Case 1:16-cv-00453-RGA Document 737 Filed 12/23/21 Page 1 of 23 PageID #: 54107
`Case 1:16-cv-00453-RGA Document 737 Filed 12/23/21 Page 1 of 23 PagelD #: 54107
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`V.
`
`ACTIVISION BLIZZARD,INC.,
`
`Defendant.
`
`Seweraenaeme!Smeeeemee”See C.A. No. 16-453 (RGA)
`
`PUBLIC VERSION
`
`ACCELERATION BAY LLC’S OPPOSITION TO
`ACTIVISION BLIZZARD’S SUPPLEMENTAL MOTION FOR SUMMARY
`JUDGMENT OF NON-INFRINGEMENT BASED ON COLLATERAL ESTOPPEL
`
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff
`Acceleration Bay LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: December 17, 2021
`Public Version Dated: December 23, 2021
`
`

`

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`TABLEOFCONTENTS
`
`Page
`
`INTRODUCTION.o.ccececcecc cece seceeteeceete coeeeseeseaeesseesneeeedecceesaneceeseeesareeaeesseeniatesneeegnesseetennes 1
`
`U.
`
`STATEMENT OF THE FACTS ou. ccscccsscccececseeceeeceeeecneeceeeseneeseescaeceaeeeaecnneesaeseaeeeeeeeeaereneees 2
`
`A. Acceleration Bay’s M-Regular Patents Use an Application Layer Overlay
`Network... cccecccccccecccseeseeeeceseeeaeeesenesaeeesecenceaeeeseaegnedeeeseaessdeeseaesesevaneseseeneesadeeeseaeseseaes 2
`
`B. The Accused Products in the Take-Two Case Used Customized Networks ...............4- 4
`
`TL. NBA 2K ciieeccccccececececececeeneececececeeenseecaceseneecaeeceeccadeeseseneeseceecaeeeeaeedeessssereseteeneeeas 4
`
`2. GTA ce eccccccccsccceneceseeeneeeecenseesseeeeceecesesuseseeecaeeeaeeeaaececessueeseneseneceeesessesssesearesnasendeney 6
`
`I.
`
`ARGUMENT.... cc ccccccssccseeceeceseeesseesseeseeeescaeeeeeeceaeeeeeeceeeeeseetevseeceseedaeerecsateeaeecsasesaeseresseaeenees 6
`
`A. Collateral Estoppel Does Not Apply Because Activision’s Games are Different
`From Take-Two’s Games .0......cccccceescesseceseeceeeeeeecareeareeeceeeseceecesesneenaesneesistneteageeeetetanege 6
`
`B. Activision’s Accused Games Do Not Use the Same Technologyas the Take
`Two Gamesand are Configured to Form and Maintain M-Regular Connections.......... 8
`
`1. Destiny’s Broadcast Network and Activity Network Are M-Regular and
`are Materially Different from GTA and NBA 2K ou... eeeeeeseeee cere eeeeereeebeeeeneees 8
`
`(a) Destiny Forms and Maintains M-Regular Networks 0.0.0.0... eee ences 8
`
`(b) Destiny is Materially Distinguishable From GTA...........cccee eee eeeeteeeenees 10
`
`(c) NBA 2Kis Not Materially Indistinguishable.....0..0.. 00. e ee cece eee renee 11
`
`2.
`
`Call of Duty’s Connectivity Graph Network is M-Regular and Materially
`Distinguishable from GTA and NBA 2K... cece eee eeteeeeceneeeseeessneeeeegs 12
`
`(a) Call of Duty Forms and Maintains M-Regular Networks... cece 12
`
`(b) Call of Duty is Materially Distinguishable From GTA .0....occ eee eee 12
`
`(c) Call of Duty is Materially Distinguishable From NBA 2K....... cee eee 14
`
`3. World of Warcraft’s Network is M-Regular and Materially
`Distinguishable from GTA or NBA 2K 0... ces ceeeneesteseeeenecaeeeenesneenseaeeaes 15
`
`(a) World of Warcraft Forms and Maintains M-Regular Networks...............+ 15
`
`(b) World of Warcraft is Materially Distinguishable From GTA... 16
`
`

`

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`C. Collateral Estoppel Does Not Apply to Acceleration Bay’s Application of the
`Doctrine of Equivalents .......c...cccccceccccescesesseseceensesaestssetececsecssteseqeassesesssssruieecserieeesseenee 17
`
`D. Activision’s Second Bite at the Summary Judgment Apple Continues to Lack
`METIt eee ceceeeeeeeeaeeeesseeeesseseecseesaeseecaceaeeaesaeeaeeaeeaeesesaesaeesessessesseusesaesasesscatesasseeneeseees 18
`
`TV. CONCLUSIONooo. cceceecenecereceeesaeseeacsdceeusesesaesecndeasesaesdeessusaseeeseataeeseeatnesstesnaraesees 19
`
`

`

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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Acceleration Bay LLC v. Take-Two Interactive Software, Inc.,
`NO. 16-455-RGA Lecce cee eeceeseeeseteseneceaaesenesnaeensadseseeoneeeaesesseseeeseseesbeneseeseesedseetsertenees passim
`
`ArcelorMittal Atlantique et Lorraine v. AK Steel Corp.,
`908 F.3d 1267 (Fed. Cir. 2018)... cence ee ceee ere eentene tees ee senteeeseeeseseaeesaeseeeeeeneeeneee 1,7, 17
`
`Aspex Eyewear, Inc. v. Zenni Optical Inc.,
`713 F.3d 1377 (Fed. Cir. 2013)... ccccccccccececcecceceecceeeeeceseaeeeneeesseeceeedeeccaeseaeesieeeaeseaeeseeeneeenetsaas 8
`
`Del MarAvionics, Inc. v. Quinton Instrument Co.,
`836 F.2d 1320 (Fed. Cir. 1987)... .cccccecccecceeeneeeeeeceneeceeeeneeteaeteaeeneeeebeetenegeaeesareesedseneteaese 7, 10, 16
`
`In re Katz Interactive Call Processing Patent Litig.,
`639 F.3d 1303 (Fed. Cir. 2011)... ccececeeeceeeeceeceeeeeeeeeeeenesenecesevadesseenesesdtaeeeaesueeseegeeseaeenneeneaeags 7
`
`Phil-Insul Corp. v. Airlite Plastics Co.,
`854 F.3d 1344, 1352 (Fed. Cir. 2017)... ..ccceccceccceceeceneeeceeceeeeereceeeesaeeveeesaseseaeseeeesaneseeeseneeeaees 7,8
`
`Scott v. Harris,
`550 U.S. 372 (2007)... ceecceccceceseceneceeeneeeeeteeedeneceneeseenreneeseeeehseaeeneteeesnebesseeseatteeesestasecaesseneeensees l
`
`Studiengesellschaft Kohle, mbH v. USX Corp.,
`675 F. Supp. 182 (D. Del. 1987)... eeeecceeeceeeeeeeeeteeeeneeeneceseeeeesteaeecaesnaesiseaesueseeessuesenessaseeeaes 8
`
`Yingbin-Nature (Guangdong) Wood Indus. Co. v. Int'l Trade Comm'n,
`535 F.3d 1322 (Fed. Cir. 2008)........:cccccceceeenecsceeeeeeeeeeseeeeteeeeeeeecesonbeceisceseseesseneeseesserseeesessaey 7
`
`11
`
`

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`I.
`
`INTRODUCTION
`
`The Court should deny Activision’s motion for summary judgmenton collateral estoppel
`
`(D.I. 731, “Motion”) becauseit fails to carry its heavy “burden of showing that the accused
`
`devices are essentially the same as those in thepriorlitigation.” ArcelorMittal Atlantique et
`
`Lorraine v. AK Steel Corp., 908 F.3d 1267, 1274 (Fed. Cir. 2018) (citations omitted). The
`
`Court’s grant of summary judgmentof non-infringement in Take-Two wasbased onthe specific
`
`games and networksat issue in that case. Activision’s infringing games, which have no
`
`relationship to the gamesof its competitor Take-Two, use networkstructures that are very
`
`different from those at issue in Take-Two, precluding any application of collateral estoppel,
`
`particularly on summary judgment, where Acceleration Bayis entitled to all reasonable
`
`inferences from the record. Scott v. Harris, 550 U.S. 372, 380 (2007).
`
`This is especially the case for World of Warcraft, where the infringing network connects
`
`Activision’s internal servers and not players’ computers. This was such a material difference
`
`from Activision’s other accused products, and even more so from Take-Two’s games,that
`
`Activision did not even includeit for most of the arguments it raised in its original motion for
`
`summary judgment. See D.I. 442.
`
`The Court should also decline Activision’s invitation to reconsider summary judgment on
`
`grounds other than collateral estoppel.
`
`In its first summary judgment motion, which spanned 125
`
`pages andfive briefs, Activision raised the same non-infringementtheories it asserts in this
`
`Motion. See D.I. 709 at 2. Activision’s arguments should be denied for the same reason the
`
`Court denied them thefirst time around; there are multiple material factual disputes that create
`
`triable issues on infringement that cannot be resolved on summary judgment.
`
`

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`I.
`
`STATEMENT OF THE FACTS
`
`A.
`
`Acceleration Bay’s M-Regular Patents Use an Application Layer Overlay
`Network
`
`A pair of Boeing engineers, Dr. Fred Holt and Virgil Bourassa, conceived ofa series of
`
`inventions for providing efficient and reliable broadcast of data through large networks that
`
`resulted in Acceleration Bay’s U.S. Patent Nos. 6,701,344, 6,714,966, 6,732,147, and 6,910,069
`
`(the “Asserted Patents’). D.I. 453, Ex. 3 (‘344 Patent’’) at 2:38-42, 4:23-26 (broadcast overlay
`
`uses the underlying network to form point-to-point connections), 4:35-47 (m-regular overlay
`
`networkdoesnot fail unless m number of computers disconnect), Fig. 2. These patents use
`
`networks where a large numberofparticipating “nodes” are connected to create a virtual
`
`network, referred to as an “overlay” network that relies on an underlying network implemented
`
`using the Internet or other networks. See, e.g., ‘344 Patent at 4:3-47 (“The logical broadcast
`
`channel is implemented using an underlying network system (e.g., the Internet) that allows each
`
`computer connected to the underlying network system to send messages to each other connected
`
`computer using each computer’s address.”’); D.J. 276 at 3 (“The Broadcast Claims overlay the
`
`underlying network system with a certain graph of point-to-point connections between host
`
`computers (or ‘nodes’) through which a broadcast channel is implemented”). While the Asserted
`
`Patents define the special properties and architecture of the overlay network, the underlying
`
`network can have anystructure, so long as it is capable of moving messages between the
`
`participants in the overlay network.
`
`There are billions of people connected at the “network layer” by the Internet, because
`
`they can send messagesto each other over the myriad connections and pathwaysof the Internet.
`
`D.I. 453, Ex. 8 (Goodrich Rpt.) 94{ 54-57 (networklayer underlies application layer); D.I. 454,
`
`Ex. 40 (Med. Rpt.) 4 51; D.I. 454, Ex. 28 (Mitz. Rpt.) {| 46-47, 94. Software can be used to
`
`

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`build an “application layer” overlay network using the Internet where, for example, there are
`
`only twenty participants who are exchanging messages with eachother(i.e., who originate or
`
`receive messages on the specific overlay network).
`
`/d. By analogy, an office might have an
`
`office mail system that can deliver messages to and from everyone1n the building (the network-
`
`layer, analogousto the Internet). Four co-workers could start a club where when one of them
`
`finds an article of interest they send a copy to each ofthe other three membersofthe club
`
`through the office mail. This is the equivalent of an application-layer network with the four
`
`membersas the participants overlaying the office mail network. Thestructure of the office mail
`
`system does not matter to the membersofthe club;it just serves the function of making possible
`
`the communications of the overlay network.
`
`According to Acceleration Bay’s Asserted Patents, the inventive networkis in the
`
`application layer overlay. D.I. 276 at 3, 6-7. Each participant in the overlay networkis directly
`
`connected to only a subset of the otherparticipants in the overlay network, called its
`
`“neighbors.” “Neighbor” refers to the existence of a direct connection in the overlay network
`
`(i.e., not relying on other participants to relay messages), not physical proximity. D.I. 398 at2;
`
`‘344 Patent at 4:23-47. When a participant seeks to broadcast a messageto all of the other
`
`participants in the network,it sends the message only to its neighbors, who then send the
`
`messagesto their neighbors, and so on, until the message is distributed throughout the whole
`
`network.
`
`/d.
`
`The asserted claims require that the application overlay networkbe “m-regular,” which
`
`refers to a network where each participant is connected to (or attempts to connect to) the same
`
`numberofparticipants. See, e.g., ‘344 Patent at Claim 13 (“wherein the network is m-regular,
`
`where m is the exact numberof neighborparticipants of each participant”); D.I. 453, Ex. 4, ‘966
`
`

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`Patent at Claim 13 (same); D.I. 117, Ex. A-3,‘147 Patent at Claim 1 (“said broadcast channel
`
`forming an m-regular graph where m isat least 3”).
`
`The Court found this to be “an innovative network structure for the distribution of data as
`
`the numberofparticipants in a computer network is scaled.” D.I. 276 at 6. Because each
`
`participant only needs to send a messageto its neighbors, as opposed to sending the messageto
`
`all participants in the entire network, the number of connections each participant must maintain
`
`and the number of messages eachparticipant must send to reachall other participants is
`
`minimized.
`
`‘344 Patent at 4:23-47. In denying Activision’s motion to dismiss for lack of patent
`
`eligibility, the Court found that “Defendants gloss over the claim requirement of a non-complete,
`
`m-regular networkthat is implemented on an application level.” D.1. 276 at 7 (emphasis
`
`added). As discussed below, Activision repeats its mistake in this Motion, ignoring the
`
`distinction between the application level and the networklevel.
`
`B.
`
`The Accused Products in the Take-Two Case Used Customized Networks
`
`1.
`
`NBA 2K
`
`In Acceleration Bay LLC v. Take-Two Interactive Software, Inc., No. 16-455-RGA
`
`(“Take-Two’’), Acceleration Bay accused of two specific games, NBA 2K.15 and NBA 2K16
`
`(together, “NBA 2K”’) and Grand Theft Auto V Online (“GTA”), of infringement. The Court
`
`separately considered infringement for NBA 2K and GTAand ultimately granted summary
`
`judgmentof non-infringement for both games based on very different reasons. Signigificantly,
`
`this Court’s holdings were specific to the customized networks used by each. Take-Two, 2020
`
`WL 1333131 (D. Del. Mar. 23, 2020), D.I. 492 (the “Take-Two Order”). Activision and Take-
`
`Two are competitors, did not cooperate or partner on any of the products accused of infringement
`
`in either case, and the gamesat issue in Take-Twoandthis case are very different.
`
`

`

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`NBA 2K 1s a basketball game with online modesthat allow players to competein large
`
`virtual locations, such as a basketball park or arena, with multiple basketball courts (collectively
`
`referred to as the “MyPark” mode of play). Take-Two Orderat 4, 17. For example, in one
`
`version of MyPark there are 10 basketball courts in an arena, each hosting a 5-on-5 basketball
`
`gamewith ten players total (with 100 players in the park). Jd. Acceleration Bay alleged that
`
`MyPark used an m-regular network because each player was only directly connected to the nine
`
`other players on their court and was connected to the other players in MyPark throughrelaying.
`
`Take-Two D.1. 472 (Opp.) at 8-9; Take-Two D.I. 464, Ex. A-6 (Mitz Reply Rpt.) {¥ 69, 71, 75.
`
`NBA2Kalso uses a Park Relay Server that sends and receives gamedata andfills in missing
`
`data that would get lost from other players due to lost data packets of information. Take-Two
`
`DI. 464, Ex. A-6 (Mitz Reply Rpt) § 182, citing Walter Tr. 63:14-64:23 (relay server, in rare
`
`exceptions, fills in data when network connections are poor). Relying heavily on the testimony
`
`of Acceleration Bay’s expert that the Park Relay Server acts as a relay at the network layer
`
`connectedto all of the other participants and can also act as a participant at the applicationlayer,
`
`the Court found the networkto be not m-regular, because the Park Relay Server wasdirectly
`
`connected to 100 otherparticipants, while the other participants were directly connected to fewer
`
`than 100 participants. Take-Two Orderat 17-18.
`
`The Take Two Order found NBA 2Kto be non-infringing based on the specific facts of
`
`that network.
`
`/d. The Court went no further. It made no finding that an application-layer
`
`network cannot be m-regularif it is built on an underlying network-layer network that is not m-
`
`regular, such as a non-m-regularclient-server network. Rather, as technical expert Dr. Cole
`
`explained and no Activision expert has disputed, the architecture for an overlay network can be
`
`

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`different from the architecture of the underlying network. Declaration of Aaron Frankel
`
`(“Frankel Decl.”), Ex. A, Cole Rpt. at 4 36.
`
`2.
`
`GTA
`
`The Court considered infringement of GTA separate from NBA 2K because the two
`
`games have different networkstructures. See Take-Two Orderat 13-17 (GTA), 17-19 (NBA
`
`2K). GTAis an action adventure gamesthat allows players to control an avatarin a fictionalized
`
`virtual world based on Los Angeles.
`
`/d. at 3-4. Players can freely roam the virtual world and
`
`join various sub-games, suchasheists, races, and shootouts.
`
`/d. Acceleration Bay alleged
`
`infringment based on the game’s use of peer-to-peer connections between players’ avatars when
`
`they were within a certain proximity in the virtual game world, as defined by the game’s logic
`
`and network connectivity rules.
`
`/d. at 13-14. The data sent between players in close proximity
`
`would then be indirectly relayed to other players through broadcast channels. Jd. The proximity
`
`rules and games logic were designed such that under typical game-play conditions the network
`
`would be m-regular.
`
`/d. The Court found that the GTA network was not m-regular becauseits
`
`state was circumstantial and depednent on where players movedtheir avatars within the virtual
`
`environment. /d. at 14-15. As with NBA 2K,the Court’s finding of non-infringement was based
`
`on the specific facts regarding GTA.
`
`/d. The Court did not make a more general finding that
`
`networking and gamerules could not be used to make a network m-regular, as Activision now
`
`incorrectly argues.
`
`Il.
`
`ARGUMENT
`
`A.
`
`Collateral Estoppel Does Not Apply Because Activision’s Games are
`Different From Take-Two’s Games
`
`Activision’s Motion for summary judgmentbased on collateral estoppel fails because the
`
`accused Activision products were “not previously before the court, and .
`
`.
`
`. differ from those
`
`

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`structures previously litigated, require[ing] a determination on [their] own facts.” De/ Mar
`
`Avionics, Inc. v. Quinton Instrument Co., 836 F.2d 1320, 1324 (Fed. Cir. 1987). Activision, as
`
`“[t]he proponent of claim or issue preclusion bears the burden of showing that the accused
`
`devices are essentially the sameas thosein the prior litigation.” ArcelorMittal, 908 F.3d at 1274;
`
`In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303, 1311 (Fed. Cir. 2011).
`
`Activision cannot carry its heavy burden because “proof of infringement by collateral estoppel 1s
`
`only appropriate in limited circumstances, whereit is shown that a close identity exists between
`
`the relevant features of the accused device and the device previously determined to be
`
`infringing,” whichis not the case here. Yingbin-Nature (Guangdong) Wood Indus. Co. v. Int'l
`
`Trade Comm'n, 535 F.3d 1322, 1333 (Fed. Cir. 2008) (citations omitted).
`
`Activision incorrectly argues that this Court should apply the doctrine of collateral
`
`estoppel based onits broad characterization that a network cannotsatisfy the “m-regular”
`
`requirementif players’ actions can take it out of an m-regular state. Motion at 1-2, 8-13. The
`
`Court did not go that far. To the contrary, the Court explained in the Take-Two Orderthat the
`
`networkcan,at times, be in a non-m-regularstate, so long as it is configured to attempt to return
`
`to the m-regular state:
`
`I explained: “My construction does not require the network to have
`each participant be connected to m neighborsatall times; rather, the
`network is configured (or designed) to have each participant be
`connected to m neighbors. In other words, if the network does not
`have each participant connected to m neighbors, this is fine so long
`as, when appropriate,it tries to get to that configuration.” (D.I. 244
`at 14)
`
`Take-Two Order at 14. Thus, even if players’ actions can make the networknot m-regular,it still
`
`infringes if it is configured to return to the m-regularstate.
`
`Activision’s reliance on Phil-Insul Corp. v. Airlite Plastics Co., and similar cases is inapt.
`
`854 F.3d 1344, 1352 (Fed. Cir. 2017). In Phil-Insul, the district court applied collateral estoppel
`
`

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`only after finding that defendant’s product was “essentially indistinguishable” from the product
`
`at issue in an unsuccessful prior suit filed by the plaintiff. Jd.; see also Aspex Eyewear, Inc. v.
`
`Zenni Optical Inc., 713 F.3d 1377, 1380 (Fed. Cir. 2013) (affirming application of collateral
`
`estoppel because the two products were “materially indistinguishable’) (emphasis added);
`
`Studiengesellschaft Kohle, mbH v. USXCorp., 675 F. Supp. 182, 184 (D. Del. 1987) (applying
`
`collateral estoppel because the “issues in both cases are. .
`
`. identical”) (emphasis added). The
`
`Court made no finding in the Take-Two case regarding the Activision gamesand, as discussed
`
`below, the networksat issue in this case are very different from and, certainly, not
`
`“<ndistinguishable” from the networks used in Take-Two’s games. Thus, collateral estoppel does
`
`not apply here.
`
`B.
`
`Activision’s Accused Games Do Not Use the Same Technology as the Take
`Two Gamesand are Configured to Form and Maintain M-Regular
`Connections
`
`1.
`
`Destiny’s Broadcast Network and Activity Network Are M-Regular
`and are Materially Different from GTA and NBA 2K
`
`(a)
`
`Destiny Forms and Maintains M-Regular Networks
`
`Destiny is a “shared-world” shooter video gamethat can only be played online in
`
`multiplayer mode. D.I. 448 at 18. Destiny uses a unique method of connecting players to each
`
`other that does not use a traditional networking structure.
`
`/d.
`
`Instead, players in the game are
`
`seamlessly connected by Activision’s software, which|
`
`eeis a
`
`SD
`
`ae Zc. Althoughplayersappearto roam
`
`freely in the game environment, the game|TF
`
`

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`Case 1:16-cv-00453-RGA Document 737 Filed 12/23/21 Page 13 of 23 PageID #: 54119
`Case 1:16-cv-00453-RGA Document 737 Filed 12/23/21 Page 13 of 23 PagelD #: 54119
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`Mearespctosviiwei
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`Acceleration Bay’s infringement expert analyzed Destiny’s Bungie Broadcast Network
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`(which distributes messages between members of“Fire Teams,” which are in-game squads) and
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`Activity Broadcast Network (which broadcasts messagesrelating to gameplay conditions and
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`physics, includingactivity hosts), and determinedthatthey are configured to be m-regular, as
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`shownin Figures | and 2 below. D.I. 454, Ex. 35 (Mitz. Reply Rpt.) §§| 41-45 (Figure 1
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`represents the Bungie Broadcast Network and Figure 2 represents the Activity Broadcast
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`Network), §/ 21 (“the Destiny Network is configured in such a mannerthat it always infringes the
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`Asserted Patents.’’),
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` Bungie Broadcast Network M-Regular Configuration/ 4-Connected Comiguerntion/6-0Aetiviny Broseleast Network M-Rureular
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`
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`AS
`|enfin
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`[aeeios
` Fire Teams 1,2,3
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`(EOErRSS
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`a=")
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`LL
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`Ry,
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`
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`FIGURE1
`(showing 4-regular Bungie Broadcast
`Network)
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`FIGURE2
`(showing 6-regular Activity Broadcast
`Network)
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`Id. at 49 41-45.
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`Destiny is programmed to maintain these networks as m-regular regardless of players’
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`movements.
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`/d. at 42. For example,rrr
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`Case 1:16-cv-00453-RGA Document 737 Filed 12/23/21 Page 14 of 23 PageID #: 54120
`Case 1:16-cv-00453-RGA Document 737 Filed 12/23/21 Page 14 of 23 PagelD #: 54120
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`iiia
`Ai
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`175 a13-14, DT ASA,
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`Ex. 28 (Mitz. Rpt.) at 9] 126, 108-109.
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`In the Bungie Broadcast Network, the number of connections1s set by the size ofthe
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`“Fire Team,” which is fixed, and not random or dynamic. D.I. 448 at 20, 22. Indeed, aga
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`ea ae also used to maintain Fire Team connectionsandwill add a new
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`teammateto fill “holes” in a Fire Teamif a player leaves, thereby keeping constant the number
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`of connections, making the network m-regular.
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`/d. at 22-23.
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`(b)
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`Destiny is Materially Distinguishable From GTA
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`Activision fails to show that collateral estoppel applies to Destiny. The Court’s Take-
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`Two Orderdoes not apply to Destiny because its network is very different from the GTA
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`network(andtherefore, the networks are not “materially indistinguishable). As discussed in
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`Section II.B.2 above, the Court found GTA did not use an m-regular network because the
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`players’ movements dictated if the network was m-regular or not. For Destiny, however, player
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`movementdoes not control if the network is m-regular. As discussed above, Destiny’s
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`networking software uses broadcast networks that are configured to be m-regular and that will
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`return the network to an m-regularstate if a player exits the game or a Fire Team. Supra,
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`§ IILB.1.a. Therefore, the networksare different and collateral estoppel cannot apply. De/ Mar
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`Avionics, 836 F.2d at 1324 (affirming denial of non-infringement based on collateral estoppel
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`because a “device not previously before the court, and shown to differ from those structures
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`previously litigated, requires a determination on its own facts.”).
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`10
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`Case 1:16-cv-00453-RGA Document 737 Filed 12/23/21 Page 15 of 23 PageID #: 54121
`Case 1:16-cv-00453-RGA Document 737 Filed 12/23/21 Page 15 of 23 PagelD #: 54121
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`(c)
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`NBA 2Kis Not Materially Indistinguishable
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`Activision also fails to show that Destiny is materially indistinguishable from NBA 2K.
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`For NBA 2K,the Court relied on the testimony of Acceleration Bay’s expert that the Park Relay
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`Server can sometimesbea participant at the application layer as the basis to find that the
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`network was not m-regular because that one participant was connected to every player. Take-
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`Two Order at 17-18. There is no such participantin either the Bungie Broadcast Network orthe
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`Activity Broadcast Network. Activision claimsthat itsServer
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`is connectedto all players in a game, but theFF
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`a iC. 454,Ex. 28 (Mitz. Rpt.) {[] 80, 89, 191, 197, 198. Once the
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`gamestarts, [jg is no longerinvolvedand,in particular, it is not broadcasting the
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`gameplay messagesthat are carried by the Bungie Broadcast and Activity Broadcast Networks.
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`Id., § 191 (Thus, once this informationa and gathereris providedto the
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`incoming participant, connections to the broadcast channel and neighbors in the game session
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`will be established to forma fully connected state”).' Thus, the ggg is not “materially
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`indistinguishable” from the Park Relay Server, which the Court found to be a participantin the
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`NBA 2Kbroadcast network during gameplay sessions, and collateral estoppel does not apply.
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`' The Asserted Patents disclose that participants in an m-regular network can have additional
`connections to other networksorservers that do not participate in the m-regular network, such as
`connections between the Destiny participants andBa iO. 454,Ex. 35 (Mitz. Reply
`Rpt.) at | 25; ‘344 Patent at 6:19-24 (“The fifth port is referred to as an ‘external’ port because it
`is used for sending non-broadcast messages between two computers. Neighbors can send non-
`broadcast messageseitherthroughtheir internal ports of their connection or through their
`external ports.”); ‘344 Patent at 6:39-58 (“Each computerthat is connected to the broadcast
`channel can receive non-broadcast messages through its external port’). Thus, even if the
`players continued to have a non-broadcast connection toPe duringthe gamesession
`(which is not the case) that would not make the network non-m-regular.
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`11
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`Case 1:16-cv-00453-RGA Document 737 Filed 12/23/21 Page 16 of 23 PageID #: 54122
`Case 1:16-cv-00453-RGA Document 737 Filed 12/23/21 Page 16 of 23 PagelD #: 54122
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`2.
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`Call of Duty’s Connectivity Graph Network is M-Regular and
`Materially Distinguishable from GTA and NBA 2K
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`(a)
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`Call of Duty Forms and Maintains M-Regular Networks
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`Call of Duty: Advanced Warfare and Call of Duty: Black OpsIII (together, “Call of
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`Duty”) are first-person shooter video games. D.I. 448 at 24-25. Players control soldiers fighting
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`in squads against other squads.
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`/d.; see also D.I. 454, Ex. 37, Ex. 38. When players join a game
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`session, their Call of Duty software attempts to contact other players through direct peer-to-peer
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`connectionsto
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`ee Id.; see also D.J. 475 at 10. These peer-to-peer connections
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`form the “Connectivity Graph Network” (named after the “connectivity graph” data structure
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`that stores the information about whichparticipants a participantis directly connected to). D.I.
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`448 at 25. Call of Duty includesQQ
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`in the Connectivity Graph. D.I. 482, Ex. 78 (Griffith Tr.) at 87:24-88:25. To reduce thetotal
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`numberof peer-to-peer connections each participant must maintain and to accountfor the fact
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`that not all participants will be able to connect to each other directly due to network
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`configuration issues, Call ofDuy
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`We id. Becauseofthe large number ofconnections neededto connectall of the players
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`and heee the network
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`becomes m-regular once a sufficient numberof players are in the game because each participant
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`will have the maximum numberof connectionsto its neighbors. D.I. 448 at 26-27.
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`(b)
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`Call of Duty is Materially Distinguishable From GTA
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`Call of Duty’s network is materially distinguishable from GTA, contrary to Activision’s
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`claim. Infringement in GTA was based on proximity rules and gamelogics that made the
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`network converge to be m-regular based on players’ movementin the virtual environment.
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`Case 1:16-cv-00453-RGA Document 737 Filed 12/23/21 Page 17 of 23 PageID #: 54123
`Case 1:16-cv-00453-RGA Document 737 Filed 12/23/21 Page 17 of 23 PagelD #: 54123
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`Take-Two Order at 13-16. Activision notes that the way players configure their NAT network
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`settings before starting a game of Call of Duty could impact which peer-to-peer connections are
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`successful and thus impact the map of the Connectivity Graph Network that Call of Duty creates
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`to connect the players in that game session. This is very different from the GTA infringement
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`case, where the players’ actions during the course of the game influence the network
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`connections. In contrast, Call of Duty’s Connectivity Graph Networkis formed by the Call of
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`Duty software before the gamestarts, does not change during the game (unless a player drops
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`out, in which as:i, enc
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`does not depend on any action by the players in the game (or otherwise). D.I. 455, Ex. 40 (Med.
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`Rpt.) § 127 (host migration when host drops), {4 125-126. Thus, the Take-Two Order does not
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`applyat all to Call of Duty, and thereis no basis to find non-infringement based on an
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`application of collateral estoppel.
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`Activision ignores the record in arguing that Acceleration Bay’s Connectivity Graph
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`network is unsupported. Motion at 13 (“it is undisputed that for the “connectivity graph
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`network,’ every player is connected to every other player on their ‘network,’’’). While every
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`participant attempts to contact every other participant to see which connectionsare possible,
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`when the Connectivity Graph Network is assembled by Call of Duty, it is incomplete and each
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`participant isae whichisless than
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`all participants. D.I. 455, Ex. 40 (Med. Rpt.) 4163, 188 (source code showingHa
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`B®). Activision’s Vice President of Technology, Pat Griffith, confirmed that the maximum
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`numberof connections is set by the Call of Duty software:
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`13
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`Case 1:16-cv-00453-RGA Document 737 Filed 12/23/21 Page 18 of 23 PageID #: 54124
`Case 1:16-cv-00453-RGA Document 737 Filed 12/23/21 Page 18 of 23 PagelD #: 54124
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`D.1. 482, Ex. 78 (Griffith Tr.) at 87:24-88:25 (emphasis added). Thus, this confirms that Call of
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`Duty is programmedwith a constantthat sets the number of connectionsfor each participant,
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`making the network m-regular.
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`At most, Activision’s arguments, which are contradicted by the record, highlight the
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`material disputed factual issues t