Case 1:16-cv-00453-RGA Document 709 Filed 04/15/20 Page 1 of 6 PageID #: 52460
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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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`ACCELERATION BAY LLC’S OPPOSITION TO
`ACTIVISION BLIZZARD, INC.’S MOTION FOR LEAVE
`TO FILE A SECOND SUPPLEMENTAL SUMMARY JUDGMENT BRIEF
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`INTRODUCTION
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`The Court should deny Defendant Activision Blizzard, Inc.’s motion for leave to file a
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`second supplemental summary judgment brief (D.I. 708, “Motion”). Activision already moved
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`for summary judgment on nearly 40 issues, submitted two supplemental summary judgment
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`briefs, and twice moved for leave to submit yet further supplemental summary judgment
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`briefing. Moreover, the Court already ruled against Activision on the issues it now seeks to
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`reargue, and Activision did not timely move for leave to reargue them (nor would it have had a
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`basis to do so).
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`Activision bases its request for a sixth summary judgment brief on purported
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`developments in a different case concerning different defendants, different products, and
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`different infringement contentions—Acceleration Bay LLC v. Take-Two, et al., Case No. 1:16-
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`cv-000455-RGA, D.I. 492 (D. Del. Mar. 23, 2020) (“Take-Two”). The outcome in Take-Two has
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`no impact on how Activision’s own products operate or on Activision’s own acts of
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`infringement. As set forth below, the infringement issues in Take-Two are very different from
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`the infringement issues in this case. Nothing has changed in this case that warrants burdening
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`Case 1:16-cv-00453-RGA Document 709 Filed 04/15/20 Page 2 of 6 PageID #: 52461
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`the Court with yet further summary judgment briefing. Therefore, Activision’s Motion should
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`be denied.
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`NATURE AND STAGE OF THE PROCEEDINGS/
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`In this action alone, the Court authorized each party to submit 125 pages of briefing on
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`summary judgment and Daubert motions. D.I. 425. Activision submitted an opening brief on
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`summary judgment that raised approximately 40 different issues (D.I. 442), an opposition brief
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`to Acceleration Bay’s motion for summary judgment (D.I. 474), a reply brief in support of its
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`own motion for summary judgment (D.I. 505), a first supplemental summary judgment brief
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`(D.I. 565), and a reply supplemental summary judgment brief (D.I. 572).
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`In its prior summary judgment motion, Activision moved for the same rulings it seeks in
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`the current Motion: findings of (1) no infringement of the m-regular limitation (2) no
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`infringement under the participant limitation, and (3) no infringement under the doctrine of
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`equivalents. D.I. 442 at 10–19, 29–31. On August 29, 2018, the Court denied Activision’s
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`motion for summary judgment on these specific issues. D.I. 578.
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`When Activision changed counsel, it moved for leave to file yet another summary
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`judgment motion based on purportedly new facts. D.I. 654. Activision once again argued that it
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`was entitled to summary judgment of no infringement of the same m-regular and participant
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`limitations. Id. at 1, 6, 7. Activision raised the same argument it repeats in the current Motion,
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`i.e., it should be permitted to reargue these issues because on its first motion for summary
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`judgment it raised too many issues to sufficiently brief them.1 The Court rejected that request for
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`additional summary judgment briefing. D.I. 661.
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`1 Compare D.I. 654 at 1 (“The Court previously denied Activision’s motion on these issues,
`noting that they were ‘at best cursorily briefed.’”) with Motion at 1, n.3 (“Activision moved for
`summary judgment on non-infringement . . . raising multiple theories, including those at issue in
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`2
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`The Court later issued an order granting summary judgment in Take-Two based on the
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`specific factual issues presented in that case. Take-Two, D.I. 492 (the “Take-Two Order”).
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`Acceleration Bay filed a notice of appeal in that case. Take-Two, D.I. 497.
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`Activision now moves for leave to submit further supplemental summary judgment
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`briefing in this case. Acceleration Bay opposes that request.
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`ARGUMENT
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`I.
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`Activision Lacks Good Cause to Submit Further Summary Judgment Briefing
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`Activision had many opportunities and pages to present its best arguments for summary
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`judgment. Activision’s Motion fails to demonstrate good cause for yet further summary
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`judgment motion practice, especially given that it already moved for summary judgment and
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`already sought leave to submit additional briefing on these very issues.
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`That the Court rejected similar previous arguments is confirmed by Activision’s citations
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`in the current Motion to the same portions of Acceleration Bay’s expert reports that it cited to in
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`its prior motion for summary judgment. Compare Motion at 3 (citing Medvidovic Rpt. at ¶ 204;
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`Mitzenmacher Rpt. at ¶ 121) with D.I. 442 (Activision’s Motion for Summary Judgment) at 11
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`(citing Medvidovic Rpt. at ¶ 204), 19 (citing Mitzenmacher Rpt. at ¶ 121).
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`Accordingly, the Court should deny the Motion as simply rehashing arguments the Court
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`has already heard and denied. Liger6, LLC v. Sarto Antonio, No. 13-4694 (JLL)(JAD), 2017 WL
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`3574845, at *2-3 (D.N.J. Aug. 17, 2017) (denying motion for leave to file summary judgment
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`where there were no new issues); Bernstein v. Virgin Am., Inc., No. 15-cv-02277-JST, 2017 WL
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`this motion . . . . The Court denied several of Activision’s non-infringement arguments,
`explaining that the ‘parties may have made some valid arguments buried among their
`conclusorily-supported arguments and genuine disputed of material facts, but I do not see
`them.’”), citing D.I. 578, at p. 23.
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`3
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`Case 1:16-cv-00453-RGA Document 709 Filed 04/15/20 Page 4 of 6 PageID #: 52463
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`7156361, at *2 (N.D. Cal. Dec. 29, 2017) (denying motion for leave to file a second summary
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`judgment motion where the “[defendant] makes plain that its proposed second summary
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`judgment motion will address the same arguments that [it] made in its first motion.”).
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`II.
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`The Take-Two Order is Not a Reason to Reconsider Infringement of the M-Regular
`and Participant Limitations in This Case
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`Activision did not move for reargument when the Court denied its motion for summary
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`judgment of non-infringement as to the m-regular and participant limitations in this case.
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`Activision also did not move for reargument when the Court denied its first motion for leave to
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`file further summary judgment briefing on the m-regular and participant limitations in this case.
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`And Activision did not move for reargument or clarification of the Court’s prior claim
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`construction orders as to any of the issues it now seeks to reargue in its Motion.2 Such motions
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`are due within 14 days after the Court issued these decisions and, as a result, have long since
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`been waived. Local Rule 7.1.5(a).
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`Nor does the order in Take-Two warrant reargument on infringement issues in this case.
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`The infringement issues in Take-Two are very different from the infringement issues in this case.
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`In the Take-Two Order, the Court concluded that Grand Theft Auto V Online’s proximity rules
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`and NBA 2K’s park relay server are not infringing networks. Take-Two Order at 14-15, 18-19.
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`In contrast, in this case:
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` World of Warcraft infringes through the use of a network made up of servers. D.I. 448
`at 28-31. Neither of the networks at issue in Take-Two are server-to-server networks.
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` Call of Duty infringes through the use of a peer-to-peer connectivity graph relay
`network for distributing quality of service messages and voice data (VoIP). Id. at 24-
`28. Call of Duty’s connectivity relay network was not as issue in the two games in
`Take-Two. See Take-Two Order at 13-19.
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`2 Activision did move for clarification of two unrelated claim terms, demonstrating its
`willingness to avail itself of this procedure when it thought it had good reason to do so. D.I. 302.
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`4
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`Case 1:16-cv-00453-RGA Document 709 Filed 04/15/20 Page 5 of 6 PageID #: 52464
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` Destiny infringes through the use of a custom-built peer-hosted “bubble” network. Id
`at 18-23. The Destiny network topology does not resemble either of the networks at
`issue in Take-Two.
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`Because the infringement issues in Take-Two and this case are different, the Take-Two
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`summary judgment order is not a basis for the Court to hear reargument on summary judgment in
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`this case.
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`III.
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`There is No Reason to Reconsider Infringement Under the Doctrine of Equivalents
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`The Court should also deny Activision’s request for leave to present arguments on the
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`doctrine of equivalents (DOE). Activision raised DOE in its first 150+ pages of summary
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`judgment briefing in this case. D.I. 442 at 29–31. And, as stated above, Activision never moved
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`for reconsideration once the Court issued its order denying summary judgment. Moreover, the
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`Court’s decision in Take-Two on DOE was based on its conclusion that the jury could not find
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`Take Two’s accused networks equivalent to the claimed network. Take-Two Order at 19 (“a
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`reasonable jury would have to conclude that the architecture of the NBA 2K network, which
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`relies on a central relay server, is fundamentally different from the m-regular networks of the
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`asserted claims, precluding a finding for Plaintiff under the doctrine of equivalents.”).
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`Because the accused networks in this case are very different from the Take-Two
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`networks, as described above, the DOE ruling in Take-Two does not control here, and the Court
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`should deny Activision’s Motion as to DOE arguments.
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`CONCLUSION
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`For the reasons set forth above, the Court should deny Activision’s motion for leave to
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`file a second supplemental summary judgment brief.
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`5
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`Case 1:16-cv-00453-RGA Document 709 Filed 04/15/20 Page 6 of 6 PageID #: 52465
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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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`Attorneys for Plaintiff
`Acceleration Bay LLC
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`OF COUNSEL:
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`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: April 15, 2020
`6660331
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`6
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