Case 1:16-cv-00454-RGA Document 558 Filed 04/02/20 Page 1 of 11 PageID #: 46289
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`ELECTRONIC ARTS INC.,
`
`
`
`
`
`Defendant.
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`
`
`C.A. No. 16-454 (RGA)
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`DEFENDANT ELECTRONIC ARTS INC.’S MOTION FOR LEAVE TO FILE A
`SUPPLEMENTAL SUMMARY JUDGMENT BRIEF BASED ON LEGAL RULINGS OF
`THE COURT
`
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`
`Attorneys for Defendant
`
`
`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`
`Joseph C. Masullo
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`
`
`
`
`
`OF COUNSEL:
`
`David P. Enzminger
`Michael A. Tomasulo
`Gino Cheng
`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
`
`
`
`April 2, 2020
`
`
`

`

`Case 1:16-cv-00454-RGA Document 558 Filed 04/02/20 Page 2 of 11 PageID #: 46290
`
`This Court’s March 23, 2020, Memorandum Opinion in Acceleration Bay LLC v. Take-
`
`Two Interactive Software, et al.,1 clarified the scope of the claims, particularly with respect to the
`
`terms “participant” and “m-regular,” and found that the client-server network used in Take
`
`Two’s NBA2K videogame did not infringe because it was not an m-regular network. The Court
`
`rejected Acceleration’s argument that the Park Relay Server was not a “participant” in the
`
`accused network. It noted that Acceleration’s experts admitted that the Park Relay Server is a
`
`participant and found that it was a participant because it “transfers data back and forth between
`
`other network participants.”2 The Court concluded that the patents’ claimed m-regular,
`
`incomplete network was “fundamentally different” than a “network with a central relay server.”
`
`All of the accused EA games use client-server networks that are materially the same as
`
`NBA2K. Just as in Take Two, Acceleration argued that the EA Server is not always a participant
`
`in the accused network at the application layer; and therefore, the accused network is not actually
`
`a noninfringing client-server network. The Court’s findings in Take Two apply here as well. The
`
`EA DirtyCast server transfers data back and forth between other network participants, and
`
`Acceleration’s experts admit that it is a participant in the accused networks. Therefore, the
`
`Court’s summary judgment decision in Take Two should also preclude any finding of
`
`infringement of the topology patents (‘344,’966, ‘147, and ‘069 patents) against EA.3 EA
`
`requests 15 pages of supplemental briefing to explain why the Take Two holding applies in this
`
`case. EA is prepared to file that brief within five days from receiving permission to do so.
`
`1 C.A. No. 16-455 RGA, D.I. 492 (D. Del. March 23, 2020).
`2 Id., at 17.
`3 EA’s summary judgment brief is D.I. 426. Acceleration’s opposition brief is D.I. 467. EA’s
`reply brief is D.I. 476. The parties also submitted supplemental briefs at D.I. 526, 528, and 535.
`In this motion references to an exhibit of D.I. 426 are references to the exhibits EA submitted in
`support of summary judgment, which can be found at D.I. 427–434, 436, 466, and 477.
`
`1
`
`

`

`Case 1:16-cv-00454-RGA Document 558 Filed 04/02/20 Page 3 of 11 PageID #: 46291
`
`ARGUMENT
`
`In opposition to EA’s Motion for Summary Judgment on the topology patents,
`
`Acceleration’s principal arguments were exactly the same as the arguments that the Court
`
`rejected in Take Two regarding NBA2K. Acceleration presented four infringement theories
`
`against EA, and EA explained how each of them failed because the accused network was a
`
`noninfringing client-server network where the “game console participants” were each directly
`
`connected to the “DirtyCast Server Participant.” As a result, the network can never be m-regular
`
`because the server always has more connections than the game console participants.
`
`In Take Two, the Defendants presented a diagram of the accused “NBA2k Mesh
`
`Network” showing that each of the “Player Participants” is connected to the “Park Relay Server
`
`Participant”:
`
`Similarly, EA presented a diagram showing that each of the “Console Participants” is connected
`
`to the “Server Participant”:
`
`
`
`2
`
`

`

`Case 1:16-cv-00454-RGA Document 558 Filed 04/02/20 Page 4 of 11 PageID #: 46292
`
`
`In Take Two, Acceleration acknowledged that the network depicted was the correct one
`
`and that it was a noninfringing client-server network. Take Two D.I.4 463, Ex. E-5 (Mitz.Tr.) at
`
`162:9–167:19. Acceleration argued that NBA2K’s client-server topology was the “network
`
`level” topology and that infringement was supposedly occurring at the “application layer.” Take
`
`Two D.I. 490 at 89-100 (e.g. “our experts are pointing to the application layer”; “it's the number
`
`of connections at the application layer that makes the network both M-regular and incomplete.”).
`
`So too with EA. Acceleration acknowledged that EA’s depiction was correct, but argued
`
`that the network was nevertheless infringing at the application layer. See, e.g. D.I. 467 at 2-3;
`
`D.I. 525, 73-100.5
`
`
`4 “Take Two D.I.” refers to the docket index in the Take-Two Interactive Software case.
`5 E.g. 74:21-75:21 (“THE COURT: …but at the network level, what is wrong with their
`diagram? Maybe it's an oversimplification, but if it bears any resemblance to reality at that level,
`it's not m-regular and incomplete. Right? MR. FRANKEL: That's correct, Your Honor.” “THE
`COURT: … if you have to win at the network level, you lose, on these four patents. MR.
`FRANKEL: For these games, yes.”).
`
`3
`
`

`

`Case 1:16-cv-00454-RGA Document 558 Filed 04/02/20 Page 5 of 11 PageID #: 46293
`
`In both cases, Acceleration argued that the admittedly client-server network was
`
`nevertheless an infringing m-regular, incomplete network because, according to Acceleration,
`
`the Park Relay Server (Take Two) and DirtyCast Server (EA) are not participants at the
`
`“application layer” but were instead simply part of the “plumbing” of the network:
`
`Take Two Interactive MSJ hearing
`
`EA MSJ hearing
`
`“MR. FRANKEL: It’s [the Park Relay
`Server] a participant -- so it’s a participant
`at the network layer, but not at the
`application layer.” Take Two D.I. 490 at
`90:20-22.
`
`“MR. FRANKEL: … they’ve added to this
`chart participant [the Park Relay Server],
`but it's part of the plumbing that's
`connecting everyone at the application
`layer. So there are ten application layer
`connections per participant. The park relay
`server is not playing the game. There are 40
`players playing the game. Id. at 90:1-9.
`
`“we have never said, we at Acceleration Bay or
`the experts, that the DirtyCast server is always a
`participant.” D.I. 525 at 94:15-94:24.
`
`“when the DirtyCast server is taking the
`messages and processing them, instead of just
`passing them along like plumbing, then it is a
`participant at the application layer. But that's
`very rare. Almost all of the time it is a node at
`the network layer that receives the message and
`just passes it along.” Id. at 95:14-95:19.
`
` “The DirtyCast server is only a participant in
`limited circumstances. … We have never said
`that the participant, that the DirtyCast server is
`always a participant at the application layer. Id.
`at 98:2-9.
`
`
`
`
`
`In Take Two, the Court rejected Acceleration’s argument that there was infringement at
`
`the application layer because the Park Relay Server was not really a participant in the accused
`
`network. The Court clarified the meaning of the term “participant” appropriately rejected
`
`Acceleration’s argument that a central server in the network may be ignored for purpose of
`
`determining whether the network is m-regular:
`
`Plaintiff counters that the server is not a participant in the game. (D.I. 490 at 90:
`16-17). This is surely true in the sense that the server is not playing basketball.
`The server is, however, a participant in the network because it transfers data back
`and forth between other network participants. These patent claims are directed to
`network management, so what matters is whether the server is a participant in the
`network, not whether it is making jump shots or grabbing rebounds. Dr.
`Mitzenmacher, Plaintiff's own expert, wrote that the relay servers “are
`participants in the NBA 2K Mesh Network because they can equally send and
`
`4
`
`

`

`Case 1:16-cv-00454-RGA Document 558 Filed 04/02/20 Page 6 of 11 PageID #: 46294
`
`receive heartbeat data, lockstep data, gameplay data, and VoIP data to other
`participants in the network.” (D.I. 464, Ex. A-4, “Mitzenmacher Supplemental
`Report” 165). I therefore conclude that there is no genuine dispute that the servers
`are participants in the NBA 2K networks, and the networks do not literally meet
`the m-regular limitation of the asserted claims.
`
`Take Two D.I. 492 at 17-18.
`
`In this case, although the Court granted most of EA’s motion for summary judgment, it
`
`declined to rule on the issue of m-regularity, noting Plaintiff’s argument that the parties “do not
`
`agree on appropriate ‘layer’ of the network at which to evaluate infringement.” D.I. 545 at 14.
`
`Plaintiff made this same argument in Take Two, and this case can be resolved the same way.
`
`In Take Two, the Court rejected Acceleration’s argument that the network was m-regular
`
`because the Park Relay Server was not a “participant” at the accused “application layer.” The
`
`Court held that the server is a participant in the network because it “transfers data back and forth
`
`between other network participants” and noted that “Plaintiff's own expert” “wrote that the relay
`
`servers ‘are participants in the NBA 2K Mesh Network.’” Take Two D.I. 492 at 17-18.
`
`The same is true here. Acceleration confirmed that (1) game console participants send all
`
`game and voice data through the EA DirtyCast Server; and (2) there is no way for one console
`
`participant to send data to another console participant without sending that data through that
`
`server. D.I. 525 at 80:10-14; 82:20; 93:25-94:25; 99:6-18 (“no way to get data from the player
`
`console participant to another player console participant without sending it through the server”).
`
`Thus, like the Park Relay Server, EA’s DirtyCast server is a “participant” because it “transfers
`
`data back and forth between the other network participants.”
`
`And, just as in Take Two, Acceleration’s experts unequivocally admitted that the
`
`DirtyCast server is a participant in the accused network:
`
`Q. … [A]re you trying to say that the DirtyCast server is
`sometimes a participant and sometimes not?
`
`5
`
`

`

`Case 1:16-cv-00454-RGA Document 558 Filed 04/02/20 Page 7 of 11 PageID #: 46295
`
`A. No. It's always a participant…
`
`D.I. 426, Ex. E-9 (Med. Tr.) at 93:7-93:23.
`
`The DirtySDK servers are there -- in fact, it's in my report, listed in
`my report -- they're considered based on the deposition testimony
`code in the documents. They're considered to be participants in a
`game. So once the game actually starts… the DirtyCast servers
`are participants in that game.
`
`Id., 66:11-66:20.
`
`Q. So at the application layer overlay network that you think
`infringes, the participants are the programs running on the consoles
`and the DirtyCast server; is that right? …
`
` … The participants in the FIFA game
`THE WITNESS:
`environments include FIFA software application programs running
`on players’ consoles and EA’s DirtyCast server….
`
`Id., 77:16-78:6 (emphasis added).
`
`Although the foregoing is dispositive, EA also notes that other arguments Acceleration
`
`advanced in EA were squarely refuted in the Take Two Memorandum Opinion. In EA,
`
`Acceleration’s experts did not point to any specific code that causes each network participant to
`
`connect to exactly “m” neighbors, but instead argued that “logics rules” based on criteria such as
`
`“a participant’s location” in the virtual world and membership in a “team” “converge” the
`
`network to be m-regular.
`
`The FIFA Network is m-regular because it includes logics
`rules…The logics rules cause the network to converge to an
`optimal number of neighboring peer application programs to which
`a peer application program can send messages and determine what
`gameplay data will be distributed to such participants based on
`different criteria such as
`the participant’s
`location or
`the
`participant’s membership in a specific team. Because the number
`of connections are the same for each participant in a stable state,
`the network is configured to be m-regular.
`
`D.I. 426 Ex. A-1 (Med.Rpt.) at 2 (emphasis added). But, the Court squarely rejected those
`
`arguments in the Take Two Opinion:
`
`6
`
`

`

`Case 1:16-cv-00454-RGA Document 558 Filed 04/02/20 Page 8 of 11 PageID #: 46296
`
`Plaintiff's experts are not describing a network that meets this
`construction. They have not identified any source code that directs
`the participants to connect to the same number of other
`participants. Dr. Medvidovic concluded that the combination of
`various rules and constraints “drives the formation” of an
`m-regular network. (Medvidovic Report 1163). Dr. Mitzenmacher
`concluded that each participant “tends” to connect to the same
`number of other participants. (Mitzenmacher Report 1121). Those
`descriptions are not enough to show that the network is
`“configured to maintain” an m-regular state. It might be true that
`GTAO players are sometimes, or even often, connected to the
`same number of other players. But Plaintiff's evidence does not
`suggest it is the default state of the network or that the network is
`in that state substantially all the time.
`
`Take Two, D.I. 492 at 14-15.
`
`Just as in Take-Two, Acceleration’s nearly identical arguments in this case fail as a matter
`
`of law because rules that balance load or optimize data transfer do not indicate that each
`
`participant has the same number of connections at substantially all times. This is a legal issue of
`
`claim construction and does not present a factual dispute.
`
`
`
`Doctrine of Equivalents
`
`The doctrine of equivalents (“DoE”) theories are nearly identical in both cases. In both
`
`cases, Acceleration’s experts make conclusory assertions such as the network is equivalent to an
`
`m-regular network because it is “balanced.” Compare Take Two D.I. 463 Ex. A-1 (Med.Rpt.) at
`
`¶ 194 with D.I. 426, Ex. A-1 (Med.Rpt.) at ¶201 (DoE analysis for ’344 patent, element 12(d)).
`
`In Take Two, the Court squarely rejected the DoE arguments on grounds of vitiation and
`
`prosecution history estoppel. Take Two, D.I. 492 at 16. But, the Court went further, finding that
`
`the claims are “fundamentally different” than a “network with a central relay server”:
`
`Ultimately, a reasonable jury would have to conclude that the
`architecture of the NBA 2K network, which relies on a central
`relay server, is fundamentally different from the m-regular
`networks of the asserted claims, precluding a finding for Plaintiff
`under the doctrine of equivalents.
`
`7
`
`

`

`Case 1:16-cv-00454-RGA Document 558 Filed 04/02/20 Page 9 of 11 PageID #: 46297
`
`D.I. 492 at 19. The Court’s holdings with respect to DOE apply with equal force in EA.6
`
`CONCLUSION
`
`In Take Two, the Court found that Acceleration’s infringement theories failed as a matter
`
`of law. Because those findings apply with equal force in the present case, EA respectfully
`
`requests supplemental summary judgment briefing to address these legally infirm theories in this
`
`case.
`
`
`
`
`
`
`
`
`OF COUNSEL:
`
`David P. Enzminger
`Michael A. Tomasulo
`Gino Cheng
`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
`
`
`April 2, 2020
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Jack B. Blumenfeld
`_______________________________________
`Jack B. Blumenfeld (#1014)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`
`Attorneys for Defendant
`
`
`
`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`
`Joseph C. Masullo
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`
`6 Prosecution history estoppel and vitiation are both questions of law exclusively reserved for the
`Court. Warner-Jenkinson Co., Inc. v. Hilton Davis Chemical Co., 520 U.S. 17, 39 n.8 (1997)
`(“[T]he various legal limitations on the application of the doctrine of equivalents are to be
`determined by the court, either on a pretrial motion for partial summary judgment or on a motion
`for judgment as a matter of law.”).
`
`8
`
`

`

`Case 1:16-cv-00454-RGA Document 558 Filed 04/02/20 Page 10 of 11 PageID #: 46298
`
`RULE 7.1.1 CERTIFICATE
`
`I hereby certify that the subject of the foregoing motion has been discussed with counsel
`
`for the plaintiff and that we have not been able to reach agreement.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Jack B. Blumenfeld
`
`
`
`
`Jack B. Blumenfeld (#1014)
`
`
`
`
`
`
`
`
`
`

`

`Case 1:16-cv-00454-RGA Document 558 Filed 04/02/20 Page 11 of 11 PageID #: 46299
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on April 2, 2020, I caused the foregoing to be electronically filed
`
`
`
`with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
`
`registered participants.
`
`
`
`I further certify that I caused copies of the foregoing document to be served on
`
`April 2, 2020, upon the following in the manner indicated:
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`
`
`/s/ Jack B. Blumenfeld
`______________________________________
`Jack B. Blumenfeld (#1014)
`
`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
`
`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`Greg Proctor, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
`
`Aaron M. Frankel, Esquire
`Marcus A. Colucci, Esquire
`Cristina Martinez, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Attorneys for Plaintiff
`
`
`
`
`
`
`