`Case 1:16-cv-00454-RGA Document 583-1 Filed 12/17/21 Page 1 of 20 PagelD #: 47808
`
`(cid:40)(cid:59)(cid:43)(cid:44)(cid:37)(cid:44)(cid:55) A(cid:3)
`EXHIBIT A
`
`
`
`Case 1:16-cv-00454-RGA Document 583-1 Filed 12/17/21 Page 2 of 20 PageID #: 47809
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`
`
`C.A. No. 16-453 (RGA)
`
`
`
`)))))))))
`
`
`
`
`C.A. No. 16-454 (RGA)
`
`
`
`
`
`C.A. No. 16-455 (RGA)
`
`
`)))))))))
`
`)))))))))))
`
`
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`ACTIVISION BLIZZARD, INC.,
`
`Defendant.
`
`
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`ELECTRONIC ARTS INC.,
`
`Defendant.
`
`
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC., and 2K
`SPORTS, INC., Delaware Corporations,
`
`
`
`Plaintiff,
`
`Plaintiff,
`
`
`
`v.
`
`
`
`v.
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`EXPERT REPORT OF DR. ERIC COLE REGARDING TECHNOLOGY TUTORIAL
`
`
`
`
`
`
`
`
`Case 1:16-cv-00454-RGA Document 583-1 Filed 12/17/21 Page 3 of 20 PageID #: 47810
`
`
`
`F.
`
`36.
`
`Overlay Networks
`
`An overlay network is a computer network that enables the communication nodes
`
`in one or more underlying networks to communicate with each other, and may include its own
`
`network topology. Network entities in an overlay network form virtual or logical links between
`
`them across the network topologies of each underlying network. The topology of the overlay
`
`network does not depend on the topology of the underlying network. For example, a full-mesh
`
`network or regular network can be overlaid on top of an underlying client-server network.
`
`37.
`
`For example, the Internet is an interconnection of multiple networks, each with
`
`their own network topology. The backbone networks used to route communications through the
`
`core of the Internet may be frame relay or Ethernet networks, each with their own network
`
`topologies, whereas the consumer-facing portion of the Internet may utilize the telephone
`
`network, which has its own network topology. Further, the underlying network of an overlay
`
`network itself can be an overlay network. For example, a VoIP network can function as an
`
`overlay network over the Internet, by providing either peer-to-peer or client-server network
`
`functionality on top of the underlying Internet, which itself is an overlay network. Typically, a
`
`VoIP network can be configured with its own network topology. For example, in a typical
`
`conference call, all VoIP nodes may communicate with each other directly over the Internet, or
`
`some or all nodes may communicate indirectly through other VoIP nodes.
`
`V.
`
`Overview of the Asserted Patents
`
`38.
`
`The Asserted Patents are directed to novel computer network technology,
`
`developed by named inventors Fred Holt and Virgil Bourassa, working for Boeing, more than
`
`sixteen years ago. The Asserted Patents solved critical scalability and reliability problems
`
`associated with the real-time sharing of information among multiple widely distributed
`
`- 11 -
`
`
`
`Case 1:16-cv-00454-RGA Document 583-1 Filed 12/17/21 Page 4 of 20 PageID #: 47811
`
`
`
`its neighbors: the diameter of the network increases as it “becomes elongated in the direction of
`
`where the new nodes are added.” See id. at 6:63–7:6, Figs. 4A-4C. In order to minimize the
`
`diameter of the graph as new nodes are added, the ‘069 Patent describes a “random selection
`
`technique to identify” neighbors for a seeking computer to connect to in joining the network. Id.
`
`at 7:20–28, 13:36-48.
`
`F.
`
`54.
`
`‘497 Patent
`
`The ‘497 Patent focuses on methods and systems for locating and connecting to a
`
`broadcast channel. See generally, ‘497 Patent at 1:30-2:45. Each computer is aware of one or
`
`more “portal computers” through which that given computer may locate the broadcast channel.
`
`Id. at 5:37–39. Each computer connected to the broadcast channel contains communications
`
`ports for communicating with other computers. Id. at 6:10–12. The “user ports cannot be
`
`statically allocated to an application program because other applications programs executing on
`
`the same computer may use conflicting port numbers.” Id. at 11:36-39. The ‘497 Patent teaches
`
`that the ports selected may be reordered if too many computers are seeking to connect at the
`
`same time. Id. at 12:12-32.
`
` declare under penalty of perjury under the laws of the United States that the foregoing is
`
` I
`
`true and correct. Executed on September 20, 2017 in Ashburn, Virginia.
`
`
`
`- 17 -
`
`
`
`Case 1:16-cv-00454-RGA Document 583-1 Filed 12/17/21 Page 5 of 20 PageID #: 47812
`Case 1:16-cv-00454-RGA Document 583-1 Filed 12/17/21 Page 5 of 20 PagelD #: 47812
`
`(cid:40)(cid:59)(cid:43)(cid:44)(cid:37)(cid:44)(cid:55)(cid:3)B(cid:3)
`EXHIBIT B
`
`
`
`Case 1:16-cv-00454-RGA Document 583-1 Filed 12/17/21 Page 6 of 20 PageID #: 47813
`3
`1
`MR. ROVNER: Good afternoon, Your Honor. I'll
`just stand here and do the introductions?
`THE COURT: Yes.
`MR. ROVNER: I'm here with my co-counsel from
`Kramer Levin, Paul Andre and Aaron Frankel.
`THE COURT: All right. Good afternoon to you
`
`02:01:05
`
`02:01:07
`
`02:01:09
`
`02:01:10
`
`02:01:12
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`02:01:14
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`02:01:15
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`02:01:16
`
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`2
`3
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`02:02:15 23
`02:02:19 24
`02:02:24 25
`
` IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC, )
` )
` Plaintiff, )
` ) C.A. No. 16-453(RGA)
`v. )
` )
`ACTIVISION BLIZZARD, INC., )
` )
` Defendant. )
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
`ACCELERATION BAY LLC, )
` )
` Plaintiff, )
` ) C.A. No. 16-454(RGA)
`v. )
` )
`ELECTRONIC ARTS INC., )
` )
` Defendant. )
` J. Caleb Boggs Courthouse
` 844 North King Street
` Wilmington, Delaware
` Thursday, November 4, 2021
` 2:01 p.m.
` Status Conference
`
`BEFORE: THE HONORABLE RICHARD G. ANDREWS, U.S.D.C.J.
`
`APPEARANCES:
` POTTER ANDERSON & CORROON LLP
` BY: PHILIP A. ROVNER, ESQUIRE
` -and-
` KRAMER LEVIN NAFTALIS & FRANKEL LLP
` BY: PAUL J. ANDRE, ESQUIRE
` BY: AARON M. FRANKEL, ESQUIRE
`
` For the Plaintiff
`
`1 2 3 4 5 6 7 8 9
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`10
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`16
`17
`18
`19
`20
`21
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`all.
`
`Mr. Blumenfeld.
`MR. BLUMENFELD: Good afternoon, Your Honor.
`Jack Blumenfeld from Morris Nichols for both Defendants.
`Next to me is Jordan Bergsten, Trent Webb, both from Shook
`Hardy & Bacon for the Activision Defendant, and then David
`Enzminger from Winston & Strawn for Electronic Arts. And
`Cameron Clark is with Morris Nichols.
`THE COURT: Okay. Thank you.
`All right. So do I take it that the
`Acceleration Bay vs. Take-Two case is over in the sense that
`the Plaintiff isn't looking for rehearing of one kind or
`another? So that, even though the mandate may or may not
`have issued, that case is done?
`MR. ANDRE: It's done.
`THE COURT: Okay. Thank you.
`All right. So part of what I was trying to do
`after getting these status reports or, I guess, yeah, two
`status reports, was I was -- which seemed to me to be -- and
`4
`they were status reports, so I'm not being critical here,
`but particularly the Defendants' positions seemed to involve
`some steps that might benefit me from having a little bit
`more explanation of exactly what the theory is here as to
`why there should be more of summary judgment motions.
`You know, I went, I spent a little bit of time
`looking at the summary judgment opinions in these two cases
`and looking, reviewing the Court of Appeals' decision, and
`also looking at the summary judgment decision in the
`underlying Take-Two or my decision. And I'm guessing, but
`this is, but if I guess it wrong, tell me, tell me what I
`should be thinking about, but I'm guessing it's not so much
`what the Court of Appeals said about anything in particular
`other than the fact that the litigation is now over. It
`gives you these arguments for collateral estoppel; is that
`right?
`
`MR. BERGSTEN: Yes, that's right.
`THE COURT: And so one of the things that, you
`know, I'm thinking about is the various arguments that you
`might want to say -- and so, basically, what you want to do
`is to say how the -- whatever the -- some of the decisions
`that I made in the Take-Two case, it now apply retroactively
`to the analogous issue in the two earlier cases or the other
`two cases that I would then grant summary judgment for the
`Defendants.
`
`11/30/2021 05:53:46 PM
`
`APPEARANCES CONTINUED:
`
` MORRIS NICHOLS ARSHT & TUNNELL LLP
` BY: JACK B. BLUMENFELD, ESQUIRE
`
`2
`
` -and-
`
` SHOOK HARDY & BACON LLP
` BY: JORDAN T. BERGSTEN, ESQUIRE
` BY: B. TRENT WEBB, ESQUIRE
`
` For the Defendant
` Activision Blizzard, Inc.
`
` MORRIS NICHOLS ARSHT & TUNNELL LLP
` BY: CAMERON P. CLARK, ESQUIRE
`
` -and-
`
` WINSTON & STRAWN LLP
` BY: DAVID P. ENZMINGER, ESQUIRE
`
` For the Defendant
` Electronic Arts
`
`1
`
`2
`
`3
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`4
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`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
` *** PROCEEDINGS ***
`
`01:51:27 14
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`1 of 15 sheets
`
`DEPUTY CLERK: All rise. Court is now in
`session. The Honorable Richard G. Andrews presiding.
`THE COURT: All right. Please be seated. If
`you're fully vaccinated and you want to, you can take your
`mask off.
`
`All right. So this is the status conference in
`the Acceleration Bay vs. Activision Blizzard, which is
`16-453, and Acceleration Bay vs. Electronic Arts, which is
`16-454.
`
`Good afternoon, Mr. Rovner.
`
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`
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`Case 1:16-cv-00454-RGA Document 583-1 Filed 12/17/21 Page 7 of 20 PageID #: 47814
`5
`7
`THE COURT: I would imagine those are fairly
`fact-specific-type decisions, aren't they?
`MR. BERGSTEN: Well, I would respectfully
`disagree to the extent that if you look at them -- so, for
`example, in the Aspex Eyewear case, the issue that was fully
`litigated was, you know, whether rimless eyewear can
`infringe on, you know, a particular claim term that's
`construed.
`
`02:06:36 1
`02:06:39 2
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`MR. BERGSTEN: Correct.
`02:07:15 21
`THE COURT: Okay. So which page?
`02:07:16 22
`MR. BERGSTEN: Page 4. We cited the Aspex
`02:07:22 23
`Eyewear decision on collateral estoppel. And then in
`02:07:26 24
`Footnote 1, we cite two more cases that we think are germane
`02:07:29 25
`to the issue.
`11/30/2021 05:53:46 PM
`
`particular?
`
`MR. BERGSTEN: Yes. So on collateral estoppel,
`it would be the most recent one, Docket Entry 728.
`THE COURT: Well --
`MR. BERGSTEN: Page --
`THE COURT: So I'm assuming that you're talking
`about the joint status report that was filed like three days
`ago; right?
`
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`
`Is that the general theory?
`MR. BERGSTEN: Yes, that's correct, along with
`the collateral estoppel effect of unappealed issues in that
`judgment after that -- the appeal has come back.
`THE COURT: Well, so you know, a lot of -- so
`the issues that were appealed, and even the ones that aren't
`appealed, they mostly involve non-infringement; right?
`MR. BERGSTEN: That is correct, although before
`the stay, we took the position that some of the findings
`that were dispositive in the Take-Two Order were
`clarifications of claim constructions or legal rulings, for
`example, on vitiation and prosecution history estoppel. And
`in opposing our initial briefing, they never denied that
`those were legal rulings or clarifications of claim
`constructions.
`THE COURT: Well, you know, the claim
`construction, I'm not really sure was any kind of
`clarification. Yeah, there was more explication, but it's
`not as though I said I'm changing anything. I was just kind
`of applying it to the Take-Two case, wasn't I?
`MR. BERGSTEN: Well, you know, it's -- sometimes
`that's a difficult line to draw. I think the issue is
`simplified somewhat now that the appeal has been exhausted.
`I think, you know, we cited you to a couple of cases where
`the Federal Circuit has said that a non-infringement Order
`6
`in one case against one product should be applied to
`collaterally estop infringement by a second defendant in a
`second product. And if you look at those cases, they don't
`always come out and say whether it was a claim construction
`decision or a non-infringement judgment. But we do think --
`THE COURT: So, I'm sorry, Mr. Bergsten.
`MR. BERGSTEN: Sure.
`THE COURT: Is the joint status report where you
`cited these cases?
`MR. BERGSTEN: Correct.
`THE COURT: And could you tell me where in
`
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`
`So in the second case, while it wasn't disputed,
`that, you know, the product at issue was rimless eyewear,
`they said, well, you know, this issue that was fully
`litigated in the first case doesn't need to be relitigated
`in the second case. And since it's undisputed that this
`case involves rimless eyewear, then collateral estoppel
`applies.
`
`And our point is the same types of issues, an
`issue like can rimless eyewear infringe this claim term, we
`think those are the types of legal decisions and fully
`litigated issues that were hashed out in the Take-Two Order.
`And we think once you apply those to this case, the
`Activision and the EA case, which we think this Federal
`Circuit authority says you should, all that's left are what
`we understand to be undisputed facts like: Is the Call of
`Duty a network? Is it a client-server network where there
`is a single server? A long-form way of saying that is:
`8
`What is a single server that sends data to and from all the
`game players?
`We don't understand that to be a disputed issue
`in this case. From the very beginning, our experts have
`said, no, this case can't be -- this network that they're
`pointing can't be m-regular and incomplete because there's a
`single server that sends data to and from each one of those
`players. And I didn't understand their experts to ever be
`disputing that fact about how our network works. The
`dispute was about the scope of the patents.
`And what they -- what I understood them to be
`saying is, Well, we look at it as an application layer where
`we don't have to -- where it's not relevant to the claim
`term of m-regularity whether data is being sent back and
`forth from the server.
`So that issue of whether you can just discount
`the existence of a server that sends data back and forth was
`fully litigated in the Take-Two Order. And it's a fully
`litigated issue. It was not appealed. And because it was
`an unappealed judgment that's central to an Order that was
`appealed and was affirmed, then it has full collateral
`estoppel effect in this case.
`So if you applied the fully litigated issue to
`our case, all that's left are undisputed issues. And that's
`our basic position.
`
`2 of 15 sheets
`
`
`
`Case 1:16-cv-00454-RGA Document 583-1 Filed 12/17/21 Page 8 of 20 PageID #: 47815
`9
`11
`And there are a couple of different other
`Activision part of the joint status report -- oh, yeah,
`findings in the Take-Two Order that we would like to explain
`right.
`that are also similar to the issue that was fully litigated
`in the first case and these Federal Circuit cases.
`THE COURT: When you said you'd "like to
`explain," you mean you'd like to explain now or you'd like
`to explain in the briefing what you want to do?
`MR. BERGSTEN: We think the -- either way. I'm
`prepared to do it today, but I do think it's a situation
`where we could point you to the record a little more easily
`in a briefing situation.
`THE COURT: So one of the things that I noticed
`when I was looking over things, and I didn't remember it
`being the case in -- I remembered it being the case
`somewhere, that it turned out it was in the case in both
`Defendants' cases was that you raised way too many issues in
`the briefing.
`The issues that you now want to do summary
`judgment on, are they issues that you raised before,
`obviously not the collateral estoppel part, but the
`underlying substantive issue?
`MR. BERGSTEN: My understanding is that that's
`largely true in that, at a high level, we did point out in
`our opening summary judgment brief that, you know, that we
`didn't think that our -- there was a genuine fact issue on
`
`So you have on Page 2 a chart of the four
`patents and what products are accused. And your argument at
`this point, Mr. Bergsten, would be that Call of Duty and,
`I'm sorry, World of Warcraft and Call of Duty and Destiny,
`they all have this thing where there's a server connecting
`to lots of different participants, even if all the other
`participants are only connected to a handful?
`MR. BERGSTEN: That would be one of the
`arguments, although for World of Warcraft, it's a little bit
`different because they accuse the back-end servers as being
`the participants, rather than just the players. But there
`are other fully litigated issues from the Take-Two Order
`that we think, if applied to this case, would dispose of the
`World of Warcraft infringement allegation on other grounds.
`THE COURT: And to be specific, what issue?
`MR. BERGSTEN: Oh, what issue? So one of the
`issues is there was a holding in the Take-Two Order about
`how if m-regularity is only -- if the network comes to
`m-regularity or does not come to m-regularity based on
`decisions by players playing the game, that that's not
`enough to show that it's configured to maintain m-regularity
`under the laws applied to these patents.
`And I think we can show it's undisputed that for
`
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`10
`whether our networks were m-regular. One of the things we
`pointed out in our motion for leave before the stay is that
`the term participant has never been construed before.
`And so, I do -- so, at the very least, I think
`the Court's explaining a little bit more and resolving the
`issue of what can and cannot be a participant under the
`claim term as it appears in the patent. A ruling on the
`scope of the patents that really wasn't available to us at
`the time that we briefed those issues. In looking at this,
`you know, in looking at the way that Your Honor ruled in the
`Take-Two Order, focusing heavily on some of the statements
`made by their experts about the network, I do think there
`are additional statements from experts -- now that we have
`that guidance, I think there's additional statements from
`the experts in this case that we'd like to put into the
`record that weren't put in the summary judgment record
`before.
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`Beyond that, I'm not sure if every single
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`specific issue has been raised at the first summary judgment
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`opportunity.
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`THE COURT: All right. Well, I appreciate what
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`you say there.
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`So one of the things that I was trying to do and
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`it was easier to do for Activision than for EA was just see
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`what I think is actually left in the case. And in the
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`each of these games, including World of Warcraft, and the
`only examples that their experts provide as showing a
`situation where the networks might actually be m-regular, it
`relies heavily on what the players actually do.
`I can go through each of one of those games if
`you want, but --
`THE COURT: No, no. I don't think that would be
`productive, though I appreciate the offer.
`So that's a different take on the m-regular
`limitation than the single server of thing Take-Two?
`MR. BERGSTEN: We would say it's another legal
`ruling from Take-Two that we consider a different fully
`litigated issue that, if applied to this case, would show
`that each -- that under the, you know, facts as they are
`kind of agreed about how these networks work, it would limit
`infringement at to all three games.
`So the first one that I pointed to about the
`client-server relationship, that would get rid of the Call
`of Duty and the Destiny games. Those rulings about what is
`or is not a participant would still apply to World of
`Warcraft, but it would be simply different. In World of
`Warcraft, the servers don't necessarily have one server they
`all communicate with. But we do think that if we take the
`Court's ruling that a server that sends data to and from the
`participants is itself a participant, then if you look at
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`13
`15
`the undisputed facts about how the World of Warcraft network
`and the decision has now been affirmed, and it meets the
`works, it can't infringe.
`elements of collateral estoppel. Let's assume it does.
`And then a second ground is the one we just
`Then I can keep saying it again, as long as I'm right that
`discussed about how for all three games, even for their
`applying collateral estoppel, that's the limit of what an
`examples about how m-regularity may occur, it completely
`appeal would be.
`relies on choices that the players themselves make about
`Whereas, if it's not collateral estoppel, but
`where to go in the game or how to --
`the facts on the ground are close enough so that I would
`THE COURT: Well, when you say "choices," you
`apply the same ruling anyhow, regardless of whether it's
`mean -- I think in the Take-Two Order, I said something like
`collateral estoppel or not, and then if collateral estoppel
`or the theory of the experts was something about convergence
`actually did not apply, then the merits of my analysis would
`or something. And what I think I said was or the examples
`be subject to review.
`that the expert uses was as people march around, it tends to
`MR. BERGSTEN: I think that's exactly right, and
`get m-regular or something like that. And I think what I
`I think that's the difference between where we were before
`said was, you know, it sort of has to be planned, not
`and after the mandate or the appeal to the Federal Circuit
`accidental.
`in Take-Two.
`The second argument you articulated is what we
`were saying before the appeal was final. And the first
`argument is what we're saying now that the appeal is final.
`And they didn't choose to appeal those issues. They chose
`other issues and lost on them by operation of a controlling
`law that just --
`THE COURT: All right. So, thank you. I think
`I have one more question for you and then I'll let the
`Plaintiff talk.
`Well, actually, this is not so much a question
`
`about?
`
`MR. BERGSTEN: Exactly, yes. So that's the
`same issue -- it was fully litigated there and it applies
`equally here that their expert says in the game of Destiny,
`if three people are on the same team and they choose to go
`to three different geographical locations, then the rules
`might push it towards m-regularity there. And so under the
`fully litigated reasoning in Take-Two, we don't have a
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`MR. BERGSTEN: Exactly.
`THE COURT: Is that the argument we're talking
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`dispute about how the game works. We have a dispute about
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`the scope of the patents that is resolved by a fully
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`litigated issue in Take-Two.
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`And kind of the third, I think the third major
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`issue, you kind of touched on it right there is, you know,
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`just looking at what the experts said in Take-Two about, Oh,
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`there's not one specific constant in the code that makes it
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`m-regular, but their testimony was if you look at a bunch of
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`different features of network design, they converge to
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`create m-regularity.
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`In our motion for leave before the stay, we
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`pointed to substantially similar statements by their
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`experiments made as to all three games in this case. And
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`now that that underlying issue and reasoning has not been
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`appealed and has full collateral estoppel effect as to this
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`case, that's just -- we consider that a third ground for how
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`applying collateral estoppel in this case ends the
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`infringement inquiry.
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`THE COURT: And I guess the point or the wrong
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`way to ask -- is it the case that there's, for lack of a
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`better word, sort of two layers here? One of which is while
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`you're saying -- and you're saying collateral estoppel, and
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`the point would be that if you were correct that there was
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`collateral estoppel, then the merits of my analysis wouldn't
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`really matter. It would just be because I said it before,
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`for you perhaps as for your colleague. One thing I couldn't
`tell from the papers, because I think Acceleration Bay
`didn't really express an opinion about it, is whether or not
`in the EA case the '497 patent was still alive. And I know
`your theory is that it's not.
`Is the '497 patent still alive?
`MR. ANDRE: Yes, Your Honor.
`THE COURT: Okay. And what is the theory under
`which it's still alive?
`MR. FRANKEL: It's the -- I didn't understand
`the comments, Your Honor. In EA's submission, the Blaze
`redirector theory is still in play which was the element
`that EA claims is no longer available for the '497.
`THE COURT: Okay. But you think the Blaze
`redirector is still available?
`MR. FRANKEL: Correct.
`MR. ENZMINGER: The Court granted summary
`judgment actually.
`THE COURT: Yeah, I kind of thought I did.
`MR. FRANKEL: Right. That was on the making
`infringement theory, but not the using infringement theory.
`THE COURT: Okay. All right. Thank you.
`MR. ENZMINGER: The action was not on the making
`and using, it was on all of them, because it said the
`element wasn't present.
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`THE COURT: Well, hold on a second. Let me just
`case. World of Warcraft structure is very different than
`go back and see if I can --
`the Call of Duty and the Destiny.
`MR. FRANKEL: Your Honor, it's Page 11 of the
`THE COURT: So, the Call of Duty and Destiny are
`Summary Judgment Order.
`more like the Take-Two structure?
`THE COURT: Yeah, I've got the Lexis or the
`MR. ANDRE: That's correct. It's more of a
`Westlaw version, so thank you for the help, but that doesn't
`gaming structure with the participants being on the XBox, or
`actually help. It was at the end of the opinion; right?
`the PlayStation, whatever. The network structure of World
`MR. FRANKEL: It's about two-thirds of the way
`of Warcraft is based on a server architecture, so it's very,
`through Section 3.2.2.
`very different.
`THE COURT: All right. Well, it's not going to
`And you may recall during the oral argument you
`be for the -- for whatever reason, I can't find it.
`All right. Well, in any event, there's a
`dispute as to whether that patent is still in the case or
`not. A dispute -- maybe there's an obvious answer. I
`figured if I looked at it, but I'm not going to do that
`right now.
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`All right. So do you want to add anything? I
`was going to go over to them.
`MR. ENZMINGER: The only thing that I would add
`is specific to EA is that the ruling with respect to
`m-regularity on Take-Two is on all fours with EA because
`they are both of the same network structure.
`With respect to the m-regularity in the EA
`summary judgment, the Court didn't reach a decision, but
`noted that there was a dispute on whether the application
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`asked --
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`THE COURT: No.
`MR. ANDRE: No, you probably don't.
`THE COURT: You're asking do I recall oral
`argument from 2017?
`MR. ANDRE: No, let me remind you. During oral
`argument, you had asked that exact question, why were you
`not moving on the same grounds.
`THE COURT: Well, you know, that thought had
`occurred to me when I was looking this over, what was the
`difference, but I haven't been able to reason it through.
`Okay.
`MR. ANDRE: So they said, well, there's two
`different structures and the same argument doesn't apply to
`both. So the idea that collateral estoppel for Call of Duty
`
`18
`layer theory that they were implying, and you can ignore the
`server, was an issue of fact.
`In the Take-Two decision, the Court decided that
`issue, and that's now the law of the case for collateral
`es