Case 1:16-cv-00453-RGA Document 729 Filed 11/19/21 Page 1 of 33 PageID #: 53886
`1
`
`IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
`
`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
`
`)
`)
`)
`) C.A. No. 16-453(RGA)
`)
`)
`
`))
`
`))
`
`ACCELERATION BAY LLC,
`
`
`
`Plaintiff,
`
`v.
`
`
`
`
`ACTIVISION BLIZZARD, INC.,
`)
`
`Defendant.
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
`ACCELERATION BAY LLC,
`Plaintiff,
`
`))
`
` C.A. No. 16-454(RGA)
`
`))
`
`))
`
`) J
`
`. Caleb Boggs Courthouse
`844 North King Street
`Wilmington, Delaware
`Thursday, November 4, 2021
`2:01 p.m.
`Status Conference
`
`v.
`
`ELECTRONIC ARTS INC.,
`Defendant.
`
`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 LLP
`BY: PAUL J. ANDRE, ESQUIRE
`BY: AARON M. FRANKEL, ESQUIRE
`
`For the Plaintiff
`
`
`
`
`
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
`
`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
`
`)
`)
`)
`) C.A. No. 16-453(RGA)
`)
`)
`
`))
`
`))
`
`ACCELERATION BAY LLC,
`
`
`
`Plaintiff,
`
`v.
`
`
`
`
`ACTIVISION BLIZZARD, INC.,
`)
`
`Defendant.
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
`ACCELERATION BAY LLC,
`Plaintiff,
`
`))
`
` C.A. No. 16-454(RGA)
`
`))
`
`))
`
`) J
`
`. Caleb Boggs Courthouse
`844 North King Street
`Wilmington, Delaware
`Thursday, November 4, 2021
`2:01 p.m.
`Status Conference
`
`v.
`
`ELECTRONIC ARTS INC.,
`Defendant.
`
`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 LLP
`BY: PAUL J. ANDRE, ESQUIRE
`BY: AARON M. FRANKEL, ESQUIRE
`
`For the Plaintiff
`
`
`
`
`
`
`
`Case 1:16-cv-00453-RGA Document 729 Filed 11/19/21 Page 2 of 33 PageID #: 53887
`2
`
`
`APPEARANCES CONTINUED:
`MORRIS NICHOLS ARSHT & TUNNELL LLP
`BY: JACK B. BLUMENFELD, ESQUIRE
`-and-
`SHOOK HARDY & BACON LLP
`BY: JORDAN T. BERGSTEN, ESQUIRE
`BY:
`B. TRENT WEBB, ESQUIRE
`For the Defendant
`Activision Blizzard, Inc.
`MORRIS NICHOLS ARSHT & TUNNELL LLP
`BY: CAMERON P. CLARK, ESQUIRE
`-and-
`WINSTON & STRAWN LLP
`BY: DAVID P. ENZMINGER, ESQUIRE
`For the Defendant
`Electronic Arts
`
`
`
`
`
`*** PROCEEDINGS ***
`
`DEPUTY CLERK: All rise. Court is now in
`session. The Honorable Richard G. Andrews presiding.
`THE COURT: All right. Please be seated. If
`you're fully vaccinated and you want to, you can take your
`mask off.
`
`All right. So this is the status conference in
`the Acceleration Bay vs. Activision Blizzard, which is
`16-453, and Acceleration Bay vs. Electronic Arts, which is
`16-454.
`
`Good afternoon, Mr. Rovner.
`
`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
`
`01:51:27
`01:51:27
`01:59:17
`
`01:59:17
`
`01:59:20
`
`02:00:32
`
`02:00:39
`
`02:00:43
`
`02:00:46
`
`02:00:49
`
`02:00:56
`
`02:00:59
`
`02:01:03
`
`
`
`Case 1:16-cv-00453-RGA Document 729 Filed 11/19/21 Page 3 of 33 PageID #: 53888
`3
`
`MR. ROVNER: Good afternoon, Your Honor. I'll
`just stand here and do the introductions?
`THE COURT: Yes.
`MR. ROVNER: I'm here with my co-counsel from
`Kramer Levin, Paul Andre and Aaron Frankel.
`THE COURT: All right. Good afternoon to you
`
`02:01:05
`
`02:01:07
`
`02:01:09
`
`02:01:10
`
`02:01:12
`
`02:01:14
`
`02:01:15
`
`02:01:16
`
`02:01:19
`
`02:01:19
`
`02:01:22
`
`02:01:28
`
`02:01:32
`
`02:01:37
`
`02:01:38
`
`02:01:41
`
`02:01:51
`
`02:01:56
`
`02:02:01
`
`02:02:05
`
`02:02:08
`
`02:02:08
`
`02:02:15
`
`02:02:19
`
`02:02:24
`
`all.
`
`Mr. Blumenfeld.
`MR. BLUMENFELD: Good afternoon, Your Honor.
`Jack Blumenfeld from Morris Nichols for both Defendants.
`Next to me is Jordan Bergsten, Trent Webb, both from Shook
`Hardy & Bacon for the Activision Defendant, and then David
`Enzminger from Winston & Strawn for Electronic Arts. And
`Cameron Clark is with Morris Nichols.
`THE COURT: Okay. Thank you.
`All right. So do I take it that the
`Acceleration Bay vs. Take-Two case is over in the sense that
`the Plaintiff isn't looking for rehearing of one kind or
`another? So that, even though the mandate may or may not
`have issued, that case is done?
`MR. ANDRE: It's done.
`THE COURT: Okay. Thank you.
`All right. So part of what I was trying to do
`after getting these status reports or, I guess, yeah, two
`status reports, was I was -- which seemed to me to be -- and
`
`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 729 Filed 11/19/21 Page 4 of 33 PageID #: 53889
`4
`
`they were status reports, so I'm not being critical here,
`but particularly the Defendants' positions seemed to involve
`some steps that might benefit me from having a little bit
`more explanation of exactly what the theory is here as to
`why there should be more of summary judgment motions.
`You know, I went, I spent a little bit of time
`looking at the summary judgment opinions in these two cases
`and looking, reviewing the Court of Appeals' decision, and
`also looking at the summary judgment decision in the
`underlying Take-Two or my decision. And I'm guessing, but
`this is, but if I guess it wrong, tell me, tell me what I
`should be thinking about, but I'm guessing it's not so much
`what the Court of Appeals said about anything in particular
`other than the fact that the litigation is now over. It
`gives you these arguments for collateral estoppel; is that
`right?
`
`02:02:33
`
`02:02:36
`
`02:02:49
`
`02:03:02
`
`02:03:11
`
`02:03:14
`
`02:03:21
`
`02:03:28
`
`02:03:32
`
`02:03:37
`
`02:03:48
`
`02:03:52
`
`02:03:55
`
`02:03:58
`
`02:04:03
`
`02:04:07
`
`02:04:08
`
`02:04:11
`
`02:04:15
`
`02:04:24
`
`02:04:32
`
`02:04:37
`
`02:04:44
`
`02:04:51
`
`02:04:56
`
`MR. BERGSTEN: Yes, that's right.
`THE COURT: And so one of the things that, you
`know, I'm thinking about is the various arguments that you
`might want to say -- and so, basically, what you want to do
`is to say how the -- whatever the -- some of the decisions
`that I made in the Take-Two case, it now apply retroactively
`to the analogous issue in the two earlier cases or the other
`two cases that I would then grant summary judgment for the
`Defendants.
`
`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 729 Filed 11/19/21 Page 5 of 33 PageID #: 53890
`5
`
`Is that the general theory?
`MR. BERGSTEN: Yes, that's correct, along with
`the collateral estoppel effect of unappealed issues in that
`judgment after that -- the appeal has come back.
`THE COURT: Well, so you know, a lot of -- so
`the issues that were appealed, and even the ones that aren't
`appealed, they mostly involve non-infringement; right?
`MR. BERGSTEN: That is correct, although before
`the stay, we took the position that some of the findings
`that were dispositive in the Take-Two Order were
`clarifications of claim constructions or legal rulings, for
`example, on vitiation and prosecution history estoppel. And
`in opposing our initial briefing, they never denied that
`those were legal rulings or clarifications of claim
`constructions.
`THE COURT: Well, you know, the claim
`construction, I'm not really sure was any kind of
`clarification. Yeah, there was more explication, but it's
`not as though I said I'm changing anything. I was just kind
`of applying it to the Take-Two case, wasn't I?
`MR. BERGSTEN: Well, you know, it's -- sometimes
`that's a difficult line to draw. I think the issue is
`simplified somewhat now that the appeal has been exhausted.
`I think, you know, we cited you to a couple of cases where
`the Federal Circuit has said that a non-infringement Order
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`02:06:20
`
`02:06:23
`
`02:06:28
`
`02:06:32
`
`1 2 3 4 5 6 7 8 9
`
`02:04:56
`
`02:04:57
`
`02:05:01
`
`02:05:05
`
`02:05:09
`
`02:05:17
`
`02:05:21
`
`02:05:25
`
`02:05:30
`
`02:05:35
`
`02:05:37
`
`02:05:41
`
`02:05:46
`
`02:05:50
`
`02:05:53
`
`02:05:53
`
`02:06:02
`
`02:06:05
`
`02:06:10
`
`02:06:13
`
`02:06:17
`
`
`
`Case 1:16-cv-00453-RGA Document 729 Filed 11/19/21 Page 6 of 33 PageID #: 53891
`6
`
`in one case against one product should be applied to
`collaterally estop infringement by a second defendant in a
`second product. And if you look at those cases, they don't
`always come out and say whether it was a claim construction
`decision or a non-infringement judgment. But we do think --
`THE COURT: So, I'm sorry, Mr. Bergsten.
`MR. BERGSTEN: Sure.
`THE COURT: Is the joint status report where you
`cited these cases?
`MR. BERGSTEN: Correct.
`THE COURT: And could you tell me where in
`particular?
`MR. BERGSTEN: Yes. So on collateral estoppel,
`it would be the most recent one, Docket Entry 728.
`THE COURT: Well --
`MR. BERGSTEN: Page --
`THE COURT: So I'm assuming that you're talking
`about the joint status report that was filed like three days
`ago; right?
`MR. BERGSTEN: Correct.
`THE COURT: Okay. So which page?
`MR. BERGSTEN: Page 4. We cited the Aspex
`Eyewear decision on collateral estoppel. And then in
`Footnote 1, we cite two more cases that we think are germane
`to the issue.
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`02:07:16
`
`02:07:22
`
`02:07:26
`
`02:07:29
`
`1 2 3 4 5 6 7 8 9
`
`02:06:36
`
`02:06:39
`
`02:06:42
`
`02:06:45
`
`02:06:47
`
`02:06:51
`
`02:06:54
`
`02:06:54
`
`02:06:56
`
`02:06:57
`
`02:06:58
`
`02:06:59
`
`02:07:00
`
`02:07:03
`
`02:07:07
`
`02:07:09
`
`02:07:09
`
`02:07:11
`
`02:07:14
`
`02:07:14
`
`02:07:15
`
`
`
`Case 1:16-cv-00453-RGA Document 729 Filed 11/19/21 Page 7 of 33 PageID #: 53892
`7
`
`THE COURT: I would imagine those are fairly
`fact-specific-type decisions, aren't they?
`MR. BERGSTEN: Well, I would respectfully
`disagree to the extent that if you look at them -- so, for
`example, in the Aspex Eyewear case, the issue that was fully
`litigated was, you know, whether rimless eyewear can
`infringe on, you know, a particular claim term that's
`construed.
`
`02:07:53
`
`02:07:55
`
`02:07:58
`
`02:08:02
`
`02:08:06
`
`02:08:08
`
`02:08:12
`
`02:08:16
`
`02:08:16
`
`02:08:19
`
`02:08:23
`
`02:08:26
`
`02:08:30
`
`02:08:32
`
`02:08:36
`
`02:08:37
`
`02:08:41
`
`02:08:46
`
`02:08:50
`
`02:08:53
`
`02:08:58
`
`02:09:00
`
`02:09:03
`
`02:09:08
`
`02:09:11
`
`So in the second case, while it wasn't disputed,
`that, you know, the product at issue was rimless eyewear,
`they said, well, you know, this issue that was fully
`litigated in the first case doesn't need to be relitigated
`in the second case. And since it's undisputed that this
`case involves rimless eyewear, then collateral estoppel
`applies.
`
`And our point is the same types of issues, an
`issue like can rimless eyewear infringe this claim term, we
`think those are the types of legal decisions and fully
`litigated issues that were hashed out in the Take-Two Order.
`And we think once you apply those to this case, the
`Activision and the EA case, which we think this Federal
`Circuit authority says you should, all that's left are what
`we understand to be undisputed facts like: Is the Call of
`Duty a network? Is it a client-server network where there
`is a single server? A long-form way of saying that is:
`
`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 729 Filed 11/19/21 Page 8 of 33 PageID #: 53893
`8
`
`What is a single server that sends data to and from all the
`game players?
`We don't understand that to be a disputed issue
`in this case. From the very beginning, our experts have
`said, no, this case can't be -- this network that they're
`pointing can't be m-regular and incomplete because there's a
`single server that sends data to and from each one of those
`players. And I didn't understand their experts to ever be
`disputing that fact about how our network works. The
`dispute was about the scope of the patents.
`And what they -- what I understood them to be
`saying is, Well, we look at it as an application layer where
`we don't have to -- where it's not relevant to the claim
`term of m-regularity whether data is being sent back and
`forth from the server.
`So that issue of whether you can just discount
`the existence of a server that sends data back and forth was
`fully litigated in the Take-Two Order. And it's a fully
`litigated issue. It was not appealed. And because it was
`an unappealed judgment that's central to an Order that was
`appealed and was affirmed, then it has full collateral
`estoppel effect in this case.
`So if you applied the fully litigated issue to
`our case, all that's left are undisputed issues. And that's
`our basic position.
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`02:10:18
`
`02:10:19
`
`02:10:22
`
`02:10:24
`
`1 2 3 4 5 6 7 8 9
`
`02:09:14
`
`02:09:18
`
`02:09:19
`
`02:09:22
`
`02:09:25
`
`02:09:29
`
`02:09:33
`
`02:09:37
`
`02:09:39
`
`02:09:42
`
`02:09:43
`
`02:09:45
`
`02:09:48
`
`02:09:51
`
`02:09:55
`
`02:09:56
`
`02:10:00
`
`02:10:03
`
`02:10:07
`
`02:10:10
`
`02:10:13
`
`
`
`Case 1:16-cv-00453-RGA Document 729 Filed 11/19/21 Page 9 of 33 PageID #: 53894
`9
`
`And there are a couple of different other
`findings in the Take-Two Order that we would like to explain
`that are also similar to the issue that was fully litigated
`in the first case and these Federal Circuit cases.
`THE COURT: When you said you'd "like to
`explain," you mean you'd like to explain now or you'd like
`to explain in the briefing what you want to do?
`MR. BERGSTEN: We think the -- either way. I'm
`prepared to do it today, but I do think it's a situation
`where we could point you to the record a little more easily
`in a briefing situation.
`THE COURT: So one of the things that I noticed
`when I was looking over things, and I didn't remember it
`being the case in -- I remembered it being the case
`somewhere, that it turned out it was in the case in both
`Defendants' cases was that you raised way too many issues in
`the briefing.
`The issues that you now want to do summary
`judgment on, are they issues that you raised before,
`obviously not the collateral estoppel part, but the
`underlying substantive issue?
`MR. BERGSTEN: My understanding is that that's
`largely true in that, at a high level, we did point out in
`our opening summary judgment brief that, you know, that we
`didn't think that our -- there was a genuine fact issue on
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`02:11:44
`
`02:11:47
`
`02:11:52
`
`02:11:55
`
`1 2 3 4 5 6 7 8 9
`
`02:10:26
`
`02:10:28
`
`02:10:31
`
`02:10:34
`
`02:10:41
`
`02:10:46
`
`02:10:49
`
`02:10:51
`
`02:10:53
`
`02:10:56
`
`02:10:58
`
`02:11:02
`
`02:11:09
`
`02:11:14
`
`02:11:17
`
`02:11:22
`
`02:11:31
`
`02:11:32
`
`02:11:35
`
`02:11:39
`
`02:11:42
`
`
`
`Case 1:16-cv-00453-RGA Document 729 Filed 11/19/21 Page 10 of 33 PageID #: 53895
`10
`
`whether our networks were m-regular. One of the things we
`pointed out in our motion for leave before the stay is that
`the term participant has never been construed before.
`And so, I do -- so, at the very least, I think
`the Court's explaining a little bit more and resolving the
`issue of what can and cannot be a participant under the
`claim term as it appears in the patent. A ruling on the
`scope of the patents that really wasn't available to us at
`the time that we briefed those issues. In looking at this,
`you know, in looking at the way that Your Honor ruled in the
`Take-Two Order, focusing heavily on some of the statements
`made by their experts about the network, I do think there
`are additional statements from experts -- now that we have
`that guidance, I think there's additional statements from
`the experts in this case that we'd like to put into the
`record that weren't put in the summary judgment record
`before.
`
`02:11:57
`
`02:12:03
`
`02:12:06
`
`02:12:09
`
`02:12:12
`
`02:12:15
`
`02:12:19
`
`02:12:22
`
`02:12:25
`
`02:12:30
`
`02:12:34
`
`02:12:38
`
`02:12:44
`
`02:12:48
`
`02:12:51
`
`02:12:53
`
`02:12:55
`
`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
`
`02:12:57
`
`02:13:01
`
`02:13:05
`
`02:13:06
`
`02:13:09
`
`02:13:14
`
`02:13:16
`
`02:13:20
`
`Beyond that, I'm not sure if every single
`specific issue has been raised at the first summary judgment
`opportunity.
`THE COURT: All right. Well, I appreciate what
`you say there.
`So one of the things that I was trying to do and
`it was easier to do for Activision than for EA was just see
`what I think is actually left in the case. And in the
`
`
`
`Case 1:16-cv-00453-RGA Document 729 Filed 11/19/21 Page 11 of 33 PageID #: 53896
`11
`
`Activision part of the joint status report -- oh, yeah,
`right.
`
`02:13:34
`
`02:13:42
`
`02:13:42
`
`02:13:48
`
`02:14:11
`
`02:14:18
`
`02:14:24
`
`02:14:28
`
`02:14:32
`
`02:14:35
`
`02:14:36
`
`02:14:40
`
`02:14:44
`
`02:14:47
`
`02:14:51
`
`02:14:55
`
`02:14:58
`
`02:15:02
`
`02:15:06
`
`02:15:12
`
`02:15:17
`
`02:15:20
`
`02:15:24
`
`02:15:29
`
`02:15:32
`
`So you have on Page 2 a chart of the four
`patents and what products are accused. And your argument at
`this point, Mr. Bergsten, would be that Call of Duty and,
`I'm sorry, World of Warcraft and Call of Duty and Destiny,
`they all have this thing where there's a server connecting
`to lots of different participants, even if all the other
`participants are only connected to a handful?
`MR. BERGSTEN: That would be one of the
`arguments, although for World of Warcraft, it's a little bit
`different because they accuse the back-end servers as being
`the participants, rather than just the players. But there
`are other fully litigated issues from the Take-Two Order
`that we think, if applied to this case, would dispose of the
`World of Warcraft infringement allegation on other grounds.
`THE COURT: And to be specific, what issue?
`MR. BERGSTEN: Oh, what issue? So one of the
`issues is there was a holding in the Take-Two Order about
`how if m-regularity is only -- if the network comes to
`m-regularity or does not come to m-regularity based on
`decisions by players playing the game, that that's not
`enough to show that it's configured to maintain m-regularity
`under the laws applied to these patents.
`And I think we can show it's undisputed that for
`
`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 729 Filed 11/19/21 Page 12 of 33 PageID #: 53897
`12
`
`each of these games, including World of Warcraft, and the
`only examples that their experts provide as showing a
`situation where the networks might actually be m-regular, it
`relies heavily on what the players actually do.
`I can go through each of one of those games if
`you want, but --
`THE COURT: No, no. I don't think that would be
`productive, though I appreciate the offer.
`So that's a different take on the m-regular
`limitation than the single server of thing Take-Two?
`MR. BERGSTEN: We would say it's another legal
`ruling from Take-Two that we consider a different fully
`litigated issue that, if applied to this case, would show
`that each -- that under the, you know, facts as they are
`kind of agreed about how these networks work, it would limit
`infringement at to all three games.
`So the first one that I pointed to about the
`client-server relationship, that would get rid of the Call
`of Duty and the Destiny games. Those rulings about what is
`or is not a participant would still apply to World of
`Warcraft, but it would be simply different. In World of
`Warcraft, the servers don't necessarily have one server they
`all communicate with. But we do think that if we take the
`Court's ruling that a server that sends data to and from the
`participants is itself a participant, then if you look at
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`02:16:53
`
`02:16:56
`
`02:17:00
`
`02:17:03
`
`1 2 3 4 5 6 7 8 9
`
`02:15:35
`
`02:15:38
`
`02:15:42
`
`02:15:46
`
`02:15:48
`
`02:15:51
`
`02:15:52
`
`02:15:53
`
`02:15:56
`
`02:16:07
`
`02:16:10
`
`02:16:14
`
`02:16:17
`
`02:16:22
`
`02:16:28
`
`02:16:32
`
`02:16:35
`
`02:16:37
`
`02:16:44
`
`02:16:47
`
`02:16:51
`
`
`
`Case 1:16-cv-00453-RGA Document 729 Filed 11/19/21 Page 13 of 33 PageID #: 53898
`13
`
`the undisputed facts about how the World of Warcraft network
`works, it can't infringe.
`And then a second ground is the one we just
`discussed about how for all three games, even for their
`examples about how m-regularity may occur, it completely
`relies on choices that the players themselves make about
`where to go in the game or how to --
`THE COURT: Well, when you say "choices," you
`mean -- I think in the Take-Two Order, I said something like
`or the theory of the experts was something about convergence
`or something. And what I think I said was or the examples
`that the expert uses was as people march around, it tends to
`get m-regular or something like that. And I think what I
`said was, you know, it sort of has to be planned, not
`accidental.
`MR. BERGSTEN: Exactly.
`THE COURT: Is that the argument we're talking
`
`02:17:06
`
`02:17:11
`
`02:17:13
`
`02:17:15
`
`02:17:18
`
`02:17:22
`
`02:17:25
`
`02:17:27
`
`02:17:29
`
`02:17:36
`
`02:17:41
`
`02:17:47
`
`02:17:57
`
`02:18:00
`
`02:18:04
`
`02:18:06
`
`02:18:07
`
`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
`
`02:18:09
`
`02:18:09
`
`02:18:11
`
`02:18:14
`
`02:18:17
`
`02:18:20
`
`02:18:24
`
`02:18:28
`
`about?
`
`MR. BERGSTEN: Exactly, yes. So that's the
`same issue -- it was fully litigated there and it applies
`equally here that their expert says in the game of Destiny,
`if three people are on the same team and they choose to go
`to three different geographical locations, then the rules
`might push it towards m-regularity there. And so under the
`fully litigated reasoning in Take-Two, we don't have a
`
`
`
`Case 1:16-cv-00453-RGA Document 729 Filed 11/19/21 Page 14 of 33 PageID #: 53899
`14
`
`dispute about how the game works. We have a dispute about
`the scope of the patents that is resolved by a fully
`litigated issue in Take-Two.
`And kind of the third, I think the third major
`issue, you kind of touched on it right there is, you know,
`just looking at what the experts said in Take-Two about, Oh,
`there's not one specific constant in the code that makes it
`m-regular, but their testimony was if you look at a bunch of
`different features of network design, they converge to
`create m-regularity.
`In our motion for leave before the stay, we
`pointed to substantially similar statements by their
`experiments made as to all three games in this case. And
`now that that underlying issue and reasoning has not been
`appealed and has full collateral estoppel effect as to this
`case, that's just -- we consider that a third ground for how
`applying collateral estoppel in this case ends the
`infringement inquiry.
`THE COURT: And I guess the point or the wrong
`way to ask -- is it the case that there's, for lack of a
`better word, sort of two layers here? One of which is while
`you're saying -- and you're saying collateral estoppel, and
`the point would be that if you were correct that there was
`collateral estoppel, then the merits of my analysis wouldn't
`really matter. It would just be because I said it before,
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`02:19:49
`
`02:19:54
`
`02:19:58
`
`02:20:06
`
`1 2 3 4 5 6 7 8 9
`
`02:18:31
`
`02:18:33
`
`02:18:36
`
`02:18:39
`
`02:18:41
`
`02:18:45
`
`02:18:51
`
`02:18:55
`
`02:18:58
`
`02:19:01
`
`02:19:03
`
`02:19:06
`
`02:19:10
`
`02:19:14
`
`02:19:17
`
`02:19:21
`
`02:19:26
`
`02:19:31
`
`02:19:31
`
`02:19:36
`
`02:19:42
`
`
`
`Case 1:16-cv-00453-RGA Document 729 Filed 11/19/21 Page 15 of 33 PageID #: 53900
`15
`
`and the decision has now been affirmed, and it meets the
`elements of collateral estoppel. Let's assume it does.
`Then I can keep saying it again, as long as I'm right that
`applying collateral estoppel, that's the limit of what an
`appeal would be.
`Whereas, if it's not collateral estoppel, but
`the facts on the ground are close enough so that I would
`apply the same ruling anyhow, regardless of whether it's
`collateral estoppel or not, and then if collateral estoppel
`actually did not apply, then the merits of my analysis would
`be subject to review.
`MR. BERGSTEN: I think that's exactly right, and
`I think that's the difference between where we were before
`and after the mandate or the appeal to the Federal Circuit
`in Take-Two.
`The second argument you articulated is what we
`were saying before the appeal was final. And the first
`argument is what we're saying now that the appeal is final.
`And they didn't choose to appeal those issues. They chose
`other issues and lost on them by operation of a controlling
`law that just --
`THE COURT: All right. So, thank you. I think
`I have one more question for you and then I'll let the
`Plaintiff talk.
`Well, actually, this is not so much a question
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`02:21:26
`
`02:21:28
`
`02:21:36
`
`02:21:39
`
`1 2 3 4 5 6 7 8 9
`
`02:20:12
`
`02:20:16
`
`02:20:18
`
`02:20:24
`
`02:20:26
`
`02:20:28
`
`02:20:34
`
`02:20:38
`
`02:20:41
`
`02:20:51
`
`02:20:56
`
`02:20:58
`
`02:20:59
`
`02:21:03
`
`02:21:07
`
`02:21:08
`
`02:21:11
`
`02:21:14
`
`02:21:17
`
`02:21:20
`
`02:21:24
`
`
`
`Case 1:16-cv-00453-RGA Document 729 Filed 11/19/21 Page 16 of 33 PageID #: 53901
`16
`
`for you perhaps as for your colleague. One thing I couldn't
`tell from the papers, because I think Acceleration Bay
`didn't really express an opinion about it, is whether or not
`in the EA case the '497 patent was still alive. And I know
`your theory is that it's not.
`Is the '497 patent still alive?
`MR. ANDRE: Yes, Your Honor.
`THE COURT: Okay. And what is the theory under
`which it's still alive?
`MR. FRANKEL: It's the -- I didn't understand
`the comments, Your Honor. In EA's submission, the Blaze
`redirector theory is still in play which was the element
`that EA claims is no longer available for the '497.
`THE COURT: Okay. But you think the Blaze
`redirector is still available?
`MR. FRANKEL: Correct.
`MR. ENZMINGER: The Court granted summary
`judgment actually.
`THE COURT: Yeah, I kind of thought I did.
`MR. FRANKEL: Right. That was on the making
`infringement theory, but not the using infringement theory.
`THE COURT: Okay. All right. Thank you.
`MR. ENZMINGER: The action was not on the making
`and using, it was on all of them, because it said the
`element wasn't present.
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`02:23:04
`
`02:23:09
`
`02:23:11
`
`02:23:14
`
`1 2 3 4 5 6 7 8 9
`
`02:21:43
`
`02:21:47
`
`02:21:53
`
`02:21:58
`
`02:22:14
`
`02:22:16
`
`02:22:19
`
`02:22:21
`
`02:22:22
`
`02:22:26
`
`02:22:29
`
`02:22:32
`
`02:22:37
`
`02:22:43
`
`02:22:44
`
`02:22:46
`
`02:22:48
`
`02:22:50
`
`02:22:51
`
`02:22:58
`
`02:23:01
`
`
`
`Case 1:16-cv-00453-RGA Document 729 Filed 11/19/21 Page 17 of 33 PageID #: 53902
`17
`
`THE COURT: Well, hold on a second. Let me just
`go back and see if I can --
`MR. FRANKEL: Your Honor, it's Page 11 of the
`Summary Judgment Order.
`THE COURT: Yeah, I've got the Lexis or the
`Westlaw version, so thank you for the help, but that doesn't
`actually help. It was at the end of the opinion; right?
`MR. FRANKEL: It's about two-thirds of the way
`through Section 3.2.2.
`THE COURT: All right. Well, it's not going to
`be for the -- for whatever reason, I can't find it.
`All right. Well, in any event, there's a
`dispute as to whether that patent is still in the case or
`not. A dispute -- maybe there's an obvious answer. I
`figured if I looked at it, but I'm not going to do that
`right now.
`
`02:23:14
`
`02:23:17
`
`02:23:33
`
`02:23:36
`
`02:23:36
`
`02:23:39
`
`02:23:42
`
`02:23:58
`
`02:24:00
`
`02:24:29
`
`02:24:32
`
`02:24:38
`
`02:24:40
`
`02:24:42
`
`02:24:45
`
`02:24:49
`
`02:24:50
`
`02:24:59
`
`02:25:00
`
`02:25:01
`
`02:25:07
`
`02:25:12
`
`02:25:15
`
`02:25:18
`
`02:25:21
`
`All right. So do you want to add anything? I
`was going to go over to them.
`MR. ENZMINGER: The only thing that I would add
`is specific to EA is that the ruling with respect to
`m-regularity on Take-Two is on all fours with EA because
`they are both of the same network structure.
`With respect to the m-regularity in the EA
`summary judgment, the Court didn't reach a decision, but
`noted that there was a dispute on whether the application
`
`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 729 Filed 11/19/21 Page 18 of 33 PageID #: 53903
`18
`
`layer theory that they were implying, and you can ignore the
`server, was an issue of fact.
`In the Take-Two decision, the Court decided that
`issue, and that's now the law of the case for collateral
`estoppel. So that issue is it's not like it's in a
`different network or an analogous network, it's the same
`structure.
`
`02:25:24
`
`02:25:26
`
`02:25:28
`
`02:25:31
`
`02:25:35
`
`02:25:37
`
`02:25:41
`
`02:25:41
`
`02:25:42
`
`02:25:47
`
`02:25:54
`
`02:26:02
`
`02:26:10
`
`02:26:17
`
`02:26:19
`
`02:26:24
`
`02:26:29
`
`02:26:32
`
`02:26:35
`
`02:26:38
`
`02:26:40
`
`02:26:42
`
`02:26:45
`
`02:26:49
`
`02:26:51
`
`THE COURT: So one of the things that the Court
`of Appeals said, at least in relation to some of what was
`appealed, was the ones where they either dismissed for lack
`of jurisdiction or affirmed because there were alternatives
`that were on appeal, when I granted summary judgment on two
`different bases, do other collateral estoppel -- are each of
`them necessary then to the judgment?
`MR. ENZMINGER: I would argue in this case, yes.
`With respect to -- but whether or not that's true, it's the
`same issue for EA as it was for Take-Two on both of those
`issues.
`
`THE COURT: Okay. Thank you.
`You all?
`MR. ANDRE: Your Honor, I'll just address the
`Activision portion very briefly, and I'll let Mr. Frankel
`talk about the degree in great detail.
`One thing to keep in mind with Activision is
`that there's two very different network structures in that
`
`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 729 Filed 11/19/21 Page 19 of 33 PageID #: 53904
`19
`
`case. World of Warcraft structure is very different than
`the Call of Duty and the Destiny.
`THE COURT: So, the Call of Duty and Destiny are
`more like the Take-Two structure?
`MR. ANDRE: That's correct. It's more of a
`gaming structure with the participants being on the XBox, or
`the PlayStation, whatever. The network structure of World
`of Warcraft is based on a server architecture, so it's very,
`very different.
`And you may recall during the oral argument you
`
`02:26:53
`
`02:26:57
`
`02:27:00
`
`02:27:02
`
`02:27:04
`
`02:27:05
`
`02:27:09
`
`02:27:13
`
`02:27:17
`
`02:27:19
`
`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
`
`02:27:22
`
`02:27:23
`
`02:27:24
`
`02:27:25
`
`02:27:27
`
`02:27:28
`
`02:27:31
`
`02:27:34
`
`02:27:36
`
`02:27:38
`
`02:27:40
`
`02:27:42
`
`02:27:43
`
`02:27:45
`
`02:27:48
`
`asked --
`
`THE COURT: No.
`MR. ANDRE: No, you probably don't.
`THE COURT: You're asking do I recall oral
`argument from 2017?
`MR. ANDRE: No, let me remind you. During oral
`argument, you had asked that exact question, why were you
`not moving on the same grounds.
`THE COURT: Well, you know, that thought had
`occurred to me when I was looking this over, what was the
`difference, but I haven't been able to reason it through.
`Okay.
`MR. ANDRE: So they said, well, there's two
`different structures and the same argument doesn't apply to
`both. So the idea that collateral estoppel for Call of Duty
`
`
`
`Case 1:16-cv-00453-RGA Document 729 Filed 11/19/21 Page 20 of 33 PageID #: 53905
`20
`
`would apply to -- I mean, for Take-Two would apply to World
`of Warcraft is just completely off the charts. There's two
`different, completely different network structures.
`With respect to how the Call of Duty games and
`the Destiny games, and the EA games how they operate, they
`operate substantially different than the Take-Two. They
`were architected differently, and Mr. Frankel can tell you
`chapter and verse on how they're different. But there's
`nothing -- you'd have to go back and change your first
`opinions regarding the summary judgments and change the
`facts of your fact findings there in order to get to really
`where you get to.
`And I'll let Mr. Frankel talk a little bit more
`about some of the details of why they're different.
`THE COURT: Okay. Thank you, Mr. Andre.
`Mr. Frankel. And if at some point I cut you
`off, it's because I no longer have any clue what you're
`talking about.
`MR. FRANKEL: I'm used to that, Your Honor, but
`I won't take it personally. The games, the networks, the
`power of the games in Activision and EA are completely
`different from the networks at issue in Take-Two. The
`arguments were different, and Your Honor's ruling in
`Take-Two does not apply in any way to the Activision or EA
`games.
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`02:28:57
`
`02:29:00
`
`02:29:03
`
`02:29:08
`
`1 2 3 4 5 6 7 8 9
`
`02:27:51
`
`02:27:56
`
`02:28:01
`
`02:28:03
`
`02:28:08
`
`02:28:11
`
`02:28:15
`
`02:28:18
`
`02:28:21
`
`02:28:24
`
`02:28:26
`
`02:28:30
`
`02:28:31
`
`02:28:33
`
`02:28:35
`
`02:28:38
`
`02:28:42
`
`02:28:46
`
`02:28:47
`
`02:28:49
`
`02:28:54
`
`
`
`Case 1:16-cv-00453-RGA Document 729 Filed 11/19/21 Page 21 of 33 PageID #: 53906
`21
`
`So the cases they cited with collateral estoppel
`where it's an identical issue, you have the same part of the
`eyeglass in two products. And here, there's no overlap in
`the facts. You know, in Call of Duty, the accused network
`is this VOIP quality of service network, which is a
`peer-to-peer network. That's undisputed. It's not a
`client-server network architecture.
`And so basically when the voice traffic in the
`Call of Duty game, so the people shooting at each other can
`talk to their teammates, it's considered very heavy data as
`compared to the regular game play data. So that's not
`carried on a client-server network. It's offloaded to a
`peer-to-peer network that would -- so the player systems
`themselves are talking to each other or the participants.
`That's without any connection to
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
