Case 1:16-cv-00454-RGA Document 507 Filed 11/20/18 Page 1 of 2 PageID #: 43235
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`M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P
`1201 NORTH MARKET STREET
`P.O. BOX 1347
`WILMINGTON, DELAWARE 19899-1347
`
`(302) 658-9200
`(302) 658-3989 FAX
`
`JACK B. BLUMENFELD
`(302) 351-9291
`(302) 425-3012 FAX
`jblumenfeld@mnat.com
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`
`
`The Honorable Richard G. Andrews
`United States District Court
` for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
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`November 20, 2018
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`VIA ELECTRONIC FILING
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`Re:
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`Acceleration Bay LLC v. Electronic Arts Inc.
`C.A. No. 16-454 (RGA)
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`Dear Judge Andrews:
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`We write on behalf of Defendant Electronic Arts Inc. (“EA”) regarding Plaintiff’s request
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`for a continuance of the December 19 summary judgment hearing. Although the parties agree
`that the EA trial now scheduled for March 4, 2019 should be postponed until after the Activision
`trial, they disagree about whether the summary judgment hearing should proceed. Acceleration
`seeks a continuance because of uncertainty concerning the admissibility of its damages theory in
`the Activision case (C.A. No. 16-453). But whatever uncertainty exists is exclusively
`Acceleration’s fault, and not a reason to continue the EA hearing.
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`EA’s non-infringement arguments are case dispositive. EA is not a direct infringer of the
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`system claims (D.I. 426 at 17–20; D.I. 476 at 7–9)—a point all but resolved in EA’s favor by the
`Activision summary judgment decision (C.A. No. 16-453, D.I. 578 at 9–20). The remaining
`claims are method claims, which are not infringed as a matter of law because Acceleration
`accuses a step performed by EA servers that are located exclusively outside the United States.
`D.I. 426 at 20–21; D.I. 476 at 9–10. The accused networks are also not m-regular and
`incomplete. D.I. 426 at 11–16; D.I. 476 at 1–5. These three issues are dispositive of all claims
`in the case, are not subject to factual dispute, and do not depend on further developments about
`damages in the Activision case.
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`The damages issues that have been briefed are also still ripe for adjudication. Despite the
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`rulings in the Activision case, Acceleration has not withdrawn or moved to supplement its sole
`damages report. The Uniloc jury verdict that forms the sole basis of Acceleration’s lone damages
`report is equally inadmissible in all three cases because, as the Court found “[j]ury-determined
`damages are not evidence of arm’s-length negotiations between parties, and will not help the
`trier of fact determine a royalty.” C.A. No. 16-453, D.I. 578 at 27. Nevertheless, Acceleration
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`Case 1:16-cv-00454-RGA Document 507 Filed 11/20/18 Page 2 of 2 PageID #: 43236
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`The Honorable Richard G. Andrews
`November 20, 2018
`Page 2
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`has stated that it is maintaining the Uniloc theory but claims it intends to supplement at some
`point in the future depending on what happens in the Activision case. That future intent is not
`before the Court. What is before the Court is the Uniloc theory, which has been rejected by the
`Court in the Activision case, and should be rejected by the Court in this case. In any event, the
`fact that the Court may exclude Dr. Meyer’s reliance on the Uniloc verdict in the EA case is no
`reason to delay the summary judgment hearing, especially when Acceleration is still attempting
`to maintain the Uniloc theory.
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`If Acceleration ever wants to seek permission to supplement its damages theories, it
`should promptly withdraw its existing theory and agree to supplement in the manner and
`schedule for the Activision case. That way, the Court may consider any supplemental damages
`issues all at the same time. On the other hand, if Acceleration wants to rely on its existing
`damages theory, it should live with the consequences of its decision and the Court’s ruling. But it
`should not be allowed to present more serial damages theories.
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`In any event, regardless of the damages issues, there is no reason to delay the
`December 19 hearing on liability issues, which EA believes are dispositive of the entire case.
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`Respectfully,
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`/s/ Jack B. Blumenfeld
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`Jack B. Blumenfeld (#1014)
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`JBB/bac
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`cc:
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`Clerk of Court (via hand delivery)
`All Counsel of Record (via electronic mail)
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