Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 1 of 27 PageID #: 46188
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ELECTRONIC ARTS INC.,
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`C.A. No. 16-454 (RGA)
`
`REDACTED
`PUBLIC VERSION
`
`DEFENDANT’S SUPPLEMENTAL REPLY BRIEF
`IN SUPPORT OF ITS MOTIONS FOR SUMMARY JUDGMENT
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`
`Attorneys for Defendant
`
`OF COUNSEL:
`
`David P. Enzminger
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`
`Daniel K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`

`

`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 2 of 27 PageID #: 46189
`
`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`
`Andrew R. Sommer
`Paul N. Harold
`Joseph C. Masullo
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`Original Filing Date: March 20, 2019
`Redacted Filing Date: March 28, 2019
`
`

`

`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 3 of 27 PageID #: 46190
`
`TABLE OF CONTENTS
`
`3.
`
`4.
`
`2.
`
`Page
`TABLE OF CONTENTS ................................................................................................................. i
`TABLE OF EXHIBITS AND ABBREVIATIONS ...................................................................... iii
`I.
`The Accused Networks Do Not Infringe the “Topology Limitations”
`(All Patents Except the ’497 Patent). ...................................................................... 1
`A. Acceleration offers no evidence that each participant in its
`hypothetical network is connected to at least three but not all other
`participants. ......................................................................................................... 3
`B. Acceleration’s other arguments are wrong and irrelevant. ................................. 4
`1.
`The “wrong network/wrong layer” argument does not create a material issue
`of fact. .............................................................................................................4
`The “server is not always a participant” argument does not create a material
`issue of fact. ....................................................................................................5
`The “data links are the wrong connections” argument does not create a
`material issue of fact. ......................................................................................6
`The
` and other “additional networks” argument does not
`create a material issue of fact. .........................................................................7
`C. Unrebutted empirical testing confirms non-infringement. ................................. 8
`II. EA Does Not Make or Use the System of the Asserted ’344, ’966,
`and ’497 Claims. ..................................................................................................... 8
`A. Acceleration has failed to identify any specific evidence of
`infringing testing. ................................................................................................ 8
`B. EA does not “make” the component of the ’497 patent. .................................. 10
`C. EA does not “make” the accused network of the ‘344 and ‘966. ..................... 12
`III. EA Does Not Infringe the Asserted Method Claims of the ’069 and
`’147 Patents ........................................................................................................... 12
`A. Acceleration Only Accuses EA Of Performing A Step Outside of
`the United States for the ‘069 and ‘147 patents. ............................................... 12
`B. The ’069 Patent – EA Does Not Infringe. ........................................................ 12
`C. The ’147 Patent – EA Does Not Infringe Because No “First
`Computer” Sends A “Disconnect Message” “Including A List Of
`Neighbors Of The First Computer” .................................................................. 13
`D. The ’147 Patent – Acceleration Alleges the
`Performs a Step of the Recited Method. ........................................................... 14
`IV. Willful infringement. ............................................................................................ 14
`CONCLUSION ..............................................................................................................................15
`
`i
`
`

`

`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 4 of 27 PageID #: 46191
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Adaptix, Inc. v. Apple, Inc.,
`78 F.Supp.3d 952 (N.D. Cal. 2015) .........................................................................................12
`
`Home Gambling Network, Inc. v. Piche,
`2013 WL 5492568 (D. Nev. Sept. 30, 2013) ...........................................................................13
`
`NTP, Inc. v. Research In Motion, Ltd.,
`418 F.3d 1282 (Fed. Cir. 2005)..........................................................................................13, 14
`
`TechSearch, L.L.C. v. Intel Corp.,
`286 F.3d 1360 (Fed. Cir. 2002)..............................................................................................2, 4
`
`Wi-LAN Inc. v. Sharp Elecs. Corp.,
`2019 WL 668844 (D. Del. Feb. 14, 2019) ...............................................................................12
`
`
`
`ii
`
`

`

`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 5 of 27 PageID #: 46192
`
`
`
`TABLE OF EXHIBITS AND ABBREVIATIONS
`
`ASSERTED PATENTS
`
`Description
`
`U.S. Pat. No. 6,701,344 (D.I. 1, Ex.1)
`
`U.S. Pat. No. 6,714,966 (D.I. 1, Ex.2)
`
`U.S. Pat. No. 6,829,634 (D.I. 1, Ex.4)
`
`U.S. Pat. No. 6,910,069 (D.I. 1, Ex.5)
`
`U.S. Pat. No. 6,732,147 (D.I. 1, Ex.3)
`
`U.S. Pat. No. 6,920,497 (D.I. 1, Ex.6)
`
`Abbreviation
`
`’344 patent
`
`’966 patent
`
`’634 patent
`
`’069 patent
`
`’147 patent
`
`’497 patent
`
`NON-INFRINGEMENT AND RELATED MATERIALS
`
`Ex.
`
`A-1
`
`A-2
`
`A-3
`
`A-4
`
`A-5
`
`Description
`
`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; 6,732,147
`
`Expert Report of Michael Mitzenmacher, Ph.D., Regarding
`Infringement by Electronic Arts, Inc. of U.S. Patent Nos.
`6,920,497; 6,910,069
`
`Expert Reply 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; 6,732,147
`
`Abbreviation
`
`Med.Rpt.
`
`Mitz.Rpt.
`
`Med.Reply
`
`Expert Reply Report of Michael Mitzenmacher, Ph.D.,
`Regarding Infringement by Electronic Arts, Inc. of U.S. Patent
`Nos. 6,920,497; 6,910,069
`
`Mitz.Reply
`
`Expert Report of John Kelly, Ph.D., Regarding Non-
`infringement of U.S. Patent Nos. 6,701,344; 6,829,634;
`6,714,966; 6,920,497
`
`Kelly.Rpt.
`
`A-6 Declaration of John P.J. Kelly, Ph.D. In Support of Defendant
`Electronic Arts Inc.’s Motion for Summary Judgment
`
`Kelly.Decl.
`
`A-7
`
`Expert Report of Michael R. Macedonia, Ph.D., Regarding
`
`Mac.Rpt.
`
`iii
`
`

`

`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 6 of 27 PageID #: 46193
`
`
`
`Ex.
`
`Description
`Non-Infringement of U.S. Patent Nos. 6,732,147 and 6,910,069
`
`Abbreviation
`
`A-8 Declaration of Michael R. Macedonia, Ph.D. In Support of
`Defendant Electronic Arts Inc.’s Motion for Summary
`Judgment
`
`Mac.Decl.
`
`A-9
`
`EA document entitled “DirtySock : Network Topologies”
`bearing bates numbers EA 0023054-56
`
`A-10 Defendant Electronic Arts Inc.’s Response to Plaintiff’s
`Acceleration Bay’s Second Set of Party Specific Interrogatories
`(Nos. 8-10)
`
`A-11 Feb. 13, 2012, email from Fred Holt to Steve Caliguri bearing
`bates numbers ATI03613-18
`
`
`
`
`
`
`
`A-12 Excerpts of exemplary DoE argument by Drs. Medvidović and
`Mitzenmacher
`
`DoE excerpts
`
`A-13 Plaintiff Acceleration Bay’s Second Supplemental Responses
`to Defendant Electronic Arts Inc.’s First Set of Party Specific
`Interrogatories
`
`A-14 Defendant Electronic Art’s April 27, 2017, Supplemental
`Responses to Plaintiff Acceleration Bay LLC’s Second Set of
`Common Interrogatories (Nos. 6 and 7)
`
`A-15 Document containing telemetry data for Plants vs. Zombies:
`Garden Warfare and Garden Warfare 2 bearing Bates number
`of EA0034010.
`
`A-16 Plaintiff Acceleration Bay LLC’s Demonstrative Slides from
`the February 28, 2019 Summary Judgment Hearing
`
`A-17 Spreadsheet titled “FIFA 15 Gen 3 – Open for Testing
`Tracker” bearing Bates number of EA0026784
`
`A-18 Spreadsheet titled “FIFA 16 Gen 3 – Open For Testing
`Tracker” bearing Bates number of EA0028148
`
`A-19 Page from an internal EA website titled “Stage 16-2 –
`Matchmaking and QOS Blaze improvements” bearing Bates
`numbers of EA0033064-67
`
`A-20 Pages from a printout of an internal EA website titled “Dev
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`iv
`
`

`

`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 7 of 27 PageID #: 46194
`
`
`
`Ex.
`
`Description
`Ops” bearing Bates numbers of EA0033133-219
`
`Abbreviation
`
`A-21 Page from a document titled “NHL 15: Test Brief” bearing
`Bates numbers of EA0033401-08
`
`A-22 Document titled “PvZ GW: Game Services Architecture
`Review” bearing Bates numbers of EA0033967-71
`
`A-23 Defendant Electronic Art’s March 8, 2017 Supplemental
`Responses to Plaintiff Acceleration Bay LLC’s Second Set of
`Common Interrogatories (Nos. 5, 6 and 9)
`
`A-24 Excerpts from Final Written Decision of IPR2015-01972
`
`A-25 Plaintiff’s Opposition to EA’s and Take-Two’s Motion to
`Compel
`
`A-26 Excerpted Expert Reply Report of Nenad Medvidović, Ph.D.,
`Regarding Infringement by Take-Two Interative Software, Inc.,
`Rockstar Games, Inc. and 2K Sports, Inc., of U.S. Patent Nos.
`6,701,344; 6,829,634; 6,714,966
`
`A-27 Compendium of Discovery Hearings
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`DECLARATIONS
`
`Ex.
`
`B-1
`
`B-2
`
`B-3
`
`Ex.
`
`C-1
`
`Description
`
`Declaration of Joe S. Netikosol In Support of Defendant
`Electronic Arts Inc.’s Motion to Exclude Under FRE702
`
`Declaration of David O’Neill In Support of Defendant
`Electronic Arts Inc.’s Opposition to Plaintiff’s Motion for
`Partial Summary Judgment
`
`Abbreviation
`
`Netikosol Decl.
`
`O’Neill Decl.
`
`Declaration of Joe S. Netikosol In Support of Defendant
`Electronic Arts Inc.’s Reply Brief in Support of its motion for
`Summary Judgment and to Exclude Under FRE702
`
`Netikosol Reply
`Decl.
`
`DAMAGES AND RELATED MATERIALS
`
`Description
`
`Abbreviation
`
`Expert Report of Dr. Harry Bims Regarding Technology of the Bims.Rpt.
`
`v
`
`

`

`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 8 of 27 PageID #: 46195
`
`Description
`Asserted Patents
`
`Expert Report of Dr. Ricardo Valerdi Regarding Cost
`Estimates & Errata
`
`Expert Report of Christine S. Meyer, Ph.D. & Errata
`
`Reply Expert Report of Dr. Harry Bims Regarding Technology
`of the Asserted Patents
`
`Abbreviation
`
`Val.Rpt.
`
`Mey.Rpt.
`
`Bims.Reply.
`
`Reply Expert Report of Christine S. Meyer, Ph.D.
`
`Meyer.Reply.
`
`
`
`Ex.
`
`C-2
`
`C-3
`
`C-4
`
`C-5
`
`C-6
`
`Defendant(s)’ Responses to Plaintiff Acceleration Bay LLC’s
`First Set of Common Interrogatories (Nos. 1-4)
`
`C-10
`
`June 16, 2017, transcript of proceedings before Special master
`Allen M. Terrell, Jr.
`
`C-11 Website printout bearing bates numbers AB-EA 002676-87
`
`C-12 Website printout bearing bates numbers AB-EA008067-70
`
`C-13 Document bearing bates numbers EA0037721-80
`
`C-14
`
`Jury Verdict in Uniloc v. EA (6:13-cv-259)
`
`
`
`
`
`
`
`
`
`
`
`
`
`C-15 Expert Report of Catherine Lawton
`
`Lawton Rpt.
`
`C-16 Defendant Electronic Arts Inc.’s Objections and Responses to
`Plaintiff Acceleration Bay LLC’s First Set of Party Specific
`Interrogatories (Nos. 1-7)
`
`C-17 Declaration of Dr. Harry Bims in Support of Patent Owner’s
`Response for IPR2015-01970, Patent 6,701,344 dated July 17,
`2016
`
`C-18 Letter to Judge Andrews regarding supplemental damages
`expert report, dated 04/16/18 in Acceleration Bay v. Activision
`Blizzard, Inc. (16-453 RGA)
`
`C-19 Letter to Judge Andrews regarding supplemental damages
`expert report, dated 04/24/18 in Acceleration Bay v. Activision
`Blizzard, Inc. (16-453 RGA)
`
`
`
`
`
`
`
`
`
`C-20 February 28, 2019 Summary Judgment Hearing before The
`Honorable Richard G. Andrews
`
`2/28/19 Hr’g Tr.
`
`vi
`
`

`

`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 9 of 27 PageID #: 46196
`
`DEMONSTRATIVES
`
`Description
`
`Summary of Asserted Claims
`
`Chart Summarizing Non-Infringement Arguments Impact On
`Asserted Claims
`
`Teams Are Still Client-Server – No Connection Between
`Player Consoles On Same Team
`
`Voice Squelching: Still Client Server, All Voice Data Sent To
`Server Participant
`
`Abbreviation
`
`
`
`
`
`
`
`
`
`DEPOSITION AND HEARING TRANSCRIPTS
`
`
`
`Ex.
`
`D-1
`
`D-2
`
`D-3
`
`D-4
`
`Ex.
`
`E-1
`
`E-2
`
`E-3
`
`E-4
`
`E-5
`
`E-6
`
`E-7
`
`E-8
`
`E-9
`
`Description
`
`Deposition Transcript of Martin Clouatre
`
`Deposition Transcript of David O’Neill
`
`Deposition Transcript of Alan Poon
`
`Deposition Transcript of Michael Smith
`
`Deposition Transcript of Ling Lo
`
`Deposition Transcript of Fred Holt
`
`Deposition Transcript of Christine Meyer
`
`Deposition Transcript of Ricardo Valerdi
`
`Deposition Transcript of Nenad Medvidović
`
`E-10 Deposition Transcript of Michael Mitzenmacher
`
`E-11 Deposition Transcript of Harry Bims
`
`E-12 Harry Bims Errata, served 2/1/2018
`
`Abbreviation
`
`Clouatre Tr.
`
`O’Neill Tr.
`
`Poon Tr.
`
`Smith Tr.
`
`Lo Tr.
`
`Holt Tr.
`
`Mey.Tr.
`
`Val.Tr.
`
`Med.Tr.
`
`Mitz.Tr.
`
`Bims.Tr.
`
`
`
`E-13 Deposition Transcript of Nenad Medvidović from Acceleration
`Bay v. Activision, 1:16-cv-453
`
`Med.Act.Tr.
`
`vii
`
`

`

`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 10 of 27 PageID #: 46197
`
`
`
`Ex.
`
`Description
`
`E-14 Deposition Transcript of Nicholas Channon
`
`E-15 Deposition Transcript of Catherine Lawton in Acceleration Bay
`v. Activision Blizzard (16-453-RGA)
`
`Abbreviation
`
`Chan.Tr.
`
`Atvi.Lawton.Tr.
`
`E-16 Deposition Transcript of Catherine Lawton in Acceleration Bay
`v. Electronic Arts Inc. (16-454-RGA)
`
`Lawton.Tr.
`
`E-17 Deposition Transcript of John P.J. Kelly, Ph.D
`
`E-18 Deposition Transcript of Glen Van Datta
`
`E-19 Deposition Transcript of Virgil Bourassa
`
`E-20 Deposition Transcript of Colin Macrae
`
`Kelly.Tr.
`
`Van.Tr.
`
`Bour.Tr.
`
`Mac.Tr.
`
`E-21 Deposition Transcript of Harry Bims from IPR0216-00747
`
`Bims.IPR.Tr.
`
`ADDITIONAL MATERIALS
`
`Description
`
`Abbreviation
`
`’344 Patent, File History, 9/15/03 Amendment. Annotated to
`show the amendments and argument relating to the claim.
`
`’634 Patent, File History, 5/7/04 Amendment. Annotated to
`show the amendments and argument relating to the claim.
`
`’147 Patent, File History, 12/17/03 Amendment. Annotated to
`show the amendments and argument relating to the claim.
`
`’069 Patent, File History, 5/17/04 Amendment. Annotated to
`show the amendments and argument relating to the claim.
`
`’147 Patent Owner Preliminary Response (IPR2016-00747, Pap. 11)
`
`
`
`
`
`
`
`
`
`
`
`Ex.
`
`F-1
`
`F-2
`
`F-3
`
`F-4
`
`F-5
`
`
`
`
`viii
`
`

`

`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 11 of 27 PageID #: 46198
`
`
`
`I.
`
`The Accused Networks Do Not Infringe the “Topology Limitations” (All Patents Except
`the ’497 Patent).
`
`To this day, Acceleration still cannot diagram an accused network. It cannot explain with
`
`evidence how each participant in an accused network is connected to at least three, but not all, of the
`
`other participants as the claims require.
`
`it is.
`
`
`
`
`
`
`
`
`
`
`
` but Acceleration has never disclosed what
`
`
`
`
`
`
`
`
`
`The central issues have always been: what network is accused of infringement, what are the
`
`participants of that network, and whether those participants are connected in a way that meets the
`
`claim limitations? See Ex. A-27 (discovery hearings). After nearly four years of litigating this case,
`
`Acceleration still cannot coherently describe any accused network, let alone provide a diagram the
`
`Court asked for at the hearing. Using the term “application overlay network” as a mantra does not
`
`answer those questions.
`
`Instead of explaining how this alleged “application layer overlay” network meets the two
`
`specific claim limitations at issue, Acceleration cites without explanation at least 113 paragraphs
`
`from its expert reports. But it never addresses the requirements at issue: that each participant be
`
`connected to at least three, but not all, of the other participants, and that the connections meet the
`
`Court’s claim construction. These two issues are never discussed. Citing large swaths of expert
`
`1
`
`

`

`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 12 of 27 PageID #: 46199
`
`
`
`reports does not meet its burden. TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1372 (Fed. Cir.
`
`2002). This is no battle of the experts; EA is only relying on the testimony that Acceleration itself
`
`relies on.
`
`Acceleration’s evidentiary overreaches must be noted:
`
` Acceleration argues without evidence the network diagram it presents is an expert’s depiction of
`an EA network. D.I. 528 at 23 (hereinafter referred to as “Supp. Opp.”). But it is simply a picture
`of a 4-regular graph positioned over a map of the United States and has no relationship to any
`EA network. No participants are identified, no evidence is offered, and there is no effort to
`explain how the fictional diagram represents any EA networking technology. Nor does it
`demonstrate Acceleration’s central argument: that the alleged “application overlay” network
`somehow overlays the EA client-server network. The EA client server network is not shown at
`all. Its lack of relevance is confirmed by the fact that the expert uses the exact same diagram in a
`different case against a different company. Ex. A-26.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` Acceleration cites ¶ 115 of Dr. Medvidovic’s Report, Supp. Opp. at 14, 20, but the actual
`evidence cited in that very paragraph says the opposite of what he claims it says:
`
`Medvidovic Opinion (Ex. A-1 at
`¶¶ 102, 115, 128)
`
`Cited Clouatre Testimony (Ex. E-1 at 151:2-13)
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Acceleration offers no evidence at all that each of the participants in the EA network is
`
`connected to at least three, but not all, of the other participants.
`
`
`
`
`
`2
`
`

`

`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 13 of 27 PageID #: 46200
`
`
`
` and summary judgment is appropriate.
`
`
`
`A.
`
`Acceleration offers no evidence that each participant in its hypothetical network
`is connected to at least three but not all other participants.
`
`Acceleration does not dispute that the claims require that (1) each “participant” in the
`
`accused network must have a “connection” to at least three “neighbor participants” and (2) no
`
`participant may have a “connection” to all of the other participants. A “connection” is a “connection
`
`between two participants, with no other participants in between, through which data can be sent and
`
`received.” D.I. 361 (Order) at 2. To determine infringement, it is necessary to know the complete set
`
`of participants and exactly how they are connected.1
`
` The
`
`only networks Acceleration identified were the three networks discussed at length in EA’s opening
`
`brief. D.I. 426 at 4-8. Acceleration has never identified any other networks, and it confirmed that
`
`these were the only accused networks. Ex. A-25 (8/28/17 Accel. Op.) at 2.
`
` With those parameters, EA presented undisputed evidence that the participants in each
`
`
`
`
`
`
`
`Accused Networks do not meet the basic topology limitations.
`
`
`
`
`
`
`
`
`
` Acceleration had the burden to come forward with admissible
`
`
`1 Acceleration agreed to provide this information following Special Master Order 3.
`
`3
`
`

`

`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 14 of 27 PageID #: 46201
`
`
`
`evidence to show how the claim limitations are met. TechSearch, 286 F.3d at 1372 (“conclusory
`
`statements are insufficient to shoulder the non-movant’s burden”).
`
`Instead of doing so, it cites without explanation to 113 paragraphs from its expert reports and
`
`attempts to sow confusion by making irrelevant arguments on other issues. Acceleration argues that:
`
`(1) overlay networks exist and EA is focused on the wrong level; (2) Acceleration argues the Server
`
`Participant (aka DirtyCast server) is “not always a participant”; (3) the “data link” connections are at
`
`the wrong level; and (4) EA’s treatment of “additional” accused networks
`
`
`
`irrelevant because they do not create a material issue of fact regarding infringement. Id. Acceleration
`
`has not offered any evidence to prove up its infringement case for the claim limitations on which EA
`
`. These arguments are unfounded, but also
`
`moved.
`
`If there were an infringing “overlay network,” Acceleration had a duty to explain that
`
`network by showing evidence of the participants, and explaining exactly which are connected and
`
`which are not. It did not, because it cannot. Summary judgment is appropriate.
`
`B.
`
`Acceleration’s other arguments are wrong and irrelevant.
`1.
`
`The “wrong network/wrong layer” argument does not create a material
`issue of fact.
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`Acceleration’s claim that EA focuses on the wrong network at the wrong layer is just
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`unsupported attorney argument. As Acceleration’s own expert explains, whether a network meets the
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`topology limitations is determined exclusively by the set of participants and the connections between
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`them.
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` The layer is immaterial; it is not in the claims.
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`Acceleration itself defined the three Accused Networks by identifying their participants (Server and
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`Console Participants) and how they are connected (“gameplay data links”). Using Acceleration’s
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`own definition of the accused network, EA established that those networks are non-infringing
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`4
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`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 15 of 27 PageID #: 46202
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`.2
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`At this juncture one has to ask, if EA is focused on the wrong network – what does
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`Acceleration contend is the right network and where is the evidence for how that network meets the
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`two claim limitations at issue here? Acceleration’s submissions never answer that question. Even if
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`there were another network level or network, so what? Acceleration still had the burden to come
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`forward with evidence about that network and show that each and every participant is connected to
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`at least three, but not all, of the other participants. It failed to do so.
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`Acceleration’s “wrong network/wrong layer” argument does not meet its burden to avoid
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`summary judgment.
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`2.
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`The “server is not always a participant” argument does not create a
`material issue of fact.
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`As discussed above, citing paragraph 79 of Dr. Medvidovic’s report, Acceleration argues that
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`he “specifically rejected” the “contention that
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` Supp. Opp. at 21. He did no such thing.
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` There is a transcript of Dr. Medvidovic’s deposition, and it’s on videotape.
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`Acceleration cannot create an issue of fact by simply declaring that he “never” said this.
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`But more importantly, Acceleration does not explain how its “sometimes a participant”
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`2
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`5
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`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 16 of 27 PageID #: 46203
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`argument matters.
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` It does not say what the network looks like in that case or how that would infringe. If the
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`server were only “sometimes a participant,” what are the network connections? How many are there?
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` Even under its own argument, Acceleration provides no evidence any accused
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`network meets claim limitations.
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`3.
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`The “data links are the wrong connections” argument does not create a
`material issue of fact.
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`Acceleration also argues that the participants are not actually connected by “gameplay data
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`links” because gameplay data links are supposedly part of the underlying network, not the Accused
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`Networks. Supp. Opp. at 21.
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`Even if Acceleration were correct that there are some other connections, it still has not
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`provided any evidence that the claim limitations are met. Acceleration now argues that when it said
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`“gameplay data links” were the accused connections, it really meant the accused connections were
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`not “gameplay data links.” That is not affirmative evidence of a prima facie case. If the gameplay
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`data links are not the right connections to look at, where has Acceleration ever identified any other
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`connections that would satisfy the claims? Acceleration needed to show “the complete set” of
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`6
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`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 17 of 27 PageID #: 46204
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`connections among the participants,
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` and that those
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`connections meet the claims. Acceleration’s “wrong connections” argument does not overcome its
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`failure to offer evidence showing how each participant meets the connection requirements.
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`4.
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`The voice squelching and other “additional networks” argument does
`not create a material issue of fact.
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`Despite Special Master Order No. 3 (Acceleration must “separately” chart each and every
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`accused network),
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`Even if allowed to proceed with networks it did not separately chart during discovery or in
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`expert reports, Acceleration still offers no evidence that all of the participants and connections in any
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`of these “additional” networks meet the claim limitations.
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`Even if Acceleration’s unsupported assertions about the uncharted networks were correct, it
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`still has not met its burden to show how the claim limitations are met.
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`7
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`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 18 of 27 PageID #: 46205
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`C.
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`Unrebutted empirical testing confirms non-infringement.
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`EA’s expert used well-known testing protocols to determine how the Console Participants
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`and the Server Participant are connected.
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`II.
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`EA Does Not Make or Use the System of the Asserted ’344, ’966, and ’497 Claims.
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`Acceleration has only two arguments to distinguish its case against EA from the Court’s
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`ruling in the Activision case: (1) that EA infringes the ’344, ’966, and ’497 patents through testing
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`and (2) that EA “makes” the component of the ’497 patent because EA “makes” the
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`Acceleration also rehashes its argument (that this Court already rejected in Activision) that the
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`software “makes” the networks of the ‘344 and ‘966 patents. None of these arguments has merit.
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`A.
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`Acceleration has failed to identify any specific evidence of infringing testing.
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`For each of the six accused games and each patent, Acceleration must show a compensable
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`act of infringement, which is now reduced to “use” by testing the games. For each claim, it must
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`come forward with “specific evidence” that EA tested each game in a manner that would infringe,
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`which requires at least testing (1) within the United States (2) on accused platforms (3) in an accused
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`mode (4) during the damages period. D.I. 499 at 17. Acceleration concedes “that no single document
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`8
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`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 19 of 27 PageID #: 46206
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`alone” shows these facts for any accused game. Supp. Opp. at 2
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`Instead, it asks the Court to wade through over 1,500 pages of documents that Acceleration
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`itself failed to try to link together with depositions or expert testimony. Supp. Opp. at 2.
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`In opposing a summary judgment motion, Acceleration cannot merely speculate that general
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`testing or that the “collective impact” of a lot of non-infringing conduct constitutes admissible
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`evidence of infringement. Acceleration has no evidence that any accused functionality was ever
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`tested in the United States on an accused platform during the damages period:
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`
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`
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`3
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`9
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`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 20 of 27 PageID #: 46207
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`
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`
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`
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`theory
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`B.
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`EA does not “make” the component of the ’497 patent.
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`Agreeing that the Court’s ruling in Activision is dispositive, Acceleration focuses on a new
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`First, the cited paragraphs of Dr. Mitzenmacher’s report never allege that the
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`contains the “means for selecting the call-in port of the identified portal computer using a port
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`ordering algorithm ….” See Ex. A-2 (Mitz.Rpt.) at ¶¶ 119-127, A-4 (Mitz. Reply) at ¶¶ 80-81. D.I.
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`528 at 11. The
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` is never mentioned in those paragraphs. See Ex. A-2 at ¶¶ 119-127; Ex.
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`A-4 at ¶¶ 80-81. Acceleration claims Dr. Mitzenmacher called
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` in his opening report, but there is no mention of a
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`regarding this limitation either. See Ex. A-2 at ¶¶ 119-127; Ex. A-4 at ¶¶ 80-81. Rather, in every
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`10
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`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 21 of 27 PageID #: 46208
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`report (including his four reports the Activision and Take Two cases),4 Dr. Mitzenmacher said that
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` This is no battle of the experts. Dr.
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`
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`Mitzenmacher has never opined that any component provided by EA meets this limitation, and
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`Acceleration points to no other evidence.
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`Second, Acceleration provides no evidence that ties the
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`
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`infringement. The only evidence ever cited for the “port ordering algorithm” in the “means for
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`selecting the call-in port of the identified portal computer using a port ordering algorithm” element
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` as required for direct
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`Third, even if Acceleration had evidence
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`4
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`11
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`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 22 of 27 PageID #: 46209
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` Summary judgment should be granted.
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`C.
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`EA does not “make” the accused network of the ‘344 and ‘966.
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`Acceleration’s argument that “EA’s Software Makes the Infringing Networks” rehashes the
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`very same argument rejected in the Activision case. Supp. Opp. 13. Strikingly, Acceleration never
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`mentions the Activision ruling, never makes any effort to distinguish the facts of this case, and never
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`explains how the Court’s conclusion there could have been legal error.5
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`III. EA Does Not Infringe the Asserted Method Claims of the ’069 and ’147 Patents
`A.
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`Acceleration Only Accuses EA Of Performing A Step Outside of the United
`States for the ‘069 and ‘147 patents.
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`Acceleration’s only allegation against EA for both the method patent claims is EA’s
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`operation
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` then EA is not accused
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`of performing any step and cannot be a direct infringer. Adaptix, Inc. v. Apple, Inc., 78 F.Supp.3d
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`952, 957 (N.D. Cal. 2015) (defendants must perform one step for direct infringement). See also Wi-
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`LAN Inc. v. Sharp Elecs. Corp., 2019 WL 668844, *5-6 (D. Del. Feb. 14, 2019) (same). Acceleration
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`ignores this problem with its theory altogether.
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`B.
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`The ’069 Patent – EA Does Not Infringe.
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`Acceleration asserts that
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` is irrelevant because “the subject of
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`the three active steps [of the ’069 Patent] is the participants, located within the United States.” Supp.
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`5 Acceleration says “EA owns the software” (Supp. Opp. 14), but “owning is not an infringing act”
`(D.I. 499 at 14). It claims that “EA’s customers do not have any control” (Supp. Op. Br. 14), but
`“customers can play the accused games in ways that do not infringe” and thus they “have a degree of
`control” (D.I. 499 at 11–12). It says that Centillion “is distinguishable because … EA itself owns,
`uses and puts into service its software that makes the recited network” (Supp. Opp. 15), but this
`Court already held that Centillion could not be distinguished on that basis. (D.I. 499 at 10–14).
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`12
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`Case 1:16-cv-00454-RGA Document 547 Filed 03/28/19 Page 23 of 27 PageID #: 46210
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`Opp. at 17. But it continues to cite the wrong section of NTP – pertaining to system claims, id. at 18,
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`even though the Federal Circuit expressly reached a “different conclusion” for method claims. NTP,
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`Inc. v. Research In Motion, Ltd., 418 F.3d 1282, 1318 (Fed. Cir. 2005). Acceleration does not
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`dispute that it accuses only the
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` of both “send[ing] an edge connection request”
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`and “identifying a pair of participants of the network that are co