maintains "a balanced and even topography in the network, which
`
`15
`
`

`

`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 7 of 20 PageID #: 52446
`
`[ allows the game] to relay game data efficiently so as to not overload a particular software
`
`application node on the network." (Mitzenrnacher Report ,r 171). It performs this function in
`
`"substantially the same way," he said, by "optimizing the entire network processing of the
`
`network by limiting each participant' s connections." (Id. ,r 172). He concluded it achieves
`
`"substantially the same result" because "data are distributed in a balanced fashion over the
`
`network such that no node is overloaded and data are efficiently distributed." (Id. ,r 173).
`
`This argument, however, effectively reads them-regular limitation out of the patent.
`
`There is no mention of participants connecting to the same number of other participants. The
`
`doctrine of equivalents cannot be "allowed such broad play as to effectively eliminate [an]
`
`element in its entirety." Warner-Jenkinson Co., 520 U.S. at 29. The GTAO network and the
`
`claimed methods share some of the same general purposes, but that is not enough for
`
`infringement. Plaintiff must show there is a genuine dispute about whether "the accused product
`
`or process contain elements identical or equivalent to each claimed element of the patented
`
`invention." Id. at 39. Plaintiff has not produced evidence that GTAO is identical or equivalent to
`
`the m-regular element.
`
`Plaintiffs doctrine of equivalents argument is especially weak for the ' 344, ' 966, and
`
`' 147 patents because the patentee added them-regular limitation during prosecution. (D.I. 464,
`
`Ex. D-1). The patentee explained to the patent examiner that, unlike a specific prior art reference,
`
`the amended patents "require[] that each participant in the network connects to and forms a
`
`neighbor bond to exactly m number of neighbors." (D.I. 464, F-1 at 10, F-2 at 10). Plaintiff is
`
`barred by prosecution history estoppel from now attempting to erase that limitation from the
`
`patents. "Prosecution history estoppel precludes a patentee from regaining, through litigation,
`
`coverage of subject matter relinquished during prosecution of the application for the patent.
`
`16
`
`

`

`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 8 of 20 PageID #: 52447
`
`Were it otherwise, the inventor might avoid the PTO' s gatekeeping role and seek to recapture in
`
`an infringement action the very subject matter surrendered as a condition of receiving the
`
`patent." Festa Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 734 (2002)
`
`( cleaned up).
`
`2. NBA2K
`
`The only accused mode of the NBA 2K games is the multicourt multiplayer mode, in
`
`which up to 100 players compete in multiple basketball games in a large shared area, such as a
`
`park or gym. (Medvidovic Report ,r 183). Plaintiff acknowledges this mode is functionally the
`
`same in NBA 2K15 and 2K16. (D.I. 472 at 7). Thus, I analyze the two games together. The NBA
`
`2K software uses a "Park Relay Server," which connects to players' computers or consoles and
`
`allows them to play each other. (Medvidovic Report ,r 95).
`
`Defendants argue NBA 2K is not m-regular because the Park Relay Server is itself a
`
`participant in the network. (D.I. 463 at 27). The human players might each connect to the same
`
`number of players, but the server connects to all of them. For example, there might be 40 players
`
`in a network each connected to four players, but the Park Relay Server would be connected to all
`
`40 players. In this scenario, the network is not m-regular because one participant (the server) is
`
`connected to a different number of neighbors than the other participants are.
`
`Plaintiff counters that the server is not a participant in the game. (D.I. 490 at 90: 16-17).
`
`This is surely true in the sense that the server is not playing basketball. The server is, however, a
`
`participant in the network because it transfers data back and forth between other network
`
`participants. These patent claims are directed to network management, so what matters is
`
`whether the server is a participant in the network, not whether it is making jump shots or
`
`grabbing rebounds. Dr. Mitzenmacher, Plaintiff's own expert, wrote that the relay servers "are
`
`17
`
`

`

`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 9 of 20 PageID #: 52448
`
`in the network where each participant has the same number of connections" is a conclusory
`
`assertion. "Conclusory expert assertions cannot raise triable issues of material fact on summary
`
`judgment." Sitrickv. Dreamworks, LLC, 516 F.3d 993 , 1001 (Fed. Cir. 2008). Ultimately, a
`
`reasonable jury would have to conclude that the architecture of the NBA 2K network, which
`
`relies on a central relay server, is fundamentally different from them-regular networks of the
`
`asserted claims, precluding a finding for Plaintiff under the doctrine of equivalents.
`
`IV. Conclusion
`
`For these reasons, I will GRANT Defendants' Motion for Summary Judgment ofNon(cid:173)
`
`Infringement with respect to the asserted claims of the ' 344, ' 966, ' 497, ' 147, and ' 069 patents. I
`
`will enter an Order consistent with this Memorandum Opinion.
`
`19
`
`

`

`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 10 of 20 PageID #: 52449
`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 10 of 20 PagelD #: 52449
`
`EXHIBIT B
`EXHIBIT B
`
`
`
`
`
`

`

`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 11 of 20 PageID #: 52450
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-455 (RGA)
`
`))))))))
`
`
`)
`
`))
`
`
`)
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC., and 2K
`SPORTS, INC.,
`
`Defendants.
`
`PLAINTIFF ACCELERATION BAY LLC’S OPPOSITION TO TAKE-TWO
`DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT
`
`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
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`jhannah@kramerlevin.com
`
`Aaron M. Frankel
`Marcus A. Colucci
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`afrankel@kramerlevin.com
`mcolucci@kramerlevin.com
`
`Dated: June 24, 2019
`
`6279429/42021
`
`Public version dated: July 3, 2019
`
`PUBLIC VERSION
`
`

`

`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 12 of 20 PageID #: 52451
`
`SUMMARY OF ARGUMENT
`
`Take-Two’s motion for summary judgment of non-infringement falls far short of
`
`showing that there are no disputed issues of material fact. Consequently, it should be denied.
`
`Acceleration Bay’s technical experts provided detailed analyses showing that the
`
`Accused Products use m-regular, incomplete networks to broadcast gameplay data. The experts
`
`based their opinions on extensive citations to the source code providing the functionality that
`
`makes these networks m-regular. The experts also relied on confirmatory testimony from Take-
`
`Two’s corporate witnesses and documents and test data verifying various aspects of the games
`
`that give rise to infringement. This evidence creates an overwhelming case for infringement. At
`
`a minimum, it presents triable issues of fact that preclude summary judgment.
`
`While claiming that it accepted all of Acceleration’s allegations, allegedly basing its
`
`positions “according to Acceleration Bay’s own contentions,” (Def. Br. at 2, 9-10), Take-Two
`
`instead advances several arguments that boil down to factual disagreements with Acceleration
`
`Bay’s expert, rejected claim constructions, and incorrect characterizations of the source code
`
`citations and diagrams provided by Acceleration Bay’s expert. Acceleration Bay, however, is
`
`entitled to all reasonable inferences from the evidence and arguments that it is asserting, which
`
`Take-Two simply ignores.
`
`As to the various other limitations upon which Take-Two moves for summary judgment,
`
`Take-Two improperly asks the Court to resolve factual disputes, takes out of context snippets
`
`from the experts’ opinions while ignoring the totality of their analyses, and advances infirm
`
`theories based on non-existent claim limitations and claim construction positions that the Court
`
`already rejected and that Defendant previously abandoned. For example, Take-Two now asserts
`
`that a “list of neighbors” cannot contain any additional information beyond the neighbors – a
`
`

`

`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 13 of 20 PageID #: 52452
`
`position that violates the open-ended nature of “comprising” claims and that Take-Two
`
`previously abandoned as a proposed claim construction.
`
`For these reasons and as set forth below, the Court should deny Take-Two’s Motion.
`
`I.
`
`The Accused Networks are M-Regular and Incomplete
`
`Drs. Medvidović and Mitzenmacher demonstrate with ample evidence that GTA and
`
`NBA 2K use incomplete, m-regular networks to broadcast data. This evidence, summarized
`
`below and cataloged in detail in their reports, precludes the grant of summary judgment of non-
`
`infringement.
`
`A.
`
`Grand Theft Auto Uses M-Regular and Incomplete Networks
`
`GTA uses m-regular, incomplete networks to distribute gameplay data to participants in a
`
`gameplay session. Ex. A-21, Mitz. Rpt. at ¶¶ 121-137. The gameplay data are broadcast using
`
`peer-to-peer connections. Id. at ¶ 90. Because not all players can directly connect, and to avoid
`
`overloading individual participants, the network includes peer relays to broadcast messages,
`
`making the network incomplete, as Take-Two’s non-infringement expert concedes. Id. at ¶¶ 91
`
`and 111; Ex. 12, Macedonia Rpt. at ¶¶ 180-192
`
`
`
` GTA’s application layer
`
`overlay network is built on these underlying connections. Mitz. Rpt. at ¶ 101. Acceleration
`
`Bay’s experts provided pinpoint source code citations evidencing this functionality. See, e.g., id.
`
`at ¶¶ 98, 111, 117
`
`, ¶ 116 (
`
`
`
`
`
`1 Exhibits A-1 through F-10 are attached to the April 26, 2019 Declaration of Joe Netikosol (D.I.
`464).
`2 Exhibits 1 through 30 are attached to the June 24, 2019 Declaration of Marcus Colucci,
`submitted herewith.
`
`2
`
`

`

`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 14 of 20 PageID #: 52453
`
`Each park is
`
`
`
`
`
`
`
` Players in a specific game (for example a 5-on-5
`
`basketball game within the Pro Am area), are directly connected at the application layer
`
`
`
`
`
`
`
`
`
`
`
` making the network incomplete and m-regular. Id. The NBA 2K matchmaking
`
`service
`
` attempts to maintain a balanced number of participants and connections,
`
`removing inactive participants and selecting the sessions to which to add new players, thereby
`
`maintaining the m-regular state of the network. Id. at ¶ 77.
`
`8
`
`

`

`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 15 of 20 PageID #: 52454
`
`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
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`jhannah@kramerlevin.com
`
`Aaron M. Frankel
`Marcus A. Colucci
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`afrankel@kramerlevin.com
`mcolucci@kramerlevin.com
`
`Dated: June 24, 2019
`
`6279429/42021
`
`37
`
`Public version dated: July 3, 2019
`
`

`

`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 16 of 20 PageID #: 52455
`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 16 of 20 PagelD #: 52455
`
`EXHIBIT C
`EXHIBIT C
`
`
`
`
`
`

`

`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 17 of 20 PageID #: 52456
`3
`1
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`A n d M r. K ra ftschik. O h , M r. B lu m en fe ld .
`
`S o rry , M r. K raftschik p u t h is n a m e d o w n in a
`
`d iffere n t in k , s o I fig u r e d h e w a s t h e m a n .
`
`M R . B LU M E N FE L D : N o, I actually p u t it d o w n for
`
`h im b e c a u s e h e w a s n 't sig n e d u p , b u t h e re w e g o .
`
`T H E C O U R T : W e ll, n o g o o d d e e d g o e s u n p u n is h e d .
`
`W h o h a v e y o u g o t w ith y o u ?
`
`M R . B LU M E N FE L D : G o o d m o rn in g , Y o u r H o n o r.
`
`D a v id E n z m in g e r a n d M ik e T o m a s u lo from W in s to n & S traw n .
`
`A n d b e h in d m e , L e w is C a m p b e ll, P a u l H a ro ld a lso fro m
`
`W in s t o n & S tra w n . A n d M r. K raftschik , y o u a lre a d y
`
`r e c o g n iz e d , a n d L in d a Z a b riskie w h o is in -h o u s e a t T a k e - T w o.
`
`T H E C O U R T : O k a y . G o o d m ornin g to a ll o f yo u .
`
`A ll rig h t. S o b e fo re w e g e t started h e re , I
`
`ju st w a n te d to c h e c k a n d m a k e s u r e th a t w h a t I g a th e r e d fro m
`
`th e b rie fin g is c o rre ct w h ich is b e c a u s e o f s o m e p rio r o rder
`
`o f m in e , th e '6 3 4 p a te n t is n o t a t iss u e ; rig h t?
`
`M R . E N Z M IN G E R : C o rre ct.
`
`M R . F R A N K E L : T h a t's correct.
`
`T H E C O U R T : A n d w e 're still o n ly d e a lin g w ith
`
`d irect in frin g e m e n t; rig h t?
`
`M R . F R A N K E L : C o rre ct, Y o u r H o n o r.
`
`T H E C O U R T : O k a y . S o it w a s n 't a p p a re n t to m e ,
`
`m a y b e b y lik e th e c lo s e o f b u s in e s s t o m o rrow , co u ld th e
`
` IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`
` )
`ACCELERATION BAY LLC
` )
`
` )
` Plaintiff,
` ) C.A. No. 16-455-RGA
`
` )
`
`
`v.
` )
`
`
`)
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and )
`2K SPORTS, INC.
` )
` )
` )
`
` Defendants.
`
` J. Caleb Boggs Courthouse
` 844 North King Street
` Wilmington, Delaware
` Tuesday, February 4, 2020
` 10:00 a.m.
` Oral Argument
`
`
`
`BEFORE: THE HONORABLE RICHARD G. ANDREWS, U.S.D.C.J.
`APPEARANCES:
` POTTER ANDERSON & CORROON LLP
` BY: PHILIP A. ROVNER, ESQUIRE
` -and-
` KRAMER LEVIN NAFTALIS & FRANKEL
` BY: AARON M. FRANKEL, ESQUIRE
` BY: PAUL J. ANDRE, ESQUIRE
` BY: MARCUS A. COLUCCI, ESQUIRE
`
` For the Plaintiff
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`2
`
`4
`
`p la in tiff ju st s u b m it a le tter th a t states w h a t a ll th e
`
`A P P E A R A N C E S C O N T IN U E D :
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`M R . R O V N E R : G o o d m ornin g , Y o u r H o n o r . P h il
`23
`R o v n e r from P o tte r A n d e rs o n fo r p la in tiff, A c c e leratio n B a y .
`A n d w ith m e fro m K ra m e r L e v in , M r. P a u l A n d re , A a ro n
`24
`Fra n k e l, a n d M a rc u s C o lu c c i.
`25
`T H E C O U R T : A ll rig h t. G o o d m ornin g to y o u a ll.
`Page 1 to 4 of 133
`
`M O R R IS N IC H O LS A R S H T & T U N N E LL LLP
`B Y : J A C K B . B LU M E N FE L D , E S Q U IR E
`B Y : S T E P H E N J . K R A FT S C H IK , E S Q U IR E
`
`- a n d -
`
`W IN S T O N & S T R A W N , L L P
`B Y : D A V ID P . E N Z M IN G E R , E S Q U IR E
`B Y : M IC H A E L A . T O M A S U LO , E S Q U IR E
`B Y : L O U IS L. C A M P B E LL, ES Q U IR E
`B Y : P A U L H A R O L D , E S Q U IR E
`
`- a n d -
`
`T A K E T W O IN T E R A C T IV E S O F T W A R E , IN C .
`B Y : L I N D A Z A B R IS K IE , E S Q U IR E
`
`
`
`F o r th e D e f e n d a n t s
`
`* * * P R O C E E D IN G S * * *
`
`D E P U T Y C L E R K : A ll rise .
`T H E C O U R T : A ll rig h t. P lea s e b e s e a t e d ,
`
`e v e r y o n e .
`
`S o th is is th e tim e s e t fo r o ra l a rgum e n t in
`A c c e leratio n B a y v e rs u s T a k e -T w o , C iv il A ctio n N u m ber
`1 6 -4 5 5 .
`
`M r. R o v n e r, g o o d m o rn in g . W h o h a v e y o u g o t w ith
`
`y o u ?
`
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`1 of 52 sheets
`
`p re s e n tly asserte d c la im s from th e fiv e p a t e n ts a re a n d a ls o
`
`a ll th e lim ita tio n s th a t w e're g o in g to ta lk a b o u t to d a y in
`
`w h ich y o u h a v e a D O E a rg u m ent in a d d itio n o r m a y b e in p la c e
`
`o f lite ral in frin g e m e n t?
`
`D o y o u th in k y o u c a n d o th a t b y th e c lo s e o f
`
`b u s in e s s to m orro w ?
`
`M R . F R A N K E L : W e 'll d o th a t, Y o u r H o n o r.
`
`T H E C O U R T : O k a y . T h a n k y o u , M r. F ra n k e l.
`
`A ll rig h t. S o w h a t I w a s th in k in g is to m a k e
`
`th is s o m ethin g w h e re I g e t th e p a r ties ' o p p o s in g p o s itio n s
`
`firm ly p la c e d in m y m in d th a t e s s e n tia lly w e s o rt o f b rea k
`
`th is d o w n in to k in d o f a r g u m e n t b y a r g u m e n t, o n e s id e th e n
`
`th e o th e r sid e .
`
`A n d I g u e s s a c t u a lly th e n , b e fo re w e g o a c tu a lly
`
`a n y fu rth e r, if I d o n 't ch a n g e a n y th in g th a t I said in
`
`regards to p a rticu la rly th e A c t iv isio n c a s e , d o e s th a t m e a n
`
`th a t th e '3 4 4 , a n d '9 6 6 , a n d '4 9 7 c la im s a r e e s s e n tia lly
`
`lim ite d to te s tin g ?
`
`M R . F R A N K E L : Y o u r H o n o r, te stin g d e v e lo p m e n t,
`
`b u t it w o u ld b e in ternal --
`
`T H E C O U R T : O k a y .
`
`M R . F R A N K E L :
`
`-- u s e b y t h e d e fe n d a n t.
`
`T H E C O U R T : A ll rig h t. B u t th e y 're lim ite d to
`
`M R . F R A N K E L : C o rre ct.
`
`02/06/2020 12:12:16 PM
`
`u s e --
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Case 1:16-cv-00453-RGA Document 708-1 Filed 04/01/20 Page 18 of 20 PageID #: 52457
`89
`91
`1
`relay server. They're two different servers.
`recall --
`2
`THE COURT: All right.
`3
`MR. FRANKEL: So for each subgame, there is a
`4
`network layer, relay server that's directly connecting the
`5
`application layer on the participant's net subgame. So this
`6
`is an -- this is depicting the Pro Am court. And the Pro Am
`7
`court, there's always four games five on five. The system
`8
`will work on -- it's programmed to fill them up.
`9
`So that's the state that it gets to. You're
`10
`always going to have these four games. Each game is always
`11
`going to -- there will always be ten players in each of the
`12
`four games. Each participant is directly connected at the
`13
`application layer with the other participants in that game.
`14
`So everyone has those nine connections, and then there's a
`15
`tenth connection that goes out to the park relay server.
`16
`So --
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`THE COURT: Well, I remember hearing those words
`before, but I don't remember.
`MR. FRANKEL: So this is an issue we've disputed
`multiple times with defendants over the course of various
`hearings. What the patent says is that you have an overlay
`network over the underlying network. The Court, in
`rejecting an argument made by defendant, said defendants
`gloss over the claim requirement of the non-complete
`M-regular network that is implemented on an application
`level.
`
`Even defendants' expert --
`THE COURT: So I'm sorry, Mr. Frankel. The
`thing you were just showing me which sounds like me, are
`those claim construction opinions, or what are they?
`MR. FRANKEL: It's a mix. This one was for the
`Court's decision on a 101 motion.
`THE COURT: Okay.
`MR. FRANKEL: And I believe that this one is --
`THE COURT: I think that's claim construction.
`MR. FRANKEL: I believe that this one is claim
`construction. There was an argument over where the network
`has to be M-regular. The patent says it has to be M-regular
`at the application layer.
`THE COURT: When you say "the patent," you mean
`92
`
`THE COURT: And are you saying that the
`connection to the park relay server doesn't count?
`MR. FRANKEL: It does. So each participant,
`each player participant in the network has exactly ten
`connections. So M is ten. And it's a regular network in
`that sense. In that sense, there's ten connections.
`THE COURT: And regular except for the tenth
`connection is to something -- if that counts as a
`connection, doesn't then that thing have 40 connections?
`90
`MR. FRANKEL: Well, I think that's where the
`confusion is, and that may be where Dr. Mitzenmacher got a
`little tripped up during that line of questioning that, you
`know, they've added to this chart participant, but it's part
`of the plumbing that's connecting everyone at the
`application layer. So there are ten application layer
`connections per participant.
`The park relay server is not playing the game.
`There are 40 players playing the game.
`THE COURT: But, I mean, the keyword is
`participant. So you're saying it's not a participant?
`MR. FRANKEL: Well, that's not from
`Dr. Mitzenmacher's report, and they just put that up there.
`THE COURT: No, but I mean, you're saying it's
`not a participant.
`MR. FRANKEL: It's not a participant in the
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`THE COURT: Do any of these patents distinguish
`24
`between network layers and application layers?
`25
`MR. FRANKEL: They do, and as the Court may
`Page 89 to 92 of 133
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`23 of 52 sheets
`
`game.
`
`THE COURT: Okay. But is it a participant in
`the network?
`MR. FRANKEL: It's a participant -- so it's a
`participant at the network layer, but not at the application
`layer.
`
`the specification?
`MR. FRANKEL: Yes.
`THE COURT: But is that incorporated in any of
`the claim constructions?
`MR. FRANKEL: Well, it's certainly incorporated
`in the 101 decision which helps us understand the meaning of
`the patents.
`THE COURT: Yeah. Yeah. I don't know that what
`I say in the 101, which I can't remember now, I don't think
`you can really use the 101 as a supplement to claim
`construction.
`MR. FRANKEL: Well, it's our burden to show that
`there's an M-regular network --
`THE COURT: Yes.
`MR. FRANKEL: -- and our experts are pointing to
`the application layer. And it certainly is -- it's
`contemplated in the patent that the M-regular network can be
`at the overlay level, so there's no construction that's ever
`excluded the concept of the network being M-regular at the
`application layer. And when I took the deposition of
`defendants' technical ex