Case 1:16-cv-00454-RGA Document 483 Filed 05/07/18 Page 1 of 30 PageID #: 42698
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-454-RGA
`
`)))))))))
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ELECTRONIC ARTS INC.,
`
`Defendant.
`
`PLAINTIFF ACCELERATION BAY LLC’S REPLY BRIEF
`IN SUPPORT OF ITS SUMMARY JUDGMENT AND DAUBERT MOTIONS
`
`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
`
`Aaron M. Frankel
`Cristina Martinez
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: April 27, 2018
`
`PUBLIC VERSION
`
`Public version dated: May 7, 2018
`
`

`

`Case 1:16-cv-00454-RGA Document 483 Filed 05/07/18 Page 2 of 30 PageID #: 42699
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`TABLE OF CONTENTS
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`Page
`
`B.
`
`II.
`
`ARGUMENT .................................................................................................................................. 1
`I.
`EA Directly Infringes the Asserted Claims ........................................................................ 1
`A.
`EA Directly Infringes the System Claims of the ‘497, ‘344, and
`‘966 Patents ..............................................................................................................1
`EA Directly Infringes the Method Claims of the ‘147 and ‘069
`Patents ......................................................................................................................5
`EA Directly Infringes the Computer Readable Medium Claims .............................7
`C.
`The Accused Products Infringe Claims 9 and 16 of the ‘497 Patent .................................. 7
`A.
`EA Puts Into Use the Hardware “Component” in the ‘497 Patent ..........................7
`B.
`The Accused Products Include a Means for Identifying a Portal
`Computer Having a Dynamically Selected Call-In Port ........................................10
`The Accused Products Include a Means for Identifying the Call-In
`Port by Repeatedly Trying to Establish a Connection ...........................................11
`The Accused Products Include a Means For Selecting the Call-In
`Port of the Identified Portal Computer Using a Port Ordering
`Algorithm ...............................................................................................................12
`The Accused Products Include a Means for Re-Ordering the
`Communications Ports Selected By the Port Ordering Algorithm ........................13
`The
` Server is a Portal Computer ..................................................................14
`The Accused Products Use TCP/IP Connections and Infringe
`Claim 16 .................................................................................................................15
`III. Ms. Lawton’s Damages Opinions Should be Excluded.................................................... 15
`A.
`Ms. Lawton’s Opinion Regarding Non-Infringing Alternatives is
`Legally Wrong and Unsupported ...........................................................................15
`Ms. Lawton’s Neglect of the Most Relevant Comparable Damages
`Information Renders Her Opinion Unreliable .......................................................19
`Ms. Lawton Failed to Demonstrate the
` License is
`Comparable ............................................................................................................20
`Ms. Lawton’s Reasonable Royalty Opinion is Unsupported and
`Unreliable ...............................................................................................................22
`Ms. Lawton’s Opinion Regarding the Hypothetical Negotiation
`Date is Unsupported and Arbitrary ........................................................................24
`CONCLUSION ............................................................................................................................. 25
`
`C.
`
`D.
`
`E.
`
`F.
`G.
`
`B.
`
`C.
`
`D.
`
`E.
`
`i
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`

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`Case 1:16-cv-00454-RGA Document 483 Filed 05/07/18 Page 3 of 30 PageID #: 42700
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Akamai Techs., Inc. v. Limelight Networks, Inc.,
`797 F.3d 1020 (Fed. Cir. 2015)......................................................................................2, 3, 5, 6
`
`Applied Med. Res. Corp. v. U.S. Surgical Corp.,
`435 F.3d 1356 (Fed. Cir. 2006)................................................................................................24
`
`BMC Res., Inc. v. Paymentech L.P.,
`498 F.3d 1378 (Fed. Cir. 2007)..................................................................................................6
`
`Caserto v. Metro-N. R.R. Co.,
`No. 14-CV-7936 (JMF), 2016 WL 406390 (S.D.N.Y. Feb. 2, 2016) ........................................7
`
`Centillion Data Sys., LLC v. Qwest Commc’ns Int’l, Inc.,
`631 F.3d 1279 (Fed. Cir. 2011) (en banc)........................................................................ passim
`
`Centrak, Inc. v. Sanotor Techs., Inc.,
`No. 14-193-RGA, 2017 WL 3730617 (D. Del. Aug. 30, 2017) ............................................2, 3
`
`DataQuill Ltd. v. High Tech Comput. Corp.,
`No. 08CV543-IEG (BGS), 2012 WL 1284381 (S.D. Cal. Apr. 16, 2012) ..............................20
`
`Eli Lilly & Co. v. Teva Parenteral Medicines, Inc.,
`845 F.3d 1357 (Fed. Cir. 2017)..................................................................................................2
`
`ePlus, Inc. v. Lawson Software, Inc.,
`700 F.3d 509 (Fed. Cir. 2012)..................................................................................................19
`
`Finjan v. Secure Computing,
`626 F.3d 1197 (Fed. Cir. 2010)................................................................................................20
`
`Fujifilm Corp. v. Motorola Mobility LLC,
`No. 12-cv-03587-WHO, 2015 WL 1265009 (N.D. Cal. Mar. 19, 2015) ................................24
`
`Grain Processing Corp. v. Am. Maize-Prods. Co.,
`185 F.3d 1341 (Fed. Cir. 1999)................................................................................................15
`
`Grecia v. McDonald’s Corp.,
`No. 2017-1672, 2018 WL 1172580 (Fed. Cir. Mar. 6, 2018) ................................................1, 4
`
`Intellectual Ventures I LLC v. Motorola Mobility LLC,
`870 F.3d 1320 (Fed. Cir. 2017)..................................................................................................4
`
`ii
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`

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`Case 1:16-cv-00454-RGA Document 483 Filed 05/07/18 Page 4 of 30 PageID #: 42701
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`Mars, Inc. v. Coin Acceptors, Inc.,
`527 F.3d 1359 (Fed. Cir. 2008)..........................................................................................15, 16
`
`NTP, Inc. v. Research in Motion, Ltd.,
`418 F.3d 1282 (Fed. Cir. 2005)..................................................................................................1
`
`Power Integrations, Inc. v. Fairchild Semiconductor, Int’l, Inc.,
`843 F.3d 1315 (Fed. Cir. 2016)..................................................................................................9
`
`Ricoh Co. v. Quanta Computer Inc.,
`550 F.3d 1325 (Fed. Cir. 2008)..................................................................................................6
`
`Travel Sentry, Inc. v. Tropp,
`877 F.3d 1370 (Fed. Cir. 2017)......................................................................................2, 3, 5, 8
`
`Uniloc USA, Inc. v. Microsoft Corp.,
`632 F.3d 1292 (Fed. Cir. 2011)..................................................................................................3
`
`Wordtech Sys. Inc. v. Integrated Network Sols., Inc.,
`609 F.3d 1308 (Fed. Cir. 2010)..........................................................................................20, 21
`
`Statutes
`
`35 U.S.C. § 271(a) ...................................................................................................................1, 2, 7
`
`Other Authorities
`
`Fed. R. Civ. P. 56 .............................................................................................................................5
`
`iii
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`

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`Case 1:16-cv-00454-RGA Document 483 Filed 05/07/18 Page 5 of 30 PageID #: 42702
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`I.
`
`EA Directly Infringes the Asserted Claims
`
`ARGUMENT
`
`A.
`
`EA Directly Infringes the System Claims of the ‘497, ‘344, and ‘966 Patents
`
`Summary judgment is warranted based on the undisputed facts. Electronic Arts (“EA”)
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`acknowledges that the Accused Products are made, used, sold and offered for sale in the U.S.
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`D.I. 437, Acceleration’s Opening Brief (“AB Br.”) at 1-6. EA also acknowledges that it owns
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`and controls the Accused Products that infringe the asserted system claims of the ‘497, ‘344, and
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`‘966 Patents. Ex. 9 at ¶ 93; Ex. 10 at ¶ 150. Additionally, EA concedes that the inventions in
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`the asserted claims reduce the need for additional servers and provide enhanced online
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`multiplayer game experiences. See, e.g., D.I. 431, Barry Decl., Ex. A-7 at ¶¶ 78-80 (peer-to-peer
`
`architecture can reduce need for servers and points of failure). These admissions alone establish
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`that EA is liable as a direct infringer because EA “puts into use” the accused systems by
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`controlling the accused systems and derives benefit from its customers’ use of the accused
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`systems. Centillion Data Sys., LLC v. Qwest Commc’ns Int’l, Inc., 631 F.3d 1279, 1284 (Fed.
`
`Cir. 2011) (citing NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1317 (Fed. Cir. 2005)).
`
`EA argues it cannot directly infringe because it purportedly does not itself make, use or
`
`sell the entire network covered by the system claims. There are multiple flaws with that theory.
`
`Based on the undisputed facts listed above and Centillion, EA is legally deemed to “put into use”
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`the entire system, even if, as EA contends, the processors running EA’s software are owned by
`
`EA’s customers. Id. at 1286; see also Grecia v. McDonald’s Corp., No. 2017-1672, 2018 WL
`
`1172580, at *3 (Fed. Cir. Mar. 6, 2018) (“a single party can still use, and thus directly infringe
`
`under § 271(a), a claimed system even when that system requires multiple parties to function.”).
`
`Moreover, even if EA’s customers are using parts of the system (which is not the case
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`

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`Case 1:16-cv-00454-RGA Document 483 Filed 05/07/18 Page 6 of 30 PageID #: 42703
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`because it is EA’s software, which EA owns and controls, that forms the network), under
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`Centillion, EA is still deemed the direct infringer because of its control over its customers’ use of
`
`the networks, such that their use is attributed to EA. Centillion, 631 F.3d at 1284, 1286 (for “use
`
`of a claimed system under section 271(a), …. Centillion can establish ‘use’ by Qwest [] if Qwest
`
`is vicariously liable for the actions of its customers such that ‘use’ by the customers may be
`
`attributed to Qwest.”)1; see also Akamai Techs., Inc. v. Limelight Networks, Inc., 797 F.3d 1020,
`
`1023 (Fed. Cir. 2015); Eli Lilly & Co. v. Teva Parenteral Medicines, Inc., 845 F.3d 1357, 1365-
`
`67 (Fed. Cir. 2017); Travel Sentry, Inc. v. Tropp, 877 F.3d 1370, 1378-79 (Fed. Cir. 2017). The
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`Federal Circuit reaffirmed that direct infringement under 35 U.S.C. § 271(a) may be found based
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`on acts by a third party attributable to an accused infringer – as EA’s customers’ acts using EA’s
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`network are attributable to EA given EA’s control over the system and their use:
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`The district court interpreted Akamai V too narrowly when it concluded that the
`decision “did not disturb” any aspects of our holdings in BMC and Muniauction.
`While we did reaffirm the concept of a single-actor theory of direct infringement,
`we made clear that the restrictive view of when the acts of a third party can be
`attributable to another evidenced in those cases is no longer the governing law.
`In other words, we “broaden[ed] the circumstances in which others’ acts may be
`attributed to an accused infringer to support direct-infringement liability for
`divided infringement, relaxing the tighter constraints on such attribution
`reflected in our earlier precedents and in the three previous rulings for Limelight
`on direct infringement.”
`
`Travel Sentry, 877 F.3d at 1380-81 (emphasis added) (citations omitted).
`
`Here, EA profits from its customers’ use of its networks, has the right and ability to stop
`
`1 EA’s repeated assertions that Centillion found there was no single direct infringer because
`different parties supplied the component is simply wrong. Centillion, 631 F.3d at 1284-85. To
`the contrary, the Court found that there was a single direct infringer. Id. at 1285. (“By causing
`the system as a whole to perform this processing and obtaining the benefit of the result, the
`customer has ‘used’ the system under § 271(a).”) Further, EA’s reliance on Centrak is
`misplaced because, unlike here where EA puts the entire network into use, the accused infringer
`did not put into use the system as a whole. Centrak, Inc. v. Sanotor Techs., Inc., No. 14-193-
`RGA, 2017 WL 3730617, at *6 (D. Del. Aug. 30, 2017) (“I see no support in any of the evidence
`of record cited by Plaintiff that Defendant makes the system.)
`
`2
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`

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`Case 1:16-cv-00454-RGA Document 483 Filed 05/07/18 Page 7 of 30 PageID #: 42704
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`or limit infringement by shutting down the infringing aspects of its network, directs and controls
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`its customers’ use of its software and networks through contract, and conditions its customers’
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`participation in multiplayer games on their use of EA’s software. AB Br. at 3-6. EA does not
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`dispute these facts, which are sufficient, e.g., under Travel Sentry, to establish infringement. 877
`
`F. 3d at 1385 (an actor infringes “‘by profiting from direct infringement’ if that actor has the
`
`right and ability to stop or limit the infringement,” quoting Akamai V, 797 F.3d at 1023)).
`
`EA cites Centrak in order to misinterpret the principles of Centillion. In Centrak, the
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`Court applied Centillion to assess whether the accused infringer made the entire system itself.
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`Centrak, 2017 WL 3730617, at *6. Here, AB relied on Centillion to show EA’s liability through
`
`putting into use the entire system. EA’s reliance upon F2VS Techs., LLC v. Aruba Networks,
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`Inc. is also inapposite because in that case the Court found that the patent owner failed to plead
`
`sufficient facts to show that the accused infringer’s customers used the accused router in the
`
`infringing network at all. No. 17-0754-RGA, 2018 WL 1732152, at *2 (D. Del. Apr. 10, 2018).
`
`Here, the undisputed facts show that EA puts the system into use by designing and configuring
`
`the Accused Products to form m-regular and incomplete graphs. AB Br. at 3-6; Uniloc USA, Inc.
`
`v. Microsoft Corp., 632 F.3d 1292, 1309 (Fed. Cir. 2011) (Microsoft could directly infringe for
`
`its manufacture and use of a patented software registration system, even though the claims
`
`required end-user participation of a local computer). EA’s Accused Products, not its customers,
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`control the algorithms that are executed by the processors. This is sufficient to put the accused
`
`systems into use. Id. The invention in the Asserted Patents covers, for example, m-regular and
`
`incomplete graphs. EA configures and controls every element of these graphs, including the
`
`redirector and
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` servers (portal computers), that form the accused m-regular graphs. Id. at 8.
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`Indeed, EA does not (and cannot) dispute that the m-regular network topologies are solely
`
`3
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`Case 1:16-cv-00454-RGA Document 483 Filed 05/07/18 Page 8 of 30 PageID #: 42705
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`designed and controlled by EA, as confirmed by EA’s own experts:
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`
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`Ex. 9 (Kelly Rpt.) at ¶ 93 (emphasis added). As such, EA’s contrived argument that customers
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`control the design of the networks is untethered to the facts and contradicted by EA’s experts.
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`Additionally, the Court should disregard EA’s implausible contention that EA derives no
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`benefits from its customers’ use of the claimed inventions when its customers benefit by
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`enjoying playing the games. Common sense dictates that EA significantly benefits by reducing
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`the need to provide additional servers and having the ability to market and sell games with
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`enhanced online multiplayer performance. AB Br. at 9. EA derives a benefit from each element
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`(e.g., use of m-regular and incomplete graphs to distribute data) as described in more detail
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`below. See Intellectual Ventures I LLC v. Motorola Mobility LLC, 870 F.3d 1320, 1329 (Fed.
`
`Cir. 2017) (“[T]o use a system, a person must control (even if indirectly) and benefit from each
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`claimed component.”). Further, common sense dictates that EA significantly benefits by
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`reducing the need to provide additional servers and having the ability to market and sell games
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`with enhanced online multiplayer performance.2
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`2 Grecia v. McDonald’s Corp., cited by EA, supports AB’s claim that EA is a direct infringer of
`the asserted system claims. In Grecia, McDonald’s was accused of direct infringement based on
`its use of a VISA credit card system at its restaurants. 2018 WL 1172580, at *1. The court
`found that VISA, not McDonald’s, “used” the accused system under Centillion because VISA
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`4
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`

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`Case 1:16-cv-00454-RGA Document 483 Filed 05/07/18 Page 9 of 30 PageID #: 42706
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`Finally, moving for partial summary judgment on the issue of divided infringement is not
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`procedurally improper. Acceleration need not prove infringement of every element of every
`
`claim, to show that there are no disputed issues of fact that EA is liable as a direct infringer for
`
`its customers’ action. As such, partial summary judgment is appropriate and will streamline the
`
`issues for trial. Fed. R. Civ. P. 56 (“A party may move for summary judgment, identifying each
`
`claim or defense — or the part of each claim or defense — on which summary judgment is
`
`sought. The court shall grant summary judgment if the movant shows that there is no genuine
`
`dispute as to any material fact and the movant is entitled to judgment as a matter of law.”)
`
`(emphasis added).
`
`B.
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`EA Directly Infringes the Method Claims of the ‘147 and ‘069 Patents
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`Summary judgment is warranted as to EA’s liability as a direct infringer of the asserted
`
`method claims in the ‘147 and ‘069 Patents. It is undisputed that EA controls the process of
`
`connecting, forming and maintaining the networks for playing online multiplayer game sessions.
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`AB Br. at 7-9; Ex. 3 at ¶¶ 78, 79, 87, 88, 96, 97; Ex. 4 at ¶¶ 38, 39, 41, 47-49, 54-57, 59, 62-64,
`
`68, 84-85; Ex. 1 at ¶¶ 321-323, 330-332, 339-341; Ex. 2 at ¶¶ 47, 137, 156, 332-336. Actions of
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`third parties (e.g., customers’ PCs and consoles) are attributable to EA because it “conditions
`
`participation in an activity or receipt of a benefit upon performance of a step or steps of a
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`patented method and establishes the manner or timing of that performance.” Akamai, 797 F.3d at
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`1023; Travel Sentry, 877 F.3d at 1384-85 (“it is irrelevant that [customers] can choose to
`
`accomplish [the desired activity] through other means. What is critical is that [customer] must
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`controlled the system and benefitted (financially) from each element of the accused system. Id.
`at *2, *4. Similarly here, EA, and not its customers, is deemed to “use” EA’s accused system for
`purposes of infringement, because EA controls the system and benefits financially from the use
`of each element of the accused system.
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`5
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`

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`Case 1:16-cv-00454-RGA Document 483 Filed 05/07/18 Page 10 of 30 PageID #: 42707
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`perform the final two claim steps if it wishes to participate in the activity”).3 Thus, any actions
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`by EA’s customers’ PCs and consoles, including hardware and processors, are controlled by
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`EA’s software and attributed to EA. Id.
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`As explained above and in Acceleration’s Opening Brief (at 6-10), EA acknowledges that
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`its
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`team designs the network topologies and that all aspects of the manner and timing for
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`performing the accused methods are determined by code in EA’s Accused Products that
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`performs all of the asserted method claims within the U.S. See D.I. 467, Acceleration’s
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`Opposition to EA’s Motion (“AB Opp.”) at 28 (the systems are put into use within the U.S. and
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`all methods are performed by the Accused Products in the U.S.); Ex. 9 at ¶ 93; Ex. 10 at ¶ 150.
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`Further, EA does not (and cannot) dispute that its customers have no other way to play the games
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`without using EA’s Accused Products and the algorithms built into them. Indeed, customers
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`must allow EA to install and update the Accused Products directly onto customers’ PCs and
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`consoles:
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`You consent to EA automatically installing any available updates for EA
`Services. Failure to install available updates may render EA Services, including
`EA PC Products, unplayable.
`
`Ex. 11 at EA0039562; see also Ex. 12, AB-EA 008408-19; Ex. 13, EA0039531-44; Ex. 14,
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`EA0039545-55; Ex. 15, Channon Tr. at 34:12-37:24.
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`EA also infringes based on its own use and testing in the U.S. EA’s unsupported claims
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`that there is no evidence that it uses and tests its own games are incredible and do not create a
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`genuine material factual dispute. For example, EA’s employees test the Accused Products.
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`4/27/18 Andre Decl., Ex. 109 (Poon Tr.) at 88:22-89:5, id., Ex. 110, O’Neill Tr. at 220:8-
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`3 EA’s reliance on cases prior to Akamai, such as Ricoh Co. v. Quanta Computer Inc., 550 F.3d
`1325, 1335 (Fed. Cir. 2008) and BMC Res., Inc. v. Paymentech L.P., 498 F.3d 1378 (Fed. Cir.
`2007), are inapplicable because these outdated cases do not preclude direct infringement based
`on the facts here, where EA sells software and uses various servers and networks that control all
`aspects of the processes claimed in the Asserted Patents. EA Opp. at 5.
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`6
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`

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`13. Moreover, EA does not actually claim that its employees have never tested, developed, or
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`used the accused products in the U.S. Common sense alone permits a jury to make the
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`reasonable inference that it is impossible that EA developed and maintains these products
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`without using and testing them. See Caserto v. Metro-N. R.R. Co., No. 14-CV-7936 (JMF), 2016
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`WL 406390, at *1 (S.D.N.Y. Feb. 2, 2016) (relying on “common sense” and reasonable jury
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`inferences to deny summary judgment).
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`Additionally, as discussed with respect to the system claims, EA’s contention that
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`Acceleration has not established every element of every asserted method claim misses the point
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`that Acceleration is moving for partial summary judgment to dispose of EA’s divided
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`infringement defense. Thus, dismissal of EA’s divided infringement defenses is warranted based
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`on the undisputed facts, and will streamline the issues to be presented trial and reduce jury
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`confusion.
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`C.
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`EA Directly Infringes the Computer Readable Medium Claims
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`EA fails to raise any triable issue of fact that EA is liable for direct infringement under 35
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`U.S.C. § 271(a) for the asserted computer readable medium claims. AB Br. at 10. As described
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`in Sections A and B, above, EA concedes that EA, and not its customers, is solely responsible for
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`the design and formation of the infringing networks. Id. at 3-9. Further, EA does not dispute
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`that it manufactures or causes to be manufactured the disks and makes available for download its
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`games, thereby itself directly infringing the asserted computer readable medium claims, even
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`though its customers purchase and use the computer readable media. Id. at 10.
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`II.
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`The Accused Products Infringe Claims 9 and 16 of the ‘497 Patent
`
`A.
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`EA Puts Into Use the Hardware “Component” in the ‘497 Patent
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`Summary judgment of infringement is warranted because the Accused Products meet
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`7
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`Case 1:16-cv-00454-RGA Document 483 Filed 05/07/18 Page 12 of 30 PageID #: 42709
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`every limitation of Claims 9 and 16 of the ‘497 Patent. As explained in Acceleration’s Opening
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`Brief (at 14-17) and Opposition to EA’s motion for summary judgment (at 11-13), EA puts into
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`use each element of Claims 9 and 16, including the “component in a computer system” made up
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`of four means-plus function elements. The Court construed these means-plus function elements
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`as a processor programmed to perform algorithms. See, e.g., D.I. 375 at 8-9.
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`EA’s Opposition ignores the thrust of Acceleration’s motion that, to the extent these
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`claims require the use of a processor that executes the infringing software, EA puts into use the
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`processor executing the software. In particular, the processor in customers’ PCs and consoles
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`can do nothing without the software that EA provides. AB Br. at 16. EA’s software in the
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`Accused Products controls the processors, provides the algorithms, and calls to additional
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`functions for every claim element, including the port ordering algorithms and game logics that
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`connect and form m-regular graphs. Id. at 14-17. These facts are undisputed. For example,
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`EA’s non-infringement expert Dr. Kelly agrees that
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`
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`. Ex. 9 (Kelly Rpt.) at ¶ 105; Ex. 68
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`(Kelly Tr.) at 48:22-49:4, 123:8-124:18; see also AB Br. at 14-17. 4
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`For the reasons discussed in Section I.A. above, EA is deemed to be the direct infringer
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`because it derives a benefit by putting into use the system, as a whole, including the processor
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`and is also liable for the actions of its customers’ computers and any actions by customers are
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`attributable to EA. Centillion, 631 F.3d at 1284-85; Travel Sentry, 877 F.3d at 1380-81.
`
`4 EA is off base in contending that
`
`
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` Ex. 3, Mitz.
`Rpt. at ¶¶ 107-109; 110-112; 113-115. EA of course does not (and could not) suggest that its
`web servers and portal computers lack a processor. Further, there is no dispute that the Accused
`Products use these processors perform functions accused of infringement. AB Br. at 14-17; AB
`Opp. at 22-23.
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`
`
`
`
`8
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`Case 1:16-cv-00454-RGA Document 483 Filed 05/07/18 Page 13 of 30 PageID #: 42710
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`EA’s contention that
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`
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` is a strawman
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`argument. The claims require a means for identifying the call-in port of the identified portal
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`computer by repeatedly trying to establish a connection with the identified portal computer,
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`which EA does not dispute takes place. D.I. 260 at 3-4; Ex. 68 (Kelly Tr.) at 48:2-15; Ex. 3,
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`Mitz. Rpt. at ¶¶ 71, 73, 75; Ex. 46 (Mitz. Tr.) at 63:14-64:15. Additionally,
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`151, 288, 399. Indeed,
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` Id
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` Ex. 9 (Kelly Rpt.) at ¶¶ 104-105, 142-
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`EA incorrectly contends that the Doctrine of Equivalents (“DOE”) may not be used to
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`show that software controlling a processor to perform a function is equivalent to a processor
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`programmed to perform a function because the DOE would “entirely vitiate” the claim element.
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`But these differences do not entirely vitiate the claim element because the processor is still
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`programmed to perform the function. The focus and significance of the claim elements is the
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`functionality performed, not if the algorithm is performed by a processor running software or
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`software run on a processor. Nothing in the intrinsic record suggests that is a material difference.
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`As such, the doctrine of claim vitiation does not apply here.5
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`5 EA’s reliance on Power Integrations, Inc. v. Fairchild Semiconductor, Int’l, Inc., 843 F.3d
`1315, 1344-45 (Fed. Cir. 2016) is inapposite. In Power Integrations, the plaintiff attempted to
`use the DOE to show that “the same voltage feedback signal” satisfied a claim element requiring
`the voltage feedback signal to be distinct. Id. The court found that using the same signal would
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`Case 1:16-cv-00454-RGA Document 483 Filed 05/07/18 Page 14 of 30 PageID #: 42711
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`Thus, EA is a direct infringer of the asserted ‘497 claims because it puts into use the
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`system as whole, either literally or under the DOE.
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`B.
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`The Accused Products Include a Means for Identifying a Portal Computer
`Having a Dynamically Selected Call-In Port
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`EA’s unsupported contention that the
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` server (portal computer) does not have a
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`dynamically selected call-in port is contradicted by EA’s experts who conceded that
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`there is no genuine dispute that this limitation is satisfied.
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` Thus,
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`Ex. 68 (Kelly Tr.) at 48:2-15; see Ex. 3 at ¶¶ 71, 73, 75; Ex. 46 (Mitz. Tr.) at 63:14-64:15.
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`Ignoring this dispositive admission, EA repeats the same flawed and irrelevant argument
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`that
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`entirely vitiate the requirement of using distinct feedback signals. Id. Here, there is no express
`claim language directed to a processor.
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`10
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`Case 1:16-cv-00454-RGA Document 483 Filed 05/07/18 Page 15 of 30 PageID #: 42712
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`Additionally, EA’s port ordering algorithm for selecting the call-in port for
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`communicating with other computers first attempts to try one port and then performs an ordering
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`of a specific selection of ports to identify the dynamically selected call-in-port. AB Br. at 21;
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`Ex. 3 (Mitz. Rpt.) at ¶¶ 78, 84, 87, 93; Ex. 46 (Mitz. Tr.) at 43:15-44:15.
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` AB Br. at 21. Further,
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`EA’s discussion of additional functions described in the Microsoft documents does not contradict
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`the functions and operations explained in Acceleration’s Opening Brief. Id. at 12-14. As such,
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`EA fails to raise a genuine factual dispute that the Accused Products include a means for
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`identifying a portal computer having a dynamically selected call-in port for communicating with
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`other computers.
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`C.
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`The Accused Products Include a Means for Identifying the Call-In
`Port by Repeatedly Trying to Establish a Connection
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`The Accused Products perform the function of identifying the call-in-port of the
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`identified portal computer by repeatedly trying to establish a connection with the identified
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`portal computer. The games do so by contacting a communications port or ports until a
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`connection is successfully established through the
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` server that provides both authentication
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`and matchmaking functionalities. AB Br. at 19-21; Ex. 3 (Mitz Rpt.) at ¶¶ 108-115; Ex. 4 (Mitz
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`Reply Rpt.) at ¶¶ 68-71.
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`EA raises yet another strawman argument in contending that
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`11
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`Case 1:16-cv-00454-RGA Document 483 Filed 05/07/18 Page 16 of 30 PageID #: 42713
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` Ex. 104 (‘497 Patent); Ex. 4 (Mitz Reply Rpt.) at ¶¶ 80-81.
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`Thus, there is no genuine dispute that EA infringes this claim element.
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`D.
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`The Accused Products Include a Means For Selecting the Call-In Port
`of the Identified Portal Computer Using a Port Ordering Algorithm
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`The Accused Products use a
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` Ex. 3 at ¶¶ 119-121
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`(FIFA); ¶¶ 122-124 (NHL); ¶¶ 125-127 (PvZ). EA’s Opposition does not substantively rebut
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`this point and, instead, states there is no infringement because there is no port ordering algorithm
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`12
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`Case 1:16-cv-00454-RGA Document 483 Filed 05/07/18 Page 17 of 30 PageID #: 42714
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`based on its contentions with respect to the claim elements set forth in Section II.B. For the
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`reasons discussed in Acceleration’s Opening Brief (at 21-22) and in Section II.B, above, there is
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`no genuine dispute that the Accused Products rely on a port ordering algorithm and summary
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`judgement is warranted.
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`E.
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`The Accused Products Include a Means for Re-Ordering the
`Communications Ports Selected By the Port Ordering Algorithm
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`The Accused Products use the call-in port number generated by the port ordering
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`algorithm, and if the connection is unsuccessful, reorder the communication ports by re-ordering
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`the communications ports selected by the port ordering algorithm. AB Br. at 21-22.
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`EA does not dispute that to improve efficiency and avoid collisions during the
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`matchmaking process, the ports that the Accused Products select may be re-ordered (thereby
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`providing functionality corresponding to the structure set forth at 12:18-12:28 of the ‘497 Patent,
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`the corresponding structure identified by the Court). AB Br. at 21-22. Dr. Kelly admits that
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` Id. at 22; Ex. 9 (Kelly Rpt.) at ¶¶ 104-106; Ex. 68 (Kelly Tr.) at 48:2-15. In
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`doing so,
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` Ex. 30 at EA0032814-15; Ex. 35,
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`EA0033595-97; Ex. 4 (Mitz. Reply Rpt.) at ¶¶ 90-91.
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`EA contends there can be no infringement because the re-ordering algorithm must be
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`“randomized.” But EA’s non-infringement position hinges on a flawed premise because it
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`ignores t