`
`Plaintiff,
`
`
`
`v.
`
`
`
`
`
`C.A. No. 16-454 (RGA)
`
`JURY TRIAL DEMANDED
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`ELECTRONIC ARTS INC.,
`
`
`
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`ELECTRONIC ARTS INC.’S ANSWER TO COMPLAINT
`
`Defendant Electronic Arts Inc. (“Electronic Arts”) submits the following answer and
`
`
`
`Defendant.
`
`affirmative defenses to the Complaint for Patent Infringement (D.I. 1) filed by Plaintiff
`
`Acceleration Bay LLC (“Acceleration Bay”).
`
`On October 4, 2016, Electronic Arts moved to dismiss all the accused Sony products
`
`from the case because Plaintiff lacks standing, and the Court granted the motion on August 24,
`
`2017 (D.I. 241). Therefore, the allegations relating to the accused Sony products no longer
`
`require a response.
`
`GENERAL DENIAL
`
`Unless specifically admitted below, Electronic Arts denies each and every allegation in
`
`Plaintiff’s Complaint.
`
`AS TO THE BACKGROUND
`
`1.
`
`Electronic Arts admits that Acceleration Bay previously asserted U.S. Patent No.
`
`6,701,344, U.S. Patent No. 6,714,966, U.S. Patent No. 6,732,147, U.S. Patent No. 6,829,634,
`
`U.S. Patent No. 6,910,069, and U.S. Patent No. 6,920,497 (the “Patents-in-Suit” or the
`
`“Acceleration Bay Patents”) against Activision in C.A. No. 15-228 (D. Del.), and that the
`
`District Court issued an Order in that previous case finding that Acceleration Bay lacked
`
`
`
`
`
`Case 1:16-cv-00454-RGA Document 274 Filed 09/12/17 Page 2 of 15 PageID #: 20048
`
`standing. Except as expressly admitted, Activision denies the remainder of the allegations in
`
`paragraph 1.
`
`AS TO THE PARTIES
`
`2.
`
`Electronic Arts lacks knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in paragraph 2 and therefore, denies them.
`
`3.
`
`Electronic Arts lacks knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in paragraph 3 and therefore, denies them.
`
`4.
`
`Electronic Arts lacks knowledge or information sufficient to form a belief as to
`
`the truth of the allegations set forth in paragraph 4 and therefore, denies them.
`
`5.
`
`Electronic Arts admits it is a corporation organized and existing under the laws of
`
`the State of Delaware and that its principal place of business is located at 209 Redwood Shores
`
`Parkway, Redwood City, California 94065.
`
`6.
`
`Denied.
`
`AS TO JURISDICTION AND VENUE
`
`7.
`
`Paragraph 7 contains conclusions of law and not averments of fact to which an
`
`answer is required, but insofar as an answer may be deemed required, Electronic Arts admits that
`
`Acceleration Bay purports to be bringing an action for patent infringement allegedly under
`
`35 U.S.C. §§ 101 et seq, and that 28 U.S.C. §§ 1331 and 1338 provide the Court with subject
`
`matter jurisdiction over federal questions and patent infringement actions. Except as expressly
`
`admitted, Electronic Arts denies the remainder of the allegations in paragraph 7.
`
`8.
`
`Paragraph 8 contains conclusions of law that are not averments of fact to which an
`
`answer is required, but insofar as an answer may be deemed required, Electronic Arts does not
`
`contest that venue may lie in this District; however, venue may be more appropriate in another
`
`2
`
`
`
`Case 1:16-cv-00454-RGA Document 274 Filed 09/12/17 Page 3 of 15 PageID #: 20049
`
`district for the convenience of the parties. Except as expressly admitted, Electronic Arts denies
`
`the remainder of the allegations in paragraph 8.
`
`9.
`
`Electronic Arts does not contest that the Court has personal jurisdiction in this
`
`action. Electronic Arts admits that it has transacted business in this district. Electronic Arts
`
`admits it is a corporation organized and existing under the laws of the State of Delaware.
`
`Electronic Arts denies any acts of patent infringement have taken place in this district, or
`
`elsewhere. The remaining allegations of paragraph 9 contains conclusions of law that are not
`
`averments of fact to which an answer is required, but insofar as an answer may be deemed
`
`required, Electronic Arts denies the remaining allegations in paragraph 9.
`
`AS TO THE PATENTS-IN-SUIT
`
`10.
`
`Electronic Arts admits that the Complaint asserts the following six patents: U.S.
`
`Patent Nos. 6,701,344, 6,714,966, 6,732,147, 6,829,634, 6,910,069, and 6,920,497. Electronic
`
`Arts denies the remaining allegations set forth in paragraph 10.
`
`11.
`
`Electronic Arts admits that U.S. Pat. No. 6,701,344 (“the ’344 Patent”) is entitled
`
`“DISTRIBUTED GAME ENVIRONMENT” (a copy of which appears to be Exhibit 1), and that
`
`the face of the patent indicates that it was issued on March 2, 2004. Electronic Arts lacks
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`set forth in paragraph 11 and therefore denies them.
`
`12.
`
`13.
`
`14.
`
`Denied.
`
`Denied.
`
`Electronic Arts admits that U.S. Pat. No. 6,714,966 (“the ’966 Patent”) is entitled
`
`“INFORMATION DELIVERY SERVICE” (a copy of which appears to be Exhibit 2), and that
`
`the face of the patent indicates that it was issued on March 30, 2004. Electronic Arts lacks
`
`3
`
`
`
`Case 1:16-cv-00454-RGA Document 274 Filed 09/12/17 Page 4 of 15 PageID #: 20050
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`set forth in paragraph 14 and therefore denies them.
`
`15.
`
`16.
`
`17.
`
`Denied.
`
`Denied.
`
`Electronic Arts admits that U.S. Pat. No. 6,732,147 (“the ’147 Patent”) is entitled
`
`“LEAVING A BROADCAST CHANNEL” (a copy of which appears to be Exhibit 3), and that
`
`the face of the patent indicates that it was issued on May 4, 2004. Electronic Arts lacks
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`set forth in paragraph 17 and therefore denies them.
`
`18.
`
`19.
`
`20.
`
`Denied.
`
`Denied.
`
`Electronic Arts admits that U.S. Pat. No. 6,829,634 (“the ’634 Patent”) is entitled
`
`“BROADCASTING NETWORK” (a copy of which appears to be Exhibit 4), and that the face of
`
`the patent indicates that it was issued on December 7, 2004. Electronic Arts lacks knowledge or
`
`information sufficient to form a belief as to the truth of the remaining allegations set forth in
`
`paragraph 20 and therefore denies them.
`
`21.
`
`22.
`
`23.
`
`Denied.
`
`Denied.
`
`Electronic Arts admits that U.S. Pat. No. 6,910,069 (“the ’069 Patent”) is entitled
`
`“JOINING A BROADCAST CHANNEL” (a copy of which appears to be Exhibit 5), and that
`
`the face of the patent indicates that it was issued on June 21, 2005. Electronic Arts lacks
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`set forth in paragraph 23 and therefore denies them.
`
`4
`
`
`
`Case 1:16-cv-00454-RGA Document 274 Filed 09/12/17 Page 5 of 15 PageID #: 20051
`
`24.
`
`25.
`
`26.
`
`Denied.
`
`Denied.
`
`Electronic Arts admits that U.S. Pat. No. 6,920,497 (“the ’497 Patent”) is entitled
`
`“CONTACTING A BROADCAST CHANNEL” (a copy of which appears to be Exhibit 6), and
`
`that the face of the patent indicates that it was issued on July 19, 2005. Electronic Arts lacks
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`set forth in paragraph 26 and therefore denies them.
`
`27.
`
`28.
`
`Denied.
`
`Denied.
`
`AS TO THE ACCUSED PRODUCTS
`
`29.
`
`Electronic Arts admits that FIFA includes features relating to multiplayer
`
`technology but denies that such technology has ever infringed any of the Acceleration Bay
`
`Patents. EA denies the remaining allegations of paragraph 29.
`
`30.
`
`31.
`
`32.
`
`33.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Electronic Arts admits that FIFA includes features relating to multiplayer
`
`technology but denies that any such technology has ever infringed any of the Acceleration Bay
`
`Patents. Electronic Arts denies the remaining allegations of paragraph 33.
`
`34.
`
`Electronic Arts admits that NHL includes features relating to multiplayer
`
`technology but denies that such technology has ever infringed any of the Acceleration Bay
`
`Patents. Electronic Arts denies the remaining allegations of paragraph 34.
`
`35.
`
`Denied.
`
`5
`
`
`
`Case 1:16-cv-00454-RGA Document 274 Filed 09/12/17 Page 6 of 15 PageID #: 20052
`
`36.
`
`37.
`
`Denied.
`
`Electronic Arts admits that PGA includes features relating to multiplayer
`
`technology but denies that such technology has ever infringed any of the Acceleration Bay
`
`Patents. Electronic Arts denies the remaining allegations of paragraph 37.
`
`38.
`
`39.
`
`40.
`
`Denied.
`
`Denied.
`
`Electronic Arts admits that Plants v. Zombies includes features relating to
`
`multiplayer technology but denies that such technology has ever infringed any of the
`
`Acceleration Bay Patents. EA denies the remaining allegations of paragraph 40.
`
`AS TO ELECTRONIC ARTS’ ALLEGED INFRINGEMENT
`OF ACCELERATION BAY’S PATENTS
`
`41.
`
`Denied.
`
`AS TO COUNT I
`(Alleged Direct Infringement of the ’344 Patent)
`
`42.
`
`Electronic Arts hereby incorporates by reference the responses of the preceding
`
`paragraphs.
`
`43.
`
`44.
`
`45.
`
`46.
`
`47.
`
`48.
`
`49.
`
`50.
`
`51.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`6
`
`
`
`Case 1:16-cv-00454-RGA Document 274 Filed 09/12/17 Page 7 of 15 PageID #: 20053
`
`52.
`
`53.
`
`Denied.
`
`Denied.
`
`COUNT II
`(Alleged Direct Infringement of the ’966 Patent)
`
`54.
`
`Electronic Arts hereby incorporates by reference the responses of the preceding
`
`paragraphs.
`
`55.
`
`56.
`
`57.
`
`58.
`
`59.
`
`60.
`
`61.
`
`62.
`
`63.
`
`64.
`
`65.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`COUNT III
`(Alleged Direct Infringement of the ’147 Patent)
`
`66.
`
`Electronic Arts hereby incorporates by reference the responses of the preceding
`
`paragraphs.
`
`67.
`
`68.
`
`69.
`
`70.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`7
`
`
`
`Case 1:16-cv-00454-RGA Document 274 Filed 09/12/17 Page 8 of 15 PageID #: 20054
`
`71.
`
`Electronic Arts admits that for the accused products, it provided an End User
`
`License Agreement and Terms of Service. The remaining allegations in paragraph 71 constitute
`
`conclusions of law to which no response of Electronic Arts is required; to the extent a response is
`
`required, Electronic Arts denies the remaining allegations of paragraph 71.
`
`72.
`
`73.
`
`74.
`
`75.
`
`76.
`
`77.
`
`78.
`
`79.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`COUNT IV
`(Alleged Direct Infringement of the ’634 Patent)
`
`80.
`
`Electronic Arts hereby incorporates by reference the responses of the preceding
`
`paragraphs.
`
`81.
`
`82.
`
`83.
`
`84.
`
`85.
`
`86.
`
`87.
`
`88.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`8
`
`
`
`Case 1:16-cv-00454-RGA Document 274 Filed 09/12/17 Page 9 of 15 PageID #: 20055
`
`89.
`
`90.
`
`91.
`
`Denied.
`
`Denied.
`
`Denied.
`
`COUNT VI
`(Alleged Direct Infringement of the ’069 Patent)
`
`92.
`
`Electronic Arts hereby incorporates by reference the responses of the preceding
`
`paragraphs.
`
`93.
`
`94.
`
`95.
`
`96.
`
`97.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Electronic Arts admits that for the accused products, it provided an End User
`
`License Agreement and Terms of Service. The remaining allegations in paragraph 97 constitute
`
`conclusions of law to which no response of Electronic Arts is required; to the extent a response is
`
`required, Electronic Arts denies the remaining allegations of paragraph 97.
`
`98.
`
`99.
`
`Denied.
`
`Denied.
`
`100. Denied.
`
`101. Denied.
`
`102. Denied.
`
`103. Denied.
`
`104. Denied.
`
`105. Denied.
`
`9
`
`
`
`Case 1:16-cv-00454-RGA Document 274 Filed 09/12/17 Page 10 of 15 PageID #: 20056
`
`COUNT VI
`(Alleged Direct Infringement of the ’497 Patent)
`
`106. Electronic Arts hereby incorporates by reference the responses of the preceding
`
`paragraphs.
`
`107. Denied.
`
`108. Denied.
`
`109. Denied.
`
`110. Denied.
`
`111. Electronic Arts admits that for the accused products, it provided an End User
`
`License Agreement and Terms of Service. The remaining allegations in paragraph 111
`
`constitute conclusions of law to which no response of Electronic Arts is required; to the extent a
`
`response is required, Electronic Arts denies the remaining allegations of paragraph 111.
`
`112. Denied.
`
`113. Denied.
`
`114. Denied.
`
`115. Denied.
`
`116. Denied.
`
`117. Denied.
`
`118. Denied.
`
`119. Denied.
`
`PLAINTIFF’S PRAYER FOR RELIEF
`
`These Paragraphs set forth the statement of relief requested by Plaintiff, to which no
`
`response is required. To the extent that these paragraphs require a response, Electronic Arts
`
`denies that Plaintiff is entitled to any of the requested relief and denies any allegations contained
`
`10
`
`
`
`Case 1:16-cv-00454-RGA Document 274 Filed 09/12/17 Page 11 of 15 PageID #: 20057
`
`therein. Electronic Arts requests that a take-nothing judgment be entered in its favor and against
`
`Plaintiff on the entire Complaint.
`
`PLAINTIFF’S DEMAND FOR JURY TRIAL
`
`This section purports to request a trial by jury and does not require a response.
`
`AFFIRMATIVE DEFENSES
`
`Further answering the Complaint, Electronic Arts asserts the following affirmative
`
`defenses, undertaking the burden of proof only as to those defenses required by law, regardless
`
`of how such defenses are denominated here. Electronic Arts reserves the right to rely upon any
`
`additional defenses that become available or apparent during discovery, and reserves its right to
`
`amend this Answer and to assert such additional defenses or, if appropriate, delete additional
`
`defenses as discovery proceeds, including the right to assert claims for inequitable conduct.
`
`Electronic Arts asserts each of these affirmative defenses in the alternative, without admitting
`
`that Electronic Arts is in any way liable to Plaintiff, that Plaintiff has been or will be injured or
`
`damaged in any way, or that Plaintiff is entitled to any relief whatsoever. As a defense to the
`
`Complaint and each and every allegation contained in it, Electronic Arts alleges as follows:
`
`FIRST AFFIRMATIVE DEFENSE
`(Failure to State a Claim for Relief)
`
`The Complaint fails to state a claim upon which relief may be granted against Electronic
`
`Arts, and fails to allege sufficient facts.
`
`SECOND AFFIRMATIVE DEFENSE
`(Invalidity)
`
`The Patents-in-Suit are invalid and void, at least, for failure to meet one or more of the
`
`conditions for patentability set forth in 35 U.S.C. §§ 101 et seq., including but not limited to
`
`failure to comply with the requirements of 35 U.S.C. §§ 101, 102, 103, and 112.
`
`11
`
`
`
`Case 1:16-cv-00454-RGA Document 274 Filed 09/12/17 Page 12 of 15 PageID #: 20058
`
`THIRD AFFIRMATIVE DEFENSE
`(Failure to Provide Notice and/or Failure to Mark)
`
`By reason of Plaintiff’s failure to meet the requirements of 35 U.S.C. § 287, Plaintiff is
`
`precluded from seeking damages from Electronic Arts for any and all alleged infringement prior
`
`to the filing of the Complaint. Any claim for damages is limited by the requirements of
`
`35 U.S.C. § 287(a).
`
`FOURTH AFFIRMATIVE DEFENSE
`(Claim Is Not Entitled to Injunctive Relief)
`
`Plaintiff is not entitled to injunctive relief because any alleged injury to them is not
`
`immediate or irreparable, and because Plaintiff has an adequate remedy at law for any claims it
`
`can prove.
`
`FIFTH AFFIRMATIVE DEFENSE
`(Waiver / Estoppel)
`
`Plaintiff’s claims against Electronic Arts are barred and unenforceable against Electronic
`
`Arts, in whole or in part, by one or more of the equitable doctrines of waiver and estoppel.
`
`SIXTH AFFIRMATIVE DEFENSE
`(Damage Limitations)
`
`Plaintiff shall not be entitled to seek damages for alleged infringement prior to March 31,
`
`2015.
`
`
`
`
`
`12
`
`
`
`Case 1:16-cv-00454-RGA Document 274 Filed 09/12/17 Page 13 of 15 PageID #: 20059
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Electronic Arts respectfully requests that the Court enter a judgment in
`
`its favor and against Acceleration Bay as follows:
`
`A.
`
`An order declaring and entering judgment that Electronic Arts has not infringed
`
`and does not infringe directly (or under the doctrine of equivalents) any valid and
`
`enforceable claim of the Patents-in-Suit;
`
`B.
`
`C.
`
`An order declaring and entering judgment that the Patents-in-Suit are invalid;
`
`An order dismissing with prejudice all of Acceleration Bay’s claims against
`
`Electronic Arts;
`
`D.
`
`An order declaring that Electronic Arts is a prevailing party and that this is an
`
`exceptional case, awarding Electronic Arts its costs, expenses, disbursements, and
`
`reasonable attorneys’ fees under 35 U.S.C. §§ 284 and 285;
`
`E.
`
`An order compelling Acceleration Bay to pay all costs associated with this action;
`
`and
`
`F.
`
`An order granting Electronic Arts any such other and further relief as the Court
`
`deems just and proper.
`
`DEMAND FOR JURY TRIAL
`
`Defendant Electronic Arts demands a jury trial on all issues so triable.
`
`13
`
`
`
`Case 1:16-cv-00454-RGA Document 274 Filed 09/12/17 Page 14 of 15 PageID #: 20060
`
`
`
`
`
`
`OF COUNSEL:
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`David P. Enzminger
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
`
`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`
`Andrew R. Sommer
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`September 12, 2017
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`
`/s/ Stephen J. Kraftschik
`__________________________________
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`
`Attorneys for Defendants
`
`14
`
`
`
`Case 1:16-cv-00454-RGA Document 274 Filed 09/12/17 Page 15 of 15 PageID #: 20061
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on September 12, 2017, I caused the foregoing to be
`
`
`
`
`
`electronically filed with the Clerk of the Court using CM/ECF, which will send notification of
`
`such filing to all registered participants.
`
`
`
`
`
`I further certify that I caused copies of the foregoing document to be served on
`
`September 12, 2017, upon the following in the manner indicated:
`
`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
`
`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`Greg Proctor, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
`
`Aaron M. Frankel, Esquire
`Marcus A. Colucci, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Attorneys for Plaintiff
`
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`/s/ Stephen J. Kraftschik
`Stephen J. Kraftschik (#5623)
`
`
`
`
`
`
`