Case 1:16-cv-00454-RGA Document 581 Filed 11/22/21 Page 1 of 25 PageID #: 47760
`
`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.
`
`OPENING BRIEF IN SUPPORT OF DEFENDANT’S
`MOTION FOR SUMMARY JUDGMENT OF
`NON-INFRINGEMENT BY COLLATERAL ESTOPPEL
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Cameron P. Clark (#6647)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`cclark@morrisnichols.com
`
`Attorneys for Defendant
`
`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
`
`Daniel K. Webb
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`November 22, 2021
`
`

`

`Case 1:16-cv-00454-RGA Document 581 Filed 11/22/21 Page 2 of 25 PageID #: 47761
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`TABLE OF CONTENTS
`
`I.
`II.
`III.
`
`IV.
`V.
`
`Nature and Stage of the Proceedings .................................................................................... ii
`Summary of the Argument ................................................................................................... 2
`Statement of the Facts .......................................................................................................... 3
`A. The Asserted Patents ..................................................................................................... 3
`B. Prior Summary Judgment Orders Disposed of Most of the Claims.............................. 3
`C. Take-Two Held That Acceleration Was Unable to Show Infringement of
`the “m-regular” Claim Limitation ................................................................................. 4
`D. Acceleration Did Not Appeal the m-regular Non-infringement Holding
`and Lost Every Issue It Did Raise in Its Take-Two Federal Circuit Appeal ................. 4
`Legal Standards .................................................................................................................... 5
`Acceleration is Collaterally Estopped From Asserting that the Accused EA
`Video Games Infringe .......................................................................................................... 7
`A. The Issues Here Are the Same as in Take-Two Because Acceleration’s
`Theories of Infringement Are the Same in Both Cases ................................................ 7
`1. The Operation of EA’s Accused Games ............................................................... 7
`2. Acceleration is Estopped From Asserting Infringement Where The
`Accused Network Includes a Server That Is Connected to the Player
`Participants and That Is Also a Participant............................................................ 8
`3. Acceleration is Estopped From Asserting Infringement Where The
`Connections Are Influenced By Player Decisions or Are Alleged to
`“Converge” to an m-regular Network. ................................................................ 13
`4. Acceleration’s m-regular Doctrine of Equivalents Theory Is Barred ................. 17
`B. The Remaining Elements of Collateral Estoppel Are Met ......................................... 18
`Even Absent a Collateral Estoppel Holding, this Court Should Grant Summary
`Judgment of No Infringement ............................................................................................ 19
`VII. The Court Already Granted Summary Judgment on Acceleration’s ’497 Patent
`Allegations.......................................................................................................................... 19
`VIII. Conclusion .......................................................................................................................... 20
`
`VI.
`
`i
`
`

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`Case 1:16-cv-00454-RGA Document 581 Filed 11/22/21 Page 3 of 25 PageID #: 47762
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Acceleration Bay LLC v. 2K Sports, Inc.,
`15 F.4th 1069 (Fed. Cir. 2021) ....................................................................................1, 4, 5, 18
`
`Acceleration Bay LLC v. Activision Blizzard, Inc.,
`324 F.Supp.3d 470 (D. Del. 2018) .............................................................................................1
`
`Acceleration Bay LLC v. Electronic Arts Inc.,
`No. 16-454-RGA, 2019 WL 1376036 (D. Del. Mar. 27, 2019) ................................1, 8, 19, 20
`
`Acceleration Bay LLC v. Take-Two Interactive Software,
`C.A. No. 16-455-RGA, 2020 WL 1333131 (D. Del. Mar. 23, 2020) .............................. passim
`
`Acumed LLC v. Stryker Corp.,
`525 F.3d 1319 (Fed. Cir. 2008)..................................................................................................6
`
`ArcelorMittal Atlantique et Lorraine v. AK Steel Corp.,
`908 F.3d 1267 (Fed. Cir. 2018)..............................................................................................5, 6
`
`Aspex Eyewear, Inc. v. Zenni Optical Inc.,
`713 F.3d 1377 (Fed. Cir. 2013)..........................................................................................5, 6, 7
`
`Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co.,
`535 U.S. 722 (2002) .................................................................................................................17
`
`Intell. Ventures I LLC v. Cap. One Fin. Corp.,
`937 F.3d 1359 (Fed. Cir. 2019)..................................................................................................5
`
`Jean Alexander Cosms., Inc. v. L’Oreal USA, Inc.,
`458 F.3d 244 (3d Cir. 2006).................................................................................................5, 18
`
`Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc.,
`617 F.3d 1296 (Fed. Cir. 2010)......................................................................................6, 12, 13
`
`Warner-Jenkinson Co. v. Hilton Davis Chem. Co.,
`520 U.S. 17 (1997) ...................................................................................................................17
`
`ii
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`

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`Case 1:16-cv-00454-RGA Document 581 Filed 11/22/21 Page 4 of 25 PageID #: 47763
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`I.
`
`Nature and Stage of the Proceedings
`
`Acceleration Bay originally asserted that EA, Take-Two, and Activision infringed claims
`
`from six patents (the ’344, ’966, ’634, ’147, ’069, and ’497 patents). D.I. 1; 455 D.I. 1; 453 D.I.
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`1.1 Prior summary judgment rulings have left only the allegations that all accused games infringe
`
`’147 patent claim 1 and that the accused NHL and Plants vs. Zombies (“PvZ”) games infringe the
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`asserted claims of the ’344 and ’966 patents to the extent EA tests those games internally in the
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`United States. See Acceleration Bay LLC v. Activision Blizzard, Inc., 324 F.Supp.3d 470, 478-79,
`
`485-87 (D. Del. 2018) (“Activision”) (holding certain claims invalid); Acceleration Bay LLC v.
`
`Electronic Arts Inc., No. 16-454-RGA, 2019 WL 1376036 (D. Del. Mar. 27, 2019) (“EA”) (address
`
`claims not found invalid in Activision). After those decisions, the Court granted Take-Two’s
`
`motion for summary judgment of non-infringement of all asserted patent claims. Acceleration Bay
`
`LLC v. Take-Two Interactive Software, Inc., No. 16-455-RGA, 2020 WL 1333131 (D. Del. Mar.
`
`23, 2020) (“Take-Two”). Shortly thereafter, the Court sua sponte stayed this case pending the
`
`resolution of the appeal of Take-Two, noting that “the resolution of that appeal will likely simplify
`
`the remaining issues in this case and likely indicate whether any of my prior decisions need to be
`
`revisited.” D.I. 561 (4/21/20 order). The Federal Circuit has now affirmed Take-Two. Acceleration
`
`Bay LLC v. 2K Sports, Inc., 15 F.4th 1069 (Fed. Cir. 2021) (“Acceleration Bay”). In the wake of
`
`that affirmance, the Court granted EA’s request for leave to file the present motion. D.I. 579
`
`(11/4/21 hearing tr.) at 31:15-20.
`
`1 “453 D.I.” refers to the docket of Acceleration Bay LLC v. Activision Blizzard, Inc., C.A. No. 16-
`453-RGA and “455 D.I.” refers to the docket of Acceleration Bay LLC v. Take-Two Interactive
`Software, C.A. No. 16-455-RGA.
`
`1
`
`

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`II.
`
`Summary of the Argument
`
`The only remaining patents in this case are the ’344, ’966, and ’147 patents, each of which
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`explicitly require that the accused network or broadcast channel be “m-regular.” Acceleration’s
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`infringement arguments for the “m-regular” limitation are the same as those it fully litigated and
`
`lost in Take-Two. Acceleration chose not to appeal those key rulings. Those rulings have full
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`collateral estoppel (or “issue preclusion”) effect in this case.
`
`The Court has construed each asserted claim in this case to require the accused videogame
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`networks to be configured to maintain m-regularity, meaning the default structure of the network
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`is that every “participant” in the network must connect to exactly the same number of participants.
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`As in Take-Two, Acceleration’s infringement theories for EA’s networks here, even if taken as
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`true, cannot satisfy this Court’s claim constructions.
`
`In Take-Two, Acceleration fully litigated three issues that, if given proper collateral
`
`estoppel effect here, establish non-infringement across all remaining claims.
`
`First Issue: Where an incomplete network for an accused game includes a server that
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`“transfers data back and forth between other network participants,” the network is not m-regular
`
`because the server participant will necessarily have more connections than the other participants.
`
`Take-Two at *9. Here, as in Take-Two, Acceleration’s experts acknowledge that the accused
`
`networks include a server participant that is connected to and transfers data back and forth between
`
`every player participant. This makes m-regularity, and thus infringement, impossible, as the Court
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`recognized in Take-Two. Collateral estoppel bars re-litigation of this issue.
`
`Second Issue: A network is not “configured to maintain” m-regular connections where the
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`network’s connections are determined by player decisions or where “rules and constraints … cause
`
`the gameplay network to converge to the same number of connections for each participant.” Take-
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`Two at *7-8. Here, as in Take-Two, Acceleration has argued that the EA games were m-regular as
`
`2
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`

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`a result of player decisions (e.g., choosing to talk), because they are “configured to converge to
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`the same number of connections,” and because they “apply logics rules in the selective distribution
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`of gameplay data.” D.I. 467 (Acceleration MSJ opposition brief) at 3-4. Acceleration fully litigated
`
`this issue in Take-Two, with the Court ruling that such networks do not infringe. Take-Two at *8.
`
`Collateral estoppel bars re-litigation of this issue.
`
`Third Issue: Infringement of the “m-regular” limitation under the doctrine of equivalents
`
`for the ’344, ’966, or ’147 patents “is barred by prosecution history estoppel” because the
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`limitation was added during prosecution to overcome prior art. Take-Two at *9. In addition, the
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`Court also rejected the equivalents infringement theory because it would vitiate the claim
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`limitation by “reading the m-regular limitation out of the patent.” Id. at *8-9. Acceleration fully
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`litigated this issue in Take-Two, with the Court ruling that Acceleration’s doctrine of equivalents
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`theories were improper. Id. Id. at *8. Collateral estoppel bars re-litigation of this issue.
`
`III.
`
`Statement of the Facts
`
`A.
`
`The Asserted Patents
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`The Asserted Patents describe a computer network and broadcast channel with an m-
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`regular, incomplete topology. The m-regular networks in the Asserted Patents differ from prior art
`
`client-server networks, which the Asserted Patents denigrate as “not particularly well suited to
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`sharing of information among many participants,” and causing “a performance bottleneck.” See,
`
`e.g., D.I. 1, Ex. 1 (’344 patent) at 1:58-2:14.
`
`B.
`
`Prior Summary Judgment Orders Disposed of Most of the Claims
`
`Following the summary judgment rulings in Activision and in this case, the only
`
`infringement allegations against EA that escaped summary judgment were: 1) EA allegedly
`
`infringes claims 12, 13, and 14 of the ’344 patent and claims 12 and 13 of the ’966 patent when it
`
`internally tests the NHL and PvZ games and 2) EA allegedly infringes claim 1 the ’147 patent
`
`3
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`

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`under the doctrine of equivalents for all three accused games. The asserted claims of these three
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`patents each explicitly recite the m-regular limitation. Take-Two at *7.
`
`C.
`
`Take-Two Held That Acceleration Was Unable to Show Infringement of the
`“m-regular” Claim Limitation
`
`In the Take-Two summary judgment decision, the Court disposed of all the claims against
`
`Take-Two with three rulings. First, the Court reiterated that making and selling video games
`
`cannot be making or selling the asserted ’344, ’966, and ’497 patent claims. Take-Two at *4-5.
`
`Second, the Court held that Acceleration presented insufficient evidence that Take-Two tested the
`
`accused games in the accused modes and therefore Take-Two could not be found to “use” the
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`claims of the ’344, ’966, and ’497 patents either. Id. at *5-7. Third—and most importantly for the
`
`purposes of this motion—the Court held that Take-Two did not infringe the asserted ’344, ’966,
`
`’069, and ’147 patent claims either literally or under the doctrine of equivalents because the
`
`accused games did not infringe the “m-regular” claim limitations. Id. at *7-10.
`
`D.
`
`Acceleration Did Not Appeal the m-regular Non-infringement Holding and
`Lost Every Issue It Did Raise in Its Take-Two Federal Circuit Appeal
`
`Acceleration appealed only two rulings to the Federal Circuit: 1) the holding that Take-
`
`Two did not infringe the ’344, ’966, and ’497 patents by making, selling, or offering to sell and 2)
`
`the Court’s construction that the ’069 claims contain an “m-regular” limitation. Acceleration Bay,
`
`15 F.4th at 1075-78. Acceleration did not appeal this Court's judgment that the accused Take-Two
`
`products did not utilize an m-regular network because a client-server network cannot be m-regular
`
`and because unsupported “rules and constraints” resulting from player action did not describe a
`
`network that was designed to maintain an m-regular structure. Id. The Federal Circuit first held
`
`that the appeal as to the ’344 and ’966 patents was moot because Acceleration did not challenge
`
`the m-regular holding, which was an independent ground for non-infringement of those patents.
`
`Id. at 1076-77. The Federal Circuit next found the challenge to construction of the ’069 patent was
`
`4
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`

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`moot because Acceleration challenged only one of the two separate constructions construing the
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`’069 claims to require an “m-regular” network. Id. at 1077. And, finally, on the merits, the Federal
`
`Circuit upheld this Court’s holding that making and selling video game software does not make or
`
`sell the hardware component of the asserted ’497 patent claims. Id. at 1077-78.
`
`IV.
`
`Legal Standards
`
`“Collateral estoppel precludes a plaintiff from relitigating identical issues by merely
`
`switching adversaries and precludes a plaintiff from asserting a claim that the plaintiff had
`
`previously litigated and lost against another defendant.” Aspex Eyewear, Inc. v. Zenni Optical Inc.,
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`713 F.3d 1377, 1380 (Fed. Cir. 2013). Collateral estoppel is not unique to patent law, so the Federal
`
`Circuit will apply the precedent of the regional circuit. Id. “Under Third Circuit law, collateral
`
`estoppel applies when (1) the issue sought to be precluded is the same as that involved in the prior
`
`action; (2) that issue was actually litigated; (3) it was determined by a final and valid judgment;
`
`and (4) the determination was essential to the prior judgment.” ArcelorMittal Atlantique et
`
`Lorraine v. AK Steel Corp., 908 F.3d 1267, 1273 (Fed. Cir. 2018). To determine whether an issue
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`was “essential to the prior judgment,” the Federal Circuit again turns to the law of the regional
`
`circuit. See Intell. Ventures I LLC v. Cap. One Fin. Corp., 937 F.3d 1359, 1370-71 (Fed. Cir.
`
`2019). In the Third Circuit, the “essential to the prior judgment” element is satisfied where the
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`prior judgment was reached through alternative findings. Jean Alexander Cosms., Inc. v. L’Oreal
`
`USA, Inc., 458 F.3d 244, 255 (3d Cir. 2006) (“we will follow the traditional view that
`
`independently sufficient alternative findings should be given preclusive effect.”).
`
`Rather than formally applying a multi-element test, the Federal Circuit often shortcuts the
`
`collateral estoppel inquiry by looking to whether the patentee had “had a full and fair opportunity
`
`to litigate [the] issue.” Aspex Eyewear, 713 F.3d at 1382. In practical effect, collateral estoppel
`
`applies to non-infringement holdings “where it is shown that a close identity exists between the
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`5
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`relevant features of the accused device and the device previously determined to be non-infringing
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`such that they are essentially the same.” ArcelorMittal, 908 F.3d at 1274. “Accused devices are
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`essentially the same where the differences between them are merely colorable or unrelated to the
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`limitations in the claim of the patent.” Acumed LLC v. Stryker Corp., 525 F.3d 1319, 1324 (Fed.
`
`Cir. 2008).
`
` For example, in Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors
`
`USA, Inc., 617 F.3d 1296 (Fed. Cir. 2010), Transocean had previously sued GSF for infringement
`
`of an oil drilling rig patent. Transocean prevailed in the GSF suit and the district court issued an
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`injunction that required GSF to employ a “casing sleeve” on its rig, because a rig with a casing
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`sleeve would not infringe. Id. at 1307. But in Transocean’s next suit, against Maersk, for infringing
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`the same patent claims, Maersk, who had monitored the case against GSF, had already employed
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`a “casing sleeve” on its rig. Id. at 1307. The Federal Circuit found “that the infringement issue in
`
`[ Maersk] is identical to the one in GSF” because the prior decision had already “determined that
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`the modified rig [i.e., a rig with a casing sleeve] did not infringe.” Id. at 1312. The feature that
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`made the accused products “essentially the same” in both cases was the casing sleeve because it
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`was the presence of that casing sleeve in the first case that made the rig non-infringing. Thus,
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`because Maersk used a similar casing sleeve in its rig, Transocean was collaterally estopped from
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`arguing that Maersk’s rig infringed. Id. at 1312.
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`Likewise, in Aspex Eyewear, the patents involved clip-on sunglass lenses that attach by
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`magnet to ordinary sunglasses. Aspex, 713 F.3d at 1378-79. In the first suit, the district court
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`determined that the patent required rims around the lenses, and that Altair did not infringe because
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`its magnetic clip-on sunglasses were rimless. Id. at 1380. Zenni, the defendant in the second suit,
`
`argued that Aspex’s infringement allegation was collaterally estopped because its “accused rimless
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`6
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`magnetic clip-on sunglasses are materially indistinguishable from Altair’s rimless magnetic clip-
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`on sunglasses.” Id. The Federal Circuit agreed, noting that collateral estoppel “precludes a plaintiff
`
`from relitigating identical issues by merely switching adversaries.” Id. The feature that made the
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`accused products “essentially the same” in both cases was that they lacked rims around the lenses
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`because it was the absence of those rims that led to the finding of noninfringement in the first case.
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`Thus, because Aspex had a full and fair opportunity to litigate whether its patent required a rim
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`around the lens, it was collaterally estopped from arguing that Zenni’s rimless glasses infringed.
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`Id. at 1382.
`
`V.
`
`Acceleration is Collaterally Estopped From Asserting that the Accused EA Video
`Games Infringe
`
`A.
`
`The Issues Here Are the Same as in Take-Two Because Acceleration’s
`Theories of Infringement Are the Same in Both Cases
`
`The issue whether the accused products infringe the m-regular limitation is the same here
`
`as in Take-Two. In all material respects, the networks used by the accused EA games are the same
`
`as the client-server networks used by the accused games in Take-Two. But even more importantly,
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`Acceleration’s theories of infringement are the same in both cases, with Acceleration proposing
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`an “application overlay network” that ignored the presence of the central server and suggesting
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`possible infringement that may or may not occur based on the actions of the players in the game.
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`In other words, the features of the accused games which Acceleration alleges make them infringing
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`are the same in both cases. Thus, the issues in both cases are the same and collateral estoppel of
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`non-infringement is appropriate.
`
`1.
`
`The Operation of EA’s Accused Games
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`EA’s prior summary judgment briefs described the operation of the client-server networks
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`used by the accused games in detail. See D.I. 426 (EA MSJ brief) at 4-11. In its summary judgment
`
`opposition, Acceleration did not dispute any part of EA’s description of the networks used by the
`
`7
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`

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`accused video games. D.I. 467 (Acceleration MSJ opposition brief) at 2-6. Instead, Acceleration
`
`asserted that there is an m-regular application layer overlay network overlaid on the networks
`
`described in EA’s briefs. Id. at 2 (“It is this application layer network, which overlays the
`
`underlying network in each of the Accused Products, that is configured to be m-regular and
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`incomplete”) (emphasis omitted). The Court held that the dispute over which layer to evaluate was
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`a “factual question” precluding summary judgment, but the Court did not consider whether the
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`alleged application layer overlay network would satisfy the claim limitations. EA at *7. The Court
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`did, however, reach that issue in Take-Two, as described below.
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`For purposes of this motion—just as Take-Two did on its motion for summary judgment—
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`EA will analyze only Acceleration’s alleged application layer overlay network. See 455 D.I. 463
`
`(Take-Two MSJ brief) at 9-10 (“Although Defendants believe that that the so-called ‘overlay’
`
`network alleged by Acceleration is almost completely wrong, for this motion Defendants will
`
`accept Plaintiff’s characterization”). As in Take-Two, this Motion does not rely at all on EA’s
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`experts. Acceleration alleges the same “application layer overlay network” is used for all three of
`
`EA’s accused games. See D.I. 467 (Acceleration MSJ opposition brief) at 2-6; see also, e.g., D.I.
`
`428, Ex. A-1 (Medvidović opening report) at ¶¶ 189-228. Because of this, the discussion below is
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`the same for all three accused games. The issue is whether Acceleration’s allegations show an m-
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`regular and incomplete network. They do not. Acceleration’s arguments here are the same as the
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`arguments that Acceleration raised, lost, and did not appeal in Take-Two.
`
`2.
`
`Acceleration is Estopped From Asserting Infringement Where the
`Accused Network Includes a Server That Is Connected to the Player
`Participants and That Is Also a Participant
`
`Acceleration is estopped from alleging that the accused EA networks infringe because the
`
`accused EA networks share the same noninfringing feature that led to the finding that the NBA 2K
`
`network did not infringe in Take-Two—namely, that the accused network includes a server
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`8
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`

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`participant that was connected to all of the other player participants. This makes the accused EA
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`networks “essentially the same” as the NBA 2K network found noninfringing in Take-Two.
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`In Take-Two, as the Court observed, the “NBA 2K software uses a ‘Park Relay Server,’
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`which connects to players’ computers or consoles and allows them to play each other.” Take-Two
`
`at *9. Take-Two argued that, in the accused networks, “there might be 40 players in a network
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`each connected to four players, but the Park Relay Server would be connected to all 40 players”
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`and thus “the network is not m-regular because one participant (the server) is connected to a
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`different number of neighbors than the other participants are.” Id. In response, Acceleration argued
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`that the server was not a participant in the application layer network Acceleration accused of
`
`infringement. Id.; 455 D.I. 490 at 90:10-22 (“THE COURT: But, I mean, the keyword is
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`participant. So you’re saying [the server is] not a participant? *** MR. FRANKEL: It’s not a
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`participant in the game. THE COURT: Okay. But is it a participant in the network? MR.
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`FRANKEL: It’s a participant — so it’s a participant at the network layer, but not at the application
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`layer.”).
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`The Court squarely rejected Acceleration’s argument, noting that the server is a
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`“participant in the network because it transfers data back and forth between other network
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`participants.” Take-Two at *9.2 The Court observed that the “claims are directed to network
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`management, so what matters is whether the server is a participant in the network, not whether it
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`is making jump shots or grabbing rebounds.” Id. The Court also noted that Plaintiff’s own expert
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`report stated that the servers “are participants in the NBA 2K Mesh Network because they can
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`equally send and receive heartbeat data, lockstep data, gameplay data, and VoIP data to other
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`2 This is of course consistent with the stipulated construction of “participant” to be “a computer
`and/or computer process that participates in a network.” D.I. 288 at 2.
`
`9
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`

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`participants in the network.” Id. The Court therefore concluded that “there is no genuine dispute
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`that the servers are participants in the NBA 2K networks, and the networks do not literally meet
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`the m-regular limitation of the asserted claims.” Id. Indeed, the Court observed that “the
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`architecture of the NBA 2K network, which relies on a central relay server, is fundamentally
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`different from the m-regular networks of the asserted claims.” Id. at *10.
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`The issue is the same here and Acceleration is therefore precluded from asserting
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`infringement as to the accused EA networks.
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`Here—as in Take-Two—Acceleration’s attorneys and experts acknowledge that the
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`accused games use a client-server network where the server is connected to the player participants
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`but argue that the alleged infringement is occurring at the “application layer.” See, e.g., D.I. 429,
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`Ex. A-3 (Medvidović reply report) at ¶ 37 (“the Asserted Patents are directed to an application
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`layer network overlaying an underlying physical network…. Dr. Kelly erroneously focuses on the
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`underlying client-server network and not the application layer overlay.”); 455 D.I. 464, Ex. A-5
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`(Medvidović reply report) at ¶ 171 (same).
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`Here—as in Take-Two—Acceleration offers attorney argument that the server is not a
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`participant in the “application layer network” accused of infringement, at least some of the time.
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`D.I. 467 (Acceleration MSJ opposition brief) at 5 (Acceleration’s experts “did not say that the
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`server is a participant in the application layer at all times”) (emphasis modified); Take-Two at *9
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`(“Plaintiff counters that the server is not a participant in the game.”); 455 D.I. 490 at 90:10-22.
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`Acceleration takes the position that the server is not always a participant in this case for the same
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`reason it took the position that the server was never a participant in Take-Two.
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`And here—just as in Take-Two—Acceleration’s argument is flatly contradicted by its own
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`experts. In Take-Two, Acceleration’s experts freely admitted that the server was a participant in
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`the accused network. See Take-Two at *9 (“Dr. Mitzenmacher, Plaintiff’s own expert, wrote that
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`the relay servers ‘are participants’”). This expert admission contradicted Acceleration’s attorney
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`argument that the server was not a participant. See id. So too here. Acceleration’s attorneys argue
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`that the EA’s DirtyCast server is sometimes a participant and sometimes not. D.I. 467 at 5 (“The
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`server is only a participant in the overlay network ‘when it applies game logics and selectively
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`forwards data’”) (quoting Medvidović opening report at ¶ 79) But when Dr. Medvidović was asked
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`this exact question about this exact statement in his report during his deposition, he answered: “No.
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`It’s always a participant”:
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`Q. So I’d like to go to Paragraph 79.
`A. Of which exhibit?
`Q. Of your opening report. Sorry.
`A. Thank you.
`Q. So we've looked at most of this already, but in the sixth line of
`that paragraph—actually, I'll start at the fifth line so it’s a complete
`thought:
`“The DirtyCast server is part of the underlying network and is also
`a participant in the application overlay FIFA Network when it
`applies game logics and selectively forwards data as I explain
`further below.”
`By using the word “when,” are you trying to say that the
`DirtyCast server is sometimes a participant and sometimes not?
`A. No. It's always a participant, but the way it participates is by
`applying the game logics and selectively forwarding data.
`
`D.I. 434, Ex. E-9 (Medvidović deposition tr.) at 93:3-23 (emphasis added); See also, e.g. D.I. 428,
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`Ex. A-1 (Medvidović opening report) at ¶¶ 2, 79, 86, 93; D.I. 429, Ex. A-3 (Medvidović reply
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`report) ¶¶ 39, 73.
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`This Court’s reliance on the actual evidence to resolve the inconsistency between the
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`arguments of Acceleration’s counsel and the evidence provided by Acceleration’s experts is
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`directly applicable here. The Court held that Acceleration’s experts were right, the server is a
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`participant “because it transfers data back and forth between other network participants.” Take-
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`Two at *9. So too here. The DirtyCast server is a participant because it receives data (like voice
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`data) from all the players, decides which data to package together (like the first four speakers in
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`voice squelching), and transmits the received data back out to all the players. See D.I. 428, Ex. A-
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`1 (Medvidović opening report) at ¶¶ 154, 168, 177, 193 (“When [the] DirtyCast [the server] detects
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`that there are four VoIP streams being directed to a participant, it will prevent additional VoIP data
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`from being sent to that participant at that time. EA refers to this process as ‘voice squelching.’”)
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`(internal citations omitted). If the server were not a participant, there would be no way to apply
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`voice squelching. Thus, here—as in Take-Two—the server is a participant because it “transfers
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`data back and forth between the other network participants.” Just as the Court observed in Take-
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`Two that the server is a participant in the network even though it’s not shooting baskets, the EA
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`DirtyCast server is a participant even though it’s not playing soccer, hockey, or shooting zombies.
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`As the Court observed, the patents go to the network, and the server is unquestionably a participant
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`in the network.
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`But even if the server were only sometimes a participant, the Court’s opinion in Take-Two
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`says that would not be enough. In Take-Two, this Court acknowledged that “[i]t might be true that
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`GTAO players are sometimes, or even often, connected to the same number of other players.”
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`Take-Two at *8. But that was not enough. Acceleration needed—and failed—to present evidence
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`that “suggest[s] [m-regular] is the default state of the network or that the network is in that state
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`substantially all the time.” Id. Acceleration had no evidence that the default state of the network
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`was m-r