Case 1:16-cv-00454-RGA Document 559 Filed 04/16/20 Page 1 of 5 PageID #: 46300
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 16-454 (RGA)
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`)))))))))
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`v.
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`ELECTRONIC ARTS INC.,
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`Defendant.
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`ACCELERATION BAY LLC’S OPPOSITION TO
`ELECTRONIC ARTS, INC.’S MOTION FOR LEAVE
`TO FILE A SUPPLEMENTAL SUMMARY JUDGMENT BRIEF
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`INTRODUCTION
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`The Court should deny Defendant Electronic Arts, Inc.’s (“EA”) motion for leave to file a
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`second supplemental summary judgment brief (D.I. 558, “Motion”). EA already moved for
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`summary judgment on over 30 issues, submitted two supplemental summary judgment briefs,
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`and now moves for leave to submit yet further supplemental summary judgment briefing. The
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`Court already ruled against EA on the issues it now seeks to reargue, and EA did not timely
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`move for leave to reargue them (nor would it have had a basis to do so).
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`EA bases its request for a sixth summary judgment brief on purported developments in a
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`different case concerning different defendants, different products, and different infringement
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`contentions—Acceleration Bay LLC v. Take-Two, et al., Case No. 1:16-cv-00455-RGA, D.I. 492
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`(D. Del. Mar. 23, 2020) (“Take-Two”). The outcome in Take-Two has no impact on how EA’s
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`own products operate or on EA’s own acts of infringement. As set forth below, the infringement
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`issues in Take-Two are very different from the infringement issues in this case. Nothing has
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-454 (RGA)
`
`)))))))))
`
`
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ELECTRONIC ARTS INC.,
`
`Defendant.
`
`ACCELERATION BAY LLC’S OPPOSITION TO
`ELECTRONIC ARTS, INC.’S MOTION FOR LEAVE
`TO FILE A SUPPLEMENTAL SUMMARY JUDGMENT BRIEF
`
`INTRODUCTION
`
`The Court should deny Defendant Electronic Arts, Inc.’s (“EA”) motion for leave to file a
`
`second supplemental summary judgment brief (D.I. 558, “Motion”). EA already moved for
`
`summary judgment on over 30 issues, submitted two supplemental summary judgment briefs,
`
`and now moves for leave to submit yet further supplemental summary judgment briefing. The
`
`Court already ruled against EA on the issues it now seeks to reargue, and EA did not timely
`
`move for leave to reargue them (nor would it have had a basis to do so).
`
`EA bases its request for a sixth summary judgment brief on purported developments in a
`
`different case concerning different defendants, different products, and different infringement
`
`contentions—Acceleration Bay LLC v. Take-Two, et al., Case No. 1:16-cv-00455-RGA, D.I. 492
`
`(D. Del. Mar. 23, 2020) (“Take-Two”). The outcome in Take-Two has no impact on how EA’s
`
`own products operate or on EA’s own acts of infringement. As set forth below, the infringement
`
`issues in Take-Two are very different from the infringement issues in this case. Nothing has
`
`
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`Case 1:16-cv-00454-RGA Document 559 Filed 04/16/20 Page 2 of 5 PageID #: 46301
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`changed in this case that warrants burdening the Court with yet further summary judgment
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`briefing. Therefore, EA’s Motion should be denied.
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`NATURE AND STAGE OF THE PROCEEDINGS
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`In this action alone, the Court authorized each party to submit 125 pages of briefing on
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`summary judgment and Daubert motions. D.I. 377 (Oral Order re: Page Limits). EA moved for
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`summary judgment twice, joining Activision Blizzard’s motion on a host of invalidity grounds,
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`and then filed a separate motion raising yet further arguments, for a total of over 30 issues. D.I.
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`389, 426 (EA’s joinder motion and opening summary judgment brief); D.I. 407 (EA’s opposition
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`to Acceleration Bay’s summary judgment brief); D.I. 476 (EA’s reply brief in support of its own
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`motion for summary judgment). The Court held a lengthy hearing on EA’s summary judgment
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`motion, after which EA submitted two additional summary judgment briefs. D.I. 525; D.I. 526
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`(EA’s first supplemental summary judgment brief); D.I. 535 (EA’s reply supplemental summary
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`judgment brief).
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`In its prior summary judgment motion, EA moved for the same rulings it seeks in the
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`current Motion: findings of (1) no infringement of the m-regular limitation, (2) no infringement
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`under the participant limitation, and (3) no infringement under the doctrine of equivalents. See,
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`e.g., D.I. 426 (EA’s Opening MSJ Brief) at 11–15, 29–31. On August 29, 2018, the Court
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`denied EA’s motion for summary judgment on these issues. D.I. 499.
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`The Court later issued an order granting summary judgment in Take-Two based on the
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`specific factual issues presented in that case. Take-Two, D.I. 492 (the “Take-Two Order”).
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`Acceleration Bay filed a notice of appeal in that case. Take-Two, D.I. 497.
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`EA now moves for leave to submit further supplemental summary judgment briefing in
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`this case. Acceleration Bay opposes that request.
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`2
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`
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`Case 1:16-cv-00454-RGA Document 559 Filed 04/16/20 Page 3 of 5 PageID #: 46302
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`ARGUMENT
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`I.
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`EA Lacks Good Cause to Submit Further Summary Judgment Briefing
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`EA had many opportunities and pages to present its best arguments for summary
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`judgment. EA’s Motion fails to demonstrate good cause for yet further summary judgment
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`motion practice, especially given that it already moved for summary judgment on these very
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`issues. Indeed, as EA’s Motion highlights, the Court already heard oral argument on these
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`issues.
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`That the Court rejected similar previous arguments is confirmed by EA’s citations in the
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`current Motion to the same portions of Acceleration Bay’s expert reports that it cited to in its
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`prior motion for summary judgment. Compare Motion at 6 (citing Medvidovic Rpt. at ¶ 2) with
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`D.I. 426 (EA’s Motion for Summary Judgment) at 11 (citing Medvidovic Rpt. at ¶ 2).
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`Accordingly, the Court should deny the Motion as simply seeking leave to rehash
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`arguments the Court has already heard and denied. Liger6, LLC v. Sarto Antonio, No. 13-4694
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`(JLL)(JAD), 2017 WL 3574845, at *2-3 (D.N.J. Aug. 17, 2017) (denying motion for leave to file
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`summary judgment where there were no new issues); Bernstein v. Virgin Am., Inc., No. 15-cv-
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`02277-JST, 2017 WL 7156361, at *2 (N.D. Cal. Dec. 29, 2017) (denying motion for leave to file
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`a second summary judgment motion where the “[defendant] makes plain that its proposed second
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`summary judgment motion will address the same arguments that [it] made in its first motion.”).
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`II.
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`The Take-Two Order is Not a Reason to Reconsider Infringement of the M-Regular
`and Participant Limitations in This Case
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`EA did not move for reargument when the Court denied its motion for summary
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`judgment of non-infringement as to the m-regular and participant limitations in this case. EA
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`also did not move for reargument or clarification of the Court’s prior claim construction orders
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`3
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`
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`Case 1:16-cv-00454-RGA Document 559 Filed 04/16/20 Page 4 of 5 PageID #: 46303
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`as to any of the issues it now seeks to reargue in its Motion.1 Such motions are due within 14
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`days after the Court issued these decisions and, as a result, have long since been waived. Local
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`Rule 7.1.5(a).
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`Nor does the order in Take-Two warrant reargument on infringement issues in this case.
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`The infringement issues in Take-Two are very different from the infringement issues in this case.
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`In the Take-Two Order, the Court concluded that Grand Theft Auto V Online’s proximity rules
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`and NBA 2K’s park relay server are not infringing networks. Take-Two Order at 14-15, 18-19.
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`In contrast, in this case, the accused products use different network structures and infringement is
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`based on EA’s use of game logics to control connections between participants, as the parties
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`already extensively briefed to the Court. D.I. 467 at 3-6. For example, EA’s accused products
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`use voice squelching and VoIP tunnels to limit each player to four voice-data connections,
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`making the network m-regular and incomplete. Id. at 4-5.
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`Because the infringement issues in Take-Two and this case are different, the Take-Two
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`summary judgment order is not a basis for the Court to hear reargument on summary judgment in
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`this case.
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`III.
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`There is No Reason to Reconsider Infringement Under the Doctrine of Equivalents
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`The Court should also deny EA’s request for leave to present arguments on the doctrine
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`of equivalents (DOE). EA raised DOE in its first 150+ pages of summary judgment briefing in
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`this case. D.I. 426 at 29–31. And, as stated above, EA never moved for reconsideration once the
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`Court issued its order denying summary judgment. Moreover, the Court’s decision in Take-Two
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`on DOE was based on its conclusion that the jury could not find Take Two’s accused networks
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`1 EA did move for clarification of two unrelated claim terms, demonstrating its willingness to
`avail itself of this procedure when it thought it had good reason to do so. D.I. 275.
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`4
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`Case 1:16-cv-00454-RGA Document 559 Filed 04/16/20 Page 5 of 5 PageID #: 46304
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`equivalent to the claimed network. Take-Two Order at 19 (“a reasonable jury would have to
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`conclude that the architecture of the NBA 2K network, which relies on a central relay server, is
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`fundamentally different from the m-regular networks of the asserted claims, precluding a finding
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`for Plaintiff under the doctrine of equivalents.”).
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`Because the accused networks in this case are very different from the Take-Two
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`networks, as described above, the DOE ruling in Take-Two does not control here, and the Court
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`should deny EA’s Motion as to DOE arguments.
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`CONCLUSION
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`For the reasons set forth above, the Court should deny EA’s motion for leave to file a
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`second supplemental summary judgment brief.
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`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
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: April 16, 2020
`6661634
`
`POTTER ANDERSON & CORROON LLP
`
`By: /s/ Philip A. Rovner
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff
`Acceleration Bay LLC
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`5
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