Case 1:16-cv-00453-WCB Document 895 Filed 06/26/24 Page 1 of 30 PageID #: 58446
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 16-453 (WCB)
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`ACCELERATION BAY LLC,
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`ACTIVISION BLIZZARD, INC.,
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`Plaintiff,
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`v.
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`Defendant.
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`PLAINTIFF ACCELERATION BAY LLC’S
`OPPOSITION TO DEFENDANT’S MOTION FOR JUDGMENT AS A
`MATTER OF LAW PURSUANT TO FED. R. CIV. P. 50(b) AND REMITTITUR
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`POTTER ANDERSON & CORROON LLP
`Philip A. Rovner (#3215)
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
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`Attorneys for Acceleration Bay LLC
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`OF COUNSEL:
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`Paul J. Andre
`Lisa Kobialka
`James R. Hannah
`Christina Finn
`Aakash Jariwala
`Melissa Brenner
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`333 Twin Dolphin Dr., Suite 700
`Redwood Shores, CA 94065
`(650) 752-1700
`
`Aaron M. Frankel
`Cristina Martinez
`Marcus Colucci
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: June 17, 2024
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`11567483
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`PUBLIC VERSION
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`Public version dated: June 26, 2024
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`Case 1:16-cv-00453-WCB Document 895 Filed 06/26/24 Page 2 of 30 PageID #: 58447
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`TABLE OF CONTENTS
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`INTRODUCTION .............................................................................................................. 1
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`ARGUMENT ...................................................................................................................... 1
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`Judge Andrews Already Found That Collateral Estoppel Does Not Apply ........... 1
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`1.
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`2.
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`Collateral Estoppel Does Not Apply to CoD .............................................. 2
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`Collateral Estoppel Does Not Apply to WoW ............................................ 5
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`AB Presented Substantial Evidence of Direct Infringement ................................... 7
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`1.
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`AB Presented Substantial Evidence That CoD Infringes ........................... 7
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`(a)
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`(b)
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`(c)
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`(d)
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`Activision Performs Every Step of Claim 1 of the ‘147 Patent ............ 7
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`CoD Sends a Disconnect Message Including a List of Neighbors ....... 9
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`CoD Uses an M-Regular Network ...................................................... 10
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`CoD Creates Connections to Maintain M-Regularity ......................... 11
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`2.
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`AB Presented Substantial Evidence That WoW Infringes ....................... 11
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`(a) WoW Uses M-Regular Networks ....................................................... 11
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`(b) WoW Broadcasts Data ........................................................................ 12
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`AB Presented Substantial Evidence Supporting the Damages Award ................. 13
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`1.
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`2.
`
`3.
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`AB Presented Substantial Evidence of the Revenue Base ........................ 13
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`AB Presented Substantial Evidence on Apportionment ........................... 16
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`AB Presented Substantial Evidence on the Royalty Rate ......................... 20
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`The Jury Verdict is Well-Supported, and Remittitur is Unwarranted .................. 23
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`CONCLUSION ................................................................................................................. 25
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`i
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`Case 1:16-cv-00453-WCB Document 895 Filed 06/26/24 Page 3 of 30 PageID #: 58448
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`TABLE OF AUTHORITIES
`
`
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`Page(s)
`
`Cases
`
`Acceleration Bay LLC v. Take-Two Interactive Software, Inc.,
`612 F. Supp. 3d 408 (D. Del. 2020) ...................................................................................2, 4, 5
`
`ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc.,
`694 F.3d 1312 (Fed. Cir. 2012)................................................................................................21
`
`ArcelorMittal Atlantique et Lorraine v. AK Steel Corp.,
`908 F.3d 1267 (Fed. Cir. 2018)..............................................................................................4, 7
`
`Arctic Cat Inc. v. Bombardier Recreational Prods. Inc.,
`876 F.3d 1350 (Fed. Cir. 2017)................................................................................................21
`
`Aspex Eyewear, Inc. v. Zenni Optical Inc.,
`713 F.3d 1377 (Fed. Cir. 2013)..................................................................................................4
`
`Bayer Healthcare LLC v. Baxalta Inc.,
`989 F.3d 964 (Fed. Cir. 2021)..................................................................................................13
`
`Bio-Rad Lab’ys, Inc. v. 10X Genomics Inc.,
`967 F.3d 1353 (Fed. Cir. 2020)................................................................................................21
`
`Brumfield, Tr. for Ascent Tr. v. IBG LLC,
`97 F.4th 854 (Fed. Cir. 2024) ..................................................................................................16
`
`Burlington N.R. Co. v. Hyundai Merch. Marine Co.,
`63 F.3d 1227 (3d Cir. 1995).......................................................................................................2
`
`In re California Expanded Metal Prods. Co.,
`No. 2023-1140, 2024 WL 1190943 (Fed. Cir. Mar. 20, 2024) ................................................25
`
`Finjan, Inc. v. Blue Coat Sys., Inc.,
`879 F.3d 1299 (Fed. Cir. 2018)..........................................................................................17, 24
`
`Finjan, Inc. v. Blue Coat Sys., Inc.,
`No. 13-cv-03999-BLF, 2016 WL 3880774 (N.D. Cal. July 18, 2016), aff’d in
`relevant part, 879 F.3d 1299 (Fed. Cir. 2018) .........................................................................24
`
`Helena Chem. Co. v. Nelson,
`No. CIV. A. 97-5662 (JBS), 2000 WL 1880331 (D.N.J. Dec. 29, 2000) ................................25
`
`Hologic, Inc. v. Minerva Surgical, Inc.,
`No. 1:15-cv-1031, 2019 WL 1958020 (D. Del. May 2, 2019), vacated in part
`on other grounds, 44 F.4th 1358 (Fed. Cir. 2022) ...................................................................22
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`
`ii
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`Case 1:16-cv-00453-WCB Document 895 Filed 06/26/24 Page 4 of 30 PageID #: 58449
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`i4i Ltd. P’ship v. Microsoft Corp.,
`598 F.3d 831 (Fed. Cir. 2010)....................................................................................................7
`
`Joy Techs., Inc. v. Flakt, Inc.,
`6 F.3d 770 (Fed. Cir. 1993)........................................................................................................8
`
`Lightning Lube, Inc. v. Witco Corp.,
`4 F.3d 1153 (3d Cir. 1993)...................................................................................................9, 13
`
`Marra v. Phila. Hous. Auth.,
`497 F.3d 286 (3d Cir. 2007).......................................................................................................1
`
`Meyer Intell. Props. Ltd. v. Bodum, Inc.,
`690 F.3d 1354 (Fed. Cir. 2012)..................................................................................................8
`
`Mhl Custom, Inc. v. Waydoo USA, Inc.,
`No. CV 21-0091-RGA, 2023 WL 1765553 (D. Del. Feb. 3, 2023) ........................................23
`
`Mondis Tech. Ltd v. LG Elecs., Inc.,
`No. CV 15-4431 (SRC), 2023 WL 3749992 (D.N.J. June 1, 2023) ..................................15, 24
`
`Motter v. Everest & Jennings, Inc.,
`883 F.2d 1223 (3d Cir.1989)..............................................................................................23, 24
`
`Packet Intel. LLC v. NetScout Sys., Inc.,
`965 F.3d 1299 (Fed. Cir. 2020)..................................................................................................8
`
`Ricoh Co. v. Quanta Comput. Inc.,
`550 F.3d 1325 (Fed. Cir. 2008)..................................................................................................8
`
`Seal4Safti, Inc. v. California Expanded Metal Prods. Co.,
`No. 2:20-cv-10409-MCS-JEM, 2022 WL 16710721 (C.D. Cal. Oct. 3, 2022),
`aff’d in relevant part, No. 2023-1140, 2024 WL 1190943 (Fed. Cir. Mar. 20,
`2024) ........................................................................................................................................25
`
`SRI Int’l, Inc. v. Cisco Sys., Inc.,
`254 F. Supp. 3d 680 (D. Del. 2017), aff’d in part, vacated in part and
`remanded on other grounds, 918 F.3d 1368 (D. Del. 2019) .............................................18, 20
`
`Summit 6, LLC v. Samsung Elecs. Co.,
`802 F.3d 1283 (Fed. Cir. 2015)................................................................................................20
`
`Trell v. Marlee Elecs. Corp.,
`912 F.2d 1443 (Fed. Cir. 1990)................................................................................................21
`
`WesternGeco LLC v. ION Geophysical Corp.,
`138 S. Ct. 2129 (2018) .............................................................................................................16
`
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`iii
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`Case 1:16-cv-00453-WCB Document 895 Filed 06/26/24 Page 5 of 30 PageID #: 58450
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`
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`INTRODUCTION
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`After nine years, Acceleration Bay (“AB”) finally had its day in Court. AB proved its case
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`to the jury through Activision’s technical documents, network traffic testing, source code,
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`deposition and cross-examination testimony from Activision’s engineers, and testimony from four
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`experts. The jury found that Activision’s World of Warcraft (“WoW”) infringed Claim 12 of U.S.
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`Patent No. 6,701,344 and Call of Duty: Black Ops III and Advanced Warfare (“CoD”) infringed
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`Claim 1 of U.S. Patent No. 6,732,147, and awarded AB damages of $23.4 million. The jury’s
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`verdict is supported by substantial evidence and there is no basis to set it aside.
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`Activision fails to carry its heavy burden to obtain judgment as a matter of law (“JMOL”).
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`“[JMOL] is a ‘sparingly’ invoked remedy, ‘granted only if, viewing the evidence in the light most
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`favorable to the nonmovant and giving it the advantage of every fair and reasonable inference,
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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) (citations omitted). Activision’s motion is based
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`on rehashed arguments that the Court previously rejected and on factual disputes, which cannot be
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`resolved through a motion for JMOL. Thus, Activision’s motion for JMOL should be denied.
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`Activision’s request for remittitur also should be denied as it is based on Activision’s
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`flawed JMOL arguments and factual disputes, which are not a basis to set aside the damages award.
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`
`
`ARGUMENT
`
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`Judge Andrews Already Found That Collateral Estoppel Does Not Apply
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`Judge Andrews rejected Activision’s argument that collateral estoppel applies to AB’s
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`infringement case. D.I. 744. After Judge Andrews granted summary judgment of non-
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`infringement in Acceleration Bay LLC v. Take-Two Interactive Software, Inc. (“Take-Two”),
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`Activision contended that AB was estopped from asserting infringement based on issues decided
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`against it in that case. Id. at 3. In denying Activision’s motion in relevant part, Judge Andrews
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`Case 1:16-cv-00453-WCB Document 895 Filed 06/26/24 Page 6 of 30 PageID #: 58451
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`found there was no collateral estoppel because the games and infringement issues in the Take-Two
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`case were different from the games and issues in this case. Id. at 9-13 (“I find that these
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`infringement issues are not the same.”). Activision did not seek reconsideration of Judge
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`Andrews’ order denying its first collateral estoppel motion, so it is now the law of this case that
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`AB’s infringement claims are not subject to collateral estoppel. As discussed below, nothing
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`changed at trial to warrant reversing Judge Andrews’ prior ruling.
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`1.
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`Collateral Estoppel Does Not Apply to CoD
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`AB showed that CoD is configured to automatically maintain an m-regular “connectivity
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`graph” that is used to provide critical game functionality that ensures a reliable game experience,
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`including quality of service (“QoS”) messaging, player hosting, host migration, and voice
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`communications. Trial Tr., e.g., 495:24-504:17 (expert analysis of m-regular connectivity graph
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`network), 997:3-20 (admission of Activision’s expert that CoD uses an m-regular graph).
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`The Grand Theft Auto (“GTA”) game at issue in Take-Two presented completely different
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`infringement issues. Judge Andrews found GTA did not infringe because the m-regularity of its
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`network depended on players’ in-game movement. Take-Two, 612 F. Supp. 3d 408, 419 (D. Del.
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`2020). AB did not rely on player in-game movement or action to prove CoD’s infringement, so
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`collateral estoppel cannot apply because “the issue sought to be precluded is [not] the same as that
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`involved in the prior action.” Burlington N.R. Co. v. Hyundai Merch. Marine Co., 63 F.3d 1227,
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`1231-32 (3d Cir. 1995) (citations and internal quotations omitted). There are numerous flaws with
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`Activision’s contention that collateral estoppel nevertheless applies because CoD players can set
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`NAT (Network Address Translation) settings, which can impact the connections that are formed.
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`First, AB presented substantial evidence that Activision’s software automatically
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`configures CoD’s connectivity graph to be m-regular, regardless of player actions. Trial Tr.,
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`491:24-492:18, 495:12-20 (Dr. Medvidović: Activision’s software creates the “connectivity
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`2
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`

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`Case 1:16-cv-00453-WCB Document 895 Filed 06/26/24 Page 7 of 30 PageID #: 58452
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`graph”), 493:11-495:8 (PTX-74 shows CoD is programmed to use m-regular networks), 497:13-
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`504:17 (source code shows Activision’s software performs the method to maintain m-regularity).
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`AB also provided the unrebutted testing evidence of its network expert, Mr. Conlin,
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`showing that Activision’s software automatically forms the connections between the players that
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`construct the network, and that this happens without any action from the players. Specifically,
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`Mr. Conlin explained and showed packet captures confirming that Activision’s CoD software
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`creates connections through a series of automatic handshakes without any input from the player.
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`Trial Tr., 385:21-387:25 (describing handshakes), 388:7-13 (handshakes occur because of
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`Activision’s software, not by the player). This further confirms that CoD software, not player
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`actions, determines the connections and operation of the m-regular connectivity graph, which is
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`very different from the player-movement-only infringement case in Take-Two.
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`The jury was entitled to rely on this substantial evidence to find that CoD is configured to
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`maintain an m-regular state without any action from the players. This infringement allegation is
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`different from the issue decided in Take-Two—that a network that depends on player actions to be
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`m-regular is not “configured” to be m-regular—so collateral estoppel does not apply.
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`Second, Activision’s argument is wrong on the facts. Both AB’s network expert, Mr.
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`Conlin, and Activision’s CoD witness, Mr. Griffith, agreed that the players do not control the NAT
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`settings in CoD. Trial Tr., 399:2-11 (Conlin: players do not control NAT settings in CoD; rather
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`it is Activision that determines a NAT rating), 787:14-788:5 (Griffith: NAT settings relate to
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`firewall configuration, not CoD). Thus, the factual premise of Activision’s collateral estoppel
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`argument—that it is players’ NAT settings that dictate if the network is m-regular—is incorrect.1
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`1 Activision mischaracterizes the testimony of AB’s experts, who never stated that the network
`configuration depends on player NAT choices. D.I. 888 (“Mot.”) at 5-6. Dr. Bims and Mr.
`Conlin testified that a misconfigured NAT could prevent a player from joining a multiplayer
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`3
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`Case 1:16-cv-00453-WCB Document 895 Filed 06/26/24 Page 8 of 30 PageID #: 58453
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`Third, Judge Andrews already rejected Activision’s argument, noting that his Take-Two
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`decision does not relate to NAT settings and is based on different issues from CoD’s infringement:
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`[Activision] explains that, just as players’ actions caused m-regularity in [GTA],
`“the network configuration ... that allegedly might lead to an m-regular
`configuration [in CoD] is dynamic and determined by player actions [related to how
`each player] configure[s] the NAT setting on their router.” . . . I find that these
`infringement issues are not the same. With [GTA], the players’ in-game actions
`could from time-to-time cause the network to become m-regular. See Take-Two SJ
`Opinion at *8 (considering that “the players’ actions determine how connections
`are formed, and the network is not ‘configured to maintain’ any particular state”).
`Plaintiff’s theory in this case is not based on in-game actions.
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`D.I. 743 at 10 (emphasis added) (quoting Take-Two, 612 F. Supp. 3d at 420).
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`The Court then revisited the issue when Activision requested and obtained a supplemental
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`claim construction order. Rejecting Activision’s NAT argument, the Court found that if AB “is
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`able to establish [the] proposition as a factual matter at trial” that “Call of Duty is configured to
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`create an m-regular network and does not depend on any specific pre-game actions to do so,” that
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`would be sufficient to show infringement, even if the players can control security settings on their
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`devices. D.I. 788 at 2-5. This is exactly what AB showed at trial.
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`Thus, Activision fails to provide evidence that CoD is “essentially the same as [the
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`products] in the prior litigation,” and collateral estoppel does not apply. ArcelorMittal Atlantique
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`et Lorraine v. AK Steel Corp., 908 F.3d 1267, 1274 (Fed. Cir. 2018) (citations omitted) (noting the
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`burden is on defendant to show the products are essentially the same).2
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`game at all, which is irrelevant to the issue of how a network is formed between the participants
`in a specific game. Trial Tr., 278:11-22, 395:20-396:3. And Dr. Medvidović confirmed
`infringement, explaining that “[CoD] is constructed such that when a player departs, the network
`itself does reconfigure [to be m-regular].” Id., 1219:17-25. AB’s experts never opined that CoD
`depends on players’ choices to be m-regular.
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`2 Aspex Eyewear, Inc. v. Zenni Optical Inc., 713 F.3d 1377 (Fed. Cir. 2013) is inapposite. That
`case depended on the accused products being “materially identical” to the products at issue in the
`previous case. Id. at 1381. Activision fails to show that CoD and GTA are “materially
`identical.”
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`4
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`Case 1:16-cv-00453-WCB Document 895 Filed 06/26/24 Page 9 of 30 PageID #: 58454
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`2.
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`Collateral Estoppel Does Not Apply to WoW
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`AB provided substantial evidence that Activision’s WoW servers provide an infringing
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`broadcast channel that is always m-regular and incomplete by forming “bundles” of servers that
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`provide cross-realm functionality. AB’s expert, Dr. Medvidović, demonstrated this infringement
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`by relying on Activision’s source code, WoW configuration files, WoW technical documents and
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`the testimony of Activision’s engineers. Trial Tr., 459:23-473:14. Thus, the jury’s verdict is based
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`on substantial evidence that the accused WoW cross-realm networks are m-regular.
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`Activision contends that collateral estoppel applies based on the Take-Two case, but offers
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`no evidence that the infringing WoW cross-realm zones networks are “materially identical” to the
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`networks in GTA or NBA2K system (the other game at issue in the Take-Two case). Thus,
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`Activision fails to carry its burden to show that collateral estoppel applies.
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`Activision argues that, in addition to the servers that form the bundles for cross-realms (m-
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`regular broadcast channels), there are other servers communicating with those servers that are not
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`part of the m-regular broadcast channel. Activision contends that Take-Two finding that a network
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`was not m-regular because it included a participant that was connected to all other participants
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`applied to WoW. Judge Andrews rejected this argument because Activision had not shown that
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`the WoW servers were participants in the broadcast channel:
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`I am not convinced by Defendant’s argument. Considering the cited evidence, it is
`unclear whether the “HiMem servers” are network participants. Thus, I do not find
`that this infringement issue is the same as what I considered with NBA 2K, where
`the evidence supported the all-connected server being a network participant. (See
`Take-Two SJ Opinion at *9). For these reasons, Plaintiff is not collaterally
`estopped from proceeding with its literal infringement theory for WoW.
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`D.I. 743 at 13 (emphasis added) (citing Take-Two, 612 F. Supp. 3d at 420-21).
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`Activision did not establish at trial that the other WoW servers are participants in the cross-
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`realm broadcast channel. Activision’s interpretation that any server that communicates with
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`5
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`Case 1:16-cv-00453-WCB Document 895 Filed 06/26/24 Page 10 of 30 PageID #: 58455
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`computers in a broadcast channel is a participant in the broadcast channel is contrary to the
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`specification and the Court already rejected it. See D.I. 834 at 5-7; Trial Tr., 1315:8-1316:10
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`(rejecting Activision’s proposal (D.I. 827) to expand the construction of “m-regular” to include
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`any server to be a participant). The ’344 Patent explains that participants in an m-regular network
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`may have additional connections to other servers that do not participate in the broadcast channel
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`because they do not receive the broadcast messages distributed to the channel participants. ’344
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`Patent at 6:19-58 (describing “‘external’ port” used to send “non-broadcast messages between two
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`computers . . . Each computer that is connected to the broadcast channel can receive non-broadcast
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`messages through its external port”); id. at 15:13-17. Thus, computers can receive non-broadcast
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`messages from servers not participating in the m-regular network.
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`Activision’s interpretation that any communication makes a server a participant reads out
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`the meaning of “broadcast channel” and relies solely on the underlying network, ignoring the
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`overlay network the claims are directed to. D.I. 276 at 3 (“The Broadcast Claims overlay the
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`underlying network system with a certain graph of point-to-point connections . . . through which
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`a broadcast channel is implemented”), 7 (“Defendants gloss over the claim requirement of a non-
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`complete, m-regular network that is implemented on an application level”); Trial Tr., 976:17-979:3
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`(Activision’s expert agreeing the patents are directed to overlay networks). Thus, Take-Two has
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`no relevance to WoW’s infringement, and there is no basis to find collateral estoppel.
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`Activision also incorrectly contends that cross-realm zone connections are based on player
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`actions. Mot. at 7-8. AB provided substantial evidence that the broadcast channels for cross-realm
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`zones are formed with static m-regular connections that are based on Activision’s preset
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`configuration files that are hard-coded in the WoW software. Trial Tr., 459:23-473:14, 569:24-
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`570:7 (Dr. Medvidović noting that the architecture of the accused WoW broadcast channel remains
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`6
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`Case 1:16-cv-00453-WCB Document 895 Filed 06/26/24 Page 11 of 30 PageID #: 58456
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`the same regardless of the number of players in the game), 1219:1-16 (same). Indeed, Activision’s
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`engineers confirmed that the cross-realm connections are static, preset connections by design. Id.,
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`305:4-18, 309:2-21 (admitting that cross realm zones use static connections defined in layout.xml),
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`358:11-359:6 (identifying layout.xml file as defining how cross-realm zones are set up to initiate).
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`These static connections shown in Activision’s source code show that the system is m-regular
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`based on Activision’s configuration settings and in no way depends on players’ actions. Therefore,
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`WoW and GTA are not “essentially the same,” and there is no basis to find collateral estoppel
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`applies to WoW. ArcelorMittal, 908 F.3d at 1274.
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`
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`AB Presented Substantial Evidence of Direct Infringement
`1.
`
`AB Presented Substantial Evidence That CoD Infringes
`(a)
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`Activision Performs Every Step of Claim 1 of the ‘147 Patent
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`AB presented substantial evidence that Activision infringes Claim 1 of the ‘147 Patent by
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`performing every step of the claimed method. See, e.g., Trial Tr., 491:17-492:18, 568:19-569:23,
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`367:24-368:9 (Griffith). Activision contends that it cannot directly infringe because the sale of
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`software without more is insufficient to infringe a method claim. Mot. at 9. But that is an attack
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`on a strawman argument because Activision performs each method step, as discussed below, and
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`AB did not base its infringement case on Activision’s mere sales of CoD. Thus, Activision’s cases
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`on sales not satisfying a method claim are irrelevant.
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`In i4i Ltd., the Federal Circuit affirmed that a jury had substantial evidence to find
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`infringement of a software method claim based on the defendant’s own use of the method, noting
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`that the jury was free to credit the plaintiff’s expert over the defendant’s expert on whether the
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`defendant directly infringe the method claim. i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d 831,
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`850 (Fed. Cir. 2010). This confirms the viability of AB’s infringement case based on Activision’s
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`performance of the claimed method steps. In Meyer, the issue was whether there was a genuine
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`7
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`Case 1:16-cv-00453-WCB Document 895 Filed 06/26/24 Page 12 of 30 PageID #: 58457
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`issue of fact to support summary judgment of infringement based on the defendant as the direct
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`infringer based on use as well as inducement. Meyer Intell. Props. Ltd. v. Bodum, Inc., 690 F.3d
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`1354, 1366-67 (Fed. Cir. 2012). Here, the jury found that Activision directly infringed by
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`performing the method. Activision’s other cases are similarly distinguishable. See Ricoh Co. v.
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`Quanta Comput. Inc., 550 F.3d 1325, 1334-35 (Fed. Cir. 2008) (opinion was about the sale of
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`software, not use of the software by the defendant); Packet Intel. LLC v. NetScout Sys., Inc., 965
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`F.3d 1299, 1306, 1314-15 (Fed. Cir. 2020) (affirming infringement of method claim); Joy Techs.,
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`Inc. v. Flakt, Inc., 6 F.3d 770, 774 (Fed. Cir. 1993) (finding no contributory infringement without
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`a direct infringer). In sum, Activision infringes Claim 1 by performing the claimed method steps.
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`Activision ignores the substantial evidence that it performed each step of the method of
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`Claim 1, disconnecting a first computer (i.e., the host computer) and second computer (e.g., the
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`new host or other party client) of a broadcast channel (voice chat or QoS) that Activision controls.
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`Trial Tr., 491:17-492:18, 568:19-569:23, 1219:9-1220:13 (expert testimony that Activision
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`performs every step of the claim element). Activision’s CoD witness confirmed that it controls
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`the “connectivity graph” responsible for voice communications and QoS functionality that is
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`accused of satisfying Claim 1. Id., 366:25-368:9 (testifying that “[i]t’s all our software” that
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`controls the voice chat and QoS operation), 808:23-811:18 (confirming that “it’s Activision’s
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`software, not the players, that sets up the connections and the voice broadcast channel” and the
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`QoS connectivity, and testifying about Activision’s license agreement that confirms Activision
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`controls the multiplayer aspects of CoD). Activision’s expert acknowledged the testimony of Mr.
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`Griffith that Activision controlled the accused network. Id., 989:18-23. And AB’s network testing
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`expert, Mr. Conlin, showed that the connections that form the accused network are created
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`automatically by Activision’s software, not by any player action. Id., 388:7-13. Activision cites
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`Case 1:16-cv-00453-WCB Document 895 Filed 06/26/24 Page 13 of 30 PageID #: 58458
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`to Mr. Conlin’s testimony that, before a game starts, he needed to push several buttons. Mot. at
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`10. This testimony is irrelevant because none of those button pushes to start a game perform any
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`of the steps of Claim 1. It is after the player starts a game that Activision’s software automatically
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`performs the infringing steps to build and maintain the network. Trial Tr., 388:1-13.
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`A further reason to deny JMOL as to CoD is that there is no dispute that Activision
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`performed each step of Claim 1 when Activision’s engineers used and tested CoD. Id., 568:19-
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`569:23; 990:12-18, 1117:1-19 (Dr. Wicker agreeing that Activision uses and tests CoD, thus
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`performing the method). Activision’s Motion ignores this evidence.
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`Accordingly, there was substantial evidence that Activision performed each step of the
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`method of Claim 1, and JMOL should be denied. Activision’s disagreement as to the facts is not
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`grounds to grant JMOL. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)
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`(JMOL is appropriate “only if, viewing the evidence in the light most favorable to the nonmovant
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`and giving it the advantage of every fair and reasonable inference, there is insufficient evidence
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`from which a jury reasonably could find liability.”) (citation omitted).
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`(b)
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`CoD Sends a Disconnect Message Including a List of Neighbors
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`AB presented substantial evidence that CoD satisfies the claim limitation requiring
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`transmission of a list of neighbors of the first computer. Trial Tr., 506:2-515:10, 1216:24-1218:21
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`(Dr. Medvidović discussing CoD source code, testimony of Mr. Griffith and Activision’s
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`documents, PTX-74 and PTX-77), 362:18-23, 366:25-367:17 (Mr. Griffith testifying that there is
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`a list of neighbors for QoS that is part of the “Connected Player List”); PTX-74 at 10 (showing a
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`“Connected Player List,” which includes a list of neighbors and discussing removing of players).
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`In particular, Dr. Medvidović testified that the “Connected Player List” that includes the QoS data
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`is the list of the neighbors of the first computer and is sent as part of the disconnect message (as
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`shown in the source code, PTX-345, for the function “PartyHost_RemovePlayer”) because the
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`Case 1:16-cv-00453-WCB Document 895 Filed 06/26/24 Page 14 of 30 PageID #: 58459
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`“party state” (with the list of neighbors) is sent to all the clients, including the second computer,
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`when a player disconnects. Trial Tr., 506:2-515:10 (testifying that the “party state is who all is
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`connected to whom, and that needs to be communicated to everybody so that the network can be
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`properly reassembled.”). Activision’s expert (Dr. Wicker) and CoD fact witness (Mr. Griffith) did
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`not even address the documents and “party state” source code that Dr. Medvidović relied on. Id.,
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`1216:24-1218:21. Thus, there was substantial evidence as to this limitation to support the jury’s
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`infringement verdict. Activision’s disagreement with this evidence is not grounds for JMOL.
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`Finally, Activision argues that Dr. Medvidović was really arguing an abandoned theory of
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`infringement under the doctrine of equivalents (“DOE”). The Court already rejected this
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`argument, finding that he had presented a literal infringement theory. Id., 665:13-666:11 (“I don’t
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`see that that argument has any [traction]. Today, he said, ‘literal.’ So the fact that he had both
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`[literal and DOE] positions in his report doesn’t help you . . . .”).
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`(c)
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`CoD Uses an M-Regular Network
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`Activision contends that there is no CoD network that is m-regular and incomplete. This
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`argument is based on Activision’s proposed claim construction that Claim 1 of the ‘147 Patent
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`requires an incomplete network. The Court rejected that claim construction and found there is no
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`such requirement. D.I. 863 (claim construction order) at 1-4; D.I. 852 (AB’s brief explaining why
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`Claim 1 does not require an incomplete network). Indeed, Activision’s expert agreed that
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`“incomplete” does not appear in Claim 1 or the Court’s construction. Trial Tr., 998:2-4, 998:15-
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`17. There is no basis for the Court to change its claim construction order now.
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`There is no dispute that the VoIP and QoS connectivity graph in CoD is m-regular and,
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`therefore, satisfies Claim 1 under the Court’s construction. AB’s expert testified that the
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`connectivity graph in CoD is m-regular. Id., 495:24-503:24 (explaining that the source code
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`includes a “max_client” value that makes the CoD network m-regular by design). Activision’s
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`Case 1:16-cv-00453-WCB Document 895 Filed 06/26/24 Page 15 of 30 PageID #: 58460
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`expert agreed that the CoD network is designed to be m-regular. Id., 996:19-997:20 (“Q. So it’s
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`designed to be an m-regular network, right? A. Yes.”). And Activision acknowledges that the
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`connectivity graph is m-regular. D.I. 778 at 2 (Activ