`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 16-453-RGA
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`PUBLIC VERSION
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`ACCELERATION BAYLLC, a Delaware
`Limited Liability Corporation,
`
`Plaintiff
`
`Vv.
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`ACTIVISION BLIZZARD,INC.,
`a Delaware Corporation,
`
`Defendant.
`
`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
`
`[VOLUME 3 OF3]
`
`Philip A. Rovner (#3215)
`Jonathan A, Choa (#5319)
`POTTER ANDERSON & CORROONLLP
`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
`
`
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`Case 1:16-cv-00453-RGA Document 87 Filed 03/17/17 Page 2 of 6 PagelD #: 7410
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`I, Paul Andre, hereby declare as follows:
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`1.
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`I am an attorney with the law firm Kramer Levin Naftalis & Frankel LLP, counsel
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`of record for Plaintiff Acceleration Bay LLC (“Acceleration Bay”). I have personal knowledge
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`of the facts set forth in this declaration and can testify competently to those facts.
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`A.
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`2.
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`Pre-Filing Investigation
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`Before filing suit against Activision in 2015, Acceleration Bay’s counselcarefully
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`reviewed the asserted patents andtheir file histories in order to interpret the claims and
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`understand the relevant technology. Counsel also reviewedall of the publicly available
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`information they could find regarding the accused products to determine if Acceleration Bay had
`a reasonable basis to allege infringement, including publications, technical materials and the
`games themselves, and compared the claims, construed in light of the intrinsic record, with the
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`accused products. These activities included using the gamesto verify their functionality, as
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`documented in screen captures used in Acceleration Bay’s complaint and infringement charts.
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`3.
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`Acceleration Bay also retained Dr. Nenad Medvidovié, a leading expert in the
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`field of computer software and networling architecture, to assist with its pre-filing investigation.
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`4,
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`Acceleration Bay’s counsel prepared a detailed pre-filing memorandum based on
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`their investigation and Dr. Medvidovié’s analysis.(i
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`ee
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`ee
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`5.
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`After determining that Activision infringes the Asserted Patents, Acceleration Bay
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`filed suit against Activision.
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`B.
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`6.
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`Discovery in the 2015 Case
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`While the 2015-filed case pended, Activision provided only limited documentary
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`discovery for the accused Call of Duty games (“CoD”) — none of whichrelated to the
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`specifically accused functionality — and no documents for the accused World of Warcraft game
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`(“WoW”),other than offering source code for inspection.
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`
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`Case 1:16-cv-00453-RGA Document 87 Filed 03/17/17 Page 3 of 6 PagelD #: 7411
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`7,
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`During the pendencyof the 2015-filed case, Activision did not provide a single
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`email, even though Acceleration Bay provided proposed search terms in March 2016, consistent
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`with the Scheduling Orderin the case, and followed up numeroustimes to request email
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`production.
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`8.
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`Acceleration Bay expended considerable resources reviewing Activision’s source
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`code for CoD and WoW without any guidance from documents or deposition about how the code
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`was organized and the relevant portions of the source codefiles. Dr. Medvidovié personally
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`reviewed source code for CoD and WoWand informed Acceleration Bay that it confirmed his
`opinion that these products infringe Acceleration Bay’s patents.
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`9.
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`Acceleration Bay had no technical discovery on Destiny. Acceleration Bay
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`served a document and deposition subpoena on Destiny’s developer, Bungie, but had not yet
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`received any confidential documents and had not taken any deposition when the 2015-filed case
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`=pwa aoaEL.va cAoOa
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`10.
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`On March 2, 2016,in compliance with the Scheduling Order, Acceleration Bay
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`served Activision with its initial infringement claim charts. These claim charts provide a
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`detailed explanation of the basis for Acceleration Bay’s infringementallegations.
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`Notwithstanding Acceleration Bay’s service of deposition notices in January 2016 shortly after
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`the issuance of a protective order, Activision refused to make witnesses available for depositions
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`on the theory that Acceleration Bay’s claim charts were inadequate. The Special Master granted
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`Acceleration Bay’s motion to compel Activision to proceed with depositions, finding
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`Acceleration Bay’s charts sufficient to provide Activision with notice of Acceleration Bay’s
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`infringementtheories so that Activision could prepare its witnesses for deposition. The Special
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`Master reachedthis decision after a full day hearing featuring extensive oral argument on the
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`
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`Case 1:16-cv-00453-RGA Document 87 Filed 03/17/17 Page 4 of 6 PagelD #: 7412
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`same issues Activision raises in this Motion. The Special Master further ordered Acceleration
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`Bay to update certain interrogatory responses regarding infringementafter taking depositions,
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`and the parties agreed to a schedule for doing so after the completion of initial depositions on a
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`game.
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`11.
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`Shortly before the dismissal of the 2015-filed case, Acceleration Bay took a
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`30(b)(6) deposition on CoD andapartial 30(b)(6) deposition on WoW,covering certain aspects
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`of the game. Acceleration Bay has notyet taken a deposition on Activision’s accused Blizzard
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`downloader functionality, used in WoW andother Activision products,
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`12.
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`Acceleration Bay also retained a consulting expert who conductedtests on certain
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`accused products. Theresults of these tests were consistent with Acceleration Bay’s
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`infringementtheories.
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`Cc.
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`13,
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`Acceleration Bay Refiled This Action
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`.
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`After the Court’s order regarding prudential standing in the 2015-filed case,
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`Acceleration Bay filed the instant action. Before doing so, Acceleration Bay’s counselcarefully
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`evaluated and relied uponthe additional evidence of Activision’s infringement discussed above.
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`14.
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`Activision hand served correspondence and draft Rule 11 motion papers on my
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`firm’s Managing Partner and General Counsel, neither of which are counsel of record in this
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`action.
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`15.
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`Acceleration Bay warned Activision that it would seek sanctions against
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`Activision if it filed this Rule 11 Motion, but Activision did so anyway.
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`D.
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`16.
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`Exhibits
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`Attached hereto as Exhibit 1 is a true and correct copy of the Order from HBAC
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`Matchmaker Media, Inc. y. CBS Interactive Inc., Civ. No. 13-428-SLR, D.I. 42 (D. Del. Nov.18,
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`2013).
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`.
`Attached hereto as Exhibit 2 is a true and correct copy of Chart A to Acceleration
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`17.
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`Bay’s Initial Infringement Contentions regarding WoW, served on March 2, 2016.
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`
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`Case 1:16-cv-00453-RGA Document 87 Filed 03/17/17 Page 5 of 6 PagelD #: 7413
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`18.
`Attached hereto as Exhibit 3 is a true and correct copy of Chart B to Acceleration
`Bay’s Initial Infringement Contentions regarding Destiny, served on March 2, 2016.
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`19.
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`Attached hereto as Exhibit 4 is a true and correct copy of Chart C to Acceleration
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`Bay’s Initial Infringement Contentions regarding CoD, served on March 2, 2016.
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`20.
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`Attached hereto as Exhibit 5 is a true and correct copy of excerpts from the
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`transcript of proceedings held on February 12, 2016 in the 2015 Case.
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`21.
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`Attached hereto as Exhibit 6 is a true and correct copy of the Order Granting
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`Defendants’ Motion to Dismiss Plaintiff's First Amended Complaintin Activision Publishing,
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`Inc. vy. xTVNetworks Ltd, et al., Case No. 16-cv-00737-SJO-MRW (N.D.Cal.) Docket No. 38,
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`filed on July 25, 2016.
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`22,
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`Attached hereto as Exhibit 7 is a true and correct copy of Acceleration Bay’s
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`Initial Disclosures Pursuant to Rule 26(a)(1), served on November2, 2015.
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`23.
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`Attached hereto as Exhibit 8 is a true and correct copy of excerpts from the
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`(SaOO.
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`24.
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`Attached hereto as Exhibit 9 is a true and correct copy of Activision’s Second
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`Supplemental Responses to Acceleration Bay’s SecondSet of Interrogatories (Nos. 5 and 9),
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`served on April 8, 2016,
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`25.
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`Attached hereto as Exhibit 10 is a true and correct copy of excerpts from the
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`Ee
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`26.
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`Attached hereto as Exhibit 11 is a true.and correct copy of a documententitled
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`‘Downloader command-line options,” bearing bates numbers ATV10025987-91,
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`27.
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`Attached hereto as Exhibit 12 is a true and correct copy of excerpts from the
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`transcript of the proceedings held on April 14, 2016 before Special Master Terrell.
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`28.
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`Attached hereto as Exhibit 13 is a true and correct copy of Petitioners’
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`Consolidated Reply to Patent Owner’s Responsein Activision Blizzard, Inc. v. Acceleration Bay
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`LLC, Case IPR2015-01951 regarding U.S. Patent No. 6,714,966, filed before the Patent Trial and
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`Appeal Board on October 15, 2016.
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`
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`Case 1:16-cv-00453-RGA Document 87 Filed 03/17/17 Page 6 of 6 PagelD #: 7414
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`29.
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`Attached hereto as Exhibit 14 is a true and correct copy of a Blizzard presentation
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`entitled “NetworkSerialization and Routing in World of Warcraft,” bearing bates numbers AB-
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`AB 002824-954.
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`30.
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`Attached hereto as Exhibit 15 is a true and correct copy of Acceleration Bay’s
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`Supplemental Objections and Responses to Activision’s Second Set of Interrogatories (Nos. 7
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`and 9) as to CoD,served on March 6, 2017.
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`I declare under penalty of perjury under the laws of the United States of Americathat the
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`foregoing is true and correct. Executed on March 6, 2017 in Menlo Park, California.
`
`/s/ Paul Andre
`Paul Andre
`
`