Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 1 of 19 PageID #: 47828
`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 1 of 19 PagelD #: 47828
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`V.
`
`ELECTRONIC ARTSINC.,
`
`Defendant.
`
`)
`
`:
`
`C.A. No. 16-454 (RGA)
`
`PUBLIC VERSION
`
`ACCELERATION BAY LLC’S ANSWERING BRIEF IN OPPOSITION
`TO ELECTRONIC ARTS INC.’S MOTION FOR SUMMARY JUDGMENT OF
`NON-INFRINGEMENT BY COLLATERAL ESTOPPEL
`
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for PlaintiffAcceleration Bay LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`James R. Hannah
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M. Frankel
`KRAMERLEVIN NAFTALIS
`& FRANKEL LLP
`1177 Avenueof the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: December17, 2021
`Public Version Dated: December 23, 2021
`
`

`

`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 2 of 19 PageID #: 47829
`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 2 of 19 PagelD #: 47829
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES.......cccccececccceeeeenteneeesteeceeeeepeseseearesaeseeeeeeseeneanseseeeseeeensseeesneesesneesntens ii
`
`I
`
`NATURE AND STAGE OF PROCEEDINGS ..0... cc ceccccceneeeeecenereeeeeeesiesneeneteenineretieeetenees 1
`
`Il.
`
`STATEMENTOF FACTS .0...cccccccccccscccceceseeseeseeeseeaecaeeaesadeseesaeceaesueesaeeeeetesaneeeesdaesenesaeeeeteas 2
`
`A. Acceleration Bay’s M-Regular Patents Use an Application Layer Overlay
`Network... ccccccccccccseccessececeneecneaeecseaceteaeeeescececeseaeeecaaeesdeeeeesaeeecseedeasaeseeeesueeeesaeeeeteeses 2
`
`B. EA’s Accused Products are Configured to Maintain Incomplete M-Regular
`Networksat the Application Layer... cece eesceseeeseceesesneeeeesaneeseseneeseesanesesenseeeennenanaags 4
`
`C. The Accused Products in the Take-Two Case Used Customized Networks... 7
`
`1. NBA 2K woceecccceccececseecseeneceeceeeeseceecsateteesseecsecnereceeenecesatenesieeecedcaesieseesntereneeeeseees 7
`
`QZ. GTA ceeeeccccccceccessescesensceeeeseesecaeeaeeeaecaeneceaeeateesscesaneaesaeeacneecaeenensevaeeaeeeeieseeaesereneenetets 7
`
`TH. ARGUMENT......cccccccccccceceeeseceeeeeccaeeeeceeeeecseneceeeaeceseaevacesaeeseeeaeescenaeeseeeeseeesersesseeseeaeenatigs 8
`
`A. Collateral Estoppel Does Not Apply Because EA’s Gamesare Different From
`Take-Two's Games .0.......cccccccccseceeeeececceteceneacetesentesecceaeeetereseeeeesendeneeeetieeesesievesesieedeeasenes 8
`
`B. The Take Two Order Does Not Apply to EA’s Games... eeeceeeceeeeeeeneeeseeeeteenteeens 10
`
`C. Collateral Estoppel Does Not Apply to Acceleration Bay’s Application of the
`Doctrine of Equivalents .........ccccccccceccecpeseeeseeeceeeceneeeeesaeecteeseesaevesceadeneeeeeserenteseaeeasenentaes 13
`
`D. EA Has No Basis for Seeking Summary Judgment a Third Time.......000.... eee: 14
`
`TV. CONCLUSION ....ccccccccccccscecsceceesceeeeececeseeeeeceeseeeesevensecesaccenecneseeeesesiesntseresneseatsnesneneseeneneaaae 16
`
`

`

`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 3 of 19 PageID #: 47830
`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 3 of 19 PagelD #: 47830
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`ArcelorMittal Atlantique et Lorraine v. AK Steel Corp.,
`908 F.3d 1267 (Fed. Cir. 2018)... cccceccececseeceesecseeeeeeceseeseeaeeaesneceeeeeeaeeesaeeiesnnnaeeneeaeeateats 1, 8, 14
`
`B-K Lighting, Inc. v. Fresno Valves & Castings, Inc.,
`375 F. App’x 28 (Fed. Cir, 2010) oo. ccc ccc csnereessecssseesesctesecssiseecsessnevseneeaseneesenesaesey 15
`
`Del MarAvionics, Inc. v. Quinton Instrument Co.,
`836 F.2d 1320 (Fed. Cir. 1987)... cccecceceeccceeceneceeeeateeecerecaseeceeneeedesaeeveveneeseeeeeeeeneaseeesaesaseeaeens 8
`
`Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc.,
`458 F.3d 244 (3d Cir, 2006).........ccccescscececeeeceeeenececeenecereeeeeneeceeeseeaeeseneaeesegeneseneeneaenetseasavensenees 9
`
`In re Katz Interactive Call Processing Patent Litig.,
`639 F.3d 1303 (Fed. Cir. 2011)... ccceececeeseseeeceeneereeneeceseeeeeesereeecieniesseceneesnesesneeecseeneneseeneen 8
`
`Scott v. Harris,
`550 U.S. 372 (2007)... ceccccccccsecccseeneceeeneceeseeeesedgeseeesecaeeenageaecneeedeneseecnecbaeeesesdersessseeeseeesseeeeeaees ]
`
`Transocean Offshore DeepwaterDrilling, Inc. v. Maersk Contractors USA, Inc.,
`617 F.3d 1296 (Fed. Cir. 2010)... ccceeccccecseeeecesceeecereeneneeesebeeadedetesesnesnreeseveseeseessessneees 9, 10
`
`Yingbin-Nature (Guangdong) Wood Indus. Co. v. Int'l Trade Comm'n,
`535 F.3d 1322 (Fed. Cir. 2008). .....ceccccecceeeceseveceeeseeeaceeceeeeeeseseaenessessdeeecesceeeseesiesedeecneessseeenbessaeas9
`
`

`

`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 4 of 19 PageID #: 47831
`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 4 of 19 PagelD #: 47831
`
`I.
`
`NATURE AND STAGE OF PROCEEDINGS
`
`The Court should deny Electronic Arts Inc.’s (“EA”) motion for summary judgment on
`
`collateral estoppel (D.I. 581, “Motion’’) becauseit fails to carry its heavy “burden of showing
`
`that the accused devices are essentially the sameas thosein the priorlitigation.” ArcelorMittal
`
`Atlantique et Lorraine v. AK Steel Corp., 908 F.3d 1267, 1274 (Fed. Cir. 2018) (citations
`
`omitted). The Court’s grant of summary judgmentof non-infringement in Take-Two was based
`
`on the specific games and networksat issue in that case. EA’s infringing games, which have no
`
`relationship to the gamesof its competitor Take-Two, use networkstructures that are very
`
`different from those at issue in Take-Two, precluding any application of collateral estoppel.
`
`/d.
`
`This is particularly the case on summary judgment, where Acceleration Bayis entitled to all
`
`reasonable inferences from the record. Scott v. Harris, 550 U.S. 372, 380 (2007).
`
`The Court should also decline EA’s invitation to reconsider summary judgment on
`
`grounds other than collateral estoppel. In its first two summary judgment motions, which
`
`spannedsix briefs and over 150 pages of briefing, EA raised the same non-infringementtheories
`
`it raises in this Motion. See, e.g., D.I. 424 (EA’s Proposed Order) at 4 1 (seeking summary
`
`judgmentthat “Electronic Arts does not infringe any asserted claim .
`
`.
`
`. because the accused
`
`networksare not configured to be m-regular and non-complete as required by these patents.”’);
`
`Declaration of Aaron Frankel (“Frankel Decl.’’), Ex. B (11/4/21 Hearing Tr.) at 30:23-31:3 (“I
`
`think the Defendants .
`
`.
`
`. they’re partly responsible for where we are because they’re the ones
`
`whoraised, I forget how manyissues, but way too many issues to actually brief them
`
`meaningfully in the pages that were at offer there. And so, to some extent, this looks like taking
`
`a second shot.’”’”). EA’s arguments should be denied for the same reason the Court denied them
`
`

`

`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 5 of 19 PageID #: 47832
`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 5 of 19 PagelD #: 47832
`
`the first time around; there are multiple material factual disputes that create triable issues on
`
`infringementthat cannot be resolved on summary judgment. D.I. 545 at 15-16.'
`
`I.
`
`STATEMENT OF FACTS
`
`A.
`
`Acceleration Bay’s M-Regular Patents Use an Application Layer Overlay
`Network
`
`A pair of Boeing engineers, Dr. Fred Holt and Virgil Bourassa, conceived of a series of
`
`inventions for providing efficient and reliable broadcast of data through large networksthat
`
`resulted in Acceleration Bay’s U.S. Patent Nos. 6,701,344, 6,714,966, 6,732,147, and 6,910,069
`
`(the ““Asserted Patents’). D.I. 89, Ex. A-1 (‘344 Patent’) at 2:38-42, 4:23-26 (broadcast overlay
`
`uses the underlying network to form point-to-point connections), 4:35-47 (m-regular overlay
`
`network does not fail unless m: number of computers disconnect), Fig. 2. These patents use
`
`networks where a large numberofparticipating “nodes” are connected to create a virtual
`
`network, referred to as an “overlay” network that relies on an underlying network implemented
`
`using the Internet or other networks. See, e.g., ‘344 Patent at 4:3-47 (“The logical broadcast
`
`channel is implemented using an underlying network system (e.g., the Internet) that allows each
`
`computer connectedto the underlying network system to send messages to each other connected
`
`computer using each computer’s address.”); D.1. 249 at 3 (“The Broadcast Claims overlay the
`
`underlying network system with a certain graph of point-to-point connections between host
`
`computers (or ‘nodes’) through whicha broadcast channelis implemented”). While the Asserted
`
`Patents define the special properties and architecture of the overlay network, the underlying
`
`network can have anystructure, so long asit is capable of moving messages between the
`
`participants in the overlay network.
`
`' For purposesof reducing the issues in dispute, Acceleration Bay is narrowingits election of
`asserted claims to no longer include any claims from U.S. Patent No. 6,920,497.
`
`

`

`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 6 of 19 PageID #: 47833
`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 6 of 19 PagelD #: 47833
`
`There are billions of people connected at the “network layer” by the Internet, because
`
`they can send messagesto each other over the myriad connections and pathwaysofthe Internet.
`
`D.I. 442, Ex. 5 (Bims Report) at 4/28. Software can be used to build an “application layer”
`
`overlay network using the Internet where, for example, there are only twenty participants who
`
`are exchanging messages with each other(1.c., who originate or receive messages on the specific
`
`overlay network).
`
`/d. at §{ 19-21, 27-28. By analogy, an office might have an office mail
`
`system that can deliver messages to and from everyonein the building (the network-layer,
`
`analogousto the Internet). Four co-workers could start a club where when one of themfinds an
`
`article of interest they send a copy to eachof the other three members of the club through the
`
`office mail. This is the equivalent of an application-layer network with the four members as the
`
`participants overlaying the office mail network. Thestructure of the office mail system does not
`
`matter to the membersof the club; it just serves the function of making possible the
`
`communications of the overlay network.
`
`According to Acceleration Bay’s Asserted Patents, the inventive network1s in the
`
`application layer overlay. D.I. 249 at 3, 6-7. Each participant in the overlay networkis directly
`
`connected to only a subset of the other participants in the overlay network, called its
`
`“neighbors.” “Neighbor”refers to the existence of a direct connection in the overlay network
`
`(i.e., not relying on otherparticipants to relay messages), not physical proximity. D.I. 361 at 2;
`
`‘344 Patent at 4:23-47. Whena participant seeks to broadcast a message toall of the other
`
`participants in the network, it sends the message only to its neighbors, who then send the
`
`messages to their neighbors, and so on,until the messageis distributed throughout the whole
`
`network. Jd.
`
`

`

`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 7 of 19 PageID #: 47834
`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 7 of 19 PagelD #: 47834
`
`Theasserted claims require that the application overlay network be “m-regular,” which
`
`refers to a network where eachparticipant is connected to (or attempts to connect to) the same
`
`numberofparticipants. See, e.g., ‘344 Patent at Claim 13 (“wherein the network is m-regular,
`
`where m is the exact numberof neighborparticipants of each participant”); D.I. 89, Ex. A-2,
`
`‘066 Patent at Claim 13 (same); D.I. 89, Ex. A-3, ‘147 Patent at Claim 1| (“said broadcast
`
`channel forming an m-regular graph where m is at least 3”).
`
`The Court foundthis to be “‘an innovative network structure for the distribution of data as
`
`the numberofparticipants in a computer network is scaled.” D.I. 249 at 6. Because each
`
`participant only needs to send a messageto its neighbors, as opposed to sending the message to
`
`all participants in the entire network, the numberof connections each participant must maintain
`
`and the numberof messages each participant must sendto reach all other participants is
`
`minimized.
`
`‘344 Patent at 4:23-47. In denying EA’s motion to dismiss for lack of patent
`
`eligibility, the Court found that “Defendants gloss over the claim requirement of a non-complete,
`
`m-regular networkthat is implemented on an applicationlevel.” D1. 249 at 7 (emphasis
`
`added). As discussed below, EA repeats its mistake in this Motion, ignoring the distinction
`
`between the application level and the networklevel.
`
`B.
`
`EA’s Accused Products are Configured to Maintain Incomplete M-Regular
`Networksat the Application Layer
`
`EA’s infringing gamesinclude its FIFA 15 and FIFA 16 soccer games (“FIFA”), NHL 15
`
`and NHL 16 (“NHL”) hockey games, and Plants vs. Zombies: Garden Warfare and Plantsvs.
`
`Zombies: Garden Warfare II (“PvZ”), first-person shooter games where players control either a
`
`plant or a zombie andfightbattles in squads (together, the “Accused Products”). EA and Take-
`
`Twoare competitors and are not related companies, did not cooperate or partner on anyof the
`
`

`

`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 8 of 19 PageID #: 47835
`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 8 of 19 PagelD #: 47835
`
`products accused of infringementin either case, and the gamesat issue in Take-Two andthis case
`
`are very different.
`
`Acceleration Bay’s infringement expert Dr. Medvidovié demonstrated with ample
`
`evidence that EA’s Accused Products are “configured to maintain” incomplete, m-regular
`
`broadcast channels to broadcast data (the “Networks”). D.I. 442, Ex.
`
`1 (“Med. Rpt.”) at 94 191-
`
`201, 231- 235 (FIFA), 202-213, 236-240 (NHL), 214-228, 241-245 (PvZ); D.1. 442, Ex. 2
`
`(“Med. Reply”) at 4/§/ 35-42, 88-107. EA’s Networkstructure, used in each of the Accused
`
`Products, “overlays the underlying point-to-point connections that are established in the game
`
`environmentfor a plurality of participants where gameplay data and VoIPis transmitted.” Med.
`
`Rpt. #4 102, 115, 128; see also Med. Reply 44 31, 53.
`
`The Networks are application-layer networks because they control the data that the
`
`participants (players’ computers) receive at the application layer. See, e.g., Med. Reply {[ 37.
`
`The Networks are m-regularat the application layer because eachparticipant has the same
`
`numberof connections(i.e., receives data directly from the same numberof other participants)
`
`and are incomplete because eachparticipant does not receive data directly from all other
`
`participants. Med. Rpt. ff 191-197, 202-209, 214-224. Dr. Medvidovic provides an extensive
`
`analysis demonstrating that, at the application layer, each of the Accused Products (1) provides
`
`for certain data to be sent, received and forwarded by and to some,but not, all participants in the
`
`Networks making the network incomplete, and (2) is configured to have the same numberof
`
`connections making it m-regular. Med. Rpt. at 4] 191-201, 231-235 (FIFA), 202-213, 236-240
`
`(NHL), 214-228, 241-245 (PvZ); Med. Reply at {[{] 35-42, 88-107.
`
`Dr. Medvidovié relies on EA documents discussing the use of gamelogics to control the
`
`flow of data between participants. Med. Rpt.| 192, 203, 214 (citing EA0023778-790 (D.I. 470,
`
`

`

`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 9 of 19 PageID #: 47836
`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 9 of 19 PagelD #: 47836
`
`Ex. 108)). Dr. Medvidovié also cites to source code for each Accused Product that specifically
`
`references the logics used in establishing connections and distributing data among participants.
`
`See e.g., Med. Reply 4 74 (identifying EA code that “supports the Accused Products’ use of
`
`gamelogic rules”); Med. Rpt. 4 147, 149, 155, 197 (FIFA); 163, 168, 169, 209 (NHL); 177,
`
`181, 183, 184, 215, 218, 219, 223 (PvZ).
`
`EA’s senior software engineer, Martin Clouatre, confirmsthe use of logics to controlthe
`
`distribution of the data to participants in the network: “the /ogic that accepts the packet and
`
`resendsthe packet .
`
`.
`
`. depending on the packet being a game packet or a VOIP packet.” D.I.
`
`469, Ex. 70 (Clouatre Tr.) at 54:24-55:7 (emphasis added); see also id. at 67:8-10 (“ConnAPIis
`
`the module where all the connection setup logic is centralized in DirtySDK.”), 173:12-175:12
`
`(NetGameDist logic). Mr. Clouatre also explained the Accused Products’ use of input pairing
`
`logic to establish connections betweencertain participants and to transmit data across these
`
`connections. See, e.g., Med. Rpt. 4151.
`
`Dr. Medvidovié provided a detailed analysis of one such use of gamelogics: the use in
`
`the Networks of voice squelching and VoIP tunnels which configure each participant to have
`
`four voice connectionsat the application layer, making the Networks 4-regular. Med. Rpt. {fj
`
`154, 168, 177; see also D.1. 469, Ex. 69 (Macedonia Tr.) at 135:15-22 (VoIP tunnels operate in
`
`the same wayfor all three Accused Products). Referred to as “voice squelching,”this
`
`functionality “relates to data transmitted over connections and in particular [as Mr. Clouatre
`
`explained] ‘mak[ing] sure that only four voice streams makeit to a destination at a time.’” Med.
`
`Reply { 79 (citing Clouatre Tr. at 24:8-11 (D.I. 469, Ex. 70)); see also Med. Rpt. {ff 143-188.
`
`Asanother example, which EA completely ignores in its Motion, Dr. Medvidovié
`
`discussed the use of channels for the different teams in PvZ, where each participantis directly
`
`

`

`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 10 of 19 PageID #: 47837
`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 10 of 19 PagelD #: 47837
`
`connected only to the other members ofits squad and notto all of the other participants in the
`
`game. Because the squads are evenly matched, each participant has the same numberof
`
`connections, making the Network m-regular. Med. Rpt. {| 128-142; 174-188.
`
`C.
`
`The Accused Products in the Take-Two Case Used Customized Networks
`
`1.
`
`NBA 2K
`
`In Acceleration Bay LLC v. Take-Two Interactive Software, Inc., No. 16-455-RGA
`
`(“Take-Two”), Acceleration Bay accused two specific games, NBA 2K15 and NBA 2K 16
`
`(together, ““NBA 2K”) and Grand Theft Auto V Online (“GTA”), of infringement. The Court
`
`separately considered infringement for NBA 2K and GTAandultimately granted summary
`
`judgmentof non-infringement for both games based on very different reasons. Significantly,this
`
`Court’s holdings were specific to the customized networks used by each. Take-Two, 2020 WL
`
`1333131 (D. Del. Mar. 23, 2020), D.I. 492 (the “Take-Two Order”). EA did not cooperate or
`
`partner with Take Two on any of the products accused of infringement in Take-Two.
`
`NBA2Kis a basketball game with online modesthat allow players to compete inlarge
`
`virtual locations, such as a basketball park or arena, with multiple basketball courts (collectively
`
`referred to as the “MyPark” mode of play). Take-Two Orderat 4, 17. For example, in one
`
`version of MyPark there are 10 basketball courts in an arena, each hosting a 5-on-5 basketball
`
`game with ten players total (with 100 players in the park). Jd.
`
`2.
`
`GTA
`
`The Court considered infringement of GTA separate from NBA 2K because the two
`
`gameshave different network structures. See Take-Two Order at 13-17 (GTA), 17-19 (NBA
`
`2K). GTAis an action adventure gamesthat allows players to control an avatar in a fictionalized
`
`virtual world based on Los Angeles. Jd. at 3-4. Players can freely roam the virtual world and
`
`

`

`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 11 of 19 PageID #: 47838
`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 11 of 19 PagelD #: 47838
`
`join various sub-games, such as heists, races, and shootouts.
`
`/d. Acceleration Bay alleged
`
`infringment based on the game’s use of peer-to-peer connections between players’ avatars when
`
`they were within a certain proximity in the virtual game world, as defined by the game’s logic
`
`and networkconnectivity rules.
`
`/d. at 13-14. The data sent between players in close proximity
`
`would then beindirectly relayed to other players through broadcast channels.
`
`/d. The proximity
`
`rules and games logic were designed suchthat under typical game-play conditions the network
`
`would be m-regular.
`
`/d.
`
`It.
`
`ARGUMENT
`
`A.
`
`Collateral Estoppel Does Not Apply Because EA’s Gamesare Different From
`Take-Two’s Games
`
`As described above, EA’s Accused Networks are configured to maintain m-regular and
`
`incomplete networks because they are coded suchthat all participants are connected to exactly
`
`four participants, thereby achieving a 4-regular network. This is distinct from the networks at
`
`issue in Take-Two. There was no functionality at issue in Take Two correspondingto the
`
`functionality at issue in EA, including the voice squelching functionality.
`
`For this reason, EA’s Motion for summary judgment based on collateral estoppel fails
`
`because the accused EA products were “not previously before the court, and .. . differ from
`
`those structures previously litigated, require[ing] a determination on [their] own facts.” Del Mar
`
`Avionics, Inc. v. Quinton Instrument Co., 836 F.2d 1320, 1324 (Fed. Cir. 1987). EA,as “[t]he
`
`proponentof claim or issue preclusion bears the burden of showingthat the accused devices are
`
`essentially the sameas those in the prior litigation.” ArcelorMittal, 908 F.3d at 1274; In re Katz
`
`Interactive Call Processing Patent Litig., 639 F.3d 1303, 1311 (Fed. Cir. 2011).
`
`EA cannot carry its heavy burden because “proofof infringementby collateral estoppel is
`
`only appropriate in limited circumstances, where it is shown that a close identity exists between
`
`

`

`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 12 of 19 PageID #: 47839
`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 12 of 19 PagelD #: 47839
`
`the relevant features of the accused device and the device previously determined to be
`
`infringing,” which is not the case here. Yingbin-Nature (Guangdong) Wood Indus. Co.v. Int'l
`
`Trade Comm’n, 535 F.3d 1322, 1333 (Fed. Cir. 2008) (citations omitted).
`
`EA incorrectly argues that this Court should apply the doctrine of collateral estoppel
`
`based on its broad characterization that a network cannotsatisfy the “m-regular” requirementif
`
`players’ actionscan take it out of an m-regular state. Motion at 1-2, 8-13. The Court did not go
`
`that far. To the contrary, the Court explained in the Take-Two Orderthat the network can,at
`
`times, be in a non-m-regularstate, so long asit is configured to attemptto return to the m-regular
`
`state:
`
`I explained: “My construction does not require the network to have
`each participant be connected to m neighborsat all times; rather, the
`network is configured (or designed) to have each participant be
`connected to m neighbors. In other words, if the network does not
`have each participant connected to mneighbors,this 1s fine so long
`as, when appropriate, it tries to get to that configuration.” (D.I. 244
`at 14)
`
`Take-Two Order at 14. Thus, even if players’ actions can make the network not m-regular,it still
`
`infringesif it is configured to return to the m-regularstate.
`
`EA’s reliance on Aspex Eyewear, Inc. y. Zenni Optical Inc., and similar cases are inapt.
`
`713 F.3d 1377, 1380 (Fed. Cir. 2013). In Aspex, the district court applied collateral estoppel
`
`only after finding that defendant’s product was “materially indistinguishable” from the product at
`
`issue in a prior suit filed by the plaintiff.
`
`/d.; Transocean Offshore DeepwaterDrilling, Inc.v.
`
`Maersk Contractors USA, Inc., 617 F.3d 1296, 1311-12 (Fed. Cir. 2010) (only applying
`
`collateral estoppel where a product was deemedto be non-infringing subject to a modification to
`
`the product); Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 253 (3d Cir.
`
`2006) (“Collateral estoppel .
`
`.
`
`. has the dual purposeof protecting litigants from the burden of
`
`relitigating an identical issue with the sameparty or his privy and of promoting judicial economy
`
`

`

`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 13 of 19 PageID #: 47840
`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 13 of 19 PagelD #: 47840
`
`by preventing needlesslitigation.” (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326
`
`(1979))).
`
`This Court made no finding in the Take-Twocase regarding the EA gamesand,as
`
`discussed below, the networksat issue in the EA case are very different from and, certainly, not
`
`‘indistinguishable” from the networks used in Take-Two’s games. Thus,collateral estoppel does
`
`not apply here.
`
`For example, in Transocean, plaintiff Transocean previously sued GlobalSantaFe
`
`(“GSF”) for infringementofpatents relating to drilling rig technology, resulting in an injunction
`
`requiring GSF to modify its product design to avoid infringement. Transocean, 617 F.3d at
`
`1307. The injunction detailed that if GSF modified its mg to feature a “casing sleeve,” the rig
`
`would not infringe.
`
`/d. Transocean’s subsequent infringement suit (for infringementof the same
`
`claims) against Maersk failed, as Maersk monitored the GSF litigation and added a casing sleeve
`
`to their product in accordance with the injunction.
`
`/d. at 1307, 1312. As Maersk’s product was
`
`modified to meet the court’s description of a non-infringing product, Maersk was able to apply
`
`the doctrine ofcollateral estoppel to prevent re-litigation of the issue.
`
`/d. at 1312.
`
`The present case does not share any similarity to the facts in Transocean. Here, EA’s
`
`Accused Networks include none of the technology deemedto be non-infringing in Take-Two,
`
`such as a “relay server” or “proximity connection rules,” which may cause networksto fall out of
`
`m-regularity. Instead, EA’s accused Networks are m-regular becauseall participants are
`
`connected to exactly four participants.
`
`B.
`
`The Take Two Order Does Not Apply to EA’s Games
`
`EA argues that becausethe participants in a Network are connected atthe network layer
`
`by a server that, underthe Take-Two Order, the overlay application network cannot be m-regular
`
`10
`
`

`

`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 14 of 19 PageID #: 47841
`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 14 of 19 PagelD #: 47841
`
`and incomplete. However, the Court’s findings in the Take Two Orderwere based on the
`
`specific networks andfacts at issue in that case and do notapply to the infringementissues in
`
`this case.
`
`Specifically, Acceleration Bay alleged that MyPark used an m-regular network because
`
`each player wasonly directly connected to the nine other players on their court and was
`
`connectedto the other players in MyPark through relaying. Take-Two D.I. 472 (Opp.) at 8-9;
`
`Take-Two D.1. 464, Ex A-6 (Mitz Reply Rpt.) 4 69, 71, 75. NBA 2K also uses a Park Relay
`
`Serverthat sends and receives gamedata andfills in missing data that would getlost from other
`
`players due to lost data packets of information. D.I. 464, Ex. A-6 (Mitz Reply Rpt.) {| 140, 182.
`
`Relying heavily on the testimony of Acceleration Bay’s expert that the Park Relay Serveracts as
`
`a relay at the network layer connectedto all of the other participants and can also act as a
`
`participant at the applicationlayer, the Court foundthe network to be not m-regular, because the
`
`Park Relay Server was directly connected to 100 otherparticipants, while the other participants
`
`were directly connected to fewerthan 100 participants. Take-Two Orderat 17-18.
`
`The Take Two Order found NBA2Kto be non-infringing based on the specific facts of
`
`that network. Jd. The Court went no further. It made no finding that an application-layer
`
`network cannot be m-regularif it is built on an underlying network-layer network that is not m-
`
`regular, such as a non-m-regularclient-server network. Rather, as technical expert Dr. Cole
`
`explained and no EA expert hasdisputed, the architecture for an overlay network can be different
`
`from the architecture of the underlying network. Frankel Decl., Ex. A (Cole Rpt.) at {| 36.
`
`As inits first motion for summary judgment where EA madethe exact same argument
`
`(D.1. 426 at 1-8), EA improperly focuses on the architecture of the underlying network layer
`
`instead of the application overlaylevel that is the focus of the invention, as found by the Court.
`
`11
`
`

`

`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 15 of 19 PageID #: 47842
`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 15 of 19 PagelD #: 47842
`
`D.I. 249 at 7 (“Defendants gloss over the claim requirement of a non-complete, m-regular
`
`network that is implemented on an application level.’’); D.I. 351 at 9-15 (“Thus, the only
`
`connections that count are those in the ‘network’ or ‘broadcast channel’ at issue.”’); see also D.I.
`
`375 at 12 (“broadcast channel’ is an overlay network formed on a underlying network.”).
`
`EA’s semantic argumentthat the EA DirtyCast server, whichdistributes voice data at the
`
`networklayer, is a participantat the application layeris unpersuasive. Acceleration Bay’s expert
`
`testified during his deposition that the DirtyCast Server was only participating in the limited
`
`sensethat it was “applying the gamelogics and selectively forwarding data.” D.I. 434, Ex. E-9
`
`at 93:3-23. The DirtyCast Server is not a participant in the application layer networkin the
`
`relevant sense because it never processes the voice data in the waythat the players, who are the
`
`participants at the application layer do—there is no voice squelching for the DirtyCast server and
`
`the DirtyCast server never unpacks and processes the voice messages in the way that a player’s
`
`computer doesto hear the audio data. See Med. Rpt. | 168.7
`
`In denying EA’s first motion for summary judgment, the Court foundthat the parties “do
`
`not agree on the appropriate ‘layer’ of the network at which to evaluate infringement .
`
`.
`
`. This
`
`foundational factual question, in addition to the hundredsof cited pages of expert reports and
`
`deposition testimony, precludes summary judgmentontheissue of infringementof the topology
`
`limitations of the ‘344, ‘966, ‘069, and ‘147 Patents.” D.I. 545 at 14-15. The fundamental
`
`* The Asserted Patents disclose that participants in an m-regular network can have additional
`connections to other networksorservers that do notparticipate in the m-regular network.
`‘344
`Patent at 6:19-24 (“The fifth port is referred to as an ‘external’ port because it is used for sending
`non-broadcast messages between two computers. Neighbors can send non-broadcast messages
`either throughtheir internal ports of their connection orthroughtheir externalports.”); id. at
`6:39-58 (“Each computerthat is connectedto the broadcast channel can receive non-broadcast
`messages throughits external port”). Thus, even if there is some persistent connection to a
`server outside of the application layer overlay network, that would not make the overlay network
`non-m-regular.
`
`12
`
`

`

`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 16 of 19 PageID #: 47843
`Case 1:16-cv-00454-RGA Document 584 Filed 12/23/21 Page 16 of 19 PagelD #: 47843
`
`factual dispute remains undecided by the Take-Two Order, precluding summary judgment here
`
`for the same reason EA’s first motion was denied.
`
`EA also argues that the Networks are subject to collateral estoppel based on the Court’s
`
`determination in Take-Two. The Court found that the GTA network was not m-regular because
`
`its state was circumstantial and dependent on where players movedtheir avatars within the
`
`virtual environment. Take-Two Order at 14-15. As with NBA 2K,the Court’s finding of non-
`
`infringement wasbased on thespecific facts regarding GTA. Jd. The Court did not make a more
`
`generalfinding that networking and gamerules could not be used to make a network m-regular,
`
`as EA now incorrectly argues.
`
`Here, EA never explains the way that player movementor actions impact the topology of
`
`the Networks used by EA. For example, the voice squelching rules used in the Networks make
`
`the broadcast of voice data 4-regular, because eachplayer only has 4 voice data connections,
`
`irregardless of the players’ actions. See supra § II-B. EA suggests that these are transient
`
`connections that only exist when a player choses to talk, but that is incorrect. The voice
`
`connection is implemented through VoIP (Voice OverInternet Protocol) tunnels whichcreate
`
`persisting voice connectionsto certain participants, such as in a squad or group. Med. Rpt.at,
`
`e.g., § 133 (discussing VoIP Tunnel source code and functionality). There is nothing analogous
`
`in GTA,such that collateral estoppel cannot apply.
`
`C.
`
`Collate