IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ORDER
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`ACTIVISION BLIZZARD INC.,
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`Defendant.
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`Civil Action No. 16-453-WCB
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`Case 1:16-cv-00453-WCB Document 797 Filed 01/10/24 Page 1 of 4 PageID #: 55153
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`Defendant Activision Blizzard, Inc., has filed a motion seeking leave to submit a
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`supplemental expert report from its expert Dr. Stephen Wicker. Dkt. No. 790. The purpose of the
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`expert report is to address the court’s new claim construction ruling in its Supplemental Claim
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`Construction Order entered on September 20, 2023. Dkt. No. 788. Plaintiff Acceleration Bay
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`LLC opposes the motion, Dkt. No. 791, and Activision has filed a reply, Dkt. No. 794. The motion
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`is granted in part.
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`This case is currently set for trial beginning on April 29, 2024. On July 14, 2023,
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`Activision requested additional briefing to resolve a claim construction issue that had arisen in this
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`case. Activision asked the court to allow briefing on (1) whether and to what extent Judge
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`Andrews’ legal rulings in a related case should be entered as claim constructions in this case, and
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`(2) whether, under those constructions, a genuine issue of material fact remains on the issue of
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`infringement. Dkt. No. 778. On July 19, 2023, I entered an order directing the parties to brief the
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`question “whether there is a distinction, for purposes of determining whether a network is
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`Case 1:16-cv-00453-WCB Document 797 Filed 01/10/24 Page 2 of 4 PageID #: 55154
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`configured to maintain m-regularity, between actions taken by the player during the game and
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`actions taken by the player before the game starts.” Dkt. No. 781 at 5.
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`The parties briefed that question, taking opposing positions. See Dkt. No. 784, 785.
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`Activision argued that “there is no legal distinction between player activities before or during a
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`game—all player activities are excluded under the court’s construction requiring a network to have
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`a particular configuration.” Dkt. No. 784 at 10. Acceleration responded that players’ pre-game
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`actions are not “inconsistent with a network being configured to end up with an m-regular network
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`while also taking into account players’ pre-game actions, such as security settings.” Dkt. No. 785
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`at 8.
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`Following the parties’ briefing of that question, I issued a Supplemental Claim
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`Construction Order. Dkt. No. 788. In that order, I ruled, in accordance with Judge Andrews’
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`previous order in a related case, that
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`it is clear that the operative distinction for purposes of determining m-regularity is
`not whether a player’s actions were taken during the game or prior to the start of
`gameplay. Instead, the operative question is how the network behaves when it falls
`out of an m-regular state. If the network “responds by immediately trying to return
`to [an m-regular] configuration,” then it is likely configured to maintain m-
`regularity. . . . If not, the network is not “‘configured to maintain’ any particular
`state.”
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`Id. at 4. I noted that in Acceleration’s view the Call of Duty game set “is configured to create an
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`m-regular network and does not depend on any specific pre-game actions to do so.” Id. at 5. I
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`added that if Acceleration “is able to establish that proposition as a factual matter at trial, my
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`disposition of the present claim construction dispute would not preclude a finding of
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`infringement.” Id.
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`Following the issuance of that order, Activision filed its motion seeking to supplement Dr.
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`Wicker’s expert report in response to the court’s claim construction.
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`Case 1:16-cv-00453-WCB Document 797 Filed 01/10/24 Page 3 of 4 PageID #: 55155
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`Acceleration objects to the supplemental expert report on several grounds. First,
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`Acceleration points out that the portions of Dr. Wicker’s supplemental expert report that are
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`directed to the Destiny and World of Warcraft games deal with in-game player actions and do not
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`respond to the court’s Supplemental Claim Construction Order. Activision argues that the court’s
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`order “more broadly analyzed the relationship between pre-game player activities, in-game player
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`activities, and the requirement for infringement that any time a network becomes not m-regular
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`for any reason, it is ‘immediately’ restored to m-regularity.” Dkt. No. 794 at 2. I disagree with
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`that characterization of my order, which was directed to the narrow issue of whether there “is a
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`distinction, for purposes of determining whether a network is configured to maintain m-regularity,
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`between actions taken by the player during the game and actions taken by the player before the
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`game starts.” Dkt. No. 788 at 1, quoting Dkt. No. 781 at 5.
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`Contrary to Activision’s contention, the court’s September 20, 2023, order did not modify
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`the prior claim construction with respect to in-game player actions. There is therefore no
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`justification for Dr. Wicker’s presenting further views or further discovery regarding the Destiny
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`and World of Warcraft games that are discussed in paragraphs 25 through 34 of Dr. Wicker’s
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`supplemental expert report, as his discussion of those games does not pertain to pre-game player
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`actions.
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`As for the Call of Duty game set, which is discussed at paragraphs 12-24 of his
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`supplemental report, much of that discussion reiterates prior opinions expressed by Dr. Wicker
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`and other Activision experts. See Dkt. No. 790-1 at ¶¶ 12, 14–17, 20, and 22. Several paragraphs
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`of Dr. Wicker’s report, however, do not expressly refer to prior opinions of Activision’s experts.
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`See paragraphs 13, 18, 19, 21, 23, and 24, and Acceleration has not identified particular reports by
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`Activision’s experts that make the same factual contentions that are made in those paragraphs. I
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`Case 1:16-cv-00453-WCB Document 797 Filed 01/10/24 Page 4 of 4 PageID #: 55156
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`have examined the pertinent expert reports and testimony, and have not found that other Activision
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`expert reports or testimony, either by Dr. Wicker or other experts, support Acceleration’s
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`contention that Dr. Wicker’s statements in paragraphs 13, 18, 19, 21, 23, and 24 are redundant of
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`points made in those earlier reports.
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`For that reason, I will allow Dr. Wicker to supplement his August 25, 2023, expert report
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`with paragraphs 13, 18, 19, 21, 23, and 24 of his supplemental expert report dated October 20,
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`2023, Dkt. No. 790-1, contingent on Activision making Dr. Wicker available for a two-hour
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`deposition directed to those paragraphs by January 24, 2024. Acceleration will be permitted to
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`file a supplemental expert report of no more than five pages by one of its experts responding to the
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`designated paragraphs of Dr. Wicker’s supplemental expert report by February 7, 2024, contingent
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`on Acceleration making its expert available for a two-hour deposition by February 21, 2024.
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`In its motion papers, Activision has stated that the court should dismiss the action
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`altogether. See Dkt. No. 794 at 3, 4. Treating that request as yet another request for summary
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`judgment by Activision, the motion is denied.
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`In a separate filing, Dkt. No. 789, Activision requests that the court instruct the jury on the
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`claim construction issue that was resolved by the court in its September 20, 2023, order, Dkt. No.
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`788. A decision regarding the instructions to be given to the jury regarding claim construction
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`issues will be made shortly before or during the trial.
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` IT IS SO ORDERED.
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`SIGNED this 10th day of January, 2024.
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`______________________________
`WILLIAM C. BRYSON
`UNITED STATES CIRCUIT JUDGE
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