Case 1:16-cv-00453-WCB Document 851 Filed 05/02/24 Page 1 of 25 PageID #: 56681
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`Plaintiff,
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`C.A. No. 16-453 (WCB)
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Defendant.
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`ACCELERATION BAY LLC,
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`ACTIVISION BLIZZARD, INC.,
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`v.
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`DEFENDANT ACTIVISION BLIZZARD, INC.’s BRIEF IN SUPPORT OF ITS MOTION
`FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO
`FEDERAL RULE OF CIVIL PROCEDURE 50(a)
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Jeremy A. Tigan (#5239)
`Cameron P. Clark (#6647)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`jtigan@morrisnichols.com
`cclark@morrisnichols.com
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`Attorneys for Defendant
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`OF COUNSEL:
`B. Trent Webb
`Aaron E. Hankel
`John D. Garretson
`Jordan T. Bergsten
`Maxwell C. McGraw
`Lauren E. Douville
`Brenna L. Kingyon
`SHOOK HARDY & BACON LLP
`2555 Grand Boulevard
`Kansas City, MO 64108
`(816) 474-6550
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`Anita Liu
`David Morehan
`SHOOK HARDY & BACON LLP
`JPMorgan Chase Tower
`600 Travis Street, Suite 3400
`Houston, TX 77002
`(713) 227-8008
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`May 2, 2024
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`Case 1:16-cv-00453-WCB Document 851 Filed 05/02/24 Page 2 of 25 PageID #: 56682
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`TABLE OF CONTENTS
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`Page
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`I. NATURE AND STAGE OF THE PROCEEDINGS ............................................................. 1
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`II. LEGAL STANDARD UNDER RULE 50(A) ........................................................................ 1
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`III.
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`IV.
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`SUMMARY OF ARGUMENT .......................................................................................... 2
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`ARGUMENT ...................................................................................................................... 2
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`A.
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`B.
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`Acceleration Bay is Collaterally Estopped from Asserting Infringement with
`Respect to Both Call of Duty and World of Warcraft ............................................ 2
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`No Reasonable Jury Could Find That Activision Has Infringed the Asserted
`Claims of Acceleration Bay’s Patents ..................................................................... 3
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`i.
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`ii.
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`iii.
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`Legal Standards for Infringement ............................................................... 4
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`No Reasonable Jury Could Find That Activision Has Infringed Asserted
`Claim 1 of the ‘147 Patent .......................................................................... 4
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`No Reasonable Jury Could Find That Activision Has Infringed Asserted
`Claim 12 of the ‘344 Patent ........................................................................ 9
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`C.
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`Acceleration Bay Has Failed to Provide Evidence Upon Which the Jury Can
`Award Damages. ................................................................................................... 11
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`i
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`Case 1:16-cv-00453-WCB Document 851 Filed 05/02/24 Page 3 of 25 PageID #: 56683
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`TABLE OF AUTHORITIES
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`Page(s)
`
`Cases
`
`American Seating Co. v. USSC Group, Inc.,
`514 F.3d 1262, 85 U.S.P.Q.2d 1683 (Fed. Cir. 2008) .............................................................17
`
`Apple Inc. v. Samsung Electronics Co.,Ltd.,
`839 F.3d 1034, 1040 (Fed. Cir. 2016) (en banc) ........................................................................1
`
`Bai v. L & L Wings, Inc.,
`160 F.3d 1350 (Fed. Cir. 1998)..................................................................................................4
`
`Brumfield, Trustee for Ascent Trust v. IBG LLC,
`97 F.4th 854 (Fed. Cir. 2024) ..................................................................................................18
`
`Donlin v. Philips Lighting,
`581 F.3d 73 (3rd Cir. 2009) .....................................................................................................17
`
`Dow Chem. Co. v. Mee Indus., Inc.,
`341 F.3d 1370 (Fed. Cir. 2003)................................................................................................11
`
`Ericsson v. D-Link Sys., Inc.,
`773 F.3d 1201 (Fed. Cir. 2014)................................................................................................14
`
`Finjan v. Blue Coat Sys., Inc.,
`879 F.3d 1299 (Fed. Cir. 2018)................................................................................................18
`
`Garretson v. Clark,
`111 U.S. 120 (1884) .................................................................................................................12
`
`i4i Ltd. Partnership v. Microsoft Corp.,
`598 F.3d 831 (Fed. Cir. 2010)....................................................................................................6
`
`Joy Technologies, Inc. v. Flakt, Inc.,
`6 F.3d 770 (Fed. Cir. 1993) .......................................................................................................6
`
`Karlin Tech., Inc. v. Surgical Dynamics, Inc.,
`177 F.3d 968 (Fed. Cir. 1999)....................................................................................................4
`
`Kremsky v. Kremsky,
`758 Fed. Appx. 236 (3d Cir. 2018) ............................................................................................1
`
`Lucent Techs., Inc. v. Gateway, Inc.,
`580 F.3d 1301 (Fed. Cir. 2009)....................................................................................11, 12, 15
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`ii
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`Case 1:16-cv-00453-WCB Document 851 Filed 05/02/24 Page 4 of 25 PageID #: 56684
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`
`Marra v. Phila. Hous. Auth.,
`497 F.3d 286 (3d Cir. 2007).......................................................................................................1
`
`Meyer Intellectual Properties Ltd. v. Bodum, Inc.,
`690 F.3d 1354 (Fed. Cir. 2012)..................................................................................................6
`
`Mhl Custom, Inc. v. Waydoo USA, Inc.,
`C.A. No. CV 21-0091-RGA, 2023 WL 1765553 (D. Del. Feb. 3, 2023) ................................12
`
`Odetics, Inc. v. Storage Tech. Corp.,
`185 F.3d 1259 (Fed. Cir. 1999)................................................................................................17
`
`Omega Pats., LLC v. CalAmp Corp.,
`13 F.4th 1361 (Fed. Cir. 2021) ................................................................................................18
`
`Packet Intel. LLC v. NetScout Sys., Inc.,
`965 F.3d 1299 (Fed. Cir. 2020)..................................................................................................6
`
`Philip v. Nock,
`84 U.S. 460 (1873) ...................................................................................................................12
`
`Promega v. Life Techs Corp.,
`875 F.3d 651 (Fed. Cir. 2017)..................................................................................................18
`
`Rego v. ARC Water Treatment Co. of Penn.,
`181 F.3d 396 (3d Cir. 1999).......................................................................................................2
`
`ResQNet.com, Inc. v. Lansa, Inc.,
`594 F.3d 860 (Fed. Cir. 2010)..................................................................................................11
`
`Ricoh Co., Ltd. v. Quanta Computer, Inc,
`550 F.3d 1325 (Fed. Cir. 2008)..................................................................................................6
`
`Rite–Hite Corp. v. Kelley Co.,
`56 F.3d 1538 (Fed. Cir. 1995) (en banc) ............................................................................16, 17
`
`Seal-Flex, Inc. v. Athletic Track & Ct. Const.,
`172 F.3d 836 (Fed. Cir. 1999)....................................................................................................4
`
`Sloan Valve Co. v. Zurn Indus., Inc.,
`33 F. Supp. 3d 984 (N.D. Ill. 2014) .........................................................................................16
`
`TecSec, Inc. v. Adobe, Inc.,
`978 F.3d 1278 (Fed. Cir. 2020)................................................................................................19
`
`Trell v. Marlee Elecs. Corp.,
`912 F.2d 1443 (Fed. 1990) .......................................................................................................13
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`iii
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`VirnetX, Inc. v. Cisco Sys., Inc.,
`767 F.3d 1308 (Fed. Cir. 2014)................................................................................................12
`
`Weisgram v. Marley Co.,
`528 U.S. 440 (2000) ...................................................................................................................2
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`Other Authorities
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`9B Fed. Prac. & Proc. § 2524 (3d ed. 2011) ....................................................................................2
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`Rules and Statutes
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`35 U.S.C. § 271(a) .................................................................................................................4, 6, 18
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`35 U.S.C. § 284 ..............................................................................................................................18
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`Fed. R. Civ. P. 50 .............................................................................................................................1
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`Fed. R. Civ. P. 50(a) ....................................................................................................................1, 2
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`iv
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`Case 1:16-cv-00453-WCB Document 851 Filed 05/02/24 Page 6 of 25 PageID #: 56686
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`I.
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`NATURE AND STAGE OF THE PROCEEDINGS
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`Activision Blizzard, Inc. (“Activision”) is the defendant in this patent infringement action
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`brought by Plaintiff Acceleration Bay LLC (“Acceleration Bay”). Trial in this action began on
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`April 29, 2024, and is scheduled to conclude on May 3, 2024. Activision Blizzard orally moved
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`for judgment as a matter of law (“JMOL”) pursuant to Federal Rule of Civil Procedure 50(a)
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`following the direct examination of Acceleration Bay’s final witness—Mr. Russell Parr—and the
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`substantial conclusion of Acceleration Bay’s case-in-chief on infringement and damages. (Day 2
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`Trial Tr. at 331:21-332:24, 344:16-24). Now, after the close of Acceleration Bay’s case-in-chief,
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`the Court authorized the filing of the instant written motion. Activision respectfully moves for
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`judgment as a matter of law that: (1) Call of Duty has not infringed asserted claim 1 of the ‘147
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`patent; (2) World of Warcraft has not infringed asserted claim 12 of the ‘344 patent; and (3)
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`Acceleration Bay has not presented sufficient evidence to be entitled to a reasonable royalty.
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`Activision, therefore, requests that the Court issue judgment as a matter of law, deciding these
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`issues in Activision’s favor.
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`II.
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`LEGAL STANDARD UNDER RULE 50(A)
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`Motions for judgment as a matter of law raise procedural issues that are not unique to patent
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`law and thus are reviewed under the law of the regional circuit in which the appeal from the district
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`court would usually lie. Apple Inc. v. Samsung Electronics Co., Ltd., 839 F.3d 1034, 1040 (Fed.
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`Cir. 2016) (en banc). In the Third Circuit, entry of judgment as a matter of law is appropriate when
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`“there is insufficient evidence from which a jury reasonably could find liability.” Marra v. Phila.
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`Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007) (citation omitted). In other words, “a party is
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`entitled to judgment as a matter of law where a ‘reasonable jury would not have legally sufficient
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`evidentiary basis to find for the party on that issue.’” Kremsky v. Kremsky, 758 Fed. Appx. 236,
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`239 (3d Cir. 2018) (citing Fed. R. Civ. P. 50).
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`

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`Case 1:16-cv-00453-WCB Document 851 Filed 05/02/24 Page 7 of 25 PageID #: 56687
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`Rule 50(a) provides that a court may grant judgment as a matter of law in a jury trial at the
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`close of the evidence if it determines that there is no legally sufficient evidentiary basis for a
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`reasonable jury to find for a party on an issue. Rego v. ARC Water Treatment Co. of Penn., 181
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`F.3d 396, 400 (3d Cir. 1999). Rule 50(a) allows the trial court to remove issues from the jury’s
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`consideration when “the facts are sufficiently clear that the law requires a particular result.”
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`Weisgram v. Marley Co., 528 U.S. 440, 448 (2000) (internal quotations omitted). “The question
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`is not whether there is literally no evidence supporting the party against whom the motion is
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`directed but whether there is evidence upon which the jury might reasonably find a verdict for that
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`party.” 9B Fed. Prac. & Proc. § 2524 (3d ed. 2011).
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`III.
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`SUMMARY OF ARGUMENT1
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`JMOL under 50(a) should be entered because Acceleration Bay failed to present sufficient
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`evidence to support its legal claims that: (1) the accused voice chat functionality in Call of Duty:
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`Advanced Warfare and Call of Duty: Black Ops III infringes claim 1 of the ‘147 patent; (2) the
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`accused cross-realm zone functionality in World of Warcraft infringes claim 12 of the ‘344 patent;
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`and (3) Acceleration Bay is entitled to reasonable royalty damages.
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`IV. ARGUMENT
`A.
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`Acceleration Bay is Collaterally Estopped from Asserting Infringement with
`Respect to Both Call of Duty and World of Warcraft
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`Acceleration Bay is collaterally estopped from asserting infringement with respect to both
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`Call of Duty and World of Warcraft based on the Take Two rulings for the same reasons expressed
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`in Activision’s prior collateral estoppel briefing. (D.I. 731, 739). Indeed, given Acceleration
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`Bay’s evidence and descriptions of Activision’s networks in Acceleration Bay’s case-in-chief,
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`1 The facts relevant to Activision’s arguments are incorporated into its argument sections. Thus,
`Activision did not include a separate statement of facts.
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`2
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`Case 1:16-cv-00453-WCB Document 851 Filed 05/02/24 Page 8 of 25 PageID #: 56688
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`even if taken as true, its infringement arguments are precluded by the collateral estoppel findings
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`of the Take Two Court.
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`First, for Call of Duty, the network security system configuration is determined by player
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`action. As the Court explained in its prior order, it “agreed with Judge Andrews’ construction and
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`concluded that in this case, a network will similarly “not be considered ‘m-regular’ if the players’
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`actions determine how connections are formed.” (D.I. 788 at 2). Further, Dr. Bims and Mr. Conlin
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`both admitted that players may or may not be able to directly connect for voice chat based on their
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`NAT settings, which players and not Activision configures. (Day 1 Transcript, 277:14- 278:20;
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`Day 2 Transcript, 64:11-65:13). This testimony is unrebutted in the record and falls squarely under
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`the reasoning of the GTA ruling in Take-Two for the reasons explained in Activision’s prior
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`briefing on this issue. (D.I. 730).
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`Second, Acceleration Bay’s theories fail to account for World of Warcraft’s servers that
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`are network participants and, if properly treated as such, prevent m-regularity. Here, Acceleration
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`Bay’s evidence of an m-regular network centers on manufacturing hypothetical networks while
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`ignoring the broader World of Warcraft network. It must do so because the actual World of
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`Warcraft network is nowhere near m-regular. For instance when looking at the various servers in
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`the HiMem realm, the connections amongst the servers range from as few as five connections to
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`over 100. The final holdings in Take-Two foreclose Acceleration Bay’s selective and arbitrary
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`identification of network “participants.” (D.I. 730).
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`B.
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`No Reasonable Jury Could Find That Activision Has Infringed the Asserted
`Claims of Acceleration Bay’s Patents
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`Acceleration Bay alleged that the voice chat functionality in Call of Duty: Advanced
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`Warfare and Call of Duty: Black Ops III infringe claim 1 of the ‘147 patent, and the cross-realm
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`zone functionality of World of Warcraft infringes claim 12 of the ‘344 patent. Acceleration Bay
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`3
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`Case 1:16-cv-00453-WCB Document 851 Filed 05/02/24 Page 9 of 25 PageID #: 56689
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`failed to present sufficient evidence from which a reasonable jury could find infringement
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`of any of these claims—literally or under the doctrine of equivalents—and Activision is entitled
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`to judgment as a matter of law of noninfringement. Acceleration Bay has the burden of proof to
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`establish infringement, and for at least the reasons stated herein, it failed to meet its burden.
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`i.
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`Legal Standards for Infringement
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`Whoever, without authority, makes, uses, sells, or offers to sell any patented invention in
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`the United States is liable for patent infringement. 35 U.S.C. § 271(a). Determining whether a
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`patent claim has been infringed involves two steps: (1) claim construction to determine the scope
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`of the claims, followed by (2) determination of whether the properly construed claim encompasses
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`the accused structure. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed. Cir. 1998). The first
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`step, claim construction, involves a question of law for the court. Id. The second step,
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`determination of infringement, whether literal or under the doctrine of equivalents, is a question
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`of fact. Id. To show infringement of a patent, a patentee must supply sufficient evidence to prove
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`that the accused product contains, either literally or under the doctrine of equivalents, every
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`limitation of the properly construed claim. Seal-Flex, Inc. v. Athletic Track & Ct. Const., 172 F.3d
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`836, 842 (Fed. Cir. 1999).
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`For literal infringement, JMOL in favor of a party is properly granted “if no reasonable
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`jury could determine that every limitation recited in the properly construed claim either is not, or
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`is, found in the accused device.” Karlin Tech., Inc. v. Surgical Dynamics, Inc., 177 F.3d 968, 974
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`(Fed. Cir. 1999).
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`ii.
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`No Reasonable Jury Could Find That Activision Has Infringed
`Asserted Claim 1 of the ‘147 Patent
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`JMOL on non-infringement should be granted on alleged infringement of Call of Duty
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`because Acceleration Bay has failed to set forth sufficient evidence from which a reasonable jury
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`4
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`could conclude that the accused voice chat functionality in Call of Duty infringes each and every
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`element of claim 1 of the ‘147 patent. The asserted claim of the ‘147 patent defines a specific
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`method for disconnecting a first computer from a second computer connected to a broadcast
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`channel forming an m-regular graph where “m” is at least three. JTX 4 at 28:51-67. First, the
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`method requires, when the first computer decides to disconnect from the second computer, the first
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`computer sends a disconnect message to the second computer that contains a list of neighbors. Id.
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`at 28:56-60. Second, after the second computer receives the disconnect message with the first
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`computer’s list of neighbors, the second computer broadcasts a port search message across the
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`broadcast channel to find a third computer to which the second computer can connect. Id. at 28:61-
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`65. The connection to a third computer is in order to maintain an m-regular graph, and the third
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`computer is one of the neighbors identified in the first computer’s disconnect message. Id. at
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`28:65-67. Acceleration Bay has failed to set forth sufficient evidence demonstrating how each
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`method step is performed when players leave a Call of Duty game.
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`It is undisputed that the only feature accused in the Call of Duty game titles is the voice
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`chat and associated Quality of Service (“QoS”) functionality that helps set up this same feature
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`and is part of the same feature. (Day 2 Trial Tr. at 155:6-19, 161:13-25, 164:6-14, 218:19-23,
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`219:23-220:2). Dr. Medvidovic conceded in his testimony that he did not testify about any
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`opinions of infringement for a scenario where a player does not utilize the voice chat functionality.
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`(Id. at 220:2-7). For these infringing functionalities, Activision does not practice each step of the
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`claimed method, whether it occurs during a player drop scenario when connected to game server
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`or during a host migration scenario.
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`First, the evidence in Acceleration Bay’s case only relates to connections and
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`disconnections by “computers” (e.g. Xbox consoles or personal computers) owned by third parties.
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`5
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`Case 1:16-cv-00453-WCB Document 851 Filed 05/02/24 Page 11 of 25 PageID #: 56691
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`(Id. at 160:21-161:12). Importantly, there is no inducement claim in this case—only allegations
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`of direct infringement—which Dr. Medvidovic admitted in his testimony. (Id. at 159:21-161:12
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`(testifying how “[a]ll those connections are controlled by Activision”). There is also no joint
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`infringement allegation in this case. Instead, Acceleration Bay’s position is that Activision
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`performs all the method steps through Activision’s software executing the game QoS functionality.
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`(Id. at 160:18-20, 161:9-12). But precedent is clear—an alleged infringer cannot infringe a method
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`patent as a matter of law simply by selling software. Joy Technologies, Inc. v. Flakt, Inc., 6 F.3d
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`770, 773 (Fed. Cir. 1993) (“The law is unequivocal that the sale of equipment to perform a process
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`is not a sale of the process within the meaning of section 271(a).”); Ricoh Co., Ltd. v. Quanta
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`Computer, Inc, 550 F.3d 1325, 1335 (Fed. Cir. 2008) (“Accordingly, we hold that a party that sells
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`or offers to sell software containing instructions to perform a patented method does not infringe
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`the patent under § 271(a).”); Meyer Intellectual Properties Ltd. v. Bodum, Inc., 690 F.3d 1354,
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`1366 (Fed. Cir. 2012) (“Where, as here, the asserted patent claims are method claims, the sale of
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`a product, without more, does not infringe the patent. Instead, direct infringement of a method
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`claim requires a showing that every step of the claimed method had been practiced.”); i4i Ltd.
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`Partnership v. Microsoft Corp., 598 F.3d 831, 850 (Fed. Cir. 2010) (“Because the claims asserted
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`by i4i are method claims, Microsoft's sale of Word, without more, did not infringe the '449 patent.
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`Direct infringement occurs only when someone performs the claimed method.”); Packet Intel. LLC
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`v. NetScout Sys., Inc., 965 F.3d 1299, 1314–15 (Fed. Cir. 2020) (“We disagree with Packet
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`Intelligence. Method claims are ‘not directly infringed by the mere sale of an apparatus capable of
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`performing the claimed process.’ Joy Techs., Inc. v. Flakt, Inc., 6 F.3d 770, 773 (Fed. Cir. 1993).
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`Therefore, Packet Intelligence cannot simply count sales of the software accused of infringing the
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`’789 patent as sales of the method claimed in the ’725 and ’751 patents. Instead, Packet Intelligence
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`6
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`was required to produce evidence that the claimed method was actually used and hence
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`infringed.”). Activision is entitled to judgment as a matter of law for this reason alone.
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`Acceleration Bay’s proof of infringement is thus in a difficult, and in fact insurmountable,
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`position. Acceleration Bay disclaims the ideas (as it must) that Activision’s dedicated servers are
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`a participant in the allegedly infringing network, but this means any method steps being performed
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`are performed by player computers. Mr. Conlin admitted that for his testing of the game, he had
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`to click through several menu choices to get to the multiplayer modes that are capable of producing
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`the allegedly infringing conditions (Day 2 Transcript, 63:20-64:10), and that nothing was stopping
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`him from selecting other game modes that Acceleration Bay admits cannot infringe even under
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`their flawed theories.
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`Acceleration Bay also failed to present sufficient evidence demonstrating that a
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`disconnecting player from a Call of Duty game sends a “disconnect message . . . including a list
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`of players”—the first step required in claim 1 of the ‘147 patent. Acceleration Bay’s claim is that
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`the accused Call of Duty voice network performs each step of the method (1) when a player drops
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`from a game and (2) during host migration. But these positions have only ever been disclosed by
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`Dr. Medvidovic as part of an infringement theory under the doctrine of equivalents—which was
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`withdrawn by Acceleration Bay before the trial. Nor could anything he disclosed in those reports
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`as a “list of neighbors” have survived summary judgment on literal infringement if Dr. Medvidovic
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`had disclosed them as such. Nevertheless, Dr. Medvidovic’s trial testimony makes clear that his
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`infringement opinion is consistent with what was stated in his expert report, that “QoS is actually
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`basically their protocol for discovering nodes on the network.” (Day 2 Tr. at 154:10-19). No
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`specific evidence is provided of any instance in which an Activision computer performs all of the
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`steps of the claimed method, including receiving any “list of players” from the disconnecting
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`7
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`player. Accordingly there is no sufficient proof as to Activision’s literal infringement of the “list
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`of neighbors” sent when a player disconnects from the accused Call of Duty voice chat network.
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`Ultimately, Acceleration Bay’s technical case conflates other messages (and even information a
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`computer merely possesses but does not send under Dr. Medvidovic’s own descriptions) with a
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`sending of a list of neighbors. This is why the original opinion on this element was a doctrine of
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`equivalents position from Acceleration Bay—a list of neighbors is never sent as part of any
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`disconnect message in Call of Duty, and there is no evidence in the record from Acceleration Bay’s
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`case suggesting otherwise.
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`There is also insufficient evidence from Acceleration Bay’s case-in-chief to establish that
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`the accused Call of Duty voice network utilizes an m-regular, incomplete network. Acceleration
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`Bay did not, and could not, point to a single instance where the voice chat network constructed for
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`one of the accused Call of Duty games was for one second m-regular and incomplete—let alone
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`that it is in that configuration substantially all the time. Indeed, Acceleration Bay presented a
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`testing expert, Mr. Conlin, who admits he only tested with two computer consoles, and thus could
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`not see the broader pattern of traffic between all computers in the game in order for conclusions to
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`be drawn that the network was ever m-regular. (Day 2 Transcript, 62:1-63:9). Similarly,
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`Acceleration Bay does not point to any game rules or requirements to conclude the network is
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`configured to be m-regular substantially all the time.
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`To the extent Acceleration Bay’s theories rely on the host migration scenario, the
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`unrebutted testimony it designated from Mr. Griffith explains that player hosting only occurs on
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`parts of the planet that are not “developed areas where there are data centers that are capable of
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`hosting the Call of Duty dedicated servers, or even servers for websites or anything like that.” (Day
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`3 Transcript, 79:5-15).
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`Case 1:16-cv-00453-WCB Document 851 Filed 05/02/24 Page 14 of 25 PageID #: 56694
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`Finally, the record is undisputed that the accused Call of Duty voice network never creates
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`a connection in furtherance of the claim’s requirement that the accused service must “find a third
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`computer to which it can connect in order to maintain an m-regular graph. Thus, when a player
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`disconnects, no new connections are formed, and there is no evidence in the record that contradicts
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`this fundamental operation of the Call of Duty voice chat subnetwork.
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`No reasonable juror could conclude the accused Call of Duty voice chat network is
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`configured to be m-regular under these facts.
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`iii.
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`No Reasonable Jury Could Find That Activision Has Infringed
`Asserted Claim 12 of the ‘344 Patent
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`No reasonable jury could find that the accused cross-realm functionality in World of
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`Warcraft literally infringes claim 12 of the ‘344 patent because, at a minimum, the accused World
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`of Warcraft network (1) is not m-regular and incomplete, (2) does not broadcast messages or data
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`over each connection, (3) does not re-broadcast messages or data over each connection, and (4)
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`does not use “broadcast channels” as that term is construed by the Court.
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`M-Regular and Incomplete. Acceleration Bay’s infringement allegations require accusing
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`only a small portion of the accused World of Warcraft network by ignoring numerous server
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`connections, and instead selectively focusing on communications between several iterations of “a
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`single user server and a single party server” in a cross-realm zone. (Day 2 Tr. at 117:5-14). He
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`then manufactured a server network graph and concluded that “mathematically, in every instance,
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`that network is going to be incomplete, and it is going to be m-regular.” (See id. at 117:15-22).
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`Critically, Dr. Medvidovic admitted that his analysis erases large chunks of the server connections
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`across World of Warcraft’s vast server network (Id. at 208:7-16), which are critical to the operation
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`of the game. Dr. Medvidovic’s hypothetical is at most a transient and coincidental occurrence
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`Case 1:16-cv-00453-WCB Document 851 Filed 05/02/24 Page 15 of 25 PageID #: 56695
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`resulting from how players are interacting with each other, and thus cannot show a network that is
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`configured to maintain m-regularity.
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`The only other concept Dr. Medvidovic
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`testified evidencing m-regularity and
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`incompleteness in World of Warcraft was introducing the general concept of “load balancing,” and
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`concluding because this allegedly existed that the network “is configured mathematically to be,
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`essentially, balanced, meaning m-regular and incomplete.” (Day 2 Tr. at 116:12-117:4). But
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`nothing in the record ties this general concept to specific proof that any alleged use of load
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`balancing in World of Warcraft’s cross-realm zone functionality results in an m-regular,
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`incomplete network. Further, Dr. Medvidovic admitted the asserted patents do not use the phrase
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`“load balancing,” or the words “load” or “balancing” anywhere in the disclosures. (Day 2 Tr. at
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`196:19-197:4). Indeed, this appears to be the very doctrine of equivalents theory on m-regularity
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`that the Court found was collaterally estopped, tardily repackaged as a literal infringement theory.
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`(See D.I. 743 at 13-15). He also admitted the inventors did not invent large networks to implement
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`interactive systems because those existed before Activision was formed in 1979. (Id. at 197:17-
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`22). No reasonable juror could find the accused World of Warcraft network is configured to
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`maintain a m-regularity and incompleteness based on the evidence presented in Acceleration Bay’s
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`case-in-chief.
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`No Broadcast/Re-Broadcast Over Each Connection. Acceleration Bay did not present
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`sufficient evidence in its case-in-chief to establish that the accused World of Warcraft server
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`network broadcasts data over each server’s connections. Indeed, nowhere in Acceleration Bay’s
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`case-in-chief did it point to any evidence establishing that a single message goes out to every
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`connection associated with a given server. Instead, the only thing Dr. Medvidovic testified to was
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`sending data through some of the server’s connections. Nor did Acceleration Bay present
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`sufficient evidence to demonstrate how any of the World of Warcraft servers re-broadcast data to
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`each of its other neighbor participants. Indeed, there was no evidence presented whatsoever that,
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`upon receiving a message, any server sends it out again because the “rebroadcast” language
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`pointed to in the code indicates the code was sending again from the same source, not sending the
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`information someplace else upon receipt. Acceleration Bay failed to proffer any sufficient
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`evidence to demonstrate this claim limitation is met.
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`No Broadcast Channels. The accused World of Warcraft network does not use broadcast
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`channels, and nothing in Acceleration Bay’s case-in-chief established that it did. The Court’s
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`constructions require that all participants in the broadcast channel must receive all data broadcasted
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`on the channel. (D.I. 387 p. 15). Indeed, Dr. Medvidovic’s testimony fails to establish any
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`broadcast channel in the accused server communications network where any data is broadcast from
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`one of the various accused server participants to all of its other server connections. His testimony
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`also reflects that the number of broadcast c