Case 1:16-cv-00453-RGA Document 743 Filed 10/25/22 Page 1 of 15 PageID #: 54165
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`v.
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`ACTIVISION BLIZZARD, INC.,
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`Defendant.
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`C.A. No. 16-453-RGA
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`MEMORANDUM OPINION
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`Philip A. Rovner, Jonathan A. Choa, POTTER ANDERSON & CORROON LLP, Wilmington,
`DE; James R. Hannah (argued), Paul J. Andre, Lisa Kobialka, KRAMER LEVIN NAFTALIS &
`FRANKEL LLP, Menlo Park, CA; Aaron M. Frankel, KRAMER LEVIN NAFTALIS &
`FRANKEL LLP, New York, NY;
`
`Attorneys for Plaintiff.
`
`Jack B. Blumenfeld, Cameron P. Clark, MORRIS NICHOLS ARSHT & TUNNELL LLP,
`Wilmington, DE; Aaron E. Hankel (argued), B. Trent Webb, John Garretson, Jordan T. Bergsten,
`Maxwell C. McGraw, SHOOK HARDY & BACON LLP, Kansas City, MO;
`
`. Attorneys for Defendant.
`
`October l(i022
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`1
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`Case 1:16-cv-00453-RGA Document 743 Filed 10/25/22 Page 2 of 15 PageID #: 54166
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`~D STATES DISTRICT JUDGE:
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`Before me is Defendant's supplemental motion for summary judgment of non-.
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`infringement based on collateral estoppel. (D.I. 730). I have considered the parties' briefing.
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`(D.I. 731, 735, 739). For the reasons set forth below, I will DENY-IN-PART and GRANT-IN(cid:173)
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`PART Defendant's motion.
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`I.
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`BACKGROUND
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`Plaintiff filed suit against Defendant alleging infringement of U.S. Patent Nos. 6,701,344
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`('344 Patent), 6,714,966 ('966 Patent), 6,732,147 (' 147 Patent), 6,829,634 ('634 Patent),
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`6,910,069 ('069 Patent), and 6,920,497 ('497 Patent). (D.I. 1 at iflO).
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`In a summary judgment ruling in 2018, I resolved many of the issues in this case.
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`(See
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`D.I. 578, 579). For example, I granted Defendant's summary judgment motion as to the invalidity
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`of all asserted claims of the '634 Patent. (D.I. 578 at 3, 9). Only two infringement allegations
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`remain: (1) infringement by the accused Call of Duty ("CoD") and Destiny games of the '147 and
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`'069 Patents, and (2) infringement by the accused World of Warcraft ("WoW'') game of the '344
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`and '966 Patents. (See D.I. 731 at 3 n.3).
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`This case is related to Acceleration Bay LLC v. Take-Two Interactive Software, Inc., No.
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`16-455-RGA ("Take-Two Case"), where Plaintiff accused online features of three video games(cid:173)
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`NBA 2Kl 5 and NBA 2Kl 6 (collectively, ''NBA 2K"), and Grand Theft Auto Online ("GTAO")(cid:173)
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`of infringing the '344, '966, '147, and '069 Patents. See Take-Two Case, 2020 WL 1333131, at
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`*1 (D. Del. Mar, 23, 2020) ("Take-Two SJ Opinion"), appeal dismissed sub nom. Acceleration.
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`Bay LLC v. 2K Sports, Inc., 2020 WL 9459373 (Fed. Cir. Oct. 2, 2020) (dismissing cross-appeal),
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`and aff'd in part, dismissed in part sub nom. Acceleration Bay LLC v. 2K Sports, Inc., 15 F.4th
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`1069 (Fed. Cir. 2021) ("Take-Two Appeal"). In the Take-Two Case, the defendants moved for
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`2
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`Case 1:16-cv-00453-RGA Document 743 Filed 10/25/22 Page 3 of 15 PageID #: 54167
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`summary judgment of non-infringement, which I granted in a detailed opinion. See Take-Two SJ
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`Opinion. Plaintiff appealed. See Take-Two Appeal.
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`On April 21, 2020, I stayed this case pending resolution of Plaintiff's appeal of my
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`summary judgment ruling in the Take-Two Case. (See D.I. 711). The Court of Appeals for the
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`Federal Circuit issued a decision on that appeal on October 4, 2021. See Take-Two Appeal
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`(affirming-in-part and dismissing-in-part as moot). With the Take-Two Case's appeal resolved,
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`Defendant now moves for summary judgment of nonin:fringement, arguing that Plaintiff is
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`collaterally estopped from relitigating infringement issues it lost in the Take-Two Case.
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`In this case, each remaining asserted claim requires a network that is "m-regular."
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`I
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`construed "m-regular" to mean "[a] state that the network is configured to maintain, where each
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`[participant or computer] is connected to exactly m neighbor [participants or computers]." (D.I.
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`287 at 5). This construction also applied in the Take-Two Case, and Defendant did not appeal this
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`construction. See Take-Two Appeal.
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`I held oral argument on the pending motion on September 30, 2022. (See D.I. 742).
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`II.
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`LEGAL STANDARD
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`"The court shall grant summary judgment if the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R.
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`Civ. P. 56(a). Material facts are those ''that could affect the outcome" of the proceeding, and "a
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`dispute about a material fact is genuine if the evidence is sufficient to permit a reasonable jury to
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`return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
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`2011) (cleaned up).
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`In deciding a motion for summary judgment, the court must view the
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`evidence in the light most favorable to the non-moving party and draw all reasonable inferences
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`3
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`Case 1:16-cv-00453-RGA Document 743 Filed 10/25/22 Page 4 of 15 PageID #: 54168
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`in that party's favor. See Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476 F.3d
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`180, 184 (3d Cir. 2007).
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`Collateral estoppel, also known as issue preclusion, bars parties from relitigating matters
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`that they previously had a full and fair opportunity to litigate. See Montana v. United States, 440
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`U.S. 147, 153 (1979). This "protects their adversaries from the expense and vexation attending
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`multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by
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`minimizing the possibility of inconsistent decisions." Id at 153-54.
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`In a patent case, the law of the regional circuit applies to collateral estoppel generally and
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`Federal Circuit precedent applies where the determination of collateral estoppel involves
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`substantive issues of patent law. See Ohio Willow Wood Co. v. Alps South, LLC, 735 F.3d 1333,
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`1342 (Fed. Cir. 2013). Under Third Circuit law, collateral estoppel applies when "(1) the issue
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`sought to be precluded is the same as that involved in the prior action; (2) that issue was actually
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`litigated; (3) it was determined by a final and valid judgment; and (4) the determination was
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`essential to the prior judgment." Burlington N R. Co. v. Hyundai Merch. Marine Co., 63 F.3d
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`1227, 1231-32 (3d Cir. 1995) (cleaned up). The "essential to ·the prior judgment" element can be
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`satisfied when the prior judgment was reached through alternative findings. Jean Alexander
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`Cosms., Inc. v. L 'Oreal USA, Inc., 458 F.3d244, 255 (3d Cir. 2006) ("we will follow the traditional
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`view that independently sufficient alternative findings should be given preclusive effect").
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`Whether the "basic requirements for issue preclusion are satisfied" is a question of law. Id at
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`248; see also Ohio Willow Wood, 735 F.3d at 1341 (de novo review of the application of collateral
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`estoppel).
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`As is particular to patent law, "an infringement claim in a second suit is the same claim as
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`in an earlier infringement suit if the accused products in the two suits are essentially the same."
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`4
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`Case 1:16-cv-00453-RGA Document 743 Filed 10/25/22 Page 5 of 15 PageID #: 54169
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`Phil-Insul Corp. v. Airlite Plastics Co., 854 F.3d 1344, 1353 (Fed. Cir. 2017) (cleaned up).
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`"Accused [products] are essentially the same where the differences between them are merely
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`colorable or unrelated to the limitations in the claim of the patent." Id. ( cleaned up). The accused
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`product in a second suit need not be produced by the same company as that considered in a first
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`suit. See Aspex Eyewear, Inc. v. Zenni Optical Inc., 713 F.3d 1377, 1380 (Fed. Cir. 2013) (in
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`holding that "collateral estoppel precludes a plaintiff from relitigating identical issues by merely
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`switching adversaries," affirming "that [ a second defendant's] accused rimless magnetic clip-on
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`sunglasses are materially indistinguishable from [ a first defendant's] rimless magnetic clip-on
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`sunglasses") ( cleaned up). The alleged infringer "bears the burden of showing that the accused
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`devices are essentially the same as those in the prior litigation." ArcelorMittal Atlantique et
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`Lorraine v. AK Steel Corp., 908 F.3d 1267, 1274 (Fed. Cir. 2018).
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`III. DISCUSSION
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`A.
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`Issues Previously Adjudicated in the Take-Two Case
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`The Parties' dispute centers around three noninfringement issues I decided in the Take(cid:173)
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`Two SJ Opinion.
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`First, for GTAO, I considered the player movement issue. Plaintiff argued that GTAO
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`infringes them-regular limitation because the players' avatars "share more data when they are near
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`each other" thus causing an m-regular network to "arise naturally as the players are moving
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`throughout the game." Take-Two SJ Opinion at *8 (cleaned up).
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`In rejecting this argument, I
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`held, "Under my claim construction, a network is not m-regular if the participants just happen to
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`connect to the same number of other participants occasionally. Rather, the network must be
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`'configured to maintain' anm-regular state." Id. Based on this, I held that "the [GTAO] players'
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`actions determine how connections are formed, and the network is not 'configured to maintain'
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`5
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`Case 1:16-cv-00453-RGA Document 743 Filed 10/25/22 Page 6 of 15 PageID #: 54170
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`any particular state." Id.
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`I explained that "if a system is designed to achieve a desired result, one
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`would not normally say the result 'just arises naturally."' Id.
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`Second, for NBA 2K, I considered the all-connected server issue. Plaintiff argued that a
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`server which connects to all the virtual basketball players is not a "participant" in the game and,
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`thus, does not negate m-regularity.
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`Id. at *9. I disagreed, finding that, "the server is not playing
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`basketball .... The server is, however, a participant in the network because it transfers data back
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`and forth between other network participants. These patent claims are directed to network
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`management, so what matters is whether the server is a participant in the network, not whether it
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`is making jump shots or grabbing rebounds." Id.
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`Third, I considered Plaintiff's Doctrine of Equivalents ("DOE") argument that the GTAO
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`network performs substantially the same function as an m-regular network by "optimizing the .
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`entire network processing of the network by limiting each participant's network connections" so
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`that "data are distributed in a balanced fashion over the network." Id. at *8 (cleaned up); see also
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`id. at *10 (similar DOE argument for NBA 2K).
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`I rejected this DOE argument because it
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`"effectively reads the m-regular limitation out of the patent" when "[t]here is no mention of
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`participants connecting to the same number of other participants." Id. at *9; see also id. at *10
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`(rejecting Plaintiff's DOE argument for NBA 2K for the same reason).
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`Defendant explains that these three issues were actually litigated, determined by final and
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`valid judgment, and essential to the prior judgment. (See D.I. 731 at 7-8; see also Burlington, 63
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`F .3d at 1231-32). Plaintiff does not contest that these requirements for collateral estoppel are met.
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`(See generally D.I. 735). I agree with Defendant, and find that these three issues were actually
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`litigated (see generally Take-Two SJ Opinion; Take-Two Appeal), were determined by a final and
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`valid judgment (see generally Take-Two SJ Opinion; see also Phil-Insul Corp., 854 F.3d at 1357
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`6
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`Case 1:16-cv-00453-RGA Document 743 Filed 10/25/22 Page 7 of 15 PageID #: 54171
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`("the noninfringement determinations in [ a previous case] are final for collateral estoppel purposes
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`by virtue of [a plaintiff's] failure to appeal them")), and were essential to the prior judgment (see
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`Take-Two SJ Opinion at *7-10).
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`B.
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`Issues Currently Being Adjudicated
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`Defendant argues that noninfringement issues being considered in this case are identical to
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`the player movement, all-connected server, and DOE issues that were previously adjudicated in
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`the Take-Two Case.
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`1.
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`Destiny
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`Defendant argues that Plaintiff's literal infringement theory for Destiny is collaterally
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`estopped based on both the player movement issue and the all-connected server issue.
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`(D.I. 731
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`at 10-11, 16-17).
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`For the player movement issue, Defendant argues that Plaintiff's infringement theory relies
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`on the "undisputed" fact that m-regularity is only established "when [players] move their game
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`characters close to each other in the game world."
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`(Id. at 10-11 (citing D.I. 443, Ex. A-4
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`(Mitzenmacher's Reply Report) at 1136, 41, 45-46, 113 ("A player can connect to another Bubble's
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`Activity Host when they run close to the geographic transition area with that Bubble."))).
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`Defendant asserts that this theory is collaterally estopped because, as was considered with the
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`player movement issue for GTAO, "whether the Destiny network ever becomes or stays m-regular
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`... depends on 'players' actions."' (Id. at 11 ).
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`Plaintiff responds that the Destiny network's m-regularity is maintained "regardless of
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`player movements." (D.I. 735 at 8-10, 8). For example, Dr. Mitzenmacher explains that each
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`member of in-game "Fire Teams" are configured in a network in an m-regular state, where, even
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`if a player leaves a Fire Team, "the network is configured to return to them-regular state by filling
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`7
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`the reserve slot with a new participant." (D.I. 454, Ex. 35 (Mitzenmacher Reply Report) at ,r,r41-
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`46, 42; see also D.I. 454, Ex. 28 (Mitzenmacher Report) at ifif291-296 (explaining that "the
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`[Destiny] software attempts to maintain connectivity among the players once a multiplayer game
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`session has been established" even "when a peer migrates to a different Bubble")).
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`I find that Defendant has not shown that the player movement issue being considered with
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`Destiny is essentially the same as what I considered with GTAO.
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`Instead, as Mitzenmacher
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`makes clear, there is a genuine issue of fact regarding whether them-regularity of the Destiny
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`network is dependent on player movement.
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`For the all-connected server issue, Defendant argues that all participants are connected to
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`a "BAP [(Bungie Access Protocol)] Server," which "makes m-regularity impossible under the
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`Court's rulings." (D.I. 731 at 16-17 (citing D.I. 732, Ex. 4 (Mitzenmacher Dep. Tr.) at 42:19-23
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`("Q: And do you understand that each of these fireteam members has a- maintains a connection
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`to the BAP server throughout their participation in the game? A: That sounds correct."); D.I. 732,
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`Ex. 2 (Mitzenmacher Reply Report) at if33 ("[T]he specifications of the Asserted Patents ... do
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`not preclude the participants in a broadcast channel from having additional connections to other
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`networks."))). 1
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`Plaintiff responds that the "BAP server is only used to facilitate the formation of a ...
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`network," and, "[ o ]nee the game starts, the BAP Server is no longer involved and, in particular, it
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`is not broadcasting the gameplay messages[.]" (D.I. 735 at 11 (citing D.I. 454, Ex. 28 at ,r,r80,
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`89, 191 ("Thus, once this information from the BAP server and gatherer is provided to the
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`incoming participant, connections to the broadcast channel and neighbors in the game session will
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`1 I understand the expert to mean the asserted claims, not the specifications.
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`8
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`Case 1:16-cv-00453-RGA Document 743 Filed 10/25/22 Page 9 of 15 PageID #: 54173
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`be established to form a fully connected state."), ,-i,-i197, 198 ("The players send a matchmaking
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`request to the matchmaking server through the BAP server over the internet."))).
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`From my review, it is unclear whether the BAP server is all-connected. For example,
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`Defendant's cited portion of Dr. Mitzenmacher' s deposition testimony is inconclusive regarding
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`whether the BAP server maintains a connection to each participant during gameplay. (See D.I.
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`732, Ex. 4 at 42: 19-23 ("That sounds correct.")). Rather, the cited evidence suggests that the BAP
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`server is used for matchmaking. (See, e.g., D.I. 443, Ex. A-2 at ,-r192 ("To join a game play area
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`with other players, a matchmaking service is used through the BAP Server .... The players [send]
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`a request to the matchmaking service through the BAP server which facilitates connections to other
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`clients in the instance one may want to join."). In contrast, the NBA 2K servers were used for
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`"gameplay data." See Take-Two SJ Opinion at *9 (considering that the NBA 2K servers "are
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`participants in the NBA 2K Mesh Network because they can equally send and receive heartbeat
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`data, lockstep data, gameplay data, and VoIP data to other participants in the network")). Thus,
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`I do not find that the accused products are essentially the same.
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`For these reasons, Plaintiff is not collaterally estopped from proceeding with the literal
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`infringement theory it articulates above for Destiny.
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`2.
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`Call of Duty
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`Plaintiff asserts that CoD relies on two networks that are literally infringing: the
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`"connectivity graph network" and the "gameplay logics network." (D .I. 731 at 9-10). During
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`the oral argument, Plaintiff stated that it dropped the "gameplay logics network" infringement .
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`theory. Defendant argues that Plaintiff's remaining infringement theory relying on the
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`"connectivity graph network" is collaterally estopped based on both the player movement issue
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`and the all-connected server issue.
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`(Id. at 9-10, 15-16).
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`9
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`Case 1:16-cv-00453-RGA Document 743 Filed 10/25/22 Page 10 of 15 PageID #: 54174
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`For the player movement issue, Defendant argues that Plaintiff's infringement theory relies
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`on players configuring their routers so that they cause "NAT configuration issues." (D .I. 731 at
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`9-10 (citing D.I. 443, Ex. A-1 (Medvidovic Report) at ,r,r161, 188-190)). Defendant explains that,
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`just as players' actions caused m-regularity in GTAO, "the network configuration ... that allegedly
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`might lead to an m-regular configuration [in CoD] is dynamic and determined by player actions
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`[related to how each player] configure[s] the NAT setting on their router." (Id at 10).
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`Plaintiff responds that the CoD players configure their routers before they enter a game.
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`(See D.I. 735 at 12-14). "This is very different from the GTA infringement case, where the
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`players' actions during the course of the game influence the network connections." (Id at 13
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`(emphasis omitted)).
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`I find that these infringement issues are not the same. With GTAO, the players' in-game
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`actions could from time-to-time cause the network to become m-regular. See Take-Two SJ
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`Opinion at * 8 ( considering that "the players' actions determine how connections are formed, and
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`the network is not 'configured to maintain' any particular state"). Plaintiffs theory in this case is
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`not based on in-game actions.
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`For the all-connected server issue, Defendant argues that each CoD player is connected to
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`a host and "at least some of the data being transferred by that host is the same type of data that
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`Plaintiff's expert identifies as being transferred [by the players] in the 'connectivity graph
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`network."' (D.I. 731 at 15). Defendant points to the "connectivity graph network" being "set up
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`by various messages sent to and from the host," and the host providing "a list of neighbor
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`I
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`participants" when a player disconnects. (Id at 15 ( citing D.I. 443, Ex. A-1 (Medvidovic Report)
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`at ,r,r291, 449)). Additionally, Defendant notes that "it is undisputed that sometimes when two
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`players are not able to send voice data directly to one another over this network, this voice data
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`10
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`itself is instead relayed through- the host server that is connected to everyone in the game." (Id.
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`at 15-16 (citing D.I. 732, Ex. 1 (Griffith Dep. Transcript) at 252:11-253:9)). Thus, Defendant
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`asserts that there is no material difference between the all-connected server issue for CoD and
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`NBA 2K. (Id.)
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`Plaintiff responds that the "connectivity graph network" does not rely on an all-connected
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`host server "once [it's] operating." (D.I. 735 at 14-15, 14). Further, while the host server may
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`have the "'capability to relay voice [data,]"' this capability only applies "'when [the connectivity
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`graph network] does not achieve a full mesh topology."' (D.I. 735 at 14 (quoting D.I. 480, Ex.
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`72 (Macedonia Dep. Transcript) at 32:19-43:4, 43:2-4)).
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`I am not convinced by Defendant's arguments and find that the CoD connectivity graph
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`network is not essentially the same as the network considered for NBA 2K. Even if the host server
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`is connected to all participants when establishing the connectivity graph network, the parties
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`dispute whether the host server is also a participant during gameplay.
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`For these reasons, Plaintiff is not collaterally estopped from proceeding with its
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`"connectivity graph network" literal infringement theory for CoD.
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`3.
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`WoW
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`Defendant argues that Plaintiffs literal infringement theory for Wo W is collaterally
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`estopped based on both the player movement issue and the all-connected server issue.
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`(D.I. 731
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`at 11-12, 17-18).
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`For the player movement issue, Defendant argues that Plaintiffs "cross realm zones"
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`infringement theory relies on a "scenario [that] depends on the transient connections formed when
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`four players assigned to four different realms each move their avatar to a 'cross realm zone' and
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`11
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`'chat' with one another." (D.I. 731 at 11-12 (citing D.I. 443, Ex. A-1 (Medvidovic Report) at
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`11102, 210)).
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`Plaintiff responds that, fundamentally, "the infringing WoW [cross-realm] network
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`connects Activision's network servers, and not the individual computers of people playing Wo W."
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`(D.I. 735 at 15). Plaintiff explains that a "WoW Server-to-Server Network" is used for the cross
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`realm zones, where "[t]he connections in the servers in the WoW Server-to-Server Network are
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`static and persistent, created by Activision in advance, and do not vary based on player movement
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`(or any other player input)." (Id. at 15-16, 16 (citing D.I. 455, Ex. 40 (Medvidovic report) at
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`11207-209)). For example, Dr. Medvidovic explains, "The realm bundles will start with a static
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`configuration with a set amount of connections, forming an m-regular network." (D.I. 455, Ex.
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`40 at 11207-210, 209).
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`I agree with Plaintiff. While Defendant supports its argument by citing paragraph 210 of
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`Dr. Medvidovic's report, this paragraph does not indisputably state that the connections of the
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`cross-realm zone are transient or dependent on player movement.
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`(See D.I. 443, Ex. A-1 at 1210
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`("Each realm in the cross-realm area will also have its own Chat Server making 4 Chat Servers in
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`the 4 realm bundle .... When a message needs to [be] distributed to the area, the User Server will
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`send the message to its Chat Server, the Chat Server will send multiple copies of that message to
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`the User Servers in the area .... This results in the network being m-regular with exactly the same
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`number of connections, 4 connections, in the cross-realm area with a bundle of 4 realms.")).
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`For the all-connected server issue, Defendant argues that Plaintiff's "cross-realm zone"
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`infringement theory is flawed because it ignores numerous additional "HiMem" servers that are
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`also network participants and "whose connections make m-regularity impossible." (D.I. 731 at
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`17-18, 17). In a footnote, Plaintiff responds that these additional server connections are irrelevant
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`12
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`because "[Defendant] is relying on connections to servers that are not part of them-regular Wo W
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`Server-to-Server Network." (D.I. 735 at 16 n.2).
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`I am not convinced by Defendant's argument. Considering the cited evidence, it is unclear
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`whether the "HiMem servers" are network participants. Thus, I do not find that this infringement
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`issue is the same as what I considered with NBA 2K, where the evidence supported the all(cid:173)
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`connected server being a network participant. (See Take-Two SJ Opinion at *9).
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`For these reasons, Plaintiff is not collaterally estopped from proceeding with its literal
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`infringement theory for Wo W.
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`4.
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`Doctrine of Equivalents
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`Defendant argues that the DOE issue~ being considered in this case are identical to the
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`DOE issues that were previously adjudicated for GT AO and NBA 2K. Defendant explains, "In
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`Take-Two this Court rejected, as a matter oflaw, Plaintiff's DOE theories because they 'effectively
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`read[] the m-regular limitation out of the patent' and because 'Plaintiff is barred by prosecution
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`history estoppel from now attempting- to erase that limitation from the patents."' (D.I. 731 at 18
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`(quoting Take-Two SJ Opinion at *9)). Defendant asserts that, in this case, "Plaintiff's expert
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`opinions on DOE are nearly identical to the ones this Court found legally barred [in Take-Two],
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`such that collateral estoppel applies here as well." (D .I. 731 at 18-19, 18 ( citing id., App. 1
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`(quoting the DOE theories brought forth by Plaintiff's experts for CoD, Destiny, and Wo W))).
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`Without citing any evidence, Plaintiff disagrees, arguing that "the infringement claims
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`[Plaintift] is pursuing against Destiny, Call of Duty, and World of Warcraft are based on specific
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`rules that make the network participants have the same number of connections, not load balancing
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`(as the Court found for GTA), and the relevant networks are not based on a central relay server (as
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`the Court found for NBA 2K)." (D.I. 735 at 17).
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`Case 1:16-cv-00453-RGA Document 743 Filed 10/25/22 Page 14 of 15 PageID #: 54178
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`In granting summary judgment in the Take-Two SJ Opinion, I explained that Plaintiffs
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`DOE arguments for both GTAO and NBA 2K were flawed because they attempt "to remove
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`inconvenient claim elements, such as them-regular limitation." (Take-Two SJ Opinion at *10).
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`This reasoning was underscored by the fact that "for the '344, '966, and '147 patents ... the
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`patentee added the m-regular limitation during prosecution" to overcome "a specific prior art
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`reference[,]" thus barring Plaintiff "by prosecution history estoppel from now attempting to erase
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`that limitation from the patents." (Id. at *9).
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`I agree with Defendant. The portions of Plaintiffs expert report cited by Defendant show
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`that, in this case, Plaintiffs expert is effectively reading them-regular limitation out of the asserted
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`claims by arguing that product functions that balance network connections achieve the same result
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`as them-regular limitation. (See, e.g., D.I. 443, Ex. A-1 (Medvidovic Report) at ,r,r215-218 (for
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`CoD, explaining that the software performs the function of"not overload[ing] a particular software
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`application node ·on the network" by "limiting the number of neighbor connections for each
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`participant" to achieve the same result as an m-regular network)). Plaintiff relied on the same
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`DOE arguments in Take-Two.
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`(See D.I. 731, App. 1).
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`While there are material differences between the accused products in this case and Take(cid:173)
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`Two as they relate to Plaintiffs literal infringement claims, I do not find that there are material
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`differences between these products for purposes of DOE. Specifically, I find that the accused
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`products in this case and Take-Two are essentially the same because, in both cases, Plaintiff relies
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`on a product function that balances network connections as satisfying the m-regular limitation
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`under DOE. Any other differences between the products-such as those identified above when
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`considering literal infringement-" are merely colorable or unrelated" to Plaintiffs infringement
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`claims for them-regular limitation under DOE. Phil-Insul Corp., 854 F.3d at 1353. My belief
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`Case 1:16-cv-00453-RGA Document 743 Filed 10/25/22 Page 15 of 15 PageID #: 54179
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`that the accused products are essentially the same is buttressed by Plaintiffs inability to point to
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`any evidence supporting meaningful differences in the accused products as they relate to
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`infringement of the m-regular limitation under DOE. (See D.I. 735 at 17; see also Phil-Insul
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`Corp., 854 F.3d at 1353; Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors
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`USA, Inc., 617 F.3d 1296, 1312 (Fed. Cir. 2010) (applying collateral estoppel when the
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`infringement issue in a second case was identical to the issue considered in an earlier case, and
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`product differences "[did] not change the fact that the [allegedly infringing product] does not
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`infringe")). For these reasons, where each of the elements for collateral estoppel is met, I find
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`that Plaintiff is collaterally estopped from advancing its DOE theories in this case.
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`5.
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`Summary Judgment Absent Collateral Estoppel
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`Defendant also argues, "even if this court finds that collateral estoppel does not prevent
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`Plaintiff from re-litigating some or all of the issues from Take Two identified here, [Defendant]
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`still respectfully submits that the Court should grant summary judgment of no infringement
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`[because] Plaintiffs infringement theories in this case are indistinguishable from those rejected by
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`this Court in Take Two."
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`(D .I. 731 at 19). Defendant previously moved for summary judgment
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`of non-infringement, however, and I ruled on that motion.
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`(See D.I. 578, 579). Thus,
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`Defendant's present request for summary judgment of non-infringement is, in essence, an untimely
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`motion for reconsideration.
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`I deny summary judgment on this alternative basis because
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`Defendant has not met the standard for reconsideration.
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`IV. CONCLUSION
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`A separate order will be entered.
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