Case 1:16-cv-00454-RGA Document 560 Filed 04/20/20 Page 1 of 5 PageID #: 46305
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`ACCELERATION BAY LLC,
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`ELECTRONIC ARTS INC.,
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`Defendant.
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`Plaintiff,
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`v.
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`C.A. No. 16-454 (RGA)
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`REPLY BRIEF IN SUPPORT OF DEFENDANT’S MOTION FOR LEAVE
`TO FILE A SUPPLEMENTAL SUMMARY JUDGMENT BRIEF
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`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
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`Attorneys for Defendant
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`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
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`Joseph C. Masullo
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
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`OF COUNSEL:
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`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
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`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
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`April 20, 2020
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`Case 1:16-cv-00454-RGA Document 560 Filed 04/20/20 Page 2 of 5 PageID #: 46306
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`Acceleration argues that there are “no new issues” here, but that is simply wrong. There
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`are at least three new issues raised by a recent outside legal development, namely by this Court’s
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`summary judgment opinion in Take-Two. First, this Court clarified its constructions on the same
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`patent claims at issue is this case.1 Acceleration does not dispute this. Second, this Court held
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`that no reasonable jury could conclude that the same type of network (client-server) infringes the
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`same limitations of the same claims of the same patents. Third, the Court held that prosecution
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`history estoppel bars Acceleration’s doctrine of equivalents assertions for the ’344, ’966, and
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`’147 patents. Judges on this Court have heard (and granted) renewed motions for summary
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`judgment where there have been outside legal developments. See, e.g., Acierno v. New Castle
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`County, No. 92-385-SLR, 2002 WL 125679 (D. Del. Jan. 8, 2002) (granting a renewed motion
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`for summary judgment in view of a “clarifying ordinance” passed by the County Council).
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`Acceleration’s argument that the infringement issues in the two cases are “very different”
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`is belied by the facts. There is no daylight between Acceleration’s allegations in the two cases.
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`Rather than take on any of the evidence of similarity marshalled in EA’s motion (D.I. 558 at 2–
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`7), Acceleration merely states that, in this case, “infringement is based on EA’s use of game
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`logics to control connections between participants.” Acceleration Opposition (D.I. 559 at 4). In
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`support of that proposition, the Opposition Brief cites pages 3–6 of Acceleration’s earlier
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`summary judgment brief (D.I. 467). Those pages assert that the EA client-server networks “apply
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`logics rules in the selective distribution of gameplay data, including VoIP data.” D.I. 467 at 3. In
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`Take-Two, Acceleration’s experts similarly alleged that the NBA2K client-server network
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`infringed because: “the logics and other rules control the selective direct distribution of
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`1 Indeed, the claim construction proceedings were consolidated in Take-Two and in this case.
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`1
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`Case 1:16-cv-00454-RGA Document 560 Filed 04/20/20 Page 3 of 5 PageID #: 46307
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`gameplay and VoIP data.” Take-Two D.I. 463 Ex. A-5 (Med.Reply) at ¶¶ 35, 64, 169. These
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`supposedly “very different” allegations from the two cases are virtually identical, and both rely
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`on assertions that the network’s application layer can sometimes be m-regular by happenstance.
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`In Take-Two, this Court rejected that theory of infringement, by clarifying its claim construction.
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`The support for a renewed motion is even stronger with respect to Acceleration’s
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`allegations of infringement under the doctrine of equivalents. In the Take-Two Opinion, the
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`Court noted that “Plaintiff’s doctrine of equivalents argument is especially weak for the ’344,
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`’966, and ’147 patents because the patentee added the m-regular limitation during prosecution.”
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`Take-Two D.I. 492 at 16. The Court held that, because of those amendments, “Plaintiff is barred
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`by prosecution history estoppel from now attempting to erase that limitation from the patents.”
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`Id. In this case, the Court has already found non-infringement of the ’069 patent. D.I. 545 at 11-
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`12. Thus, the only m-regular limitations that remain in this case are the very same ’344, ’966,
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`and ’147 patents that the Court has already held are barred from equivalents under prosecution
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`history estoppel. Prosecution history estoppel is a legal doctrine that depends upon the
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`prosecution history of the asserted patents. See Festo Corp. v. Shoketsu Kinzoku Kogyo
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`Kabushiki Co., Ltd., 344 F.3d 1369, 1367-68 (Fed. Cir. 2003) (prosecution history estoppel is “a
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`question of law” that is “to be determined by the court.”). Acceleration offers no reason why the
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`prosecution history estoppel holding in Take-Two does not apply in this case other than to
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`reassert that the accused EA client-server network is “very different” from Take-Two’s client-
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`server network. D.I. 558 at 5. As shown above and in EA’s motion, the allegations are not “very
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`different;” they are virtually identical, and both depend on a theory the Court has rejected as a
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`matter of law.
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`2
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`Case 1:16-cv-00454-RGA Document 560 Filed 04/20/20 Page 4 of 5 PageID #: 46308
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`In short, the opposition brief presents no argument that would support denying EA an
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`opportunity to present summary judgment briefing to address Acceleration’s legally infirm
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`theories in this case. EA respectfully requests that the Court grant its motion.
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`OF COUNSEL:
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`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
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`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`
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`April 20, 2020
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
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`/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
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`Attorneys for Defendant
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`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
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`Joseph C. Masullo
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
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`3
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`Case 1:16-cv-00454-RGA Document 560 Filed 04/20/20 Page 5 of 5 PageID #: 46309
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`CERTIFICATE OF SERVICE
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`I hereby certify that on April 20, 2020, I caused the foregoing to be electronically filed
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`with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
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`registered participants.
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`I further certify that I caused copies of the foregoing document to be served on
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`April 20, 2020, upon the following in the manner indicated:
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`/s/ Jack B. Blumenfeld
`______________________________________
`Jack B. Blumenfeld (#1014)
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`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
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`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
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`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
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