Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 1 of 104 PageID #: 43276
`1
`
` IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
`
`01:12:40
`
`ACCELERATION BAY LLC, )
` )
` Plaintiff, )
` ) C.A. No. 16-454(RGA)
`v.
` )
` )
`ELECTRONIC ARTS, INC., )
` )
` Defendant. )
`
`
`
`Thursday, February 28, 2019
`3:00 p.m.
`Hearing
`
`844 King Street
`Wilmington, Delaware
`
`BEFORE: THE HONORABLE RICHARD G. ANDREWS
` United States District Court Judge
`
`APPEARANCES:
`
`POTTER ANDERSON & CORROON, LLP
`BY: PHILIP A. ROVNER, ESQ.
` -and-
`
` KRAMER LEVIN
` BY: AARON M. FRANKEL, ESQ.
` BY: MARCUS COLUCCI, ESQ.
`
`
`
`Counsel for the Plaintiff
`
`
`1
`
` IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
`
`01:12:40
`
`ACCELERATION BAY LLC, )
` )
` Plaintiff, )
` ) C.A. No. 16-454(RGA)
`v.
` )
` )
`ELECTRONIC ARTS, INC., )
` )
` Defendant. )
`
`
`
`Thursday, February 28, 2019
`3:00 p.m.
`Hearing
`
`844 King Street
`Wilmington, Delaware
`
`BEFORE: THE HONORABLE RICHARD G. ANDREWS
` United States District Court Judge
`
`APPEARANCES:
`
`POTTER ANDERSON & CORROON, LLP
`BY: PHILIP A. ROVNER, ESQ.
` -and-
`
` KRAMER LEVIN
` BY: AARON M. FRANKEL, ESQ.
` BY: MARCUS COLUCCI, ESQ.
`
`
`
`Counsel for the Plaintiff
`
`
`
`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 2 of 104 PageID #: 43277
`2
`
`
`APPEARANCES CONTINUED:
`
`MORRIS NICHOLS ARSHT & TUNNELL LLP
`BY: JACK B. BLUMENFELD, ESQ.
`-and-
` WINSTON & STRAWN
`
`BY: DAVID ENZMINGER, ESQ.
` BY: MICHAEL A. TOMASULO, ESQ.
` BY: LOUIS CAMPBELL, ESQ.
`Counsel for the Defendant
`
`- oOo -
` P R O C E E D I N G S
`(REPORTER'S NOTE: The following hearing was
`held in open court, beginning at 3:00 p.m.)
`
`THE COURT: Good afternoon everyone. Please be
`seated. This is the time set for argument in the
`Acceleration Bay versus Electronics Art, Civil Action Number
`16-454. Summary judgment.
`Mr. Rovner.
`MR. ROVNER: Good afternoon, Your Honor.
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 3 of 104 PageID #: 43278
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`THE COURT: Good afternoon.
`MR. ROVNER: Phil Rovner from Potter Anderson on
`behalf of Acceleration Bay. With me from Kramer Levin is
`Aaron Frankel and Marcus Colucci.
`THE COURT: Colucci. All right. Thank you.
`
`Welcome.
`
`Mr. Blumenfeld.
`MR. BLUMENFELD: Good afternoon, Your Honor.
`Jack Blumenfeld from Morris Nichols representing Electronic
`Arts. And at counsel table are David Enzminger, Michael
`Tomasulo and Louis Campbell from Winston & Strawn. And for
`Electronic Arts, Betsy Contro.
`THE COURT: All right. Thank you everybody.
`All right. So this hearing involves defendant's motions for
`summary judgment on a couple of issues. So it would make
`sense for me that defendants are going to go first. Right?
`MR. ENZMINGER: Yes.
`THE COURT: And I figured it would make most
`sense if you do one discrete issue and then when you're
`finished, Acceleration responds to that discrete issue and
`maybe we can focus in on some things I can actually resolve.
`All right.
`
`So Mr. Enzminger, you seem to be in the jump
`seat there.
`MR. ENZMINGER: Good afternoon, Your Honor.
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 4 of 104 PageID #: 43279
`4
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`Following the Court's guidance, we'll begin with the
`argument concerning whether the accused EA games directly
`infringe through making, using, or selling or offering to
`sell the accused functionality.
`This is very similar to arguments that you have
`heard before. I just want to provide a little background.
`First, can we start at slide one. The accused games here
`are FIFA, it's a soccer game; NHL is a hockey game; Plants
`for Zombies is a battle game, Plants versus Zombies.
`And the three main arguments that we'll be
`presenting today are first that there is no direct
`infringement because under the plaintiff's allegations, the
`customers' consoles have to run the software to actually
`complete the network and make the component for the '497.
`It's very similar to how the Court considered what the Court
`considered already in the Activision case and found in favor
`of the defendants.
`The issues that we're presenting today are
`dispositive of all claims of all products in EA, so it's a
`little bit different from the related case where it was not
`entirely case dispositive, these issues are.
`We'll start with the direct infringement issues.
`And this relates to the '344, the '966 and the '497. The
`'344 and '966 are the network patents and the '497 is a
`component patent for accessing the network.
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 5 of 104 PageID #: 43280
`5
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`Mr. Tomasulo on the next issue will talk about
`the applicability of M-regular and incomplete.
`I apologize, Your Honor, I did provide slides.
`THE COURT: Sure.
`MR. ENZMINGER: The jump seat a little bit too
`
`literally.
`
`argument.
`
`So let's dive into the direct infringement
`
`In order under the plaintiff's allegations for
`there to be any infringement, the customers have to buy the
`game and they have to install it on their own consoles which
`are provided by Microsoft, and not provided by EA at all.
`The things which the EA is accused and the plaintiff's
`opposition of doing are owning and controlling the software,
`mastermind and control of the software, providing a
`component of a system that could infringe if combined by
`someone else into an infringing system and compiling
`software code.
`Each of these was already considered by the
`Court in the Activision case and rejected as a basis for
`271(a) infringement of a network or system claim.
`The plaintiff has acknowledged that the Court's
`make and sell decision in the Activision case is dispositive
`of all products in this case, leaving us to argue about use,
`which the plaintiff contended --
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 6 of 104 PageID #: 43281
`6
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`THE COURT: Before you go there, I think one of
`the things you said, or Acceleration said is they wanted to
`reargue the make portion. Do you know what particular
`arguments they're going to be making on that?
`MR. ENZMINGER: Well, I had understood the
`Court's order yesterday to suggest that we weren't going to
`be entertaining that, but I have no idea what they intend to
`reargue.
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`THE COURT: All right. So I understand why you
`were saying what you said based on the order, but
`Mr. Frankel, do you have something when it's your turn about
`make that you want to say, I will listen to it. I realize
`maybe you're not ready to do that, either.
`MR. FRANKEL: Your Honor, I would like to
`briefly address the issue.
`THE COURT: All right. In any event, you don't
`need to address that right now. I'll certainly give you a
`chance to respond.
`Mr. Enzminger.
`MR. ENZMINGER: Thank you.
`So the only issue I'll be addressing then in my
`opening remarks then will be use. So we can skip the making
`and selling and go to use. So the starting point here is to
`look at what the infringing network is according to the
`plaintiff. And what the plaintiff has said and maintained
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 7 of 104 PageID #: 43282
`7
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`throughout this case that the infringing network according
`to them are participants of the software application
`programs running on player consoles, so PC and the xBox, and
`EA's DirtyCast server. So you have the participants are the
`player consoles which are not provided by EA in any size,
`way, shape or form. And one server that is provided by EA
`that the consoles contact. Mr. Tomasulo will talk about
`that a little bit more in the M-regular section. But the
`important point --
`THE COURT: And I'm sorry to interrupt, but I'm
`also trying to get some basic understanding here. The
`DirtyCast server is something different from the Blaze
`server?
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`MR. ENZMINGER: It is different.
`THE COURT: And the DirtyCast server, is that
`actually located in the U.S?
`MR. ENZMINGER: The DirtyCast server is located
`in the U.S., and we have never contended otherwise.
`THE COURT: Okay. All right. Go ahead.
`MR. ENZMINGER: So the network consist according
`to the plaintiff of player consoles and the EA server, and
`for this case it's the DirtyCast server and there have to be
`more than five players in order for this network to be
`created. You can play head to head. That's not accused of
`infringing, or if it is, they have withdrawn in their
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 8 of 104 PageID #: 43283
`8
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`opposition to our summary judgment motion. They can play
`single player. They can play two against two. They can one
`against two, any of these kinds of networks that the players
`choose or any kinds of games the players choose are not
`accused of infringement because the patents in this case
`mathematically require six or more participants which means
`there has to be five or more players in an environment where
`the player consoles and the DirtyCast server are composed to
`the network.
`THE COURT: That's because the DirtyCast server
`could count as the sixth participant?
`MR. ENZMINGER: That is what the plaintiffs
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`allege.
`
`In every network for EA, each network works
`essentially the same. And for all of the allegations on the
`'966 and the '344, they allege basically the same network,
`it's the player consoles along with the DirtyCast server.
`The use allegations here because it is clear
`that EA doesn't operate the player consoles, they don't form
`the networks, they don't require players to join in groups
`of six or more. The plaintiff's use arguments in the
`Electronic Arts case fall into three things. They say that
`EA owns and controls the software. That's at page nine of
`the opposition. They say that EA obtains financial benefits
`from selling the software. That's at 9 and 10 of their
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 9 of 104 PageID #: 43284
`9
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`opposition. And their final argument with respect to use of
`the systems is that EA directly infringes through the use of
`its products including testing, development and game play.
`And that's at 13 to 14.
`The first of these arguments with respect to
`owning and controlling the software is exactly the same
`argument that they made in Activision and the exact same
`argument the Court rejected.
`The second argument that financial benefits are
`sufficient to show use and control of the system was
`rejected in the Activision case for the reason that's not
`tethered to the infringing -- the infringement allegations
`and not analyzed claim by claim.
`And finally the testing issue is that they
`claimed that EA test its products. And I'm going to show
`you all of the evidence that they cite for this last use
`allegation.
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`THE COURT: Okay.
`MR. ENZMINGER: Absolutely all of it.
`So again, the asserted claims are a network, a
`distributed game system. All networks include player
`consoles. And we don't make for use or sale consoles.
`Here is the first place and, in fact, in the
`opposition brief, this is the only place where they talk
`about testing and game development. And here is all of the
`
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 10 of 104 PageID #: 43285
`10
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`evidence they cite. The Mitzenmacher report at paragraphs
`52 and 55, that's four paragraphs of their expert report.
`I'm going to now put them up verbatim and the reason is you
`will observe that there isn't a word in those four
`paragraphs about testing. If the clicker were to advance.
`Go ahead and advance me, James.
`Before I get to what they said, they also cite
`one case, the Segan versus Zygna case. The first point I
`would make which is the only point I would make with respect
`to this case is it doesn't stand for the proposition for
`which it's cited because this was a motion to dismiss case,
`and the plaintiff in that case had alleged use, it wasn't a
`failure to provide evidence of use case which is what we
`have here.
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`So turning to the only evidence in the
`opposition of testing is Dr. Mitzenmacher's report, and
`these are the paragraphs of his report. And I'm not going
`to read them verbatim, but paragraph 52, first of all, these
`four paragraphs only relate to the '497 patent. This is not
`a report on the '344 or '966, meaning in their opposition,
`they cite no evidence -- I don't know if there is a laser
`pointer here, but if you can look at the cover page of the
`report, it's not even dealing with the '344 or '966. So
`there is nothing about testing in here and there is nothing
`about the '344 or '966 patents.
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 11 of 104 PageID #: 43286
`11
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`The first paragraph deals with
`Dr. Mitzenmacher's opinion that the Court's claim
`construction in '497 requiring a physical processor does not
`mean that the infringer has to use a physical processor.
`So paragraph 52 is Dr. Mitzenmacher's opinion
`directly contravening the Court's claim construction in
`'497, but it says nothing about testing.
`Paragraph 53, he says to the extent this
`element, again, of the '497, is required to actually require
`a processor, he says there is one, the accused products
`contain software instructions to perform the algorithm, and
`it's in the customer's computers, but nothing about testing.
`We go to the next two paragraphs they cite as the only
`evidence in their opposition for testing. And he says
`again, confirming that the customer's console or PC is what
`the algorithm of the '497 that he's alleging, not anything
`that EA provides. But again, nothing at all, not a single
`word about testing the accused products, certainly not in
`the United States, certainly not about whether they're
`accusing the accused functionality. And this report doesn't
`even deal with the '344 or '966 patents.
`Paragraph 55, the last paragraph they cite for
`the testing in their opposition, to the extent this element
`is actually required to defendant to provide a processor,
`again, the Court's claim construction required that, so
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`12
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`their expert here is quibbling with it, but the point here
`is defendant's software is equivalent of such a processor
`because the software is designed to run and control a
`processor. And this is an argument that the Court rejected
`in Activision. We had a second round of briefing. But for
`purposes of today's argument on this, it says nothing about
`testing. That's it for the opposition. Not another piece
`of evidence cited in their opposition to our motion for
`summary judgment.
`Now, in their reply to their motion for summary
`judgment, they make a statement. They claim EA also
`infringes based on its own use and testing in the United
`States. Now, this relates to their summary judgment motion
`on the '497. So they're making this blanket statement that
`EA infringes based on its own use and testing in the United
`States, and EA's unsupported claims that there is no
`evidence that it used and tested its own games are
`incredible and do not create a material issue of fact.
`First we're going to look at what this evidence
`already says, but the Court has already ruled in the
`Activision case and multiple times in other cases that
`general allegations that a defendant must have tested a
`product because it's selling a product commercially are not
`acceptable evidence of testing.
`But in this case, it's even -- this mis-citation
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 13 of 104 PageID #: 43288
`13
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`here is even more egregious, because let's look at what the
`evidence they actually cite says. First of all, they cite
`two -- let me go back. They cite two depositions,
`Mr. Poon's deposition and Mr. O'Neill's deposition. And
`they're citing it for the proposition that EA test its
`products in the United States. Both Mr. Poon and
`Mr. O'Neill work in Canada. They were deposed in Canada.
`And the reason they work and were deposed in Canada is
`because the games are designed in Canada.
`Let's see what they actually said. This is the
`testimony that the plaintiff cites for use in their '497
`reply, but this relates to the FIFA game. This is it. This
`is the whole testimony they cite with respect to testing of
`FIFA. All they asked Mr. Poon was have you played a game
`with 22 players. And his answer is, and asked whether you
`can hear other players. And his answer is, No, no, no, I
`can hear the people in that game. That's it. It's in
`Canada. It's not restricted to time. It doesn't show any
`testing of the game. And this is the only evidence they
`cite.
`
`Mr. O'Neill, this is the second citation they
`provided in their opposition. He was asked in his
`deposition in Canada, what's the basis for your knowledge of
`which ones allow in progress joining of games?
`"Answer: In Garden Warfare, I mean, I've played
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 14 of 104 PageID #: 43289
`14
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`the game, and I know that you can hop in in the middle of a
`game."
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`That's the evidence of testing they cite.
`That's it. And this is for Plants versus Zombies. Nothing
`for NHL in the entire section of either brief with respect
`to any kind of -- even a pretend citation of testing for the
`NHL game.
`
`This slide also presents another interesting
`thing because in the method claims the whole point of the
`method claims is to be able to join the network and depart
`the network. What this is actually relevant to is that in
`the NHL game and in the FIFA game, you are not permitted to
`join a game in progress. So in Plants versus Zombies, you
`can join a game in the middle of progress. They do it a
`different way than the patent claims. This has nothing to
`do with testing. It doesn't show testing at all. It
`doesn't indicate where it happened, it doesn't indicate
`whether it was done by EA, it doesn't indicate any
`conditions of testing, doesn't show testing of any xBox
`versions of the game.
`In the Activision case, the Court correctly
`noted that the Sony Playstation platform is not accused, and
`that's the other competing platform that more than half our
`games are, and the allegations of testing are in no way
`specific.
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 15 of 104 PageID #: 43290
`15
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`The same is here. The thing that's interesting
`here is that this is even farther removed because we know
`that all the development was in Canada. So as far as their
`use testimony, their use arguments are concerned, two were
`rejected as a matter of law, and the fact questions, the
`fact issues that they present there is absolutely no
`evidence of. It was all the things they point to are either
`general allegations that somebody played a game, and that's
`it, and the somebodies that played the game played in
`Canada.
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`This is in preparing for this hearing, the Court
`may recall, or probably not, but in the Activision case we
`had a similar presentation and the Court gave them,
`Mr. Andre was arguing and he argued that there was other
`evidence of testing.
`THE COURT: I did get more briefing.
`MR. ENZMINGER: We had more briefing on it and
`it didn't turn out to be other evidence of testing. And the
`Court granted summary judgment in our favor. To try to
`stave off that argument, we went back and said let's see if
`we missed anything. And we did miss something. This is not
`in the record, but I'll put it up, and if you choose to
`disregard it, you may. But we did miss a question and
`answer in -- that was asked of one of our engineers when we
`were preparing our papers. They had asked whether the
`
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 16 of 104 PageID #: 43291
`16
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`quality assurance testing that occurs before the games are
`released. And his answer was it takes place in Vancouver
`which is where the development facility is and in Romania.
`"Question: Any of that testing, does that occur
`in the United States:
`"Answer: Not that I'm aware of."
`So turning to the '497 patent, the story is very
`similar. So we'll do it very quickly. The '497 claim,
`claim 9 and its dependent claim 16 requires in 9(b) through
`9(e) on here, a means for performing some functions. And
`the claim construction for this claim was each of these
`means limitations requires a processor programmed to perform
`the algorithm, and then there is quite a bit more disclosure
`that's included in the claim construction.
`But for purposes of this argument on whether EA
`provides this functionality, all we have to know is that the
`processor that is alleged to perform allegations by the
`plaintiff is in the customer's console. EA sells software,
`they don't provide a hardware component. The plaintiff
`explicitly alleges that all four of the means elements are
`satisfied by computers owned by the players, not EA. So the
`xBoxes is where they say this functionality is. EA does not
`make, use, sell or offer to sell xBoxes. And EA -- so EA
`does not directly infringe, without getting into the merits
`of what they claim, which we can do, but EA doesn't directly
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 17 of 104 PageID #: 43292
`17
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`infringe for the same reasons the Court decided that Call of
`Duty and Destiny don't infringe in the Activision case
`because EA does not make, use or sell on the user consoles
`that provide the PC's -- that provide the processors.
`Dr. Mitzenmacher, the plaintiff's expert made
`clear that the processor means are the customer's computers.
`The accused products, he said the accused products satisfy
`both constructions because it's discussed below. The
`accused products include a software module that provides
`instructions to a processor. In the next blurb, to join an
`online game, plaintiff's console or PC running FIFA is
`programmed to contact the Blaze server. So the seeking
`computer is the player's console or PC. So the processors
`that run the algorithms to identify what server to contact
`are in the console. He makes this explicit.
`Specifically, FIFA provides for locating a
`portal computer when the FIFA software is being run on its
`customers' PCs and consoles.
`The NHL game, the same. The software runs on
`its customers' consoles. Plants versus Zombies, the same,
`the software is run on its customers' consoles.
`So for all of those hardware limitations, the
`hardware is provided by Microsoft. But in this case, and
`the Court found in the Activision case, and this should be
`no different, that Activision didn't make the '497 claims
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 18 of 104 PageID #: 43293
`18
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`because it doesn't combine all the claim elements. This
`should be no different than the Activision ruling.
`Let me skip the sale and we'll come back.
`Sorry, I'm going the wrong way on my clicker. That's how a
`lawyer can ruin even simple technology.
`In their opposition they don't make this
`argument, but in their reply in support of their motion,
`they talk about here again is a citation to
`Dr. Mitzenmacher's report where he explicitly alleges that
`all four means plus function elements are satisfied by the
`users or the consoles, which EA does not provide. XBox
`devices and/or users accused of meeting limitations 9(a)
`through (e).
`In their reply papers on their summary judgment
`motion, although they don't argue it in opposition to our
`summary judgment motion, they talk about another server
`called a redirector.
`THE COURT: Yes.
`MR. ENZMINGER: The important thing here is that
`the redirector was never mentioned in the plaintiff's expert
`opening reports. Not one time. It was never mentioned in
`their infringement contentions, not their original
`infringement contentions, not their final infringement
`contentions. Never one time did they mention it. It only
`came in in reply because they realized they can't show
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 19 of 104 PageID #: 43294
`19
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`infringement. But what is more -- also, by the way, under
`no infringement contention of theirs do they say that the
`redirector is either the portal computer or the computer
`that is running the algorithm to connect to the portal
`computer. They say it's involved somehow in the network,
`but they don't allege it performs any of the hardware
`processing of either side of the connection.
`But here is something that's really interesting
`with respect to their allegations, and I'm focusing on
`element 9(d) here, because it is probably the clearest
`example, but this applies to all of their processing
`elements. But element 9(d), it's one of the limitations of
`a means plus function limitation, which relates to
`generating an order of portal computer call imports. But
`look at what that evidence is that they cite here. They
`cite their expert report, their expert report which is fine,
`and he acknowledges that it's in the console, the xBox.
`Then they cite some source code. The source code they cite
`is Microsoft xBox source code. In other words, they're
`alleging infringement against EA based on a limitation that
`not only is hardware running on an -- hardware xBox that EA
`doesn't provide, but it's also software that EA doesn't
`provide because this is not EA game software, this is
`Microsoft xBox software.
`Nowhere in Mr. Mitzenmacher, Dr. Mitzenmacher's
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 20 of 104 PageID #: 43295
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`reports does Dr. Mitzenmacher explain why this is even
`relevant. He doesn't say the EA games even use this
`Microsoft xBox functionality. But even if they do, there is
`no infringement because this is Microsoft's software on a
`Microsoft xBox.
`So going back to the Court's opinion in the
`Activision case, it's clear that Activision doesn't make --
`the Court held in Activision did not make the '497 claims
`because it doesn't combine all of the claim elements. It
`doesn't do it in this case either. In fact here it is even
`more egregious because they're pointing to functionality,
`both hardware and software that's not provided by EA.
`The Court's order in Activision was that
`Activision did not use the accused hardware component
`because the function of the component is to enable players
`to join a multiplayer game and Activision isn't putting that
`in the service. It's exactly the same here. And we don't
`sell, we don't sell the game -- sorry, I didn't mean to jump
`to the next issue.
`And EA does not sell the entire invention as
`claimed in the patent, the '497 it requires, their
`allegations require the xBox and the software running on the
`xBox.
`
`THE COURT: All right. Thank you.
`Mr. Frankel, good afternoon.
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`Case 1:16-cv-00454-RGA Document 525 Filed 03/01/19 Page 21 of 104 PageID #: 43296
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`MR. FRANKEL: Good afternoon, Your Honor.
`We do not intend to reargue the selling prong of
`infringement based on the Activision ruling, as well as on
`most of the use and make arguments. I would just ask that
`we h
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