Case 1:16-cv-00453-RGA Document 86 Filed 03/17/17 Page 1 of 6 PagelD #: 7007
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`)) )
`
`ACCELERATION BAY LLC,a Delaware
`Limited Liability Corporation,
`
`Plaintiff
`
`Vv.
`
`ACTIVISION BLIZZARD, INC.,,
`a Delaware Corporation,
`
`Defendant.
`
`|
`
`) CA. No, 16-453-RGA
`
`PUBLIC VERSION
`
`) ) ))
`
`) )
`
`DECLARATION OF PAUL ANDRE IN SUPPORT OF ACCELERATION BAY’S
`OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND
`CROSS-MOTION FOR ATTORNEYS’ FEES AND SANCITIONS
`
`[VOLUME2 OF 3]
`
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899 -
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneysfor
`PlaintiffAcceleration Bay LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`Hannah Lee
`KRAMERLEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M.Frankel
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: March 6, 2017
`Public Version dated: March 17, 2017
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`)) )
`
`ACCELERATION BAY LLC,a Delaware
`Limited Liability Corporation,
`
`Plaintiff
`
`Vv.
`
`ACTIVISION BLIZZARD, INC.,,
`a Delaware Corporation,
`
`Defendant.
`
`|
`
`) CA. No, 16-453-RGA
`
`PUBLIC VERSION
`
`) ) ))
`
`) )
`
`DECLARATION OF PAUL ANDRE IN SUPPORT OF ACCELERATION BAY’S
`OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND
`CROSS-MOTION FOR ATTORNEYS’ FEES AND SANCITIONS
`
`[VOLUME2 OF 3]
`
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899 -
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneysfor
`PlaintiffAcceleration Bay LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`Hannah Lee
`KRAMERLEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M.Frankel
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: March 6, 2017
`Public Version dated: March 17, 2017
`
`
`
`Case 1:16-cv-00453-RGA Document 86 Filed 03/17/17 Page 2 of 6 PagelD #: 7008
`
`I, Paul Andre, hereby declare as follows:
`
`1.
`
`I am an attorney with the law firm Kramer Levin Naftalis & Frankel LLP, counsel
`
`of record for Plaintiff Acceleration Bay LLC (“Acceleration Bay”). I have personal knowledge
`
`of the facts set forth in this declaration and can testify competently to thosefacts.
`
`A.
`
`2.
`
` Pre-Filing Investigation
`
`Beforefiling suit against Activision in 2015, Acceleration Bay’s counselcarefully
`
`reviewed the asserted patents andtheir file histories in order to interpret the claims and
`
`understand the relevant technology. Counsel also reviewedall of the publicly available
`
`information they could find regarding the accused products to determine if Acceleration Bay had
`a reasonable basisto allege infringement, including publications, technical materials and the
`
`games themselves, and compared the claims, construed in light of the intrinsic record, with the
`
`accused products, These activities included using the gamesto verify their functionality, as
`
`documented in screen captures used in Acceleration Bay’s complaint and infringement charts.
`
`3.
`
`Acceleration Bay also retained Dr. Nenad Medvidovic, a leading expertin the
`
`field of computer software and networking architecture, to assist with its pre-filing investigation.
`4,
`Acceleration Bay’s counsel prepared a detailed pre-filing memorandum based on
`their investigation and Dr. Medvidovié’s analysis.(is
`
`eee
`
`ee
`
`5.
`
`After determining that Activision infringes the Asserted Patents, Acceleration Bay
`
`filed suit against Activision,
`
`B.
`
`6.
`
`Discovery in the 2015 Case
`
`While the 2015-filed case pended, Activision provided only limited documentary
`
`discovery for the accused Call of Duty games (“CoD”) — none of whichrelated to the
`
`specifically accused functionality — and no documentsfor the accused World of Warcraft game
`
`(“WoW”), other than offering source code for inspection.
`
`
`
`Case 1:16-cv-00453-RGA Document 86 Filed 03/17/17 Page 3 of 6 PagelD #: 7009
`
`7.
`
`During the pendency of the 2015-filed case, Activision did not provide a single
`
`email, even though Acceleration Bay provided proposed search terms in March 2016, consistent
`
`with the Scheduling Orderin the case, and followed up numerous times to request email
`
`production.
`
`8.
`
`Acceleration Bay expended considerable resources reviewing Activision’s source
`
`code for CoD and WoW without any guidance from documents or deposition about how the code
`
`was organized andtherelevantportions of the source codefiles. Dr. Medvidovié personally
`
`reviewed source code for CoD and WoW and informed Acceleration Bay that it confirmedhis
`opinion that these products infringe Acceleration Bay’s patents,
`
`9,
`
`Acceleration Bay had no technical discovery on Destiny. Acceleration Bay
`
`served a document and deposition subpoena on Destiny’s developer, Bungie, but had not yet
`
`received any confidential documents and had not taken any deposition when the 2015-filed case
`
`was dismissed,ee
`
`ee
`
`ee
`
`ee |
`
`10.
`
`On March 2, 2016, in compliance with the Scheduling Order, Acceleration Bay
`
`served Activision with its initial infringement claim charts. These claim charts provide a
`
`detailed explanation ofthe basis for Acceleration Bay’s infringement allegations.
`
`Notwithstanding Acceleration Bay’s service of deposition notices in January 2016 shortly after
`
`the issuance of a protective order, Activision refused to make witnesses available for depositions
`
`on the theory that Acceleration Bay’s claim charts were inadequate. The Special Master granted
`
`Acceleration Bay’s motion to compel Activision to proceed with depositions, finding
`
`Acceleration Bay’s charts sufficient to provide Activision with notice of Acceleration Bay’s
`
`infringementtheories so that Activision could prepare its witnesses for deposition. The Special
`
`Master reachedthis decision after a full day hearing featuring extensive oral argument on the
`
`
`
`Case 1:16-cv-00453-RGA Document 86 Filed 03/17/17 Page 4 of 6 PagelD #: 7010
`
`same issues Activision raises in this Motion. The Special Master further ordered Acceleration
`
`Bayto update certain interrogatory responses regarding infringement after taking depositions,
`
`and the parties agreed to a schedule for doing so after the completion ofinitial depositions ona .
`
`game.
`
`11.
`
`Shortly before the dismissal of the 2015-filed case, Acceleration Bay took a
`
`30(b)(6) deposition on CoD anda partial 30(b)(6) deposition on WoW,covering certain aspects
`
`of the game. Acceleration Bay has not yet taken a deposition on Activision’s accused Blizzard
`
`downloader functionality, used in WoW andother Activision products.
`
`12.
`
`Acceleration Bayalso retained a consulting expert who conducted tests on certain
`
`accused products. The results of these tests were consistent with Acceleration Bay’s
`
`infringement theories.
`
`Cc.
`
`13.
`
`Acceleration Bay Refiled This Action
`
`After the Court’s order regarding prudential standing in the 2015-filed case,
`
`Acceleration Bayfiled the instant action. Before doing so, Acceleration Bay’s counselcarefully
`
`evaluated andrelied upon the additional evidence of Activision’s infringement discussed above.
`
`14.
`
`Activision hand served correspondence and draft Rule 11 motion papers on my
`
`firm’s Managing Partner and General Counsel, neither of which are counsel of record in this
`
`action.
`
`15.
`
`Acceleration Bay warned Activision that it would seek sanctions against
`
`Activision if it filed this Rule 11 Motion, but Activision did so anyway.
`
`D.
`
`16.
`
`Exhibits
`
`Attached hereto as Exhibit 1 is a true and correct copy of the Order from HBAC
`
`Matchmaker Media, Inc. y. CBS Interactive Inc., Civ. No. 13-428-SLR, D.I. 42 (D. Del. Nov. 18,
`
`2013).
`
`17.
`
`Attached hereto as Exhibit 2 is a true and correct copy of Chart A to Acceleration
`
`Bay’s Initial Infringement Contentions regarding WoW,served on March 2, 2016.
`
`
`
`Case 1:16-cv-00453-RGA Document 86 Filed 03/17/17 Page 5 of 6 PagelD #: 7011
`
`18.
`Attached hereto as Exhibit 3 is a true and correct copy of Chart B to Acceleration
`Bay’sInitial Infringement Contentions regarding Destiny, served on March 2, 2016.
`
`19.
`
`Attached hereto as Exhibit4 is a true and correct copy of Chart C to Acceleration
`
`Bay’s Initial Infringement Contentions regarding CoD, served on March 2, 2016.
`
`20.
`
`Attached hereto as Exhibit 5 is a true and correct copy of excerpts from the
`
`transcript of proceedings held on February 12, 2016 in the 2015 Case.
`
`21.
`
`Attached hereto as Exhibit6 is a true and correct copy of the Order Granting
`
`Defendants’ Motion to Dismiss Plaintiff's First Amended Complaint in Activision Publishing,
`
`Ine. v, xTVNetworks Ltd, et al., Case No, 16-cv-00737-SJO-MRW (N.D. Cal.) Docket No. 38,
`
`filed on July 25, 2016.
`
`22,
`
`Attached hereto as Exhibit 7 is a true and correct copy of Acceleration Bay’s
`
`Initial Disclosures Pursuant to Rule 26(a)(1), served on November2, 2015.
`
`23.
`
`Attached hereto as Exhibit 8 is a true and correct copy of excerpts from the
`
`ee
`
`24,
`
`Attached hereto as Exhibit 9 is a true and correct copy of Activision’s Second
`
`Supplemental Responses to Acceleration Bay’s SecondSet of Interrogatories (Nos. 5 and9),
`
`served on April 8, 2016.
`
`25.
`
`Attached hereto as Exhibit 10 is a true and correct copy of excerpts from the
`
`ee
`
`26.
`
`Attached hereto as Exhibit 11 is a true and correct copy of a documententitled
`
`‘Downloader command-line options,” bearing bates numbers ATV10025987-91,
`
`27.
`
`Attached hereto as Exhibit 12 is a true and correct copy of excerpts from the
`
`transcript of the proceedings held on April 14, 2016 before Special Master Terrell.
`
`28.
`
`Attached hereto as Exhibit 13 is a true and correct copy of Petitioners’
`
`Consolidated Reply to Patent Owner’s Response in Activision Blizzard, Inc. y, Acceleration Bay
`
`LLC, Case IPR2015-01951 regarding U.S. Patent No. 6,714,966, filed before the Patent Trial and
`
`Appeal Board on October 15, 2016.
`
`
`
`Case 1:16-cv-00453-RGA Document 86 Filed 03/17/17 Page 6 of 6 PagelD #: 7012
`
`29.
`
`Attached hereto as Exhibit 14 is a true and correct copy of a Blizzard presentation
`
`entitled “NetworkSerialization and Routing in World of Warcraft,” bearing bates numbers AB-
`
`AB 002824-954.
`
`30.
`
`Attached hereto as Exhibit 15 is a true and correct copy of Acceleration Bay’s
`
`Supplemental Objections and Responses to Activision’s Second Set of Interrogatories (Nos. 7
`
`and 9) as to CoD,served on March 6, 2017.
`
`I declare under penalty of perjury under the laws of the United States of Americathat the
`
`foregoing is true and correct. Executed on March 6, 2017 in Menlo Park, California.
`
`/s/ Paul Andre
`Paul Andre
`
`
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