Case 1:16-cv-00455-RGA Document 125 Filed 05/19/17 Page 1 of 11 PageID #: 12656
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`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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` C.A. No. 16-454 (RGA)
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` C.A. No. 16-455 (RGA)
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`ACCELERATION BAY LLC.
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` Plaintiff,
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`V,
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`ACTIVISION BLIZZARD, INC.,
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` Defendant.
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`ACCELERATION BAY LLC,
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` Plaintiff,
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`v.
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`ELECTRONIC ARTS INC.,
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` Defendant.
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`ACCELERATION BAY LLC,
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` Plaintiff.
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`v.
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`TAKE-TWO INTERACTIVE
`SOFTWARE, INC., ROCKSTAR GAMES,
`INC. and 2K SPORTS, INC.,
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` Defendants.
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`MOTIONS
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`SPECIAL MASTER ORDER NO. 3 AS TO CROSS MOTIONS
`TO COMPEL AND FOR SANCTIONS
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`On April 28, 2017, the parties filed the following motions:
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`Plaintiff Accleration Bay LLC’s (“Plaintiff”) motions to compel; specifically:
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`Case 1:16-cv-00455-RGA Document 125 Filed 05/19/17 Page 2 of 11 PageID #: 12657
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`1.
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`2.
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`3.
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`Defendant Activision Blizzard, LLC (“Activision”) to produce World of Warcraft
`wiki files;
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`Defendant Take-Two
`development kits and;
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`to provide documents, source code and software
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`Joe Rumsey to comply with Accleration Bay’s March 13, 2017 deposition and
`document subpoenas.
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`Defendants’ Motion to Compel Supplemental Responses to Party Specific Interrogatories 1, 2
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`and 4
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`Defendant Activision Blizzard, Inc.’s Motion to Compel Compliance with Special Master Orders
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`for supplemental responses to interrogatories 7 and 9 and for Sanctions under Rule 37.
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`Defendants’ Motion to Compel compliance with subpoenas to Scott Smith and Robert
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`Abarbanel.
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`On April 28, 2017 the parties filed their briefs and affidavits in support of their various motions.
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`On May 8, 2017, the parties filed their reply briefs and exhibits to the various motions.
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`On May 10, 2017, the foregoing motions were heard (the “Hearing”).
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`This is the Special Master’s Order resolving the foregoing motions.
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`PLAINTIFF’S MOTIONS TO COMPEL
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`1. Motion to compel Activision to produce the requested World of Warcraft wiki
`file.
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`Activision has already produced a number of documents concerning World of Warcraft
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`(“WoW”). Its wiki file is designated as “Restricted Confidential-Source Code Material”,
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`pursuant to the parties’ Protective Order (Document No. 58, filed Feb. 22. 2017). Although
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`Plaintiff’s counsel and its experts have apparently reviewed the wiki file seven times, Plaintiff
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`Case 1:16-cv-00455-RGA Document 125 Filed 05/19/17 Page 3 of 11 PageID #: 12658
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`seeks physical possession of the requested documents because its being limited to taking hand
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`notes when inspecting the confidential complex documents pursuant to the Protective Order.
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`During the course of the Hearing on this Motion, the parties appeared to be moving
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`towards a compromise under which Defendant would possibly produce a couple hundred pages
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`of technical documents with appropriate redactions. The May 5, 2017 email from Plaintiff’s
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`attorney identified 67 articles out of 1,036 from the WoW wiki file that Plaintiff still seeks.
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`It is Ordered that within two (2) weeks Activision Blizzard, Inc. produce the files for the
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`67 articles, subject to reasonable redactions and limited to no more than 300 pages.
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`2.
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`Plaintiff seeks to have Take-Two provide: (a) GTA and NBA 2 K Source Code;
`(b) GTA task list; (c) GTA Game Design Documents; and (d) Microsoft XBox
`and Sony SDKs.
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`This Motion consists of four sub-motions. Fortunately, during the Hearing the parties
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`reached an agreement on some of the motions. Take-Two is making available for inspection
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`these source code files. Rockstar is making available for inspection the Miscrosoft XBox and
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`Sony SDKs. (Hearing Transcript, pgs. 94-95).
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`The GTA task list, according to Defendants, includes a variety of topics and thousands of
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`reports, most of which Defendants contend are entirely irrelevant to this case. The Motion on
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`this request is moot; as the parties agreed to limit production of task list documents to
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`“networking”. (Hearing Transcript, p. 101).
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`As to Take-Two GTA Game Design Documents, there are apparently more than 50 such
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`design documents used by Take-Two. At the Hearing, the Plaintiff offered to compromise its
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`Case 1:16-cv-00455-RGA Document 125 Filed 05/19/17 Page 4 of 11 PageID #: 12659
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`request for these design documents. The Motion on this request is moot; as the parties agreed
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`that Defendants will produce those portions of these design documents that discuss networking.
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`3.
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`Plaintiff’s Request That Joe Rumsey Comply with its Deposition and Documents
`Subpoena
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`On March 13, 2017, Plaintiff filed a subpoena to compel the deposition and documents of
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`Joe Rumsey. Mr. Rumsey was the author of the JAM server and JAM message protocol.
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`Plaintiff maintains that JAM is an important part of its infringement claims with respect to
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`Activision’s WoW products. Defendants filed the Rumsey Declaration (Ex. A-25 to their reply
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`brief) which states that Mr. Rumsey stopped working on WoW in 2007 and has not seen the
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`source code for it since then. While he did develop the code for JAM, that code was continually
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`changing after he left the WoW team. Accordingly, Defendants maintain that Mr. Rumsey has
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`no relevant information and that it would be burdensome for Mr. Rumsey to sit for the requested
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`deposition. Defendants also point out that they searched for relevant documents from Mr.
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`Rumsey and he has none.
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`The Special Master Orders that Mr. Rumsey’s deposition be conducted by telephone on a
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`date and time convenient to him and that the deposition be limited to three hours.
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`ACTIVISION’S MOTION TO COMPEL COMPLIANCE WITH SPECIAL MASTER
`ORDERS FOR SUPPLEMENTAL RESPONSES TO INTERROGATORIES 7 AND 9
`AND FOR SANCTIONS UNDER RULE 37
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`It may be helpful to the Court and to the parties for the Special Master to express some
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`thoughts as to how to address this Motion. Litigation over the patents in question has been
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`pending for approximately 2 years. Under the Rule 16 Scheduling Order, the parties are to
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`complete all fact discovery by July 31, 2017.
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`4
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`Case 1:16-cv-00455-RGA Document 125 Filed 05/19/17 Page 5 of 11 PageID #: 12660
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`Defendants have repeatedly complained and brought motions to compel Plaintiff to be
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`more specific as to its infringement claims. Twice the Special Master has ruled on these
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`motions. (see Special Master Order No. 2 on April 19, 2016 in the prior action among the
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`parties, and Special Master Order No. 1 in this action on March 15, 2017).
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`Defendants are concerned that Plaintiff might not articulate specific infringement claims
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`until it submits its expert reports. If that occurs, Defendants would only have a few months
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`thereafter to respond with their own expert reports, and there may be insufficient time to take
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`possible discovery as to any newly fashioned infringement claims.
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`Plaintiff has steadfastly maintained that it has provided sufficient notice of its
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`infringement claims; that it will supplement its claims as discovery proceeds; and that it earnestly
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`met its interrogatory disclosure obligations as to its infringement claims.
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`Plaintiff insists that its infringement claims need only meet a “notice” standard when
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`responding to initial interrogatories as to its infringement claims. Even if the Special Master
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`accepts Plaintiff’s contention as to the law, concerns remain as to the sufficiency of Plaintiff’s
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`disclosures as the parties approach the fact discovery cut off. On February 17, 2017, Judge
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`Andrews indicated that the Special Master should resolve as much as possible for the parties to
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`adhere to the Scheduling Order. During that hearing on February 17, 2017, Defendants counsel
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`argued that they still didn’t have adequate infringement contentions from Plaintiff. The Court
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`stated that there comes a time when the Plaintiff cannot add new products and that the
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`Defendants need to get a fixed target to try the case. (Trans. p. 11). With the parties scheduled
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`for a July 10, 2017 claim construction (“Markman “) hearing, it is appropriate for Plaintiff to be
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`as specific as possible to its infringement claims in its supplemental interrogatory responses.
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`5
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`Case 1:16-cv-00455-RGA Document 125 Filed 05/19/17 Page 6 of 11 PageID #: 12661
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`At the Hearing on May 10, 2017, Defendants’ argued that Plaintiff refuses to identify the
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`core aspects (participants and connections) of even a single accused “broadcast channel” and/or
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`“network”. Defendants have submitted a declaration of a technical expert, David Karger, on the
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`technical aspects of the patents in this case. Dr. Karger explains that some of the patents at issue
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`relate to adding a participant or subtracting a participant to or from a network of participants and
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`leaving the broadcast channel. One or more of the patents concerns methods for adding a
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`participant to an m-regular, incomplete network of participants, while maintaining the m-regular
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`incomplete topology of the network. Another patent simply reverses this process by allowing a
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`disconnection of a computer or participant from a broadcast channel, while maintaining the m-
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`regular incomplete topography of the broadcast channel.
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`Defendants also cite Plaintiff’s expert’s testimony that you need to know the structure,
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`the participants, and how they are connected to determine infringement. (Hearing Transcript, p.
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`16).
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`In a somewhat analogous case, the Federal Court in California wrote: “In instances where
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`[the Defendant] includes source code or tools, the source code or tools lack meaning unless
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`somehow linked with the language of the claim limitations”. Droplets vs. Amazon.com, 2013
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`WL 1563256, at 3-5 (N.D. Cal. April 12, 2013).
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`After having studied at length the briefs, exhibits, discovery responses and prior orders,
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`the Defendants’ Motion is granted as follows:
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`Within one month of this Order, Plaintiff shall provide as full, clear and complete
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`responses as possible at that time to Interrogatories 7 and 9 that:
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`Case 1:16-cv-00455-RGA Document 125 Filed 05/19/17 Page 7 of 11 PageID #: 12662
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`1.
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`Identify, individually and with specificity, all accused methods, broadcast
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`channels and networks, including by separately identifying each and every participant and
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`connection for each such network or broadcast channel and explaining how each is alleged to be
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`m-regular and incomplete;
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`2.
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`Provide a separate infringement chart for each accused method, network and
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`broadcast that demonstrates how each accused method step is allegedly performed by Activision
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`and how each accused network and broadcast channel is alleged to meet each limitation of each
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`asserted claim; and
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`3.
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`If Plaintiff contends that any accused method, network or broadcast channel
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`allegedly infringes any asserted claim under the doctrine of equivalents, Plaintiff must identify
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`the elements of each limitation not literally present and identify the structures of or methods used
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`by the accused products that Plaintiff alleges to be equivalent to any such elements that are not
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`literally present in the accused products.
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`DEFENDANTS’ MOTION TO COMPEL SUPPLEMENTAL RESPONSES TO PARTIES
`SPECIFIC INTERROGATORIES 1, 2 AND 4
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`1.
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`Interrogatory 1 Regarding Damages: Interrogatory 1 seeks discovery as to
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`Plaintiff’s damages theories and all the facts that Plaintiff intends to reply upon to support each
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`of its theories. Plaintiff replies that it has responded appropriately to Interrogatory 1 and that it
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`will continue to supplement its responses as discovery proceeds. Defendants counter that they
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`have made substantial production of all of their documents concerning damages. According to
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`Defendants, Plaintiff has not indicated its methodology on damages; specifically whether it is
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`relying on the number of units sold or revenues from such sales. Furthermore, according to
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`7
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`Case 1:16-cv-00455-RGA Document 125 Filed 05/19/17 Page 8 of 11 PageID #: 12663
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`Defendants, the recent deposition of Boeing in this litigation, proves that Plaintiff already has a
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`“damages model” that has not yet been disclosed to Defendants.
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`On this issue, Judge Robinson’s decision In Re. Cyclobenzaprine Hydrochloride
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`Extended-Release Capsule Patent Litigation; No. 09-MD-2118-SLR (D. Del. Oct. 22, 2013) is
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`helpful. Writing as to why a defendant is entitled to facts as to plaintiff’s damages claims prior
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`to receiving plaintiff’s expert’s reports, Her Honor stated: “Facts are the subject of fact
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`discovery, parties are required to disclose such facts before the facts are massaged and
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`manipulated by their expert witnesses” . . . plaintiffs have an “obligation to provide their good
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`faith bases for electing their theories of recovery”.
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`The Defendants’ Motion for supplemental response to Interrogatory 1 is granted, and a
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`supplemental response to interrogatory 1 is due in 14 days. If subsequent discovery leads to
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`additional information on damages, Plaintiff can further supplement its interrogatory response.
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`2.
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`Interrogatory No. 2 Regarding the Date of the Hypothetical Negotiation: The
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`hypothetical negotiation date is relevant to Plaintiff’s damages claims. The hypothetical
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`negotiation date is the date that the alleged infringements first occurred. Defendants maintain
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`that they need to know the exact date of the alleged infringement for each of the Defendants’
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`products that are at issue in the case.
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`Plaintiff has responded that it cannot fully respond to Interrogatory No. 2, until it gets
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`documents from the Defendants as to testing and development dates for Defendants’ products.
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`Plaintiff contends that some of this information will be known after depositions that are currently
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`scheduled for later this month.
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`8
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`Case 1:16-cv-00455-RGA Document 125 Filed 05/19/17 Page 9 of 11 PageID #: 12664
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`Defendants’ concerns are persuasive, particularly in light of the discovery cut-off date
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`and their possible need for discovery when any responsive interrogatory filings are made.
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`Defendants’ Motion is granted and Plaintiff shall supplement interrogatory No. 2 within 14 days.
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`3. Interrogatory No. 4 Regarding Sony Products That Infringe: This interrogatory seeks
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`facts concerning the Sony Products that Plaintiff may contending infringed the patents in
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`question. Plaintiff initially objects that the interrogatory is “unintelligible”, particularly as to
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`what is meant by “all products by Sony”. Defendants respond by pointing out that Plaintiff’s
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`expert, Dr. Harry Bims, discussed the Sony Products in his declarations in the IPR proceedings.
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`Dr. Bims stated that Sony utilizes the inventions disclosed in the patents.
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`Plaintiff attempted to use Dr. Bims’ testimony as to the Sony Products in order to defend
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`against invalidity arguments. Plaintiff points out that Dr. Bims never expressly stated that Sony
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`infringed. Plaintiff also argues that it would be burdensome to respond to this interrogatory, since
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`there are hundreds of Sony video games.
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`The information as to the Sony Products in interrogatory No. 4 is relevant and a response
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`does not appear to be unnecessarily burdensome. The motion to compel supplemental responses
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`to interrogatory no. 4 is granted and it shall be filed within 14 days.
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`CROSS MOTIONS FOR SANCTIONS
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`Activision moved on April 28, 2017 for sanctions under Rule 37. In its May 8, 2017
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`reply brief in opposition to Activision’s motion to compel, Plaintiff seeks its attorneys fees in
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`opposing the motion for sanctions. For convenience, the Special Master treats these as cross
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`motions for sanctions.
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`9
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`Case 1:16-cv-00455-RGA Document 125 Filed 05/19/17 Page 10 of 11 PageID #: 12665
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`Sanctions can be levied against a party that fails to comply with court ordered discovery.
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`Sanctions can include preventing a party from introducing evidence, striking claims, and relief
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`appropriate to the misconduct. Transportes Aereos De Angela v. Ronair, Inc., 104 F.R.D. 499
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`(D. Del. 1985). However, such relief usually resides with the Court, rather than the Special
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`Master.
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`As set forth above, the Special Master is ordering Plaintiff to supplement its responses to
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`a number of interrogatories in a specific and complete manner. Interrogatory response
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`obligations continue as new discovery proceeds and supplemental responses are appropriate.
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`DEFENDANTS’ MOTION TO COMPEL COMPLIANCE WITH SUBPOENAS TO
`SCOTT SMITH AND ROBERT ABARBANEL
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`Defendants contend that Smith and Abarbanel are the most knowledgeable witnesses
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`regarding certain key issues in this case, including when the patents where supposedly invented
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`and built, and whether they are invalid as having been “on sale” more than one year prior to the
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`date they were filed. Exhibit C-11 to Defendants’ brief on this Motion states that Smith and
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`Abarbanel “witnessed the Boeing Invention Disclosure Form”, which Defendants contend is the
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`sole document which supports the supposed conception and reduction to practice of the claimed
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`inventions. Mr. Abarbanel was the direct supervisor of inventor Bourassa and was directly
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`involved with Boeing’s efforts to license the patents. Both Smith and Abarbanel submitted
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`testimony in support of the patent as Owner’s Response to Related Proceedings Before the Patent
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`Office (called “IPRs”). These declarations are exhibits C-3, C-4, C-5, C-6, C-7 and C-8 to
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`Defendants’ brief. Smith has declared in some of the exhibits that he also was employed at
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`Boeing and worked with the inventors of the asserted patents.
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`Case 1:16-cv-00455-RGA Document 125 Filed 05/19/17 Page 11 of 11 PageID #: 12666
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`Plaintiff’s grounds for resisting these subpoenas are that both gentlemen were subject to
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`cross examination in the IPR proceedings and that they were not listed in certain Defendants’
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`initial disclosures. Both objections are unpersuasive. The scope of IPR cross examinations under
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`the IPR rules is limited. As to the burden of a deposition, neither Smith nor Abarbanel has
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`provided any written objections.
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`It is clear to the Special Master that both gentlemen may have testimony relevant to this
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`litigation. Accordingly, Special Master grants Defendants’ Motion to Compel Compliance with
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`subpoenas to Smith and Abarbanel.
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`Dated: May 19, 2017
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`/s/ Allen M. Terrell, Jr.
`Allen M. Terrell, Jr., Special Master
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`11
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