Case 1:16-cv-00454-RGA Document 589 Filed 10/07/22 Page 1 of 15 PagelD #: 47866
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAYLLC,
`
`Plaintiff,
`
`v.
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`C.A. No, 16-454-RGA
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`ELECTRONIC ARTSINC.,
`
`
`
`Defendant.
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`MEMORANDUMOPINION
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`Philip A. Rovner, Jonathan A. Choa, POTTER ANDERSON & CORROONLLP, Wilmington,
`DE; Aaron M. Frankel (argued),KRAMER LEVIN NAFTALIS & FRANKEL LLP, New York,
`NY; Paul J. Andre, Lisa Kobialka, James R. Hannah,KRAMER LEVIN NAFTALIS &
`FRANKELLLP, Menlo Park, CA;
`
`Attorneysfor Plaintiff.
`
`Jack B. Blumenfeld, Cameron P. Clark, MORRIS NICHOLS ARSHT & TUNNELLLLP,
`Wilmington, DE; Michael A. Tomasulo (argued), David P. Enzminger, Gino Cheng,JoeS.
`Netikosol, WINSTON & STRAWN LLP,Los Angeles, CA; Louis L. Campbell, WINSTON &
`STRAWN LLP, Menlo Park, CA; Daniel K. Webb, WINSTON & STRAWN LLP,Chicago,IL;
`Joseph C. Masullo, WINSTON & STRAWN LLP, Washington, DC;
`
`Attorneys for Defendant.
`
`October ‘L 2022
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`

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`Case 1:16-cv-00454-RGA Document 589 Filed 10/07/22 Page 2 of 15 PagelD #: 47867
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` rusDISTRICTJUDGE:
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`Before me is Defendant’s motion for summary judgment of non-infringement by collateral
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`estoppel.
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`(D.I. 580).
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`I have considered the parties’ briefing.
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`(D.I. 581, 582, 586). For the
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`reasonsset forth below, I will GRANT Defendant’s motion.
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`I.
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`BACKGROUND
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`On June 17, 2016, Plaintiff Acceleration Bay filed suit against Defendant Electronic Arts
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`(“EA”) alleging infringement ofU.S. Patent Nos. 6,701,344 (344 Patent), 6,714,966 (966 Patent),
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`6,732,147 (147 Patent), 6,829,634 (634 Patent), 6,910,069 (069 Patent), and 6,920,497 (°497
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`Patent).
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`(D.I. 1 at 410).
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`After prior summary judgmentrulings on infringement and oninvalidity, two infringement
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`allegations remain: (1) DOE infringementbyall accused products of the ’147 Patent, and (2) literal
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`infringement by the accused NHL and Plants vs. Zombies (“PvZ”) gamesof the ’344 and ’966
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`Patents when EA internally tests those games in the United States.
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`(See D.I. 581 at 1 (citing
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`Acceleration Bay LLC v. Activision Blizzard, Inc., 324 F. Supp. 470, 478-59, 485-87 (D. Del. 2018)
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`(summary judgment opinion addressing claim invalidity); Acceleration Bay LLC v. Elec. Arts Inc.,
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`No. 16-454-RGA, 2019 WL 1376036 (D. Del. Mar. 27, 2019) (summary judgment opinion
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`addressing noninfringement by Defendant)); D.I. 582 at 2 n.1 (confirming that Plaintiff “is
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`narrowingits election of asserted claims to no longer include any claims from [the °497 Patent]”)).
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`This case is related to Acceleration Bay LLC v. Take-Two Interactive Software, Inc., No.
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`16-455-RGA (“Take-Two Case”), where Plaintiff accused online features of three video games—
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`NBA2K15 and NBA 2K 16 (collectively, “NBA 2K”), and Grand Theft Auto Online (““GTAO”)—
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`of infringing the °344, °966, ’147, °069, and 497 Patents.
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`See Take-Two Case, 2020 WL
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`1333131, at *1 (D. Del. Mar. 23, 2020) (“Take-Two SJ Opinion”), appeal dismissed sub
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`2
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`Case 1:16-cv-00454-RGA Document 589 Filed 10/07/22 Page 3 of 15 PagelD #: 47868
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`nom. Acceleration Bay LLC v. 2K Sports, Inc., 2020 WL 9459373 (Fed. Cir. Oct. 2, 2020)
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`(dismissing cross-appeal), and aff'd in part, dismissed in part sub nom. Acceleration Bay LLCv.
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`2K Sports, Inc., 15 F.4th 1069 (Fed. Cir. 2021) (“Take-Two Appeal”).
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`In the Take-Two Case, the
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`defendants moved for summary judgment of non-infringement, which I granted in a detailed
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`opinion. See Take-Two SJ Opinion. Plaintiff appealed. See Take-Two Appeal.
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`On April 21, 2020, I stayed this case pending resolution of Plaintiff's appeal of my
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`summary judgmentruling in the Take-Two Case.
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`(See D.I. 561). The Court of Appeals for the
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`Federal Circuit issued a decision on that appeal on October 4, 2021. See Take-Two Appeal
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`(affirming-in-part the Take-Two SJ opinion and dismissing-in-part Plaintiffs appeal on mootness
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`grounds). With the Take-Two Case’s appeal resolved, Defendant now moves for summary
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`judgment of noninfringement, arguing that Plaintiff is collaterally estopped from relitigating
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`infringementissues it lost in the Take-Two Case.
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`In this case, each remaining asserted claim requires a network that is “m-regular.”
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`I
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`construed “m-regular” to mean “[a] state that the network is configured to maintain, where each
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`[participant or computer] is connected to exactly m neighbor[participants or computers].” (DI.
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`260 at 5). This construction also applied in the Take-Two Case, and Defendant did not appealthis
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`construction. See Take-Two Appeal.
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`I held a hearing on this motion on September 30, 2022.
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`(See D.I. 588).
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`Il.
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`LEGAL STANDARD
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`“The court shall grant summary judgment if the movant shows that there is no genuine
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`dispute as to any material fact and the movantis entitled to judgment as a matter of law.” Fed. R.
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`Civ. P. 56(a). Material facts are those “that could affect the outcome”of the proceeding, and “a
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`dispute about a material fact is genuine if the evidence is sufficient to permit a reasonable jury to
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`3
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`Case 1:16-cv-00454-RGA Document 589 Filed 10/07/22 Page 4 of 15 PagelD #: 47869
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`return a verdict for the nonmoving party.” Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
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`2011) (cleaned up).
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`In deciding a motion for summary judgment, the court must view the
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`evidence in the light most favorable to the non-moving party and draw all reasonable inferences
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`in that party’s favor. See Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476 F.3d
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`180, 184 (3d Cir. 2007).
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`Collateral estoppel, also known as issue preclusion, bars parties from relitigating matters
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`that they previously hadafull and fair opportunity to litigate. See Montana v. United States, 440
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`U.S. 147, 153 (1979). This “protects their adversaries from the expense and vexation attending
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`multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by
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`minimizing the possibility of inconsistent decisions.” Jd. at 153-54.
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`In a patent case, the law of the regional circuit applies to collateral estoppel generally and
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`Federal Circuit precedent applies where the determination of collateral estoppel
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`involves
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`substantive issues of patent law. See Ohio Willow Wood Co. v. Alps South, LLC, 735 F.3d 1333,
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`1342 (Fed. Cir. 2013). Under Third Circuit law, collateral estoppel applies when “(1) the issue
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`sought to be precluded is the sameas that involved in the prior action; (2) that issue was actually
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`litigated; (3) it was determined by a final and valid judgment; and (4) the determination was
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`essential to the prior judgment.” Burlington N. R. Co. v. Hyundai Merch. Marine Co., 63 F.3d
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`1227, 1231-32 (3d Cir. 1995) (cleaned up). The “essential to the prior judgment” element can be
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`satisfied when the prior judgment was reached through alternative findings.
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`Jean Alexander
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`Cosms., Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 255 (3d Cir. 2006) (“we will follow the traditional
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`view that
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`independently sufficient alternative findings should be given preclusive effect”).
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`Whether the “basic requirements for issue preclusion are satisfied” is a question of law.
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`Jd. at
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`Case 1:16-cv-00454-RGA Document 589 Filed 10/07/22 Page 5 of 15 PagelD #: 47870
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`248; see also Ohio Willow Wood, 735 F.3d at 1341 (de novo review ofthe application of collateral
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`estoppel).
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`Asis particular to patent law,“an infringement claim in a second suit is the same claim as
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`in an earlier infringement suit if the accused products in the two suits are essentially the same.”
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`Phil-Insul Corp.
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`vy. Airlite Plastics Co., 854 F.3d 1344, 1353 (Fed. Cir. 2017) (cleaned up).
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`“Accused devices are essentially the same where the differences between them are merely
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`colorable or unrelated to the limitations in the claim of the patent.” Jd. (cleaned up). The accused
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`device in a second suit need not be produced by the same company as that considered inafirst
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`suit. See Aspex Eyewear, Inc. v. Zenni Optical Inc., 713 F.3d 1377, 1380 (Fed. Cir. 2013) (in
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`holding that “[c]ollateral estoppel precludesa plaintiff from relitigating identical issues by merely
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`switching adversaries[,|” affirming “that [a second defendant’s] accused rimless magnetic clip-on
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`sunglasses are materially indistinguishable from [a first defendant’s] rimless magnetic clip-on
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`sunglasses”) (cleaned up). The alleged infringer “bears the burden of showing that the accused
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`devices are essentially the same as those in the prior litigation.” ArcelorMittal Atlantique et
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`Lorraine v. AK Steel Corp., 908 F.3d 1267, 1274 (Fed. Cir. 2018).
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`Il.
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`DISCUSSION
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`A.
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`Issues Previously Adjudicated in the Take-Two Case
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`The Parties’ dispute centers around three noninfringement issues I decided in the Take-
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`Two SJ Opinion.
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`(See D.I. 581 at 2-3).
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`First, for GTAO, I considered the player movement issue. Plaintiff argued that GTAO
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`infringes the m-regular limitation because the players’ avatars “share more data when they are near
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`each other” thus causing an m-regular network to “arise naturally as the players are moving
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`throughout the game.” Take-Two SJ Opinion at *8 (cleaned up).
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`In rejecting this argument, I
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`5
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`held, “Under my claim construction, a network is not m-regular if the participants just happen to
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`connect to the same number of other participants occasionally. Rather, the network must be
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`‘configured to maintain’ an m-regular state.” Jd. at *8. Based on this, I held that “the [GTAO]
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`players’ actions determine how connections are formed, and the network is not ‘configured to
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`maintain’ any particular state.” Jd J explained that “if a system is designed to achieve a desired
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`result, one would not normally say the result ‘just arises naturally.’” Jd.
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`Second, for NBA 2K,I considered the all-connected server issue. Plaintiff argued that a
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`server which connects to all the virtual basketball players is not a “participant” in the game and,
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`thus, does not defeat m-regularity.
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`Jd at *9,.
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`I disagreed, finding that, “the server is not playing
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`basketball .... The server is, however, a participant in the network becauseit transfers data back
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`and forth between other network participants. These patent claims are directed to network
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`management, so what matters is whether the server is a participant in the network, not whetherit
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`is making jump shots or grabbing rebounds.” Id.
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`Third, I considered Plaintiffs Doctrine of Equivalents (“DOE”) argument that the GTAO
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`network performs substantially the same function as an m-regular network by “optimizing the
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`entire network processing of the network by limiting each participant’s network connections” so
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`that “data are distributed in a balanced fashion over the network[.]” Jd. at *8 (cleaned up); see also
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`id. at *10 (similar DOE argument for NBA 2K).
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`I rejected this DOE argument because it
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`“effectively reads the m-regular limitation out of the patent” when “[t]here is no mention of
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`participants connecting to the same numberofother participants.” Jd. at *9; see also id. at *10
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`(rejecting Plaintiff's DOE argument for NBA 2K for the same reason).
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`Defendant explains that these three issues were actually litigated, determined by final and
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`valid judgment, and essential to the prior judgment.
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`(See D.I. 581 at 18; see also Burlington, 63
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`6
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`Case 1:16-cv-00454-RGA Document 589 Filed 10/07/22 Page 7 of 15 PagelD #: 47872
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`F.3d at 1231-32). Plaintiff does not contest that these requirements for collateral estoppel are met.
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`(See generally D.J. 582).
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`I agree with Defendant, and find that these three issues were actually
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`litigated (see generally Take-Two SJ Opinion; Take-Two Appeal), were determined by a final and
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`valid judgment
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`(see generally id. see also Phil-Insul Corp., 854 F.3d at 1357 (“the
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`noninfringement determinations in [a previous case] are final for collateral estoppel purposes by
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`virtue of [a plaintiffs] failure to appeal them”)), and were essential to the prior judgment (see
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`Take-Two SJ Opinion at *7-10).
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`B.
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`Issues Currently Being Adjudicated
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`Defendant argues that noninfringement issues being considered in this case are identical to
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`the player movement, all-connected server, and DOEissues that were previously adjudicated in
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`the Take-Two Case.
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`1.
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`Player Movement Issue
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`Defendant argues that, just as with GTAO in the Take-Two Case, Plaintiff's infringement
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`arguments rely on a “claim that the [Defendant’s] networks may or may not be m-regular
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`depending on the players’ actions in the game.”
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`(D.I. 581 at 14). Specifically, Defendant
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`explains that Plaintiff's infringement argument relies on the “voice squelching” feature of the
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`accused games, whereby,“‘When[the] DirtyCast [server] detects that there are four VoIP streams
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`being directed to a participant, it will prevent additional VoIP data from being sent to that
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`participant at that time.’” (D.I. 581 at 15 (quoting D.I. 428, Ex. A-1 (Medvidovic Report) at
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`q154, 168, 177, 193)). Plaintiffs expert explains, “Thus, the network is configured so that each
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`participant can only have four VoIP data connections at the same time, making the network m-
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`regular, with m=4.”
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`(DI. 428, Ex. A-1 at 49154, 168, 177, 193)). Considering Plaintiff's
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`argument, Defendant contends, “Here—as in Take-Two—theplayers’ actions determine whether
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`7
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`voice squelching is activated. ... If no players talk, or even if one, two, three, or four playerstalk,
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`voice squelching is not activated and there is no m-regular network under Acceleration’s theory.
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`Under Acceleration’s theory, only whenfive playerstry to talk at the same time does an m-regular
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`network form [which] is exactly like the non-default, transitory, player-generated m-regular
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`network theory that this Court found lacking in Take-Two.”
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`(D.1. 581 at 16).
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`Plaintiff disagrees, arguing that “the voice squelching rules used in the Networks make the
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`broadcast of voice data 4-regular, because each play only has 4 voice data connections,irregardless
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`of the players’ actions.” (D.I. 582 at 13). Plaintiff further asserts, “[Defendant] suggests that
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`these are transient connectionsthat only exist when a player [chooses] to talk, but that is incorrect.”
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`(d.)
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`Instead, “The voice connection is implemented through VoIP (Voice Over Internet Protocol)
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`tunnels which create persisting voice connections to certain participants, such as in a squad or
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`group.” (id. (citing D.I. 442, Ex. 1 (Medvidovic Report) at 4133 (including a string cite to source
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`code))). At the close of the hearing, Plaintiff cited additional evidence to support its argument
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`that the VoIP tunnels are “persistent” and m-regular independentof player actions.
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`(See D.I. 429,
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`Ex. A-3 (Medvidovic Reply Report) at J931, 61, 66, 74).
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`During the hearing, Plaintiff also suggested that “the use of [team] channels ... in PvZ,
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`where each participantis directly connected only to the other membersofits squad and notto all
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`of the other participants in the game”establishes m-regularity for the PvZ network even in the face
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`of voice squelching.
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`(D.I. 582 at 6-7 (citing D.I. 428, Ex. A-1 at 99128-142, 174-188)).! At the
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`! While referring to the PvZ team channels in the backgroundsection ofits briefing, Plaintiff did
`not include in its arguments that the PvZ team channels defeat Defendant’s summary judgment
`arguments for voice squelching.
`(See D.I. 582 at 6-7, 13; see also John Wyeth & Bro. Ltd. v.
`CIGNA Int'l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (“[A]rguments raised in passing...,
`but not squarely argued, are considered waived.”)).
`8
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`Case 1:16-cv-00454-RGA Document 589 Filed 10/07/22 Page 9 of 15 PagelD #: 47874
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`close of the hearing, Plaintiff cited additional evidence to support its argument that the PvZ team
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`channels are m-regular.
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`(See D.I. 429, Ex. A-3 at 9953, 77; D.I. 434, Ex. E-9 at 93:3-23).
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`I agree with Defendant.
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`I find that the accused products in this case and NBA 2K are
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`essentially the same for purposes of the player movement issue.
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`Just as was the case with NBA
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`2K,for the presently accused products,“it is the players’ actions [in communicating through their
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`microphonesthat] determine how connections are formed, and the network is not ‘configured to
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`maintain’ any particular state.”
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`(Take-Two SJ Opinion at *8). Particularly, Plaintiffs expert
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`explains that the DirtyCast server enacts voice squelching upon “detect[ing] that there are VoIP
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`streams being directed to a participant.” (D.I. 428, Ex. A-1 at 49154, 168, 177, 193)). Thus,
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`while “the network is configured so that each participant can only have four VoIP data connections
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`at the same time[,]” the network only enacts voice squelching when players are speaking.
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`(/d.).
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`“Under my claim construction, a network is not m-regular if the participants just happen to connect
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`to the same number of other participants occasionally” based on whether players are speaking.
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`(Take-Two SJ Opinion at *8).
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`Further, during the hearing regarding this Motion, Plaintiff could not meaningfully contest
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`that. the voice-squelched VoIP streams are impersistent and dependent on player actions.
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`Particularly, while Plaintiff pointed to paragraphs 31, 61, 66, and 74 of Dr. Medvidovic’s Reply
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`Report during the hearing, these paragraphs do not support the notion that the VoIP tunnels are
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`persistently m-regular.
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`(See D.I. 429, Ex. A-3 at 9931, 61, 66, 74). For example, paragraph 31
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`describes an “underlying physical network” of VoIP tunnels “through whichall of the VoIP traffic
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`flows[,]” where voice squelching cause “some data [to] not [be] sent over some of those [VoIP
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`tunnels] fora period oftime.” (See id at§31). Thus, paragraph 31 suggests that the VoIP tunnels
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`are not m-regular and exist as underlying connections between all players, and that voice
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`9
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`Case 1:16-cv-00454-RGA Document 589 Filed 10/07/22 Page 10 of 15 PagelD #: 47875
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`squelching limits which tunnels are used based on which players are speaking. That is not a
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`persistent, m-regular network and, instead, any m-regularity would be caused by player actions.
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`Similarly, paragraphs 61, 66, and 74 do not support Plaintiff's argument that the VoIP tunnels
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`form a persistently m-regular network.
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`Additionally, while Plaintiff suggested that the PvZ team channels—whereeach playeris
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`connected only to the other members of their team—are uniquely m-regular, I disagree. As
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`Plaintiff recognized in its briefing, the PvZ team channels rely on voice squelching.
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`(See D.I. 582
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`at 6 (noting “the use in the Networks of voice squelching[,]” where “VoIP tunnels operate in the
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`same way for all three Accused Products”); see also D.I. 428, Ex. A-1 at 9131 (explaining that,
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`for PvZ, “not all participants in a given game session are connected through [the] sub-channels.
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`... For a given channel, a participant can have four neighborparticipants at a time such that only
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`four VoIP messages can be heard at a time due to the VoIP squelching rules[.]”), 182 (explaining
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`that, for PvZ, “the VoIP functionality uses the PvZ logical Sub-Channels”)). Thus, independent
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`of whether PvZ limits the potential voice connections to the members of each team, PvZ’s use of
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`voice squelching causes impersistent connections that are dependent on the players’ actions and,
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`thus, defeats m-regularity. Plaintiff cites to paragraphs 53 and 77 of Dr. Medvidovic’s Reply
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`Report as suggesting otherwise, but, from my review, these paragraphs do not suggest that the
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`voice squelching feature common to each of the accused products works differently based on
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`PvZ’s use of team channels.
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`(See D.I. 429, Ex. A-3 at 953, 77; see also D.1. 434, Ex. E-9 at 93:3-
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`23 (unrelated testimony regarding the DirtyCast server “always [being] a participant” in the
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`accused games)).
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`10
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`Thus, Plaintiff is collaterally estopped from proceeding with its literal infringement claims
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`because, as was determined in the Take-Two Case, a network cannot be m-regular if the m-
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`regularity is dependent on players’ actions.
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`2.
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`All Connected Server Issue
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`Defendant argues that the DirtyCast server, on which each of the accused productsrelies,
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`is a network participant that is connected to all other participants.
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`(See D.I. 581 at 8-13; see also
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`D.I. 442, Ex.
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`1 (Medvidovic Report) at 42 (for each of the accused products, asserting, “The
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`participants are [FIFA/NHL/PvZ] software application programs, running on player consoles (PC
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`and Xboxes), and EA’s DirtyCast server”), {79 (“The DirtyCast server is part of the underlying
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`network and is also a participant in the application overlay FIFA Network whenit applies game
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`logics and selectively forwards data.”), J986, 93, 154, 168, 177, 193; DI. 434, Ex. E-9
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`(Medvidovic Dep. Tr.) at 93:3-23 (“Q:
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`... are you trying to say that the DirtyCast server is
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`sometimes a participant and sometimes not? A: No. It’s always a participant, but the way it
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`participates is by applying the game logics and forwarding data.”)). Through the cited evidence,
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`Defendant strongly conveys that, according to Plaintiff’s own expert, the DirtyCast server is a
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`network participant.
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`Plaintiff responds, “[D]efendant’s semantic argument that the EA DirtyCast server, which
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`distributes voice data at the network layer, is a participant at the application layer is unpersuasive.
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`... [T]he DirtyCast Serveris not a participant in the application layer network in the relevant sense
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`because it never processes the voice data in the way that the players, who are the participants at
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`the application layer[,] do[.]” (D.I. 582 at 12 (citing D.I. 434, Ex. E-9 at 93:3-23; D.I. 442, Ex. 1
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`at §168)).
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`Plaintiff emphasizes that,
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`in denying Defendant’s earlier motion for summary
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`judgment of non-infringement, I found that there is a factual dispute regarding “the appropriate
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`Case 1:16-cv-00454-RGA Document 589 Filed 10/07/22 Page 12 of 15 PagelD #: 47877
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`‘layer’ of the network at which to evaluate infringement.” (D.I. 582 at 12-13 (citing Acceleration
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`Bay, 2019 WL 1376036,at *7)).
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`I find Plaintiff's assertion that the DirtyCast server is not a participant “in the relevant
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`sense” to be unsupported attorney argument.
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`Indeed, Plaintiffs cited evidence does not support
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`its argument. For example, paragraph 168 of Dr. Medvidovic’s report does not explain whether
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`the DirtyCast server is a participant in the application layer.
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`(See D.I. 442, Ex.
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`1 at 9168).
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`Instead, paragraph 168 describes the DirtyCast server’s function in “ensur[ing] that ... player[s]
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`[do] not receive VoIP messaging from all other players ... at the same time” before providing a
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`string cite to the source code.
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`(See id.).
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`I find that Plaintiff's expert Dr. Medvidovic clearly posits that the DirtyCast server is a
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`network participant for each of the accused products.
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`(See, e.g., D.I. 442, Ex. 1 at J92, 79, 86,
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`93). Dr. Medvidovic plainly states that the DirtyCast server is “always a participant [and]
`participates ... by applying the game logics and forwarding data.” (D.I. 434, Ex. E-9 at 93:3-23;
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`see also DJ. 442, Ex. 1 at 479 (explaining that, when the DirtyCast server “applies game logics
`
`and selectively forwards data,” it is a “participant in the application overlay ... [n]etwork”)).
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`Similarly, in the second paragraph of his expert report, Dr. Medvidovic lists “EA’s DirtyCast
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`server” as a network participant for each of the accused products.
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`(D.I. 442, Ex.
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`1 at 42).
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`Plaintiffs attorneys cannotlimit those statements to avoid summary judgment.
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`Thus, I find the accused products in the present case and NBA 2K in the Take-Two Case
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`to be essentially the same for purposes of the all-connected server issue. See Take-Two SJ
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`Opinion at *9 (“what matters is whether the server is a participant in the network”). This basis
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`for summary judgment of no literal infringementis in addition to the independent basis described
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`in Section III.B.1 above.
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`Case 1:16-cv-00454-RGA Document 589 Filed 10/07/22 Page 13 of 15 PagelD #: 47878
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`For these reasons,I findthat Plaintiff is collaterally estopped from advancingits remaining
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`literal infringement theoriesin this case.
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`3.
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`Doctrine of Equivalents Issue
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`Defendant argues that the DOE issues being considered in this case are identical to the
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`DOEissues that were previously adjudicated for GTAO and NBA 2K,particularly considering
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`that for the ’147, ’344, and ’966 Patent—the only patentsstill at play in this case—“the patentee
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`added the m-regular limitation during prosecution [thus barring Plaintiff] by prosecution history
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`estoppel from now attempting to erase that limitation from the patents.” (Take-Two SJ Opinion
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`at *9; see D.I. 581 at 17-18). Defendant asserts that estoppel “applies because the features of the
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`accused EA gamesalleged to infringe by equivalents are essentially the same as those rejected by
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`this Court for both NBA 2K and GTAO [where] [i]n both cases, [Plaintiffs] experts used nearly
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`identical language in alleging infringement by equivalents.” (D.I. 581 at 17 (citing DI. 428, Ex.
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`A-1 (Medvidovic report for the present case) at JJ199-201, 211-213, 226-228; Take-Two Case,
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`D.I. 464, Ex. A-1 (Medvidovic report for the Take-Twocase) at ¥192-194)).
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`Without citing any evidence, Plaintiff disagrees, arguing that the DOE issues are not
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`essentially the same because “[t]he [EA] Networks are m-regular through the imposition of
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`specific rules, such as the voice squelching, which makes the Networks 4-regular for voice data[,|
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`and team channels, which makes the Network m-regular based on the numberof players in each
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`team.”
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`(D.I. 582 at 13-14).
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`In granting summary judgment in the Take-Two SJ Opinion, I explained that Plaintiff's
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`DOE arguments for both GTAO and NBA 2K were flawed because they attempt “to remove
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`inconvenient claim elements, such as the m-regular limitation.” (Take-Two SJ Opinion at *10).
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`This reasoning was underscored by the fact that “for the °344, ’966, and ’147 patents ... the
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`Case 1:16-cv-00454-RGA Document 589 Filed 10/07/22 Page 14 of 15 PagelD #: 47879
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`patentee added the m-regularlimitation during prosecution” to overcome “a specific prior art
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`reference[,]” thus barring Plaintiff “by prosecution history estoppel from now attempting to erase
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`that limitation from the patents.” (/d. at *9).
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`Iagree with Defendant. The portionsof Plaintiff's
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`expert’s reports cited by Defendant showthat there are no material differences between the accused
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`products in this case and Take-Two as they relate to Plaintiff's rejected DOE arguments. My
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`belief that the accused products are essentially the same is buttressed by Plaintiffs inability to
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`point to any evidence supporting meaningful differences in the accused productsas theyrelate to
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`infringement of the m-regular limitation under DOE.
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`(See D.I. 582 at 13-14; see also Phil-Insul
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`Corp., 854 F.3d at 1353; Transocean Offshore Deepwater Drilling, Inc.
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`vy. Maersk Contractors
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`USA,
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`Inc., 617 F.3d 1296, 1312 (Fed. Cir. 2010) (applying collateral estoppel when the
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`infringement issue in a second case wasidentical to the issue considered in an earlier case, and
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`product differences “[did] not change the fact that the [allegedly infringing product] does not
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`infringe”)). For these reasons, where each of the elements for collateral estoppel is met, I find
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`that Plaintiff is collaterally estopped from advancing its DOE theories in this case.
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`4,
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`Summary Judgment Absent Collateral Estoppel
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`Defendant also argues, “if this Court finds that collateral estoppel does not apply[,]”
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`summary judgment of non-infringement shouldstill be granted because “no reasonable jury could
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`find infringement under [Plaintiff's theories[.]”
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`(D.I. 581 at 19). That may be true, but
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`Defendant previously moved for summary judgment of non-infringement, however, and I ruled on
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`that motion.
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`(See D.I. 546). Thus, Defendant’s present request for summary judgment of non-
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`infringement is, in essence, a motion for reconsideration.
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`I deny summary judgment onthis
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`alternative basis because Defendant has not met the standard for reconsideration.
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`Case 1:16-cv-00454-RGA Document 589 Filed 10/07/22 Page 15 of 15 PagelD #: 47880
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`IV.
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`CONCLUSION
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`A separate order will be entered.
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