Case 1:16-cv-00453-RGA Document 710 Filed 04/20/20 Page 1 of 7 PageID #: 52466
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`ACCELERATION BAY LLC,
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`ACTIVISION BLIZZARD, INC.,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ACTIVISION BLIZZARD’S REPLY BRIEF IN SUPPORT OF ITS MOTION FOR
`LEAVE TO FILE A SUPPLEMENTAL SUMMARY JUDGMENT BRIEF
`BASED ON NEW LEGAL CONCLUSIONS FROM THE COURT
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`v.
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`C.A. No. 16-453 (RGA)
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`Plaintiff,
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`Defendant.
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`OF COUNSEL:
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`B. Trent Webb
`Aaron Hankel
`John Garretson
`Tanya Chaney
`Jordan T. Bergsten
`Maxwell C. McGraw
`SHOOK, HARDY & BACON LLP
`2555 Ground Boulevard
`Kansas City, MO 64108
`(816) 474-6550
`
`Michael A. Tomasulo
`Gino Cheng
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
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`April 20, 2020
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
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`
`
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`David P. Enzminger
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
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`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
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`Attorneys for Defendant
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`

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`Case 1:16-cv-00453-RGA Document 710 Filed 04/20/20 Page 2 of 7 PageID #: 52467
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`Acceleration does not deny that in Acceleration Bay LLC v. Take-Two Interactive
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`Software, Inc., No. 16-455-RGA, 2020 WL 1333131 (D. Del. Mar. 23, 2020) (“Take-Two”), this
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`Court clarified its claim constructions on the patent claims at issue in this case. Acceleration’s
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`Opposition (D.I. 709) fails to address whether there is any genuine fact issue for a jury after this
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`Court’s recent legal holdings in Take-Two. Of course, claim construction in this case and Take-
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`Two were consolidated. And Acceleration makes no attempt to argue how a reasonable juror
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`could find infringement under the Court’s clarified constructions—because it cannot.
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` In Take-Two, this Court granted summary judgment because “Plaintiff’s experts are not
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`describing a network that meets [the Court’s] construction.” Take-Two at *8. Acceleration’s
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`theories regarding infringement by Activision are substantively identical to the theories found
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`legally deficient in Take-Two. D.I. 708 pp. 2-4. Acceleration’s opposition fails to specifically
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`point to any material differences, instead making conclusory arguments that Activision’s
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`networks are “different” from the networks in Take-Two. As in Take-Two, there is nothing here
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`that remains for a jury to decide. Activision thus respectfully requests an opportunity to file
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`supplemental briefing on why this Court’s legal holdings in Take-Two require summary
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`judgment in this case.
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`A.
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`Acceleration’s Focus on Procedure is Misplaced
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`This Court clarified its constructions in Take-Two in accord with Federal Circuit
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`authority, which encourages a court to “alter[] its interpretation of the claim terms as its
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`understanding of the technology evolves.” Wi-LAN USA, Inc. v. Apple Inc., 830 F.3d 1374, 1385
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`(Fed. Cir. 2016) (affirming summary judgment of no infringement based on construction entered
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`after original summary judgment order). Acceleration’s Opposition does not dispute the
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`clarifications, but instead argues that the procedural history of this case takes precedence over its
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`fatally flawed theories under the clarified constructions. Acceleration’s exhaustive procedural
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`1
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`Case 1:16-cv-00453-RGA Document 710 Filed 04/20/20 Page 3 of 7 PageID #: 52468
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`arguments ignore the relevant question before the Court—whether the clarified constructions in
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`Take-Two justify targeted briefing of 15 pages or fewer to apply this Court’s legal holdings to the
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`undisputed facts in this case.
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`Activision has shown good cause for its motion in view of the clarified constructions in
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`Take-Two and their dispositive applicability to this case. See Dyson, Inc. v. SharkNinja
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`Operating LLC, No. 14-cv-779, 2018 WL 1906105, *7 (N.D. Ill. 2018) (“[t]here is good cause to
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`authorize a successive summary judgment motion where . . . it will allow the Court to . . . avoid
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`an unnecessary trial[.]” )(citations omitted); see also Jamesbury Corp. v. Litton Indus. Products,
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`Inc., 839 F.2d 1544, 1550 (Fed. Cir. 1988) (“[T]he court has the power to reconsider its decisions
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`until a judgment is entered.”). Activision made such a showing here, explaining how
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`Acceleration’s expert testimony on each of the three accused games is substantively the same as
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`that found legally insufficient in Take-Two. Acceleration failed to rebut that showing.1
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`B.
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`Acceleration Shows No Meaningful Difference Between this Case and Take-
`Two
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`Acceleration’s conclusory assertions that Activision’s networks are somehow “different”
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`than the networks in Take-Two fail to salvage its case. Acceleration does not explain why any of
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`the alleged network differences has any bearing on why Acceleration’s expert theories fail under
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`this Court’s reasoning in Take Two, as explained by Activision in its opening brief. D.I. 708.
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`Nor could it. One independent basis for this Court granting summary judgment as to
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`Grand Theft Auto Online in Take-Two was that, under Acceleration’s own expert theories, “the
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`1
`Acceleration’s reliance on Liger6 and Bernstein is inapposite. In Liger6, the court
`declined additional briefing because defendant failed to include the issue in its original briefing.
`Liger6, LLC v. Sarto Antonio, No. 13-cv-4694, 2017 WL 3574845, at *2-3 (D.N.J. Aug. 17,
`2017). Likewise, in Bernstein, the defendant’s motion was prematurely filed, with the Court
`explaining that the defendant should “have waited until” until it had a developed record.
`Bernstein v. Virgin Am., Inc., No. 15-cv-2277, 2017 WL 7156361, at *2 (N.D. Cal. Dec. 29,
`2017). Here, Activision seeks additional briefing of an issue previously briefed on a now
`complete record.
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`2
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`

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`Case 1:16-cv-00453-RGA Document 710 Filed 04/20/20 Page 4 of 7 PageID #: 52469
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`network might return to m-regular or it might not, depending on various factors” such as
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`“players’ actions.” Take-Two, at *8. Acceleration’s experts make the same arguments against
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`Activision’s games. For Activision’s World of Warcraft, Acceleration attempts to distinguish
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`the Take-Two case by arguing World of Warcraft is a “network made of servers.” But
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`Dr. Medvidovic’s only example of how those servers could become m-regular is based on the
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`independent actions of four users (and only four) on four different WoW systems chatting with
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`each other. D.I. 443, Ex. A-1, ¶¶ 209-11.2 For Call of Duty, Acceleration claims the network is
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`different from Take-Two because it is a “connectivity relay network.” But Dr. Medvidovic
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`opines that the “relay” necessary for m-regularity only occurs “due to NAT configuration
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`issues,” based on player router settings. Id. at ⁋⁋ 124, 161. Likewise, Acceleration claims
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`Destiny is different from Take-Two because it is a “peer-hosted ‘bubble’ network.” But
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`Dr. Mitzenmacher admits that whether those “bubbles” ever become m-regular is dictated by
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`players’ movements in the game, as a “player can connect to another’s Bubble’s Activity Host
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`when they run close to the geographic transition area between two Bubbles.” D.I. 443, Ex. A-2,
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`p. 3. As in Take-Two, Acceleration’s theories against Activision’s games are based on specific
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`and independent player actions necessary to manufacture m-regularity for a fleeting, hypothetical
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`moment. As in Take-Two, these theories fail as a matter of law under the Court’s clarified
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`constructions.
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`Acceleration also misses the mark when it suggests this Court’s holdings on the doctrine
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`of equivalents (“DOE”) in Take-Two are inapplicable here. D.I. 709, p. 5. In Take-Two, this
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`Court rejected, as a matter of law, Plaintiff’s DOE theories because they “effectively read[] the
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`2
`Dr. Medvidovic admits that these alleged m-regular instances are ephemeral and
`dynamically occur, if at all, based on player movement: “These realms bundles can dynamically
`split in cases of over population . . . . WoW will use algorithms to divide up the world map
`among the different servers depending on the player population in a given area.” Id.
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`3
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`Case 1:16-cv-00453-RGA Document 710 Filed 04/20/20 Page 5 of 7 PageID #: 52470
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`m-regular limitation out of the patent,” and because “Plaintiff is barred by prosecution history
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`estoppel from now attempting to erase that limitation from the patents.” Take-Two, at *9. These
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`conclusions of law apply to Plaintiff’s substantively identical theories in this case for the same
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`reasons this Court stated in Take-Two. The chart below compares the analysis dismissed in
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`Take-Two with Acceleration’s corollary analysis in this case (emphasis added):
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`Take-Two, at * 8
`(brackets in Court Order)
`“Dr. Mitzenmacher concluded GTAO performs
`‘substantially the same function’ as the m-regular
`claim element because it maintains
`‘a balanced and even topography in the network,
`which [allows the game] to relay game data
`efficiently so as not to overload a particular
`software application node on the network.’”
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`C.
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`Mitzenmacher Report
`D.I. 443, Ex. A-2, ¶ 143
`Dr. Mitzenmacher concluding “Destiny performs
`substantially the same function because the Destiny
`software program establishes
`a structured topography of the network
`which allows [the game] to relay game data
`efficiently so as not to overload a particular
`software application node on the network.”
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`Fairness Weighs In Favor of Additional Briefing
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`Notably absent from Acceleration’s opposition is any claim of prejudice or unfairness.
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`Acceleration has been given multiple opportunities to provide a submissible damages theory.
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`With each serially failed attempt, Acceleration was given the opportunity to try again.3
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`Acceleration cannot be heard to complain about the burden or necessity of additional briefing on
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`infringement.
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`Activision’s request for entry of judgment of no damages in view of Acceleration’s last
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`damages submission remains pending. D.I. 694. Revisiting the legal viability of Acceleration’s
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`3
`D.I. 521 (granting Acceleration leave to supplement its damages case to cure improper
`hypothetical negotiation date); D.I. 578 at 26-28 (precluding Acceleration’s supplemented
`damages case based on unrelated jury verdict); D.I. 600 at 2-6 (precluding Acceleration’s
`supplemented damages case based on inadmissible royalty rate evidence); D.I. 619 at 2-3
`(granting Acceleration “a final opportunity to present me with an admissible damages case” via
`“a proffer ... us[ing] as many pages as it requires”); D.I. 641 (Acceleration’s first proffer);
`D.I. 692 at 4-5 (striking Acceleration’s first proffer); D.I. 694 at 1 (Acceleration discloses new
`“fact-based damages case”); D.I. 699 (ordering Acceleration to explain how its new damages
`case “complies with the previous order of the Court (D.I. [619]) and, in any event, proffer the
`factual evidence” for the same”); D.I. 700 (Acceleration’s second proffer).
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`4
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`Case 1:16-cv-00453-RGA Document 710 Filed 04/20/20 Page 6 of 7 PageID #: 52471
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`infringement theories under the newly clarified constructions would moot Activision’s pending
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`request for judgment on damages.
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`D.
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`Conclusion
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`Activision respectfully requests leave to file a supplemental summary judgment brief to
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`address the impact of the Court’s guidance in Take-Two.
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`OF COUNSEL:
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`B. Trent Webb
`Aaron Hankel
`John Garretson
`Tanya Chaney
`Jordan T. Bergsten
`Maxwell C. McGraw
`SHOOK, HARDY & BACON LLP
`2555 Ground Boulevard
`Kansas City, MO 64108
`(816) 474-6550
`
`Michael A. Tomasulo
`Gino Cheng
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`April 20, 2020
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Jack B. Blumenfeld
`____________________________________
`Jack B. Blumenfeld (#1014)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`
`
`
`
`David P. Enzminger
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`
`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`Attorneys for Defendant
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`5
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`Case 1:16-cv-00453-RGA Document 710 Filed 04/20/20 Page 7 of 7 PageID #: 52472
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`CERTIFICATE OF SERVICE
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`I hereby certify that on April 20, 2020, 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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`April 20, 2020, 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
`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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