Case 1:16-cv-00454-RGA Document 473 Filed 04/24/18 Page 1 of 57 PageID #: 39713
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-454 (RGA)
`
`)))))))))
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`)
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`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ELECTRONIC ARTS, INC.
`
`Defendant.
`
`PLAINTIFF ACCELERATION BAY LLC’S OPPOSITION TO DEFENDANT
`ELECTRONIC ARTS, INC.’S MOTIONS FOR SUMMARY JUDGMENT
`AND TO EXCLUDE EXPERT OPINIONS UNDER F.R.E. 702
`
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff
`ACCELERATION BAY LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
` (212) 715-9100
`afrankel@kramerlevin.com
`
`Dated: April 13, 2018
`
`PUBLIC VERSION
`
`Public version dated: April 24, 2018
`
`

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`Case 1:16-cv-00454-RGA Document 473 Filed 04/24/18 Page 2 of 57 PageID #: 39714
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`TABLE OF CONTENTS
`
`Page
`
`SUMMARY OF ARGUMENT ...................................................................................................... 1
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`ARGUMENT .................................................................................................................................. 2
`
`I.
`
`EA Infringes the Asserted Claims ................................................................................. 2
`
`A.
`
`The Accused Networks are M-Regular and Incomplete and Meet the
`Broadcast/Rebroadcast Requirements .................................................................... 2
`
`(1)
`
`(2)
`
`(3)
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`The Accused Networks are M-Regular and Incomplete ................................ 2
`
`The Accused Networks Broadcast and Re-broadcast Data as
`Required By the ‘344, ’966 and ‘634 Patents ................................................ 7
`
`The Accused Networks Infringe at least Under the Doctrine of
`Equivalents ..................................................................................................... 8
`
`B.
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`C.
`
`D.
`
`E.
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`EA Makes, Uses, Sells or Puts Into Use the “Network,” “System” or
`“Information Delivery Service” of the ’344 and ’966 Patent Claims ..................... 9
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`EA Makes, Uses, Sells or Puts Into Use the ‘497 Patent Hardware
`“Component” ........................................................................................................ 11
`
`The Actions That Infringe the Method Claims Occur in the U.S. ........................ 14
`
`The Accused Products Connect as Required by the’069 and ’634 Patents .......... 15
`
`(1)
`
`(2)
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`The Accused Product Use “Fully Connected” and “Located” Portal
`Computers .................................................................................................... 15
`
`The Accused Products Infringe the Asserted Claims of the '069
`Patent............................................................................................................ 17
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`(3) An “Edge Connection Request” is Sent to “Randomly Selected
`Neighboring Participants” as Required by the Asserted Claims of
`the ’069 Patent ............................................................................................. 18
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`F.
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`Players Disconnect from the Accused Products as Required by the’147
`Claims ................................................................................................................... 20
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`G.
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`The Accused Products Contact a Portal Computer ............................................... 22
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`(1)
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`The Accused Products Repeatedly Try to Establish a Connection to a
`Port of the Portal Computer that has a Dynamically Selected Call-in
`Port ............................................................................................................... 22
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`i
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`Case 1:16-cv-00454-RGA Document 473 Filed 04/24/18 Page 3 of 57 PageID #: 39715
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`(2)
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`The Accused Products Use a “Port Ordering Algorithm” ........................... 24
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`H. Head-to-Head Modes ............................................................................................ 24
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`I.
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`J.
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`II.
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`III.
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`At the Very Least, EA Infringes the Claims Under DOE ..................................... 24
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`EA Foreign Sales and Use of its Systems Infringe ............................................... 27
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`EA is and has been Willfully Infringing the Asserted Patents.................................... 28
`
`Dr. Medvidović and Dr. Mitzenmacher Disclose in Their Expert Reports the
`Bases For Their Opinions that the Accused Products “Use Various Rules And
`Constants” To Converge on M-Regular And Create A Broadcast Channel ............... 31
`
`IV.
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`The Opinions of Drs. Meyer, Bims and Valerdi Are Reliable.................................... 33
`
`A. Overview of the Damages Opinions at Issue ........................................................ 33
`
`B.
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`C.
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`D.
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`E.
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`F.
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`Dr. Meyer’s Hypothetical Negotiation Date Opinions are Reliable ..................... 37
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`Dr. Meyer’s Opinions Regarding the
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` are Reliable ......................... 37
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`The Opinions of Drs. Meyer and Bims Regarding Uniloc are Reliable ............... 38
`
`Dr. Bims’ Opinion that the Relative Value of the Asserted Patents is 6-15
`Times the Value of the Uniloc Patent is Reliable ................................................. 41
`
`Dr. Meyer Properly Apportioned the Royalty Base and Accounted for
`Future Infringement of the Patented Technology Through Patent Expiry ........... 43
`
`G. Dr. Meyer’s Royalty Rate for Individual Patents is Reliable ............................... 45
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`H. Dr. Valerdi’s Cost Opinion is Reliable ................................................................. 46
`
`CONCLUSION ............................................................................................................................. 49
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`ii
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`

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`Case 1:16-cv-00454-RGA Document 473 Filed 04/24/18 Page 4 of 57 PageID #: 39716
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Federal Cases
`Ansell Healthcare Prods. LLC v. Reckitt Benckiser LLC,
`No. 15-CV-915-RGA, 2018 WL 620968 (D. Del. Jan. 30, 2018) ...........................................31
`Cadence Pharms. Inc. v. Exela PharmSci Inc.,
`780 F.3d 1364 (Fed. Cir. 2015)................................................................................................26
`Card-Monroe Corp. v. Tuftco Corp.,
`270 F. Supp. 3d 967 (E.D. Tenn. 2017) .............................................................................27, 28
`Centillion Data Sys., LLC v. Qwest Commc’ns Int’l, Inc.,
`631 F.3d 1279 (Fed. Cir. 2011)................................................................................................10
`CNET Networks, Inc. v. Etilize, Inc.,
`528 F. Supp. 2d 985 (N.D. Cal. 2007) .....................................................................................10
`Exmark Mfg. Co. v. Briggs & Stratton Power Prods. Grp., LLC,
`879 F.3d 1332 (Fed. Cir. 2018)..........................................................................................43, 45
`Georgia-Pac. Corp. v. U.S. Plywood Corp.,
`318 F. Supp. 1116 (S.D.N.Y. 1970).........................................................................................49
`Halo Elecs., Inc. v. Pulse Elecs., Inc.,
`769 F.3d 1371 (Fed. Cir. 2014) (O'Malley, J., concurring) ...............................................30, 31
`NTP, Inc. v. Research in Motion, Ltd.,
`418 F.3d 1282 (Fed. Cir. 2005)..................................................................................................9
`Ormco Corp. v. Align Tech., Inc.,
`609 F. Supp. 2d 1057 (C.D. Cal. 2009) ...................................................................................28
`Trading Techs. Int’l, Inc. v. eSpeed, Inc.,
`595 F.3d 1340 (Fed. Cir. 2010)................................................................................................26
`Transcenic, Inc. v. Google, Inc.,
`No. CV 11-582-LPS, 2014 WL 7275835 (D. Del. Dec. 22, 2014) ..........................................14
`Travel Sentry, Inc. v. Tropp,
`877 F.3d 1370 (Fed. Cir. 2017)................................................................................................12
`Uniloc USA, Inc. v. EA,
`No. 6:13-cv-00259-RWS (E.D. Tex.) (Dec. 5, 2014) ...................................................... passim
`WBIP, LLC v. Kohler Co.,
`829 F.3d 1317 (Fed. Cir. 2016)................................................................................................30
`Federal Statutes
`35 U.S.C. § 271(a) .........................................................................................................9, 10, 12, 27
`
`iii
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`

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`Case 1:16-cv-00454-RGA Document 473 Filed 04/24/18 Page 5 of 57 PageID #: 39717
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`TABLE OF ABBREVIATIONS
`
`ABBREVIATION
`
`Acceleration Bay, LLC
`
`The Parties
`
`Acceleration Bay’s Opening Summary Judgment and Daubert Brief
`(D.I. 437)
`Electronic Arts, Inc.
`
`EA’s Brief in Support of Motions for Summary Judgment and Exclude
`Expert Opinions Under FRE 702 (D.I. 426)
`Declaration of Kathleen Barry in Support of Electronic Arts, Inc.’s
`Motions for Summary Judgment and to Exclude Expert Opinions
`(D.I.428-494)
`EA Blizzard
`
`The “Asserted Patents”
`
`U.S. Patent No. 6,701,344 (Ex. 102)
`
`U.S. Patent No. 6,714,966 (Ex. 103)
`
`U.S. Patent No. 6,829,634 (Ex. 105)
`
`U.S. Patent No. 6,910,069 (Ex. 107)
`
`U.S. Patent No. 6,732,147 (Ex. 106)
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`U.S. Patent No. 6,920,497 (Ex. 104)
`
`The “Accused Products”
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`FIFA 15 and FIFA 16
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`NHL 15 and NHL 16
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`Plants vs. Zombies: Garden Warfare 1 and Plants vs. Zombies Garden
`Warfare 2
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`iv
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`AB
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`AB Br.
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`EA
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`Def. Br.
`
`Barry Decl.
`
`EA
`
`‘344 Patent
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`‘966 Patent
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`‘634 Patent
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`‘069 Patent
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`‘147 Patent
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`‘497 Patent
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`FIFA
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`NHL
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`PvZ
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`

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`Case 1:16-cv-00454-RGA Document 473 Filed 04/24/18 Page 6 of 57 PageID #: 39718
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`Acceleration Bay’s Expert Reports
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`Expert Report of Nenad Medvidović, Ph.D., Regarding Infringement by
`Electronic Arts, Inc. of U.S. Patent Nos. 6,701,344; 6,829,634; 6,714,966
`and 6,732,147, dated October 5, 2017 (Ex. 1)
`Reply Expert Report of Nenad Medvidović, Ph.D., Regarding
`Infringement by Electronic Arts, Inc. of U.S. Patent Nos. 6,701,344;
`6,829,634; 6,714,966 and 6,732,147, dated February 7, 2018 (Ex. 2)
`Expert Report of Michael Mitzenmacher, Ph.D., Regarding Infringement
`by Electronic Arts, Inc. of U.S. Patent Nos. 6,920,497 and 6,910,069,
`dated October 5, 2017 (Ex. 3)
`Reply Expert Report of Michael Mitzenmacher, Ph.D., Regarding
`Infringement by Electronic Arts, Inc. of U.S. Patent Nos. 6,920,497 and
`6,910,069, dated February 7, 2018 (Ex. 4)
`Expert Report of Dr. Harry Bims Regarding Technology of U.S. Patent
`Nos. 6,701,344, 6,829,634, 6,732,147, 6,714,966, 6,920,497 and
`6,910,069, dated October 6, 2017 (Ex. 5)
`Reply Expert Report of Dr. Harry Bims Regarding Technology of U.S.
`Patent Nos. 6,701,344, 6,829,634, 6,732,147, 6,714,966, 6,920,497 and
`6,910,069, dated February 7, 2018 (Ex. 6)
`Expert Report of Christine S. Meyer, Ph.D., dated October 10, 2017
`(Ex. 7)
`Reply Expert Report of Christine S. Meyer, Ph.D., dated February 7,
`2018 (Ex. 8)
`Expert Report of Dr. Ricardo Valerdi Regarding Cost Estimates, dated
`October 6, 2017 (Ex. 67)
`
`Med. Rpt.
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`Med. Reply
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`Mitz. Rpt.
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`Mitz. Reply
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`Bims Rpt.
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`Bims Reply Rpt.
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`Meyer Rpt.
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`Meyer Reply Rpt.
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`Valerdi Rpt.
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`v
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`

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`Case 1:16-cv-00454-RGA Document 473 Filed 04/24/18 Page 7 of 57 PageID #: 39719
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`Activision’s Expert Reports
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`Expert report of John Kelly, Ph.D., regarding non-infringement of U.S.
`Patent Nos. 6,701,344; 6,829,634; 6,714,966; and 6,920,497
`(Barry Decl., Ex. A-5)
`Expert report of Michael R. Macedonia, Ph.D., regarding non-
`infringement of U.S. Patent Nos. 6,732,147 and 6,910,069
`(Barry Decl., Ex. A-7)
`
`Kelly Rpt.
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`Macedonia Rpt.
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`vi
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`Case 1:16-cv-00454-RGA Document 473 Filed 04/24/18 Page 8 of 57 PageID #: 39720
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`SUMMARY OF ARGUMENT
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`The Court should deny EA’s motion for summary judgment of noninfringement because
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`it ignores evidence, including testimony from EA’s own witnesses and documents, showing that
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`the Accused Products infringe the Asserted Patents. EA’s Motion is based on counterfactual
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`opinions of its experts who admitted at their depositions that they did not review all of the
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`evidence AB cited. For example, EA’s expert admitted that he did not review all the source code
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`cited by AB’s experts. Instead, he only relied on portions of the source code that EA selected:
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`Well, I have discussed the operation of all of the accused games,
`the underlying networks, and I've laid out in detail specific cites to
`the source code. I did not attempt to go through every one of the
`files and hundreds of pages that Dr. Medvidović cited in his
`report. That was totally unnecessary.
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`Ex. 681 (Kelly Tr.) at 111:3-13 (emphasis added); Ex. 69 (Macedonia Tr.) at 65:12-14, 105:12-
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`106:12; see id at 107:2-13 (did not review all of Dr. Mitzenmacher’s source code citations).
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`EA then wrongly argues that AB’s proof of infringement is based on ipse dixit
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`statements of its experts. EA, however, cannot ignore AB’s evidence and then move for
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`summary judgment on the grounds that there is purportedly no evidence.
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`AB’s infringement allegations are based on the undisputed facts that the Accused
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`Products are configured to use game “logic rules” embodied in their source code. AB’s experts
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`demonstrate how these rules control the formation of m-regular and incomplete networks at the
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`application layer. EA contends that its networks are not m-regular and incomplete based on the
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`incorrect assertion that the rules governing the distribution of data have “nothing to do with
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`configuring an m-regular, incomplete network.” Def. Br. at 2. To support this illogical
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`argument, EA relies on a document showing that participants connect to servers at the underlying
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`1 Exhibits 1-66 are to the March 23, 2018 Declaration of Paul J. Andre (D.I. 442-445). Exhibits
`67-108 are to the April 13, 2018 Declaration of Paul J. Andre, submitted herewith.
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`

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`Case 1:16-cv-00454-RGA Document 473 Filed 04/24/18 Page 9 of 57 PageID #: 39721
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`network layer. But EA misses the point in myopically discussing connections to servers on the
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`underlying networks rather than the application layer (overlay) network of the broadcast channel
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`that is the focus of the AB’s Asserted Patents. See D.I. 351 at 9-15 (“Thus, the only connections
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`that count are those in the ‘network’ or ‘broadcast channel’ at issue.”); see also D.I. 375 at 12
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`(“‘broadcast channel’ is an overlay network formed on a underlying network.”). When
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`infringement is correctly analyzed at the application layer, it is clear that rules configure the network
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`to be m-regular and incomplete. Indeed,
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` This admission alone defeats EA’s requests for summary judgment.
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`I.
`
`ARGUMENT
`EA Infringes the Asserted Claims
`A.
`The Accused Networks are M-Regular and Incomplete and Meet the
`Broadcast/Rebroadcast Requirements
`
`(1)
`
`The Accused Networks are M-Regular and Incomplete
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`Dr. Medvidović demonstrates with ample evidence that
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` It is this application layer network, which overlays the underlying network in
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`each of the Accused Products, that is configured to be m-regular and incomplete. See e.g., Med.
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`2
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`

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`Case 1:16-cv-00454-RGA Document 473 Filed 04/24/18 Page 10 of 57 PageID #: 39722
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`Reply ¶ 37. EA improperly focuses on the network layer instead of the application overlay level
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`that is the focus of the invention, as found by the Court. D.I. 249 at 7 (“Defendants gloss over
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`the claim requirement of a non-complete, m-regular network that is implemented on an
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`application level.”). EA’s disregard for this application layer, and narrowed focus on the
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`underlying client-server network, dictates denial of EA’s Motion.
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`EA’s Motion fails to acknowledge that its own experts admit that
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`Furthermore, the Accused Products apply
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`unsupported claim that “Acceleration’s experts never identify these so-called ‘logics rules’” (Def.
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`Br. at 13) despite the abundance of documents, testimony and source code that Dr. Medvidović
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`relies upon in his reports. For example, Dr. Medvidović relies on EA documents discussing
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`. EA makes the
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`3
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`Case 1:16-cv-00454-RGA Document 473 Filed 04/24/18 Page 11 of 57 PageID #: 39723
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`EA0023778-790). Dr. Medvidović cites to source code for each Accused Product that
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`specifically references
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` Thus, there
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`is no merit to EA’s claim that the infringement analysis based on game logics rules is “ipse dixit.”
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`EA’s contrary expert opinions, at best, represent genuine material disputes. In all fairness, they
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`should be entirely disregarded because EA’s experts admitted that they did not review all the
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`source code and evidence that AB’s experts provide in their reports. Ex. 68, Kelly Tr. 110:17-
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`114:1; Ex. 79, Macedonia Tr. 107:2-4.
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`For example, the Accused Products include
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`EA relies heavily on its argument that if the server is a participant and connected to all
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`participants, the network “mathematically” cannot be incomplete. First, EA’s position is based
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`on a tortured application of the Asserted Patents and the Court’s constructions. In particular,
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`contrary to Defendant’s claims, the fact that participants in the Networks may have non-
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`broadcast connections (here, that each may be connected to a
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`sever) is irrelevant because
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`the Asserted Patents do not preclude such additional connections. Med. Reply ¶¶ 29-30. Indeed,
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`the Court found that connections to computers/nodes other than participants are permitted. D.I.
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`351 at 21. Second, EA attacks a strawman. EA focuses on connections to the server at the
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`network layer but that layer is not the focus of AB’s infringement case, which is based on an
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`application layer overlay with a different topology. EA mischaracterizes the opinions of AB’s
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`experts who did not say that the server is a participant in the application layer at all times. The
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`server is only a participant in the overlay network
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` Thus, the connections at the network layer do
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`5
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`Case 1:16-cv-00454-RGA Document 473 Filed 04/24/18 Page 13 of 57 PageID #: 39725
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`not render the application layer complete. Dr. Medvidović further explains that
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`Similarly unavailing is EA’s contention regarding “testing of the accused games.” Dr.
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`Kelly did not test any games himself. Ex. 68, Kelly Tr. 24:25-25:1 (“I did not specifically play
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`each one of these – of these games, correct); see also id. at 159:4-20. Instead, he relied on the
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`tests of Mercenary Technology performed by Andrew Mayo, Alan Trial and David Cumming,
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`none of whom were made available for deposition. Id., at 159:4-20. Based on the information
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`regarding testing that was included in Dr. Kelly’s report, the “testing” that was conducted was
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`limited to the underlying network layer and no tests on the application layer, that is the focus of
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`AB’s infringement case, were performed. Further, Dr. Macedonia was not involved in testing
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`and he in fact does not dispute the findings of AB’s testing expert, Patrick Conlin. Ex. 69
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`(Macedonia Tr.) at 149:20-22, 152:24-153:1. Further, as described above, EA cannot contend
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`that its allegations pertaining to the operation of the accused Networks is “evident from source
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`code review,” when both Drs. Kelly and Macedonia admitted to reviewing only a subset of the
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`source code relied upon by Drs. Medvidović and Mitzenmacher. Id., 106:8-12, 107:2-4; Ex. 68,
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`Kelly Tr. 111:3-13-114:1. At the minimum, therefore, there are several disputed issues of fact
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`that preclude summary judgment.
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`6
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`Case 1:16-cv-00454-RGA Document 473 Filed 04/24/18 Page 14 of 57 PageID #: 39726
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`(2)
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`The Accused Networks Broadcast and Re-broadcast Data as
`Required By the ‘344, ’966 and ‘634 Patents
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`The Accused Products satisfy the claims that
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`For example, EA disregards how the
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`EA still infringes even where some participants may have additional connections or
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`additional messages are only sent to certain participants (rather than broadcast to all participants).
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`Med. Reply ¶¶ 29, 88. EA’s primary noninfringement argument for this limitation is its
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`erroneous claim that the Accused Products do not infringe because players send and receive
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`some messages without broadcasting and relaying. Even if that were the case, the Court’s claim
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`construction and the specifications make clear that such non-broadcast connections are permitted,
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`as long as other connections are broadcast connections. D.I. 352 at 15-16 (noting that messages
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`may be sent/received to/from other computers as non-broadcast messages); D.I. 375 at 12
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`(“‘broadcast channel’ is an overlay network formed on a underlying network.”).
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`7
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`Case 1:16-cv-00454-RGA Document 473 Filed 04/24/18 Page 15 of 57 PageID #: 39727
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`(3) The Accused Networks Infringe at least Under the Doctrine of Equivalents
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`EA’s Motion should also be denied because it ignores AB’s experts’ opinions that the
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`limitations regarding the broadcast/re-broadcast, m-regular or incomplete elements are
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`alternatively satisfied under the doctrine of equivalents (“DOE”). Med. Rpt. ¶¶ 156-159, 198-
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`201, 420-423 (FIFA), 170-173, 210-213, 431-434 (NHL), 185-188, 225-228, 441-444 (PvZ);
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`Med. Reply ¶¶ 80-87, 95-99, 203-208.
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`For example, FIFA performs substantially the same function because
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`performs this function in substantially the same way by
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`. FIFA
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` FIFA achieves substantially the same result of data distribution
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`through the connections between participants who are not all directly connected. See e.g., id. Dr.
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`Medvidović provides a similar discussion of NHL’s and PvZ’s infringement under DOE. Med.
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`Rpt. ¶¶ 170-174, 185-188, 210-213, 225-228; Med. Reply ¶¶ 80-87, 95-99. Thus, AB’s proofs
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`of DOE infringement, which EA does not address, further preclude summary judgment.
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`Similarly, Dr. Medvidović demonstrates that
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` The Accused Products obtain at least substantially the same
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`8
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`Case 1:16-cv-00454-RGA Document 473 Filed 04/24/18 Page 16 of 57 PageID #: 39728
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`result of facilitating high speed game play and distributing broadcast messages to the other
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`participants by
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`B.
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`EA Makes, Uses, Sells or Puts Into Use the “Network,” “System” or
`“Information Delivery Service” of the ’344 and ’966 Patent Claims
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`EA infringes the ‘344 and ‘966 Patents by making, using and selling the Accused
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`Products, notwithstanding that its customers may own their own computers. The Asserted
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`Claims are directed to computer network systems. See, e.g., ‘344 Patent at Claim 12. AB’s
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`experts provided unrebutted evidence that (1) EA owns and controls the application programs
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`that execute on its customers’ computers to create and participate in the infringing networks; (2)
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`EA owns and controls the servers providing the networks, (3) EA puts the systems into use and
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`obtains the benefits of their use and (4) EA masterminds and controls all aspects of the operation
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`of the networks.2 EA’s expert admitted most of these facts during his deposition. See e.g., Ex.
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`69 (Macedonia Tr.) at 112:2-10, 129:20-131:3 (e.g., EA owns the software which “has to send
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`computer instructions to the processor” to run); Ex. 68 (Kelly Tr.) at 123:2-124:18.
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`These facts, ignored by EA, create sufficient triable issues of material fact that EA “uses”
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`the accused network systems under § 271(a). A party “uses” a system for purposes of
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`infringement when it puts the invention into service by controlling the system as a whole and
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`obtaining the benefit from its use. NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1316-
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`17 (Fed. Cir. 2005). Here, based on the above facts, EA puts the network systems into service by
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`controlling them and obtaining the financial benefit from operating every element of the claims.
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`For example, EA exclusively owns and controls the software that participates in and forms the
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`networks and provides the matchmaking servers that allows these participants to connect to the
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`2 Med. Rpt. at ¶¶ 321-323, 330-332, 339-341; Med. Reply at ¶¶ 47, 137, 156, 332-336; Mitz. Rpt.
`at ¶¶ 78, 79, 87, 88, 96, 97; Mitz. Reply at ¶¶ 38, 39, 41, 47-49, 54-57, 59, 62-64, 68, 84-85;
`Kelly Rpt. at ¶ 93; Macedonia Rpt. at ¶ 150.
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`networks. Ex. 69 (Macedonia Tr.) at 109:23-110:14
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`; see also Ex. 68 (Kelly Tr.) at 118:25-122:2
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`EA also obtains the financial benefits from operating the networks including
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`sales of the games and the additional revenues generated through in-game transactions. Mitz.
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`Rpt. at ¶ 299; Mitz. Reply at ¶ 182; Med. Rpt. at ¶¶ 595, 596; Med. Reply at ¶¶ 333-336, 47, 136,
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`148; Ex.69 (Macedonia Tr.) at 113:5-10 (payment for games goes to EA).
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`EA’s reliance on Centillion to argue that it does not “use” the accused network system is
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`misplaced. There, the Federal Circuit found that defendant did not “use” the claimed system
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`when it conceded that its customers maintained and controlled the “front-end” portion of the
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`claimed system and it , therefore, did not put into service the system as a whole. Centillion Data
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`Sys., LLC v. Qwest Commc’ns Int’l, Inc., 631 F.3d 1279, 1281, 1287 (Fed. Cir. 2011). This is
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`unlike here because EA owns and controls the software participating in the network.
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`Moreover, the Court already rejected the premise of EA’s Motion — that EA can escape
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`infringement by pointing to its customers’ computers. Defendants argued that these claims are
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`indefinite for supposedly requiring third parties to perform actions (in addition to being system
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`claims). D.I. 351 at 22-23. The Court found instead that “the claims do not ‘claim activities
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`performed by the user’ or make any reference to a ‘user.’ … Rather, they claim a network in
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`which participants are configured to send data to their neighbors.” Id. The configured
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`“participants” are EA software and EA controls the network. Thus, Centillion does not apply.
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`EA also infringes these claims under 35 U.S.C. § 271(a) by “making” the infringing
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`system through compiling the source code that configures the accused networks to infringe. See
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`CNET Networks, Inc. v. Etilize, Inc., 528 F. Supp. 2d 985, 994 (N.D. Cal. 2007) (infringing
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`software is made “when expressed and stored as machine-readable object code, e.g. burned on a
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`CD–ROM or written to a server hard drive such that it is capable of being downloaded from the
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`internet…[and the] software become an actual, physical component amenable to combination.”)
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`(citing Microsoft Corp. v. AT&T Corp., 127 S.Ct. 1736, 1756 (2007)); Mitz. Rpt. ¶¶ 299-300,
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`Mitz. Reply at ¶¶ 176-187; Med. Reply at ¶¶ 328-336. Thus, EA is a direct infringer by putting
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`into use the claimed network, system, and information delivery service.
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`C. EA Makes, Uses, Sells or Puts Into Use the ‘497 Patent Hardware “Component”
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`EA infringes the Asserted Claims of the ‘497 Patent as set forth in detail in AB’s
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`Opening Brief, which is incorporated into this opposition. See AB Br. at 10-22. The asserted
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`claims are directed to a “component in a computer system” made up of four means, which the
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`Court construed as a processor programmed to perform algorithms. See, e.g., D.I. 375 at 7-8. To
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`the extent these claims require the use of a processor that executes the infringing software, for
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`the reasons discussed above, EA is deemed both to (1) put that processor into use and (2) be
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`liable for the actions of its customers who use those computers. These are two independent
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`factual grounds on which to find that EA literally infringes. Indeed, Dr. Kelly agrees that
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`Further,
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`Furthermore, to the extent the EA end-users’ computers are somehow required for there
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`to be infringement under the “using” or “making” prongs of § 271(a), EA is vicariously liable for
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`its customers’ actions because it conditions their use of the accused software on their use of the
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`infringing network system, as discussed in more detail in Section II.B in AB’s Opening Brief (at
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`14-17). Travel Sentry, Inc. v. Tropp, 877 F.3d 1370, 1378 (Fed. Cir. 2017); Metro–Goldwyn–
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`Mayer Studios v. Grokster, Ltd., 545 U.S. 913, 930 (2005) (“an actor ‘infringes vicariously by
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`profiting from direct infringement’ if that actor has the right and ability to stop or limit the
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`infringement”). AB’s experts provide ample evidence confirming that the actions of EA’s
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`customers are attributed to EA, including through EA’s complete control of their use of EA’s
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`software pursuant to the license agreements. Mitz. Rpt. at ¶¶ 36, 203-207, 213-215, 224-226,
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`301-302; Mitz. Reply at ¶¶ 180-184; Med. Rpt. at ¶¶ 321-23, 330-32; Med. Reply at ¶¶ 331-36.
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`Additionally, as EA’s expert concedes, EA owns the
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`Further, at the very least, EA infringes under DOE. EA owns the software that creates
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`the networks, even when a customer purchases a license to use it.5 Software that is run on
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`computers to create a network is equivalent to computers running software to provide the same
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`network. In both cases, the exact same software is providing the identical function, in the
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`identical way to yield an identical network. Mitz. Reply at ¶¶ 52-55, 62-64. EA’s software is
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`specifically designed to control the hardware in PCs and consoles to perform various functions
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`and a person of ordinary skill in the art (“POSA”) would understand that software to control the
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`operation of a process is equivalent to a processor that is controlled by software. Id.6
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`Finally, EA further directly infringes through its use of the Accused Products including
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`testing, development and gameplay. Mitz. Rpt. at ¶¶ 52-55; Segan LLC v. Zynga Inc., No. CV
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`11-670-GMS, 2013 WL 12156529, at *1 n.1 (D. Del. May 2, 2013) (accused infringer’s
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`“accessing of its own games is sufficient” to constitute “use” under 271(a)). For these reasons, a
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`EA0032813-15 (PvZ Online System Architecture); Ex. 31, EA0033962-66; Ex. 32, EA0033909-
`13; Ex. 33, EA0033967-71; Ex. 34, EA0033914-17; Ex. 35, EA0033595-97.
`5 Mitz. Rpt. at ¶¶ 77-78, 80, 198, 210-214, 227, 242, 247, 259, 270, 281, 291, 298, 315, 328, 394
`(collecting evidence); Mitz. Reply at ¶¶ 72-73, 135, 146, 229, 284, 355-356, 391; Med. Rpt. at ¶¶
`289-291, 322-331, 352-354, 357-359, 373, 386-389, 403-405, 412-413, 441-446, 454-461, 467,
`482, 587-588, 595-637; Med. Reply at ¶¶ 60-61.
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`“reasonable juror, taking all the evidence in the light most favorable to [AB] . . . could find”
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`infringement, and the Court should deny EA’s Motion for summary judgment. Transcenic, Inc.
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`v. Google, Inc., No. CV 11-582-LPS, 2014 WL 7275835, at *3 (D. Del. Dec. 22, 2014).
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`D.
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`The Actions That Infringe the Method Claims Occur in the U.S.
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`The Accused Products infringe the ‘147 and ‘069 Patents in the U.S. Med. Rpt. at ¶¶471-
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`473; 474-476 (FIFA); 477-479 (NHL); 480-482 (PvZ); Med. Reply at ¶¶ 215-269. Dr.
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`Medvidović explains
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`Likewise, Dr. Mitzenmacher specifically explains
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`In addition,
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`. does not
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`immunize those servers from infringement because EA’s controls its systems, including
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`servers, and obtains the financial benefit of the system within the United States. NTP, 418 F.3d
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`at 1316-17 (“The use of a claimed system under section 271(a) is the place at which the system
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`as a whole is put into service, i.e., the place where control of the system is exercised and
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`beneficial use of the system obtained”); Decca Ltd. v. U.S., 210 Ct. Cl. 546, 567-6