Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 1 of 30 PageID #: 45957
`
`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.
`
`ACCELERATION BAY LLC’S SUPPLEMENTAL BRIEF IN OPPOSITION TO
`ELECTRONIC ARTS, INC.’S MOTION FOR SUMMARY JUDGMENT
`
`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
`James Hannah
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M. Frankel
`Marcus A. Colucci
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
` (212) 715-9100
`
`Dated: March 15, 2019
`
`Public version dated: March 26, 2019
`
`PUBLIC VERSION
`
`

`

`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 2 of 30 PageID #: 45958
`
`TABLE OF CONTENTS
`
`Page
`
`II.
`
`SUMMARY OF ARGUMENT ...................................................................................................... 1
`ARGUMENT .................................................................................................................................. 2
`I.
`EA Infringes By Using the Inventions of the Asserted ‘497, ‘344 and ‘966
`Patent Claims ................................................................................................................ 2
`A. Overview of EA’s Testing and Development Documents ...................................... 2
`(1)
`Testing Protocols .................................................................................................... 2
`(2) Organizational Charts and Timelines...................................................................... 3
`(3)
`Tracking Spreadsheets and Status Updates: ........................................................... 5
`B.
`EA Tests the Infringing Game Modes and Platforms ............................................. 6
`C.
`EA Tests the Accused Products During the Infringing Time Period ...................... 8
`D.
`EA Tested and Used the Accused Products in the United States ........................... 9
`EA Infringes By Making the Inventions of the Asserted ‘497, ‘344 and ‘966
`Patent Claims .............................................................................................................. 10
`A.
`EA Makes the Blaze Redirector Component of the ‘497 Patent .......................... 10
`B.
`EA’s Software Makes the Infringing Networks of the Asserted ‘344 and
`‘966 Patent Claims ................................................................................................ 13
`EA Infringes the Method Claims of the ‘147 and 069 Patents ................................... 15
`The Accused Products Use M-Regular Networks (Infringement of the ‘344,
`‘966, ‘147 and ‘069 Patents) ....................................................................................... 18
`EA Mischaracterized Acceleration Bay’s Disclosure of Evidence of EA’s
`Willfull Infringement .................................................................................................. 25
`CONCLUSION ............................................................................................................................. 26
`
`III.
`IV.
`
`V.
`
`i
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`

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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 3 of 30 PageID #: 45959
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`TABLE OF ABBREVIATIONS
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`Acceleration Bay, LLC
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`The Parties
`
`ABBREVIATION
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`AB
`
`Acceleration Bay’s Opposition to EA’s Motion For Summary Judgment
`(D.I. 467)
`Electronic Arts, Inc.
`
`AB Opp. Br.
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`EA
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`EA’s Brief in Support of Motions for Summary Judgment (D.I. 426)
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`Def. Br.
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`EA’s Supplemental Brief in Support of Motion for Summary Judgment
`(D.I. 526)
`
`EA Supp. Br.
`
`The “Asserted Patents”
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`U.S. Patent No. 6,701,344 (D.I. 470, Ex. 102)
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`U.S. Patent No. 6,714,966 (D.I. 470, Ex. 103)
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`U.S. Patent No. 6,910,069 (D.I. 470, Ex. 107)
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`U.S. Patent No. 6,732,147 (D.I. 470, Ex. 106)
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`U.S. Patent No. 6,920,497 (D.I. 470, Ex. 104)
`
`The “Accused Products”
`
`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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`‘344 Patent
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`‘966 Patent
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`‘069 Patent
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`‘147 Patent
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`‘497 Patent
`
`FIFA
`
`NHL
`
`PvZ
`
`ii
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`

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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 4 of 30 PageID #: 45960
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`Acceleration Bay’s Expert Reports
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`Expert Report of Dr. Eric Cole Regarding Technology Tutorial, dated
`September 20, 2017
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`Cole Rpt.
`
`(Ex. 43 to Declaration of Marcus Colucci in Support of Acceleration
`Bay’s Supplemental Brief in Opposition to EA’Motion for Summary
`Judgment)
`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 (D.I. 442, 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
`(D.I. 442, 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 (D.I. 442, 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 (D.I. 442, Ex. 4)
`Activision’s Expert Reports
`
`Med. Rpt.
`
`Med. Reply
`
`Mitz. Rpt.
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`Mitz. Reply
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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
`(D.I. 430, 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
`(D.I. 431, Barry Decl., Ex. A-7)
`
`Kelly Rpt.
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`Macedonia Rpt.
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`iii
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`

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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 5 of 30 PageID #: 45961
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`SUMMARY OF ARGUMENT
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`The Court should deny EA’s motion for summary judgment of non-infringement of the
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`‘344, ‘966, and ‘497 Patents. Acceleration Bay has come forward with overwhelming evidence
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`that EA infringes the claimed inventions of the ‘344, ‘966, and ‘497 Patents through its use of
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`the Accused Products, including development, updating and testing, which is critical for the
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`commercial success of these games. The evidence includes binding party admissions from EA’s
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`30(b)(6) witnesses and interrogatory responses and extensive documentation and data, detailing
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`EA’s protocols for testing, tracking, and logging EA’s entire product development process. EA’s
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`testing protocols mandate testing all of the accused online modes for the Xbox and PC platforms
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`at issue. And, as shown below, EA did just that, testing and using (1) all of the accused game
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`modes (2) on all of the accused platforms, (3) during the infringing damages period, and (4)
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`within the United States. Acceleration Bay also demonstrates that EA makes the infringing
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`component of the ‘497 Patent, EA’s Blaze redirector running EA’s software, and the infringing
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`networks of the ‘344 and ‘966 Patents, networks of EA’s software processes created by EA’s
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`software processes.
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`EA infringes the asserted method claims of the ‘147 and ‘069 Patents because each of the
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`recited steps of the asserted claims is performed in the United States. EA’s theory that it does
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`not infringe because
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` should be rejected
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`because it ignores the actual language and structure of the recited claims.
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`Finally, the Court should reject EA’s argument that the Accused Products do not use m-
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`regular networks. Acceleration Bay and its experts have come forward with ample evidence that
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`they do. At best, EA disputes issues of fact and identifies battling expert opinions that should be
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`resolved at trial and preclude summary judgment.
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`

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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 6 of 30 PageID #: 45962
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`I.
`
`ARGUMENT
`EA Infringes By Using the Inventions of the Asserted ‘497, ‘344 and ‘966 Patent
`Claims
`Acceleration Bay identified specific pieces of evidence showing EA’s direct infringement
`
`through its development, updating and testing of the Accused Products. EA attacks the cited
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`exemplary evidence on the basis that no single document alone covers every game and specifies
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`the exact number of players, time period, and location where the testing is performed. This
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`myopic reading of the documents overlooks the collective impact of the totality of the evidence.
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`A.
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`Overview of EA’s Testing and Development Documents
`
`(1)
`
`Testing Protocols
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`EA developed detailed testing protocols and procedures that provide guidelines on how
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`its teams should test games, including each of the Accused Products. There is no reasonable
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`dispute that EA developed such protocols because they test the games. Per these testing
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`protocols, EA mandates that its teams test each game thoroughly, including all online game
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`modes, on all platforms (e.g., Xbox 360, Xbox One, and PC) during development.
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`1 Unless otherwise noted, all exhibits are attached to the Declaration of Marcus Colucci, filed
`herewith.
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`2
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`

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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 7 of 30 PageID #: 45963
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`. Collectively, these testing protocols would lead a
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`reasonable jury to find that EA tests all modes of each Accessed Product each time it is released
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`or updated. A representative excerpt is reproduced below:
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`(2)
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`Organizational Charts and Timelines
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`2
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`. Collectively, this documentary
`evidence shows that EA thoroughly tests every aspect of every game to ensure the accused game
`modes and platforms will function properly. Acceleration Bay cites representative examples of
`these documents in this brief, but if requested by the Court, Acceleration Bay will provide
`additional examples if it would be helpful to the Court. Further, many of the document produced
`by EA are native Excel spreadsheets and cannot be properly viewed when printed as exhibits. If
`permitted, Acceleration Bay would like to provide the native files to the Court.
`
`
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`3
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`

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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 8 of 30 PageID #: 45964
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`dispute that EA’s organizational charts, in addition to other testing documents, demonstrate that
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`EA tests the Accused Products. The timelines confirm that the development of each game
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` Once again, there is no reasonable
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`Together, these documents demonstrate that EA itself develops, updates and tests the
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`Accused Products and did so during the damages window. A representative excerpt is
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`reproduced below from a timeline for FIFA16:
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`

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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 9 of 30 PageID #: 45965
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`(3) Tracking Spreadsheets and Status Updates:
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` further confirming
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`that EA is testing all aspects of the Accused Products, including the accused online modes.
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`3
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` Acceleration Bay cites representative examples of
`these documents in this brief, but if requested by the Court, Acceleration Bay will provide
`additional examples if it would be helpful to the Court. Further, many of the document produced
`by EA are native Excel spreadsheets and cannot be properly viewed when printed as exhibits. If
`requested by the Court, Acceleration Bay will provide the native files to the Court.
`
`
`
`5
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`

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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 10 of 30 PageID #: 45966
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`A representative example of similar documents is reproduced below:
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`B.
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`EA Tests the Infringing Game Modes and Platforms
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`At the recent hearing, Acceleration Bay identified exemplary evidence showing that EA
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`develops and thoroughly tests all of the infringing online modes for each of the Accused
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`Products on each of the accused platforms in the United States during the damages window.
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`6
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`

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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 11 of 30 PageID #: 45967
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`that EA continues to test and support the FIFA games even after their launch during the
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` Additionally, the document confirms
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`infringing time period. For example, the document states
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` This is not surprising, as it is
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`necessary to test all features of a complex software product to confirm they operate as intended.
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`Various online game modes support more than four players and other EA documents confirm
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`that
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`7
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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 12 of 30 PageID #: 45968
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` Further,
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` EA’s documents also detail its testing protocols and
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`procedures for PvZ. For example,
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`.
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`C.
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`EA Tests the Accused Products During the Infringing Time Period
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`That EA tested the Accused Products during the relevant time frame (in or after March
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`2015)
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` Once again,
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`such documents would not exist unless EA tested the Accused Products. Although FIFA15
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`launched in the fourth quarter of 2014, EA continued to test and develop the game, deploying
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`new patches and updates through
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`this.
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`8
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` EA does not and cannot dispute
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`

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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 13 of 30 PageID #: 45969
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`Similarly, NHL, like FIFA was tested and updated during the infringing time period.
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` Likewise,
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`D.
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`EA Tested and Used the Accused Products in the United States
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`EA developed, used and tested the Accused Products in the United States. The critical,
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`infringing online networking functionality used in all of the Accused Products, including FIFA,
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`NHL and PvZ, is
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` EA admitted during discovery that it tests the
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` EA also made a binding party admission that it tests
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` That EA continuously
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`updates the
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`4
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`9
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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 14 of 30 PageID #: 45970
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` Additionally, according to binding testimony from EA’s 30(b)(6) witness and
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`* * *
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`In sum, Acceleration Bay has identified ample evidence from which a jury, considering
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`all of this evidence as a whole, could conclude that EA infringed the ‘344, ‘966 and ‘497 patents
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`by using the claimed inventions through its development, testing and updating of the Accused
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`Products in the United States on or after March 2015.
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`II.
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`EA Infringes By Making the Inventions of the Asserted ‘497, ‘344 and ‘966 Patent
`Claims
`A.
`EA Makes the Blaze Redirector Component of the ‘497 Patent
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`Claim 9, and its dependent claim 16, are directed to a “component in a computer system”
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`for locating a call-in port of a portal computer. EA itself makes the claimed component by
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`making the
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` (the component in a computer system) for locating the call-in port of
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`the
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` (the portal computer). EA’s ownership of the
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` is undisputed.
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`Claims 9 and 16, reproduced below, recite that the component is made up of means
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`providing four functions. Acceleration Bay’s infringement expert demonstrated that EA’s
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`10
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`

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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 15 of 30 PageID #: 45971
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` performs each of the functions by executing commands from EA’s software and from
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`Microsoft’s port-ordering software, which EA incorporates into its software, as shown in the
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`table below.
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`Claim 9
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`Citation in Mitzenmacher Reports5
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`[Element 9(a)]. A component in a computer system
`for locating a call-in port of a portal computer,
`comprising:
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`[Element 9(b)]. means for identifying the portal
`computer,
`the portal
`computer having
`a
`dynamically
`selected
`call-in
`port
`for
`communicating with other computers;
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`[Element 9(c)]. means for identifying the call-in
`port of
`the
`identified portal computer by
`repeatedly trying to establish a connection with the
`identified portal computer through contacting a
`communications port or communications ports
`until a connection is successfully established;
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`[Element 9(d)]. means for selecting the call-in
`port of the identified portal computer using a port
`ordering algorithm; and
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`the
`re-ordering
`for
`[Element 9(e)]. means
`communications ports selected by
`the port
`ordering algorithm.
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`Ex. 3 (Mitz. Rpt.) at ¶¶ 70-75;
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`Ex. 4 (Mitz. Reply Rpt.) at ¶¶ 26-29, 38-45.
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`Ex. 3 (Mitz Rpt.) at ¶¶ 71, 73, 75, 78, 84,
`87, 93, 96; see also 78-86 (FIFA); ¶¶ 87-
`95; (NHL); ¶¶ 96-104 (PvZ);
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`Ex. 4 (Mitz. Reply Rpt.) at ¶¶ 27-32; see
`also ¶¶ 34-35, 52-64.
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`Ex. 3 (Mitz Rpt.) at ¶¶ 69-104, 108-115;
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`Ex. 4 (Mitz Reply Rpt.) at ¶¶ 24, 31, 34, 57
`68-71, 80-81
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`Ex. 3 (Mitz. Rpt.) at ¶¶ 119-121 (FIFA); ¶¶
`122-124 (NHL); ¶¶ 125-127 (PvZ).
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`Ex. 4 (Mitz Reply Rpt.) at ¶¶ 80-81
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`Ex. 3 (Mitz Rpt.) at ¶¶ 119-121 (FIFA); ¶¶
`122-124 (NHL); ¶¶ 125-127 (PvZ);
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`Ex. 4 (Mitz Reply Rpt.) at ¶¶ 80-81, 90-91.
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`5 See D.I. 442, Exhibits 3 and 4.
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`11
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`

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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 16 of 30 PageID #: 45972
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`In Acceleration Bay LLC v Activision Blizzard, Inc., C.A. No. 16-453, the Court found
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`that Activision did not make or use the claimed component of the ‘497 patent. C.A. No. 16-453,
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`D.I. 578 at 19-20. However, that decision was based on the claim that the accused functionality
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`was provided by software running on the players’ Xboxes and PCs, which Activision did not
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`make. Id. That is not the issue here where the component is EA’s software running on EA’s
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`, which EA undisputedly owns and assembles. Thus, the order from the
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`Activision case does not apply to the specific circumstances here.
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`Left without a substantive argument, EA argues that Acceleration Bay did not timely
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`disclose this theory, although EA admits at least that Acceleration Bay disclosed this theory in
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`Dr. Mitzenmacher’s reply expert report. EA Supp. Br. at 8-9. While that alone is grounds to
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`deny EA’s motion (in the more than one year since Dr. Mitzenmacher provided his reply
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`infringement report, this is the first time EA has objected to supposedly new infringement
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`theories in it), EA overlooks that Dr. Mitzenmacher disclosed the same theory in his opening
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`infringement report, where he identifies the
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`
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` That
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`6 As stated during oral argument, Dr. Mitzenmacher used different terms for the
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`because EA’s various witnesses did not consistently refer to the
` using the same
`name.
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` To avoid unnecessary confusion, Dr. Mitzenmacher’s Reply report
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`12
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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 17 of 30 PageID #: 45973
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`Acceleration Bay and Dr. Mitzenmacher timely disclosed this theory is confirmed by the
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`extensive discussion of the
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` Moreover, EA’s counsel demonstrated their appreciation
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`of this argument when, more than a year ago, they questioned Dr. Mitzenmacher regarding his
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`opinion that
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`Accordingly, the Court should deny EA’s motion, because a reasonable jury could find
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`that EA makes the claimed component of the ‘497 Patent.
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`B.
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`EA’s Software Makes the Infringing Networks of the Asserted ‘344 and ‘966
`Patent Claims
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`EA directly infringes the Asserted Claims of the ‘344 and ‘966 Patents by making the
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`infringing networks. These claims are directed to “computer networks” and “an information
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`delivery service” that delivers information over “broadcast channels.” ‘344 Patent at Claim 12;
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`‘966 Patent at Claim 13. The networks and broadcast channels are made of “participants.” Id.
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`The Court construed “computer network” to mean a “group of connected computer or group of
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`connected computer processes.” D.I. 432 at 2 (emphasis added). The participants in the
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`network are the Accused Products — EA’s software. See, e.g., D.I. 442, Ex. 1, Med. Rpt. ¶¶ 75-
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`77, 86, 93. The accused networks and broadcast channels are an application overlay that is
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`referred to the web server as
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`7 For example, Dr. Mitzenmacher states in his opening report that “a PC or console, it is able
`locate a call-in port of a portal computer
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`13
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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 18 of 30 PageID #: 45974
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`created by EA’s software, and only by EA’s software.
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`EA owns and controls the software that makes the networks. Before players can use the
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`Accused Products, they must agree to EA’s license, which confirms that EA owns the software,
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`stating that the games “are licensed to you, not sold.” Ex. 42, EA0039556-66 at 557. The
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`agreement further states that the player may not modify or access the software without EA’s
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`permission, that EA own all rights in the software, and that EA may install updates modifying
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`the Accused Products at any time.” Id.
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` Accordingly, EA is a direct
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`infringer of the ‘344 and ‘966 Patents because it makes the infringing networks with its software,
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`that it owns and controls.
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`EA incorrectly argues it does not infringe because its customers choose to install and
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`execute the software. EA misreads the scope of the claims at issue. The action of making the
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`infringing networks of the ‘344 and ‘966 Patents is performed only by EA’s software processes,
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`and EA’s customers do not have any control over how the software processes build the networks
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`(nor does EA allege any such involvement by the customers). That EA does not do so unless and
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`until its customers purchase a copy of one of the Accused Products and decide to install and play
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`it is not dispositive, because the scope of the claims is the construction of the infringing network.
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`It is EA that makes and provides the infringing network upon its customers' request. Almost
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`every claim imaginable could be viewed as necessarily following predicate acts by third parties,
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`14
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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 19 of 30 PageID #: 45975
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`yet a claim is directly infringed when an actor (here EA) “makes” the patented invention (here,
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`the software network). 35 U.S.C. § 271(a). That purchase and installation of the game is
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`extrinsic to the scope of these claims.
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`EA’s motion is premised on a misreading of Centillion, which is not to the contrary. 631
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`F.3d 1279 (Fed. Cir. 2011). Centillion turns on a “personal computer data processing means
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`adapted to perform additional processing on the transaction records.” Id. at 1281. Plaintiff
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`Centillion conceded that this “‘front-end’ system [was] maintained by an end user.” Id. The
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`portion of Centillion that EA cites in its Brief (at 6, citing Centillion at 1285) found that Qwest’s
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`customers used the system as a whole. Centillion at 1285-86. The portion of the decision
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`discussing direct infringement by Defendant Qwest (as opposed to its customers) found no
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`infringement because Qwest “never ‘uses’ the entire system because it never puts into service the
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`personal computer data processing means.” Id. at 1286. That result is distinguishable because
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`Qwest did not own, use or put into service the recited “personal computer data processing means.”
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`Id. Here, as discussed above and admitted by EA’s non-infringement expert, EA itself owns,
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`uses and puts into service its software that makes the recited network of software processes Ex.
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`42, EA0039556-66 at 557; D.I. 469, Ex. 69 (Macedonia Tr.) at 109:23-110:1.
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`Thus, the Court should deny EA’s motion for summary judgment as to its infringement
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`by making the networks claimed by the ‘344 and ‘966 Patents.8
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`III.
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`EA Infringes the Method Claims of the ‘147 and 069 Patents
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`As set forth in Acceleration Bay’s Opposition Brief and at oral argument, each step of the
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`asserted method claims of the ‘147 and ‘069 Patents is performed in the United States. D.I. 467
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`8 As noted during oral argument, Acceleration Bay appreciates the Court’s further consideration
`of this issue. Because of the inordinately large number of issues advanced by Defendant in the
`summary judgment briefing in the Activision case, the arguments advanced on this issue were not
`presented in that earlier action.
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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 20 of 30 PageID #: 45976
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`(AB Opp. Br.) at 14-15; Ex. 32 (2/28 Hrg. Tr.) at 56:19-61:13. For example, the steps of the
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`‘147 Patents are performed by a first and second computer (and impact a third computer), all of
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`whom are located in the United States:
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`1. A method of disconnecting a first computer from a second computer, the first
`computer and the second computer being connected to a broadcast channel, said
`broadcast channel forming an m-regular graph where m is at least 3, the method
`comprising:
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`when the first computer decides to disconnect from the second computer, the
`first computer sends a disconnect message to the second computer, said
`disconnect message including a list of neighbors of the first computer; and
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`when the second computer receives the disconnect message from the first
`computer, the second computer broadcasts a connection port search message
`on the broadcast channel to find a third computer to which it can connect in order
`to maintain an m-regular graph, said third computer being one of the neighbors
`on said list of neighbors.
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`‘147 Patent at Claim 1 (emphasis added).
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`EA’s
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` provides the neighbor list part of the disconnect message. D.I. 442, Ex.
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`1 (Med. Rpt.) at ¶¶ 487, 476-567; id., Ex. 4 (Med. Reply) at ¶¶ 225-231. EA mistakenly
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`contends
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`
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`This does not preclude infringement because the activity at issue occurs within the United States.
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`Specifically, the disconnect message (identified and emphasized in the relevant claim language
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`above), which includes a list of neighbors provided by
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` after the first computer
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`(in the United States) sends a signal that it is disconnecting (in the United States), is transmitted
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`from the first computer to the second computer (located in the United States). D.I. 442, Ex. 1
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`(Med. Rpt.) at ¶¶ 483-489; 494-500, 505-511, 476, 479, 482 (direct infringement), 490-493, 501-
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`504, 512-515 (infringement under the doctrine of equivalents). While the
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`
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` it is included in the disconnect message transmitted to and received in the
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`United States. The claims recite sending and receiving the message — which happens within the
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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 21 of 30 PageID #: 45977
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`United States, not generating the list of neighbors, which EA alleges occurs outside of the United
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`States.
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`EA’s reliance on NTP is misplaced. NTP, Inc. v. Research In Motion, Ltd., 418 F.3d
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`1282 (Fed. Cir. 2005). In NTP, the Federal Circuit found there was no infringement because an
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`entire step of the method claim was performed completely outside of the United States. Id. at
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`1314, 1318. In particular, “each of the asserted method claims … recites a step that utilizes an
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`‘interface’ or ‘interface switch,’ which is only satisfied by the use of RIM’s Relay located in
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`Canada” and that the “control point” for the system was in Canada. Id. NTP notes that the steps
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`“transmitting … from the interface switch” and “receiving … at the interface switch” were
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`performed by the RIM Relay (the interface switch) entirely within Canada. Id. at 1318, n. 14, n.
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`15. Thus, the dispositive fact in NTP was that at least one step of each method claim occurred
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`only outside of the United States.
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`In contrast here, the neighbor list data is included in the disconnect message which is sent
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`by the first computer in the United States and then received by the second computer in the
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`United States. Thus, the predicate action takes place within the United States, and there is no
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`claimed step that recites an action that occurs only in Canada. EA does not cite to any authority,
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`nor is Acceleration Bay aware of any authority, holding that a claimed action completed within
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`the United States is deemed extraterritorial merely because some component of the action
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`originated outside of the United States.
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`Similarly, for Claim 1 of the ‘069 Patent (reproduced below), the subject of the three
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`active steps (identifying the pair of participants that are connected, disconnecting the participants
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`of the identified pair from each other, and connecting each participant) is the participants, located
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`within the United States. D.I. 442, Ex. 3, Mitz. Rpt. at ¶¶ 258-267, 273-276 (FIFA, NHL); 258,
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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 22 of 30 PageID #: 45978
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`268-276 (PvZ); id., Ex. 4, Mitz. Reply at ¶¶ 123-130. “The situs of infringement ‘is wherever an
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`offending act [of infringement] is committed.’” NTP, quoting, N. Am. Philips Corp. v. Am.
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`Vending Sales, Inc., 35 F.3d 1576, 1579 (Fed. Cir. 1994). Here, that situs is the United States.
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`A computer-based, non-routing table based, non-switch based method for
`adding a participant to a network of participants, each participant being
`connected to three or more other participants, the method comprising:
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`[Step 1] identifying a pair of participants of the network that are
`connected wherein a seeking participant contacts a fully connected portal
`computer, which in turn sends an edge connection request to a number of
`randomly selected neighboring participants
`to which
`the seeking
`participant is to connect;
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`[Step 2] disconnecting the participants of the identified pair from each
`other; and
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`[Step 3] connecting each participant of the identified pair of participants
`to the seeking participant.
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`‘069 Patent at Claim 1 (emphasis added).
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`Accordingly, the Court should deny EA’s motion for summary judgment of non-
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`infringement as to the asserted method claims of the ‘147 and ‘069 Patents.
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`IV.
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`The Accused Products Use M-Regular Networks (Infringement of the ‘344, ‘966,
`‘147 and ‘069 Patents)
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`Acceleration Bay has come forward with ample evidence that the Accused Products use
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`incomplete, m-regular broadcast channels to broadcast data. See, e.g., D.I. 467, AB Opp. Br. at
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`2-6 (collecting evidence); D.I. 442, Ex. 1, Med. Rpt. at ¶¶ 191-201, 231-235 (FIFA), 202-213,
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`236-240 (NHL), 214-228, 241-245 (PvZ); D.I. 442, Ex. 2, Med. Reply at ¶¶ 35-42, 88-107.
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`EA’s attempts to argue otherwise reveal, at most, a battle of the experts and a series of material,
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`disputed factual issues that preclude summary judgment.
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`As discussed in detail during oral argument, EA’s primary argument is a non-sequitur.
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`EA notes that the underlying networks for the Accused Products are client-server networks. As
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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 23 of 30 PageID #: 45979
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`shown in the below diagram of the standard OSI Model, these data link/network layer
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`connections that EA relies upon are several layers below the application layer overlay network
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`that is the basis for Acceleration Bay’s infringement claims. This network structure is discussed
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`in detail by Acceleration Bay’s technology tutorial expert, Dr. Cole, and not disputed by EA (nor
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`could it be). Ex. 43 (Cole Report) at ¶¶ 23-25 (discussing OSI Model), ¶¶ 36-37 (discussing
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`Overlay Networks). Thus, EA’s non-infringement theory does not even relate to the relevant
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`application layer.
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`EA manufactures a purported non-infringement theory by ignoring the application layer
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`and focusing on the data link and network layers, as it has done since the beginning of the case.
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`The Court has repeatedly rejected EA’s theory. D.I. 249 at 7 (“Defendants gloss over the claim
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`requirement of a non-complete, m-regular network that is implemented on an application
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`level”) (emphasis added); D.I. 375 at 12 (“A ‘broadcast channel’ is an overlay network formed
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`on an underlying network.”).
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`Case 1:16-cv-00454-RGA Document 538 Filed 03/26/19 Page 24 of 30 PageID #: 45980
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`EA’s Supplemental Brief suggests that the application layer is a figment of Acceleration
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`Bay’s imagination, but both Acceleration Bay and EA’s technical experts agree that the
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`application layer is distinct from the data link and network layers and can have an entirely
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`different topology, as is the case here. Dr. Cole explains that “An overlay network is a computer
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`network that enables the communication nodes in one or more underlying networks to
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`communicate with each other, and may include its own network topol