Case 1:16-cv-00453-RGA Document 740 Filed 01/14/22 Page 1 of 15 PageID #: 54148
`
`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 REPLY BRIEF IN SUPPORT OF
`SUPPLEMENTAL 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 Hankel
`John Garretson
`Jordan T. Bergsten
`Maxwell C. McGraw
`SHOOK, HARDY & BACON LLP
`2555 Ground Boulevard
`Kansas City, MO 64108
`(816) 474-6550
`
`Original Filing Date: January 7, 2022
`Redacted Filing Date: January 14, 2022
`
`

`

`Case 1:16-cv-00453-RGA Document 740 Filed 01/14/22 Page 2 of 15 PageID #: 54149
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`TABLE OF CONTENTS
`
`Page
`
`II.
`
`a.
`
`b.
`
`a.
`
`b.
`
`INTRODUCTION .......................................................................................................................... 1
`ARGUMENT .................................................................................................................................. 2
`I.
`Literal Infringement by CoD is Estopped by the GTA Ruling (Player
`Actions Driving Connections) and the NBA 2K Ruling (Server Connected
`With Everyone) ....................................................................................................... 3
`The GTA Ruling Estops Infringement by CoD Because It is Undisputed
`Plaintiff’s Theories Rely on Player Security Configurations that
`Activision Tries to Prevent ................................................................................. 3
`The NBA 2K Ruling Independently Estops Infringement by CoD
`Because Plaintiff Cites Nothing for its Argument that the Host Sends
`the Wrong Type of Data ..................................................................................... 4
`Literal Infringement by Destiny is Estopped by the GTA Ruling (Player
`Actions Driving Connections) and the NBA 2K Ruling (Server Connected
`with Everyone) ........................................................................................................ 5
`The GTA Ruling Estops Infringement by Destiny Because Plaintiff
`Does Not Dispute its Theories Rely on “
` Created by
`Player Movements .............................................................................................. 5
`The NBA 2K Ruling Independently Estops Infringement by Destiny
`because it is Undisputed that All Players are Connected to
`
` .................................................................................................................. 6
`Literal Infringement by WoW is Estopped by the GTA Ruling (Player
`Actions Driving Connections) and the NBA 2K Ruling (Server Connected
`With Everyone) ....................................................................................................... 7
`The GTA Ruling Estops Infringement by WoW Because Plaintiff’s
`Theory Relies on Player Movements and Actions Within the Game ................. 7
`The NBA 2K Ruling Estops Infringement by WoW Because Plaintiff
`Ignores that Both the Broadcast Channel and Underlying Network Must
`be M-Regular ...................................................................................................... 8
`Infringement under the Doctrine of Equivalents by Any of the Three
`Accused Games is Estopped by this Court’s Rulings on Vitiation, Applied
`to Expert Theories that Admittedly only Change “A Few Words” from the
`Ones Dismissed in Take Two .................................................................................. 9
`Because there is No Genuine Fact Issue if the Reasoning of Take Two is
`Applied to this Case, this Court Should Grant Summary Judgment Even if
`Collateral Estoppel Does Not Technically Apply ................................................. 10
`CONCLUSION ............................................................................................................................. 10
`
`III.
`
`a.
`
`b.
`
`IV.
`
`V.
`
`i
`
`

`

`Case 1:16-cv-00453-RGA Document 740 Filed 01/14/22 Page 3 of 15 PageID #: 54150
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Acceleration Bay LLC v. Take-Two Interactive Software, Inc.,
`No. 16-455-RGA, 2020 WL 1333131 (D. Del. Mar. 23, 2020) ................................................1
`
`Aspex Eyewear, Inc. v. Zenni Optical Inc.,
`713 F.3d 1380 (Fed. Cir. 2013)..................................................................................................3
`
`Phil-Insul Corp. v. Airlite Plastics Co.,
`854 F.3d 1344 (Fed. Cir. 2017)..................................................................................................3
`
`ii
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`

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`INTRODUCTION
`
`It is undisputed that Plaintiff is collaterally estopped from re-litigating certain infringement
`
`issues in this case, and Plaintiff identifies no material differences to prevent estoppel here.
`
`Plaintiff’s sole argument against collateral estoppel from this Court’s rulings in Take Two1 is that
`
`the networks at issue in this case are “different” than the networks in Take Two and were developed
`
`by different entities. Although Plaintiff explains in detail the insubstantial differences between
`
`these networks, Plaintiff has little, if anything, to say about any differences material to the Take
`
`Two non-infringement issues that are collaterally estopped here. Indeed, on this crucial issue,
`
`Plaintiff consistently fails to address Activision’s main arguments, or makes conclusory claims
`
`without any citation to the record. For all of the accused networks, Plaintiff fails to address the
`
`main collateral estoppel issues arising from this Court’s decision in Take Two, namely that, as a
`
`matter of law: (1) a network is not configured to maintain an m-regular state when Plaintiff merely
`
`contends that the network “converges” onto m-regularity based on a set of dynamic variables
`
`dependent on user inputs, such as player movements and router settings; and (2) Plaintiff cannot
`
`ignore selective servers and connections in the accused network when alleging m-regularity.
`
`In the face of admittedly estopped issues, Plaintiff’s scattershot and unsupported responses
`
`fall far short of creating a genuine fact issue for a jury. For example, Plaintiff does not even try to
`
`defend its Call of Duty (“CoD”) “gameplay logics network” theory against estoppel. And for the
`
`CoD “connectivity graph network,” Plaintiff acknowledges the undisputed fact that players are
`
`each connected to a central server, but argues (incorrectly), without any factual support or citation
`
`that
`
` messages are exclusively distributed over the connectivity graph network.
`
`1 Acceleration Bay LLC v. Take-Two Interactive Software, Inc., No. 16-455-RGA, 2020 WL
`1333131 (D. Del. Mar. 23, 2020) (“Take-Two”). As in Take Two, here “the asserted claims of
`these patents are limited to networks that are ‘incomplete’ and ‘m-regular.’” Id. at *1.
`
`1
`
`

`

`Case 1:16-cv-00453-RGA Document 740 Filed 01/14/22 Page 5 of 15 PageID #: 54152
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`This is insufficient to create a genuine fact issue. For the Destiny game, Plaintiff discusses how
`
`“fire teams” are created, but ignores the “
`
`” that are critical to its infringement theory
`
`and are undisputedly created by player movements in the game (D.I. 735, pp. 9-10), which
`
`Activision explained in detail to be the reason for estoppel here. (D.I. 731, pp. 10-11). For the
`
`World of Warcraft (“WoW”) game, Plaintiff relies on a single footnote for the conclusory
`
`argument that it can ignore dozens of server connections because it points to a broadcast channel
`
`that is allegedly m-regular. (D.I. 735, p. 16, n.2). But the claims require that the underlying
`
`network must be m-regular and Plaintiff fails to address that issue raised by Activision. (D.I. 731,
`
`p. 17, n.11).
`
`Because these shortcomings extend across multiple independent grounds for granting
`
`summary judgment of no infringement for each accused game, Activision respectfully requests
`
`that the Court apply collateral estoppel and enter judgment of non-infringement in this case.
`
`ARGUMENT
`
`The issue on this motion is a relatively narrow one. Plaintiff appears to agree that
`
`Activision has accurately identified three fully litigated issues from the Take Two case that Plaintiff
`
`is estopped from re-litigating here. In brief: “Issue one (player actions driving connections) was
`
`the reason the accused Grand Theft Auto Online game did not literally infringe; issue two (server
`
`connected with everyone) was the reason the accused NBA 2K game did not literally infringe;”
`
`and “issue three (claim vitiation) was the reason neither game infringed under the doctrine of
`
`equivalents.” (D.I. 731, pp. 7-8). Plaintiff’s sole argument why these issues do not estop all of
`
`Plaintiff’s infringement theories in this case is that the issues in the case are not “identical” because
`
`Activision “fails to carry its heavy ‘burden of showing that the accused devices are essentially the
`
`same as those in the prior litigation.” (D.I. 735, p. 1). While Plaintiff adds the word “heavy” to
`
`this statement of burden from the case it cites, the controlling law is clear that the requirement for
`
`2
`
`

`

`Case 1:16-cv-00453-RGA Document 740 Filed 01/14/22 Page 6 of 15 PageID #: 54153
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`collateral estoppel is satisfied if, as here, the differences between two products are “unrelated to
`
`the limitations in the claim of the patent.” Phil-Insul Corp. v. Airlite Plastics Co., 854 F.3d 1344,
`
`1353 (Fed. Cir. 2017). Because Plaintiff can point to nothing in the record creating a material
`
`difference as to the claim limitations found dispositive in Take Two, collateral estoppel applies
`
`here and summary judgment of no infringement is appropriate. See Aspex Eyewear, Inc. v. Zenni
`
`Optical Inc., 713 F.3d 1380 (Fed. Cir. 2013) (affirming summary judgment that infringement
`
`claims were collaterally estopped, noting that “Plaintiffs have failed to identify . . . any material
`
`differences between” the two products).
`
`I. Literal Infringement by CoD is Estopped by the GTA Ruling (Player Actions Driving
`Connections) and the NBA 2K Ruling (Server Connected With Everyone)
`
`a. The GTA Ruling Estops Infringement by CoD Because It is Undisputed Plaintiff’s
`Theories Rely on Player Security Configurations that Activision Tries to Prevent
`
`Plaintiff does not address Activision’s collateral estoppel arguments as to Plaintiff’s
`
`gameplay logics network theory” (D.I. 735, pp. 9-10), conceding that summary judgment should
`
`be granted as to that theory. As to Plaintiff’s “connectivity graph network” theory, Activision’s
`
`opening brief established through undisputed evidence that: (1) the network is configured so that
`
`every player will be connected with every other player; (2) this can only be prevented when players
`
`set their router or “NAT” security settings in a certain way; and (3) Activision actively encourages
`
`and instructs players on how to avoid configuring their NAT settings in that way. (D.I. 731, p. 10).
`
`As such, Plaintiff’s remaining theories are collaterally estopped by the GTA Ruling. Plaintiff does
`
`not point to any contrary evidence, but merely argues this case is different because here NAT
`
`settings are configured before a game begins, while Take Two involved player movements during
`
`a game. (D.I. 735, p. 13).
`
`Even assuming Plaintiff’s claims are correct, it has not identified a material difference.
`
`Nothing in the Take Two order suggests that it matters whether m-regularity is caused, if at all, by
`
`3
`
`

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`Case 1:16-cv-00453-RGA Document 740 Filed 01/14/22 Page 7 of 15 PageID #: 54154
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`player actions occurring before versus during a game. Rather, Take Two more broadly states that
`
`where variable factors such as “the players’ actions determine how connections are formed” then
`
`“the network is not ‘configured to maintain’ any particular state.” See Take Two, at *8. If
`
`anything, this Court’s reasoning in Take Two applies more strongly here than for the GTA game,
`
`because here it is undisputed that Activision not only leaves m-regularity (under Plaintiff’s
`
`theories) up to player choices, but it also actively directs players away from the choices required
`
`for m-regularity to ever allegedly occur. With the absence of any material difference, collateral
`
`estoppel applies and the Court should grant summary judgment.2
`
`b. The NBA 2K Ruling Independently Estops Infringement by CoD Because Plaintiff
`Cites Nothing for its Argument that the Host Sends the Wrong Type of Data
`
`For this independent basis for non-infringement, Plaintiff once again does not address
`
`Activision’s collateral estoppel arguments as to Plaintiff’s “gameplay logics network theory” (D.I.
`
`735, pp. 15), conceding a second reason why summary judgment should be granted as to that
`
`theory. As to Plaintiff’s “connectivity graph network” theory, Activision’s opening brief
`
`established through undisputed evidence that: (1) every player on this network is always connected
`
`to a central host; and (2) that host exchanges “the same type of data that Plaintiff’s expert identifies
`
`as being transferred” in this network, including
`
`. (D.I. 731, pp. 15-16). Plaintiff
`
`nowhere denies that every player on this network must always be connected to the same host.3
`
`2 Plaintiff now tries to rehabilitate the inaccurate statement of Plaintiff’s counsel at a hearing that
`in this network there is “a hard-coded constant number of connections they have” (see D.I. 731, p.
`12-13), by once again pointing to evidence of
`
` (D.I. 735, pp. 13-14). As Activision has explained at length (D.I. 731, p. 13 n.7),
`and as Plaintiff continues to fail to address, even if correct, this
` is irrelevant,
`because
` does not bear on the number of underlying connections.
`Further, it is now undisputed that
` only ever occurs if Activision’s intended network design
`(everyone connecting to everyone else) is frustrated by players’ choice of NAT configurations in
`a way that Activision actively tries to prevent.
`3 Plaintiff cites evidence that this host is not always a server (D.I. 735, p. 14), but does not go so
`far as to argue that this is a material difference from Take Two. Nor could it, as this difference is
`
`4
`
`

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`Case 1:16-cv-00453-RGA Document 740 Filed 01/14/22 Page 8 of 15 PageID #: 54155
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`Plaintiff’s sole argument why collateral estoppel does not apply is that this host sends data on “a
`
`separate and distinct network from the Connectivity Graph Network, in which the Activision
`
`server is not a participant (and the Activision server does not forward t
`
`
`
`that are exclusively distributed over the Connectivity Graph Network.)” (D.I. 735, pp. 14-15). But
`
`Plaintiff cites nothing at all for this characterization of the CoD network. This falls far short of
`
`creating a material fact issue, especially where Plaintiff fails to produce conflicting evidence, or
`
`to even address Activision’s evidence showing that a single host is connected to every player and
`
`sends precisely this type of data, including “
`
`
`
` (D.I. 731, p. 15). With no record evidence to support Plaintiff’s sole argument
`
`against collateral estoppel, summary judgment of no infringement by CoD is appropriate for this
`
`additional reason.
`
`II. Literal Infringement by Destiny is Estopped by the GTA Ruling (Player Actions
`Driving Connections) and the NBA 2K Ruling (Server Connected with Everyone)
`
`a. The GTA Ruling Estops Infringement by Destiny Because Plaintiff Does Not
`Dispute its Theories Rely on “
`” Created by Player Movements
`
`Activision’s opening brief established through undisputed evidence that Plaintiff’s sole
`
`theory for how the Destiny network could ever be m-regular required players in certain “fire
`
`teams” to each be assigned to certain “
`
`,” and that because
`
` are created
`
`by player movements, Plaintiff’s theories are estopped by the GTA ruling. (D.I. 731, pp. 10-11).
`
`Plaintiff does not dispute Activision’s characterization of its infringement theories and that the
`
`creation of
`
` is essential to Plaintiff’s infringement position. Instead, Plaintiff ignores
`
`the
`
` and merely points to evidence of what happens when a player leaves a fire team.
`
`immaterial to the relevant claim terms and the Take Two reasoning. See Take Two, at *9 (“In this
`scenario, the network is not m-regular because one participant (the server) is connected to a
`different number of neighbors than the other participants are.”).
`
`5
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`

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`Case 1:16-cv-00453-RGA Document 740 Filed 01/14/22 Page 9 of 15 PageID #: 54156
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`(D.I. 735, p. 10). Even though the diagram included by Plaintiff shows the importance of “
`
`” to its infringement theory (id., p. 9), and even though the operation of these
`
`
`
`
`
` was the key point of Activision’s argument, Plaintiff does not address them at all. (Id.,
`
`pp. 8-10) As such, even assuming everything Plaintiff says is correct, it is undisputed that
`
`
`
` are constructed based on where players choose to move their avatar in the game, and that
`
`Destiny is exactly like the material aspects of GTA such that collateral estoppel applies.
`
`b. The NBA 2K Ruling Independently Estops Infringement by Destiny because it is
`Undisputed that All Players are Connected to
`
`
`As an independent ground for non-infringement, Activision’s opening brief established
`
`through undisputed evidence that in Destiny every player is connected at all times to
`
`
`
` which undisputedly sends data to and from players, such that Plaintiff’s infringement
`
`theories are estopped by the NBA 2K Ruling. (D.I. 731, pp. 16-17). Plaintiff points to no evidence
`
`contradicting these points. Rather, Plaintiff merely claims that “[o]nce the game starts,
`
`
`
` is no longer involved.” (D.I. 735, p. 11). But the sole evidence Plaintiff cites for this claim
`
`does not support its position: although its expert states that “the game sessions will be established”
`
`after players receive certain information from
`
`, he says nothing about whether the
`
` ceases to exchange data with players after that session begins. (Id.). Plaintiff does not
`
`address the evidence from Activision’s 30(b)(6) witness, or the admission from Plaintiff’s own
`
`expert, that all players “maintain[] a connection to the
`
` throughout their participation
`
`in the game” (D.I. 731, p. 16), and Plaintiff points to no record evidence from which a reasonable
`
`jury could conclude that the network maintains this “persistent” connection for no reason, without
`
`sending any data over that connection.4 Collateral estoppel thus applies to this ruling as well,
`
`4 In a footnote, Plaintiff also suggest that the
` is not part of the “broadcast” network
`as Plaintiff defines it (D.I. 735, p. 11, n.1), but Activision already specifically explained why this
`
`6
`
`

`

`Case 1:16-cv-00453-RGA Document 740 Filed 01/14/22 Page 10 of 15 PageID #: 54157
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`forming an independent basis for summary judgment of no infringement by Destiny.
`
`III. Literal Infringement by WoW is Estopped by the GTA Ruling (Player Actions
`Driving Connections) and the NBA 2K Ruling (Server Connected With Everyone)
`
`a. The GTA Ruling Estops Infringement by WoW Because Plaintiff’s Theory Relies
`on Player Movements and Actions Within the Game
`
`Activision’s opening brief established through undisputed evidence that Plaintiff’s “one,
`
`and only one, hypothetical scenario that allegedly demonstrates configured m-regularity,” relies
`
`on four players from four different “realms,” each choosing to move to the same “cross-realm
`
`zone” in their game and commencing a “chat,” which shows that Plaintiff’s theory is estopped by
`
`the GTA Ruling. (D.I. 731, pp. 11-12 (citing D.I. 455, Ex. 40 (Medvidovic report), ¶ 210)).
`
`Plaintiff does not deny that this is its expert’s “one, and only one” example of how m-regularity
`
`could occur in the WoW network, and involves a message being distributed among “
`
`
`
`from four different “realms.” See id. Indeed, immediately after this one example, Plaintiff’s expert
`
`concedes that “WoW will use algorithms to
`
`” of the game map, which “includes
`
`
`
`
`
`” (D.I. 455, Ex. 40 (Medvidovic report), ¶
`
`211). As with the GTA ruling in Take Two, the undisputed facts thus show that even under
`
`Plaintiff’s theories, m-regularity only ever occurs based on player movements within the game.
`
`The evidence Plaintiff cites does nothing to create a genuine fact issue to the contrary.
`
`First, Plaintiff cites three pages of its own past summary judgment briefing to argue that the
`
`connections between WoW servers “are static and persistent, created by Activision in advance,
`
`and do not vary based on player movement (or any other player input).” (D.I. 735, p. 16 (citing
`
`D.I. 448, pp. 29-31)). But the cited pages establish the opposite, admitting (in describing Plaintiff’s
`
`argument “is no different from the failed ‘application layer’ argument in Take Two” (D.I. 731, p.
`16). Plaintiff fails to address that argument here, thus conceding the point.
`
`7
`
`

`

`Case 1:16-cv-00453-RGA Document 740 Filed 01/14/22 Page 11 of 15 PageID #: 54158
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`infringement theories) that “players from different realms can cooperate in multiplayer modes,
`
`such as cross-realm raids, which requires the servers from the different realms to share data” (D.I.
`
`448, p. 29 (citing D.I. 455, Ex. 40 (Medvidovic report), ¶¶ 138-145, 146)), and that the “player’s
`
`information is transferred
`
`” (D.I. 448,
`
`p. 30 (citing Medvidovic report and other evidence)).
`
`Second, Plaintiff claims that the connections in this example already exist before any player
`
`moves into a cross-realm zone, citing the three largely incomprehensible expert paragraphs
`
`building up to the sole example in Dr. Medvidovic’s report. (D.I. 735, p. 16). Although those
`
`paragraphs state that there is a “set amount” of “
`
`” for an area on the game map, such
`
`that “one will not see
`
`” Plaintiff’s expert nowhere denies that
`
`
`
`
`
` is determined by player actions within the game. (See D.I. 455, Ex. 40
`
`(Medvidovic report), ¶ 209). In fact, Plaintiff’s expert admits the opposite, saying “[t]hese
`
`
`
`.” Id. In any event, Plaintiff nowhere
`
`claims that it or its expert can come up with an example of alleged m-regularity that does not
`
`require four players assigned to four different realms to move their character to the same cross-
`
`realm zone, engage in a chat, and send or receive “a message that needs to be distributed to the
`
`area.” (See id., ¶ 209). This is fatal under the GTA ruling.
`
`b. The NBA 2K Ruling Estops Infringement by WoW Because Plaintiff Ignores that
`Both the Broadcast Channel and Underlying Network Must be M-Regular
`
`As an independent ground for non-infringement, Activision’s opening brief established
`
`through undisputed evidence that “the broader WoW network is configured to be nowhere near m-
`
`regular” with server connections “ranging from as few as 5 to well over 100,” which establishes
`
`collateral estoppel under the NBA 2K ruling. (D.I. 731, pp. 17-18). Plaintiff only addresses this
`
`8
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`

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`dispositive argument in a single footnote, which claims “participants can have non-broadcast
`
`connections in addition to exactly m broadcast connections.” (D.I. 735, p. 16 n.2). But this fails
`
`to address Activision’s argument on this point that “the patents notably require both—that is, an
`
`m-regular network as well as ‘broadcast channels’ over that m-regular network,” and that
`
`“[b]ecause the network is irregular, the alleged use of broadcast channels is immaterial.” (D.I. 731,
`
`pp. 17-18, n.11). Plaintiff’s failure to respond to this argument creates an independent basis to
`
`grant summary judgment of no infringement as to WoW.5
`
`IV. Infringement under the Doctrine of Equivalents by Any of the Three Accused Games
`is Estopped by this Court’s Rulings on Vitiation, Applied to Expert Theories that
`Admittedly only Change “A Few Words” from the Ones Dismissed in Take Two
`
`Activision’s opening brief explained that this Court’s rulings in Take Two on vitiation and
`
`prosecution history estoppel were based on exactly the same relevant record in this case (the
`
`patents and their prosecution history), and should thus be applied here. (D.I. 731, pp. 18-19).
`
`Activision also demonstrated that, in any event, Plaintiff’s expert testimony on the doctrine of
`
`equivalents has “only minor, insubstantial variations from the DOE opinions that this Court
`
`dismissed in Take Two,” and in fact “only changes a few words” from those legally insufficient
`
`opinions. (Id. at pp. 18-19, Appendix 1). In response, Plaintiff merely recites unsupported attorney
`
`argument on why the networks in each case are different. (D.I. 735, p. 17). Plaintiff points to no
`
`reason, nor can it, why this Court’s vitiation and prosecution history estoppel rulings should not
`
`apply equally here, and does not even try to contest that the differences between its expert
`
`statements on the doctrine of equivalents in this case have “only minor, insubstantial variations”
`
`5 Plaintiff provides no response whatsoever to Activision’s argument that “[a]s in Take Two, for
`each of the accused games in this case Plaintiff’s theories stray even further from this Court’s
`constructions by vaguely referring to ‘various rules and constraints’ that allegedly ‘drive[]
`formation’ of an m-regular network,’ in response to player actions,” which “further shows how
`Plaintiff’s theories are materially similar to the ones fully litigated and rejected in Take Two.” (D.I.
`731, pp. 12-13).
`
`9
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`

`

`Case 1:16-cv-00453-RGA Document 740 Filed 01/14/22 Page 13 of 15 PageID #: 54160
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`from the expert statements found legally insufficient in Take Two. As such, the Court should hold
`
`that collateral estoppel applies, and grant summary judgment of no infringement under the doctrine
`
`of equivalents as to all accused games in this case.
`
`V. Because there is No Genuine Fact Issue if the Reasoning of Take Two is Applied to
`this Case, this Court Should Grant Summary Judgment Even if Collateral Estoppel
`Does Not Technically Apply
`
`Activision’s opening brief also explained that, even if this Court were to find that the
`
`elements of collateral estoppel do not technically apply, it should still apply the reasoning from its
`
`un-appealed judgments in Take Two here and grant summary judgment of no infringement. (D.I.
`
`731, p. 19). Plaintiff’s sole argument to the contrary is that Activision has already litigated these
`
`issues, but Plaintiff elsewhere contradicts itself by arguing that “Activision did not even include
`
`[WoW] for most of the arguments it raised in its original motion for summary judgment.” (D.I.
`
`735, p. 1). Plaintiff nowhere argues that this Court’s dispositive reasoning in Take Two was
`
`incorrect, or explains why this Court should hold a jury trial even if there is no genuine fact issue
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`in this case if that reasoning is applied (or reasonably extended) here. Further, as this Court noted
`
`in the Take Two order, the issues in the Take Two case were significantly narrowed by this Court’s
`
`summary judgment rulings in this case, Take Two at *4, and with no trial date set in this case (due
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`to Plaintiff’s repeated failure to proffer an admissible damages case) it is only fair that this Court’s
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`summary judgment rulings in Take Two likewise narrow the issues in this case. Thus, even if the
`
`Court accepts Plaintiff’s sole argument that the issues in this case are not sufficiently similar for
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`collateral estoppel to apply, Activision respectfully submits that this Court should nonetheless
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`apply its reasoning from Take Two here and, finding no genuine fact issues for trial under that
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`reasoning, grant summary judgment of non-infringement.
`
`CONCLUSION
`
`Activision thus requests that the Court grant summary judgment of no infringement.
`
`10
`
`

`

`Case 1:16-cv-00453-RGA Document 740 Filed 01/14/22 Page 14 of 15 PageID #: 54161
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Jack B. Blumenfeld
`
`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
`
`January 7, 2022
`
`11
`
`

`

`Case 1:16-cv-00453-RGA Document 740 Filed 01/14/22 Page 15 of 15 PageID #: 54162
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on January 7, 2022, I caused the foregoing to be electronically filed
`
`with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
`
`registered participants.
`
`I further certify that I caused copies of the foregoing document to be served on January 7,
`
`2022, upon the following in the manner indicated:
`
`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
`
`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`Greg Proctor, Esquire
`Michael H. Lee, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
`
`Aaron M. Frankel, Esquire
`Marcus A. Colucci, Esquire
`Cristina Martinez, Esquire
`Shannon H. Hedvat, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Attorneys for Plaintiff
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`/s/ Jack B. Blumenfeld
`________________________________
`Jack B. Blumenfeld (#1014)
`
`