Case 1:16-cv-00453-RGA Document 733 Filed 11/29/21 Page 1 of 27 PageID #: 53991
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.,
`
`Defendant.
`
`)
`)
`)
`) C.A. No. 16-453 (RGA)
`)
`) REDACTED –
`) PUBLIC VERSION
`
`)
`)
`
`ACTIVISION BLIZZARD’S OPENING BRIEF IN SUPPORT OF
`ITS SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT
`OF NON-INFRINGEMENT BASED ON COLLATERAL ESTOPPEL
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Cameron P. Clark (#6647)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`cclark@morrisnichols.com
`
`Attorneys for Defendant
`
`OF COUNSEL:
`B. Trent Webb
`Aaron E. Hankel
`John Garretson
`Jordan T. Bergsten
`Maxwell C. McGraw
`SHOOK HARDY & BACON LLP
`2555 Grand Boulevard
`Kansas City, MO 64108
`(816) 474-6550
`
`Original Filing Date: November 22, 2021
`Redacted Filing Date: November 29, 2021
`
`

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`Case 1:16-cv-00453-RGA Document 733 Filed 11/29/21 Page 2 of 27 PageID #: 53992
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`TABLE OF CONTENTS
`
`INTRODUCTION .......................................................................................................................... 1
`NATURE AND STAGE OF PROCEEDINGS .............................................................................. 3
`SUMMARY OF ARGUMENT ...................................................................................................... 3
`STATEMENT OF FACTS ............................................................................................................. 4
`LEGAL AUTHORITY ................................................................................................................... 4
`ARGUMENT .................................................................................................................................. 5
`I.
`Collateral Estoppel Applies to the Three Key Infringement Rulings from
`the Take Two Case, which Establish Characteristics of a Network that
`Prevent Infringement .............................................................................................. 5
`There are No Genuinely Disputed Facts on Whether the Accused
`Networks Have the Characteristics that Prevent Infringement under the
`Take Two Rulings ................................................................................................... 8
`Precluded Issue One: A network is not “configured to maintain” m-regular
`connections where “the players’ actions determine how connections are
`formed.” .................................................................................................................. 8
`Precluded Issue Two: A network is not “configured to maintain” m-
`regular connections where a server is connected to every player in the
`network, and “transfers data back and forth between other network
`participants.” ......................................................................................................... 13
`Precluded Issue Three: A network that does not literally satisfy the “m-
`regular” requirement does not infringe under the doctrine of equivalents
`by otherwise “optimizing” the network by “limiting each participant’s
`connections.” ......................................................................................................... 18
`Even Absent a Collateral Estoppel Holding, this Court Should Grant
`Summary Judgment of No Infringement .............................................................. 19
`CONCLUSION ............................................................................................................................. 20
`
`II.
`
`a.
`
`b.
`
`c.
`
`III.
`
`i
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`

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`Case 1:16-cv-00453-RGA Document 733 Filed 11/29/21 Page 3 of 27 PageID #: 53993
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Acceleration Bay LLC v. 2K Sports, Inc.,
`15 F.4th 1069 (Fed. Cir. 2021) ..................................................................................................3
`
`Acceleration Bay LLC v. Take-Two Interactive Software, Inc.,
`No. 16-cv-455-RGA, 2020 WL 1333131 (D. Del. Mar. 23, 2020) ................................. passim
`
`Aspex Eyewear, Inc. v. Zenni Optical Inc.,
`713 F.3d 1377 (Fed. Cir. 2013)......................................................................................1, 5, 6, 8
`
`Intell. Ventures I LLC v. Cap. One Fin. Corp.,
`937 F.3d 1359 (Fed. Cir.), reh’g denied, 943 F.3d 1383 (Fed. Cir. 2019) ................................5
`
`Jayasundera v. Garcia,
`684 F. App’x 254 (3d Cir. 2017) ...........................................................................................4, 7
`
`Phil-Insul Corp. v. Airlite Plastics Co.,
`854 F.3d 1344 (Fed. Cir. 2017)........................................................................................ passim
`
`Studiengesellschaft Kohle, mbH v. USX Corp.,
`675 F. Supp. 182 (D. Del. 1987) ................................................................................................7
`
`Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co.,
`520 U.S. 17 (1997) ...................................................................................................................18
`
`ii
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`

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`INTRODUCTION
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`The parties do not dispute how Activision’s networks operate, and Plaintiff’s arguments
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`for why those undisputed facts show patent infringement were fully litigated and resolved against
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`Plaintiff in the Take Two case.1 Plaintiff chose not to appeal those key rulings in Take Two. Now
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`that the Federal Circuit has affirmed that judgment of no infringement, those un-appealed rulings
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`have full collateral estoppel, or “issue preclusion,” effect in this case. This case is thus like Aspex
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`Eyewear, where the Federal Circuit affirmed judgment that a plaintiff who failed to show
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`infringement once was collaterally estopped from arguing its infringement theories in a second
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`case, explaining: “The district court correctly defined the issue as infringement by magnetic
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`rimless clip-on eyewear in view of the final construction of ‘retaining mechanisms’ as requiring
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`rims,” holding the plaintiff “had a full and fair opportunity to litigate this issue.” Aspex Eyewear,
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`Inc. v. Zenni Optical Inc., 713 F.3d 1377, 1382 (Fed. Cir. 2013).
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`In Take Two, plaintiff likewise fully litigated three issues that, if given proper collateral
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`estoppel effect here, establish non-infringement across this entire case. As in Take-Two, the Court
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`construed each asserted claim in this case to require the accused videogame networks to be
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`configured to maintain m-regularity, meaning every “participant” in the network must connect to
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`the exact same number of participants as everyone else. As in Take Two, Plaintiff’s descriptions
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`of Activision’s networks here, even if taken as true, cannot satisfy this Court’s claim constructions.
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`Precluded Issue One: A network is not “configured to maintain” m-regular connections
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`where “the players’ actions determine how connections are formed,” especially when a plaintiff
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`merely argues “that the combination of various rules and constraints ‘drives the formation’ of an
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`m-regular network” in response to these player actions. Take Two, at *8. Plaintiff fully litigated
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`1 Acceleration Bay LLC v. Take-Two Interactive Software, Inc., No. 16-455-RGA, 2020 WL
`1333131 (D. Del. Mar. 23, 2020) (“Take-Two”).
`
`1
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`

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`Case 1:16-cv-00453-RGA Document 733 Filed 11/29/21 Page 5 of 27 PageID #: 53995
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`this issue in Take Two, with the Court ruling that such networks do not infringe. Id. Here, the only
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`examples of alleged m-regularity provided by plaintiff’s experts are completely dependent on
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`players’ actions, that is, where the player chooses to move their character within the game or (for
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`one network) how the player configures security settings. Collateral estoppel bars re-litigation of
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`this issue, and prevents infringement on all asserted claims and accused games.
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`Precluded Issue Two: A network is not “configured to maintain” m-regular connections
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`where a server is connected to every player in the network, and “transfers data back and forth
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`between other network participants.” Id. at *9. Plaintiff fully litigated this issue in Take Two, with
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`the Court ruling that such networks do not infringe. Id. Here, for two of the three accused games
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`it is undisputed that a server transfers data back and forth between every player, making m-
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`regularity and thus infringement impossible under the Take Two rulings.2 This issue is also
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`precluded, creating an independent basis for summary judgment of non-infringement.
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`Precluded Issue Three: A network that does not literally satisfy the “m-regular”
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`requirement does not infringe under the doctrine of equivalents by otherwise “optimizing” the
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`network “by limiting each participant’s connections.” Id. at *8. Plaintiff fully litigated this issue
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`in Take Two as well, with the Court rejecting this theory because it would “read[] the m-regular
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`limitation out of the patent.” Id. at *8-9. Plaintiff’s nearly identical statements of equivalence from
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`the same experts here also “do[] not save Plaintiff’s infringement theory.” Id. at *8.
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`Plaintiff’s doctrine of equivalents arguments are thus also barred by claim preclusion and,
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`given the two independent bases for barring literal infringement above, Activision respectfully
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`submits that summary judgment of no infringement is proper.
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`2 For the third game, World of Warcraft (“WoW”), plaintiffs’ only examples of alleged m-
`regularity likewise require the fact finder to ignore additional servers that “transfer[] data back and
`forth between other network participants,” so collateral estoppel applies there as well. Id. at *9.
`
`2
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`

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`Case 1:16-cv-00453-RGA Document 733 Filed 11/29/21 Page 6 of 27 PageID #: 53996
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`NATURE AND STAGE OF PROCEEDINGS
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`Plaintiff Acceleration Bay accuses Defendant Activision Blizzard of infringing its patents
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`through three game titles: Call of Duty (“CoD”), World of Warcraft (“WoW”), and Destiny.3 This
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`case was consolidated for claim construction with Plaintiff’s cases on these same patents against
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`Take-Two and Electronic Arts. D.I. 275, 386, 387, 423. In 2018 this Court granted in part and
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`denied in part Activision’s motion for summary judgment of non-infringement. D.I. 578.
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`In March 2020, this Court granted summary judgment of non-infringement in Plaintiff’s
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`case against Take-Two as to each of the claims currently asserted in this case. Take-Two, at *1.
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`In short, the Court explained that the “asserted claims of these patents are limited to networks that
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`are ‘incomplete’ and ‘m-regular,’” and that no reasonable juror could find that any of the accused
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`networks were m-regular as construed by the Court. Take-Two, at *1. That judgment was affirmed
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`in all respects on appeal, with the Federal Circuit noting that “Acceleration Bay has forfeited any
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`challenge to the district court's grant of summary judgment of non-infringement on the basis that
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`the accused products fail to satisfy the ‘m-regular’ limitation….” Acceleration Bay LLC v. 2K
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`Sports, Inc., 15 F.4th 1069, 1076 (Fed. Cir. 2021). After a status conference on November 4, 2021,
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`this Court granted leave for this additional supplemental summary judgment briefing.
`
`SUMMARY OF ARGUMENT
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`In this case, Plaintiff asserts the same infringement arguments rejected in Take Two, and
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`Plaintiffs can point to no difference between the networks in that case and this one that are material
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`to those failed arguments. Thus, this Court should apply collateral estoppel and grant judgment of
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`no infringement in this case.
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`3 Specifically, CoD and Destiny are accused of infringing claim 1 of the ‘147 Patent and claims
`1 and 11 of the ‘069 Patent. D.I. 590, p. 7. WoW is accused of infringing claim 12 of the ‘344
`Patent and claim 13 of the ‘966 Patent. Id. The ‘497 Patent has been withdrawn. D.I. 728, p. 2.
`
`3
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`

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`STATEMENT OF FACTS
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`The relevant facts are set forth in the Argument sections as appropriate.
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`LEGAL AUTHORITY
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`This Court is familiar with the standard for summary judgment. See D.I. 578, pp. 4-5.
`
`“Collateral estoppel precludes a plaintiff from relitigating identical issues by merely
`
`switching adversaries and prevents a plaintiff from asserting a claim that the plaintiff had
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`previously litigated and lost against another defendant.” Phil-Insul Corp. v. Airlite Plastics Co.,
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`854 F.3d 1344, 1353 (Fed. Cir. 2017) (internal quotes omitted). The Third Circuit standard for
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`collateral estoppel applies here, and requires a showing that: “(1) the identical issue was previously
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`adjudicated; (2) the issue was actually litigated; (3) it was determined by a final and valid
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`judgment; and (4) that determination was essential to the prior judgment.” Jayasundera v. Garcia,
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`684 F. App'x 254, 255 (3d Cir. 2017). “Federal Circuit precedent applies, however, to aspects of
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`the collateral estoppel analysis that are particular to patent law.” Phil-Insul, 854 F.3d at 1353.
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`Under Federal Circuit law, “an infringement claim in a second suit is the same claim as in an earlier
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`infringement suit if the accused products in the two suits are essentially the same,” meaning “the
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`differences between them are merely colorable or unrelated to the limitations in the claim of the
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`patent.” Id. (internal quotes omitted).
`
`The Federal Circuit has also explained that an “issue that falls within the scope of the
`
`judgment appealed from but is not raised by the appellant in its opening brief on appeal is
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`necessarily waived” and that “[u]nless remanded by this court, all issues within the scope of the
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`appealed judgment are deemed incorporated within the mandate and thus are precluded from
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`further adjudication.” Id. at 1357 (internal quotes omitted). “Accordingly, the noninfringement
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`determinations in [a prior case] are final for collateral estoppel purposes by virtue of [a plaintiff’s]
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`failure to appeal them.” Id. at 1357. “Rules of preclusion assume the correctness of the prior
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`4
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`

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`Case 1:16-cv-00453-RGA Document 733 Filed 11/29/21 Page 8 of 27 PageID #: 53998
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`judgment. All that matters is that the issue has actually been litigated and has been validly and
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`finally determined. Intell. Ventures I LLC v. Cap. One Fin. Corp., 937 F.3d 1359, 1379 (Fed.
`
`Cir.), reh'g denied, 943 F.3d 1383 (Fed. Cir. 2019).
`
`ARGUMENT
`
`I. Collateral Estoppel Applies to the Three Key Infringement Rulings from the Take
`Two Case, which Establish Characteristics of a Network that Prevent Infringement
`
`Courts have long avoided wasteful re-litigation in patent cases by giving preclusive effect
`
`to prior rulings on which characteristics of a product fall outside the scope of a patent and thus
`
`prevent infringement. This Court’s three key non-infringement rulings in Take Two fall into that
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`category. As in Take Two, here Plaintiffs must prove that each accused network meets the common
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`construction of “m-regular” entered in both cases. The same rulings that prevented this proof in
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`Take Two prevent it here, leaving no genuine fact issue on infringement.4
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`First, the key Take Two rulings are like the issue given preclusive effect in Aspex Eyewear,
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`Inc. v. Zenni Optical Inc., 713 F.3d 1377 (Fed. Cir. 2013), which is instructive here. There, the
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`Federal Circuit affirmed that the plaintiff’s failed infringement case against a first defendant’s
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`eyewear product collaterally estopped that plaintiff from litigating its infringement theories against
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`a second eyewear product from a second defendant. The district court found the two products to
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`be “materially indistinguishable,” noting that “Plaintiffs have failed to identify . . . any material
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`difference between” the two products, and that the first court’s “decisions settled the question of
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`4 In short: (1) A network is not “configured to maintain” m-regular connections where “the
`players’ actions determine how connections are formed,” especially when a plaintiff merely argues
`“that the combination of various rules and constraints ‘drives the formation’ of an m-regular
`network” in response to these player actions; (2) A network is not “configured to maintain” m-
`regular connections where a server is connected to every player in the network, and “transfers data
`back and forth between other network participants”; (3) A network that does not literally satisfy
`the “m-regular” requirement does not infringe under the doctrine of equivalents by otherwise
`“optimizing” a network “by limiting each participant’s connections.” Take Two, at *8-9.
`
`5
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`

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`whether such eyewear can infringe.” Id. at 1380. The Federal Circuit affirmed, finding that a claim
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`construction in the first case was “determinative of noninfringement,” even if some circumstances
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`differed between the two cases. Id. at 1382. The Federal Circuit quoted one case where “the
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`differences in fact do not change the fact that the [second product] does not infringe,” and another
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`where the device in a second suit was “unchanged with respect to the corresponding claim
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`limitations at issue in the first suit,” and noted the “desire to prevent repetitious litigation of what
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`is essentially the same dispute.” Id. (internal quotes omitted). The Federal Circuit concluded that
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`the “district court correctly defined the issue as infringement by magnetic rimless clip-on eyewear
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`in view of the final construction of ‘retaining mechanisms’ as requiring rims,” holding the plaintiff
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`“had a full and fair opportunity to litigate this issue” so collateral estoppel applied. Id.
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`Second, Phil-Insul Corp. v. Airlite Plastics Co., 854 F.3d 1344, 1353 (Fed. Cir. 2017), is
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`also instructive. There the Federal Circuit affirmed that collateral estoppel barred a plaintiff from
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`litigating its failed infringement theories against “different defendants with similar products”
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`called insulating concrete forms (“ICFs”) used for building construction. Id. at 1347. Two non-
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`infringement rulings in the earlier case were given preclusive effect in the second case.5 The
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`second district court concluded that the products in the second case had the “same design” as those
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`in the first, meaning they were designed to have the same two characteristics found to prevent
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`infringement in the two key holdings from the first case. Id. at 1358. The Federal Circuit agreed
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`and affirmed judgment of no infringement. Id. at 1360.
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`5 The earlier district court (1) “concluded that prosecution history precludes an ICF with one row
`of projections and recesses on a panel or sidewall from infringing the '933 Patent under the doctrine
`of equivalents”; and (2) “found that [plaintiff] is estopped from asserting that ICFs with a row of
`projections and recesses that do not each have the same measurable length, breadth, area, and
`volume contain equivalents of the substantially the same dimension limitation.” Id. at 1350-51
`(internal quotes and alterations omitted).
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`6
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`Third, the decision of a court in this District in Studiengesellschaft Kohle, mbH v. USX
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`Corp., 675 F. Supp. 182, 183 (D. Del. 1987), is also instructive. That court, too, applied collateral
`
`estoppel to bar re-litigation of a failed infringement theory against a second defendant with a
`
`second product. The court concluded that the “issues in both cases are thus identical: whether the
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`'332 patent extends to the polymerization of propylene.” Id. at 184. It rejected the argument that
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`“because infringement claims necessarily involve consideration of a specific accused product or
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`process, collateral estoppel can never be based on a prior judicial finding that another defendant's
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`product or process does not infringe a patent,” explaining that “Federal Circuit precedent is plainly
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`to the contrary.” Id. at 188 (citing Molinaro v. Fannon/Courier Corp., 745 F.2d 651 (Fed. Cir.
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`1984)). The court then explained that the plaintiff “has had its day in court with respect to its claim
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`that the polymerization of propylene infringes the '332 patent,” and “must now move on to other
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`matters and must allow other parties and the Court to do so as well.” Id. at 188.
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`As in those cases, here the three key rulings from Take Two are final decisions on the
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`characteristics of a network that prevent it from infringing, and those final decisions should not be
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`re-litigated in this case. Those Take Two rulings plainly meet the elements for collateral estoppel.
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`See Jayasundera v. Garcia, 684 F. App'x 254, 255 (3d Cir. 2017). First, the issues are “identical”
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`because, as described in more detail in the next section, Plaintiff makes substantially similar
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`arguments in this case on the m-regular term, and Activision’s networks do not differ in any respect
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`that is material to these issues. Second, these issues were actually litigated and decided at summary
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`judgment in Take Two, and could have been (but were not) appealed in the now-resolved Federal
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`Circuit appeal of that case. Third, those issues are final and valid as un-appealed aspects of a
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`judgment that was appealed and affirmed without remand. See Phil-Insul, 854 F.3d at 1357.
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`Fourth, these holdings were essential to the Court’s judgment in Take Two. Issue one (player
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`7
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`Case 1:16-cv-00453-RGA Document 733 Filed 11/29/21 Page 11 of 27 PageID #: 54001
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`actions driving connections) was the reason the accused Grand Theft Auto Online game did not
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`literally infringe; issue two (server connected with everyone) was the reason the accused NBA 2K
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`game did not literally infringe; and issue three (claim vitiation) was the reason neither game
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`infringed under the doctrine of equivalents. See Take Two at *7-10.
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`As in Aspex Eyewear, Plaintiff “had a full and fair opportunity to litigate th[ese] issue[s],”
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`and thus “is collaterally estopped from relitigating infringement of these patents against
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`[Activision’s] products.” 713 F.3d at 1382.
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`II. There are No Genuinely Disputed Facts on Whether the Accused Networks Have the
`Characteristics that Prevent Infringement under the Take Two Rulings
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`Once Plaintiff is properly barred from re-litigating the same infringement arguments it lost
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`in Take Two, there are no disputed fact issues left for trial. Although Plaintiff has indicated it
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`intends to broadly claim Activision’s accused networks and the networks at issue in Take Two are
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`“different” (D.I. 709, pp. 4-5), Plaintiff has never identified, nor can it identify, any differences
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`that are material under the final decisions in Take Two. See Phil-Insul, 854 F.3d at 1353. The
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`parties do not dispute the material aspects of how Activision’s networks operate, and Plaintiff’s
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`statements about Activision’s networks, even if taken as true, cannot support a finding of
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`infringement under the preclusive Take Two rulings.
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`a. Precluded Issue One: A network is not “configured to maintain” m-regular
`connections where “the players’ actions determine how connections are formed.”
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`This Court’s un-appealed ruling in Take Two that a network cannot satisfy the m-regular
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`limitation if “the players’ actions determine how connections are formed,” when applied to the
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`undisputed facts in this record, disposes of all infringement in this case. Take Two, at *8. In Take
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`Two, Plaintiff’s own expert’s theories on the game Grand Theft Auto Online showed that “the
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`network might return to m-regular or it might not, depending on various factors” such as “players’
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`actions.” Take-Two, at *8. As this Court explained in in Take Two, the “players control their own
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`8
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`

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`Case 1:16-cv-00453-RGA Document 733 Filed 11/29/21 Page 12 of 27 PageID #: 54002
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`avatars and choose where to move throughout the game environment,” and Plaintiff’s infringement
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`explanation for how player movements can lead to m-regular connections “does not suggest that
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`the network is m-regular. Instead, it suggests that the players’ actions determine how connections
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`are formed, and the network is not ‘configured to maintain’ any particular state.” Id. Even further,
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`Plaintiff’s expert Dr. Medvidovic merely “concluded that the combination of various rules and
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`constraints ‘drives the formation’ of an m-regular network,” meaning even under his theories “the
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`infringing state just arises naturally as the players are moving throughout the game.” Id. at *8. The
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`Court held that such “descriptions are not enough to show that the network is ‘configured to
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`maintain’ an m-regular state.” Id. Plaintiff did not appeal the Court’s rulings on this issue, which
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`apply equally for each network accused in this case and disposes of infringement.
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`1. For Call of Duty, Plaintiff’s Infringement Theories Require Players to Move
`Their Characters and Configure Their Routers in Certain Ways
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`For Call of Duty, Plaintiff’s expert Dr. Medvidovic discusses what he calls the “gameplay
`
`logics network” and the “connectivity graph network.” As in Take Two, even under Plaintiff’s
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`arguments these networks might or might not become or stay m-regular based on “various factors”
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`such as “players’ actions” subject to various “rules” and thus do not infringe. Take-Two, at *8.
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`For the Call of Duty “gameplay logics network,” Plaintiff’s position on the m-regular term
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`is that “
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`
`
`
`
`
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`Medvidovic further admits the alleged “convergence” of the network to any m-regular state is
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`.” D.I. 443, Ex. A-1, ¶ 188. Dr.
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`dependent on a wide range of player inputs, explaining that “
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`
`
`9
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`” and that “
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`
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`For the Call of Duty “connectivity graph network,” Dr. Medvidovic admits that any m-
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`” Id., at ¶192.
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`regular network must be the result of “
`
`
`
`.”
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`Id. ¶ 161. The deposition of Activision’s Pat Griffith, which was Dr. Medvidovic’s sole source
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`for this quote, explains that NAT configuration is controlled by the player, and that Activision
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`provides instructions to players on how to “do things to your router to try and get an open NAT”
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`to avoid altogether the need for such relays. See Ex. 1 (Griffith Depo. Tr.), pp. 191-93. Plaintiff
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`never denies that this is true, and certainly does not point to any contrary evidence on this point.
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`Thus, for both alleged networks in Call of Duty, the undisputed facts show that the network
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`configuration of any “
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`” that allegedly might lead to an m-regular configuration is dynamic
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`and determined by player actions, such as where players choose to move their avatar in the game,
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`or how to configure the NAT setting on their router. There is, therefore, no material distinction
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`from Take Two, and collateral estoppel bars any infringement by Call of Duty.
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`2. For Destiny, Plaintiff’s Infringement Theories Require Players to Move Their
`Characters in Very Specific Ways
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`Destiny is no different. The only two examples Plaintiff’s expert Dr. Mitzenmacher
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`provides of how the Destiny network might ever be m-regular both require players from three
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`different “fire teams” to end up in three particular different “Public Bubble[s]” in the game. D.I.
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`443, Ex. A-4 (Mitzenmacher Reply Report), ¶¶ 41, 45. It is undisputed that players are placed in
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`10
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`

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`the same “Public Bubble” only when they move their game characters close to each other in the
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`game world. For example, in describing a testing “experiment” that he relied on for his allegedly
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`m-regular scenario, Dr. Mitzenmacher defends his conclusion that when a player “
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`
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`.”
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`Id. at ¶ 46.6 Thus, as in Take Two, whether the Destiny network ever becomes or stays m-regular—
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`even under Plaintiff’s own argument—depends on “players’ actions,” and collateral estoppel bars
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`infringement against Destiny as well. Take-Two, at *8.
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`3. For WoW, Plaintiff’s Only Disclosed Infringement Theory Is Based On
`Transient and Hypothetical Player Movement and Communication Patterns
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`The same is true for WoW. WoW is an online role playing game that, at any time, supports
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`hundreds of thousands of users worldwide. Each player is assigned to a single network called a
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`“realm,” with dozens of its own servers each supporting a unique aspect of the gaming experience
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`for that realm. Although players can usually only interact with other players assigned to the same
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`realm, at some point WoW employed “cross realm zones,” where players assigned to different
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`realms could move their avatar to a certain place in their game world to interact with players
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`assigned to a different realm. This feature
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`. D.I. 443, Ex. A-1 (Medvidovic Report), at ¶ 102.
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`Based on this “cross-realm” feature, Plaintiff identified one, and only one, hypothetical
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`scenario that allegedly demonstrates configured m-regularity. This scenario depends on the
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`transient connections formed when four players assigned to four different realms each move their
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`avatar to a “cross realm zone” and “chat” with one another. D.I. 443, Ex. A-1 (Medvidovic Report),
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`6 See also D.I. 443, Ex. A-4 (Mitzenmacher Reply Report), at ¶ 36 (admitting that “
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`’”); id. at ¶ 113 (“
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`.”).
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`Case 1:16-cv-00453-RGA Document 733 Filed 11/29/21 Page 15 of 27 PageID #: 54005
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`at ¶ 210. Here too, Plaintiff’s infringement theories are driven by the players’ actions and there is
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`no material difference in the networks, meaning collateral estoppel bars infringement by WoW.
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`4. For All Three Games, Plaintiff’s Experts Vaguely Claim “Various Rules and
`Constraints” That Allegedly Drive M-Regularity Based on Player Actions.
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`As in Take Two, for each of the accused games in this case Plaintiff’s theories stray even
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`further from this Court’s constructions by vaguely referring to “various rules and constraints” that
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`allegedly “drive[] the formation’ of an m-regular network,” in response to player actions. Take
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`Two at *8. This further shows how Plaintiff’s theories are materially similar to the ones fully
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`litigated and rejected in Take Two. For Call of Duty, Plaintiff’s expert merely opines that data is
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`relayed using “constants and rules that converge the network to the same optimal number of
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`participants to which any one participant may relay data (i.e. the same number of connections to
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`neighbors).” D.I. 443, Ex. A-1, p. 2. For Destiny, Dr. Mitzenmacher merely opines on “a variety
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`of rules to distribute data traffic among the participating application programs to form an m-regular
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`network.” D.I. 443, Ex. A-2, at ¶ 121. For WoW, Dr. Medvidovic merely opines that “constants
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`. . . [in World of Warcraft] are used in conjunction with a variety of algorithms and rules . . . to
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`distribute data traffic among the participating application programs to form an m-regular network.”
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`D.I. 443, Ex. A-1, ¶ 204. Plaintiff’s need to rely on such vague statements mirroring the ones
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`rejected in Take Two only further confirms the lack of any material difference between Take Two
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`and this case.
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`Nor can Plaintiff stave off collateral estoppel by making conclusory statements that the
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`record cannot support. For instance, at the most recent status conference counsel for Plaintiff tried
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`to distinguish this case from Take Two by claiming that in Call of Duty’s “connectivity graph
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`network,” there is “a hard-coded constant number of connections they have. That’s what makes
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`that network m-regular.” Ex. 3 (Nov. 4, 2021 Hrg. Tr.), p. 21. Respectfully, this statement finds
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`Case 1:16-cv-00453-RGA Document 733 Filed 11/29/21 Page 16 of 27 PageID #: 54006
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`no support in the record, and only highlights the lack of any material difference from Take Two.
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`As explained above, it is undisputed that for the “connectivity graph network,” every player is
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`connected to every other player on their “network,” as Plaintiff defines it, unless
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`. See D.I. 443,
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`Ex. A-1, ¶ 124; see also Ex. 1 (Griffith Depo. Tr.), pp. 191-93. This is far from a “hard-coded
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`constant number of connections” that “makes that network m-regular.”7 It is thus unsurprising
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`that Plaintiff’s CoD expert does not point to any such “hard-coded number of connections,” but
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`instead only v