`
`Plaintiff,
`
`
`
`v.
`
`
`
`
`
`C.A. No. 16-455 (RGA)
`
`JURY TRIAL DEMANDED
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
`
`
`
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`DEFENDANTS’ ANSWER TO COMPLAINT AND AFFIRMATIVE DEFENSES
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`
`
`Defendants.
`
`
`
`Defendants Take-Two Interactive Software, Inc., Rockstar Games, Inc. and 2K Sports,
`
`Inc. (collectively, “Defendants”) submit the following answer and affirmative defenses to the
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`Complaint for Patent Infringement (D.I. 1) filed by Plaintiff Acceleration Bay LLC
`
`(“Acceleration Bay”).
`
`On October 4, 2016, Defendants moved to dismiss all the accused Sony products from
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`the case because Plaintiff lacks standing, and the Court granted the motion on August 24, 2017
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`(D.I. 237). Therefore, the allegations relating to the accused Sony products no longer require a
`
`response.
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`GENERAL DENIAL
`
`Unless specifically admitted below, Defendants deny each and every allegation in
`
`Plaintiff’s Complaint.
`
`AS TO THE BACKGROUND
`
`1.
`
`Defendants admit that Acceleration Bay previously asserted U.S. Patent No.
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`6,701,344, U.S. Patent No. 6,714,966, U.S. Patent No. 6,732,147, U.S. Patent No. 6,829,634,
`
`
`
`
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`Case 1:16-cv-00455-RGA Document 270 Filed 09/12/17 Page 2 of 17 PageID #: 19934
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`U.S. Patent No. 6,910,069, and U.S. Patent No. 6,920,497 (the “Patents-in-Suit” or the
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`“Acceleration Bay Patents”) against Defendants in C.A. No. 15-228 (D. Del.), and that the
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`District Court issued an Order in that previous case finding that Acceleration Bay lacked
`
`standing. Except as expressly admitted, Defendants deny the remainder of the allegations in
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`paragraph 1.
`
`AS TO THE PARTIES
`
`2.
`
`Defendants lack knowledge or information sufficient to form a belief as to the
`
`truth of the allegations set forth in paragraph 2 and therefore, deny them.
`
`3.
`
`Defendants lack knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 3 and therefore, deny them.
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`4.
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`Defendants lack knowledge or information sufficient to form a belief as to the
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`truth of the allegations set forth in paragraph 4 and therefore, deny them.
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`5.
`
`Defendants admit that Take-Two Interactive Software, Inc. is a corporation
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`organized and existing under the laws of the State of Delaware and that it has its principal place
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`of business located at 622 Broadway in New York, NY 10012.
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`6.
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`Defendants admit that Rockstar Games, Inc. is a corporation organized and
`
`existing under the laws of the State of Delaware and that it has its principal place of business
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`located at 622 Broadway in New York, NY 10012.
`
`7.
`
`Defendants admit that 2K Sports, Inc. is a corporation organized and existing
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`under the laws of the State of Delaware and that it has its principal place of business located at
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`10 Hamilton Landing in Novato, CA 94949.
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`2
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`Case 1:16-cv-00455-RGA Document 270 Filed 09/12/17 Page 3 of 17 PageID #: 19935
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`8.
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`Defendants admit that Rockstar Games, Inc. and 2K Sports, Inc. are wholly-
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`owned subsidiaries of Take-Two Interactive Software, Inc. Defendants deny the remaining
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`allegations of paragraph 8.
`
`9.
`
`10.
`
`11.
`
`12.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`AS TO JURISDICTION AND VENUE
`
`13.
`
`Paragraph 13 contains conclusions of law and not averments of fact to which an
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`answer is required, but insofar as an answer may be deemed required, Defendants admit that
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`Acceleration Bay purports to be bringing an action for patent infringement allegedly under
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`35 U.S.C. §§ 101 et seq, and that 28 U.S.C. §§ 1331 and 1338 provide the Court with subject
`
`matter jurisdiction over federal questions and patent infringement actions. Except as expressly
`
`admitted, Defendants deny the remainder of the allegations in paragraph 13.
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`14.
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`Paragraph 14 contains conclusions of law that are not averments of fact to which
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`an answer is required, but insofar as an answer may be deemed required, Defendants do not
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`contest that venue may lie in this District; however, venue may be more appropriate in another
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`district for the convenience of the parties. Except as expressly admitted, Defendants deny the
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`remainder of the allegations in paragraph 14.
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`15.
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`Defendants do not contest that the Court has personal jurisdiction in this action.
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`Defendants admit that they have transacted business in this district. Defendants admit that they
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`are corporations organized and existing under the laws of the State of Delaware. Defendants
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`deny any acts of patent infringement have taken place in this district, or elsewhere. The
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`3
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`Case 1:16-cv-00455-RGA Document 270 Filed 09/12/17 Page 4 of 17 PageID #: 19936
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`remaining allegations of paragraph 15 contains conclusions of law that are not averments of fact
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`to which an answer is required, but insofar as an answer may be deemed required, Defendants
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`deny the remaining allegations in paragraph 15.
`
`AS TO THE PATENTS-IN-SUIT
`
`16.
`
`Defendants admit that the Complaint asserts the following six patents: U.S. Patent
`
`Nos. 6,701,344, 6,714,966, 6,732,147, 6,829,634, 6,910,069, and 6,920,497. Except as expressly
`
`admitted, Defendants deny the remainder of the allegations in paragraph 16.
`
`17.
`
`Defendants admit that U.S. Pat. No. 6,701,344 (“the ’344 Patent”) is entitled
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`“DISTRIBUTED GAME ENVIRONMENT” (a copy of which appears to be Exhibit 1), and that
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`the face of the patent indicates that it was issued on March 2, 2004. Defendants lack knowledge
`
`or information sufficient to form a belief as to the truth of the remaining allegations set forth in
`
`paragraph 17 and therefore deny them.
`
`18.
`
`19.
`
`20.
`
`Denied.
`
`Denied.
`
`Defendants admit that U.S. Pat. No. 6,714,966 (“the ’966 Patent”) is entitled
`
`“INFORMATION DELIVERY SERVICE” (a copy of which appears to be Exhibit 2), and that
`
`the face of the patent indicates that it was issued on March 30, 2004. Defendants lack
`
`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
`
`set forth in paragraph 20 and therefore deny them.
`
`21.
`
`22.
`
`23.
`
`Denied.
`
`Denied.
`
`Defendants admit that U.S. Pat. No. 6,732,147 (“the ’147 Patent”) is entitled
`
`“LEAVING A BROADCAST CHANNEL” (a copy of which appears to be Exhibit 3), and that
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`4
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`Case 1:16-cv-00455-RGA Document 270 Filed 09/12/17 Page 5 of 17 PageID #: 19937
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`the face of the patent indicates that it was issued on May 4, 2004. Defendants lack knowledge or
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`information sufficient to form a belief as to the truth of the remaining allegations set forth in
`
`paragraph 23 and therefore deny them.
`
`24.
`
`25.
`
`26.
`
`Denied.
`
`Denied.
`
`Defendants admit that U.S. Pat. No. 6,829,634 (“the ’634 Patent”) is entitled
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`“BROADCASTING NETWORK” (a copy of which appears to be Exhibit 4), and that the face of
`
`the patent indicates that it was issued on December 7, 2004. Defendants lack knowledge or
`
`information sufficient to form a belief as to the truth of the remaining allegations set forth in
`
`paragraph 26 and therefore deny them.
`
`27.
`
`28.
`
`29.
`
`Denied.
`
`Denied.
`
`Defendants admit that U.S. Pat. No. 6,910,069 (“the ’069 Patent”) is entitled
`
`“JOINING A BROADCAST CHANNEL” (a copy of which appears to be Exhibit 5), and that
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`the face of the patent indicates that it was issued on June 21, 2005. Defendants lack knowledge
`
`or information sufficient to form a belief as to the truth of the remaining allegations set forth in
`
`paragraph 29 and therefore deny them.
`
`30.
`
`31.
`
`32.
`
`Denied.
`
`Denied.
`
`Defendants admit that U.S. Pat. No. 6,920,497 (“the ’497 Patent”) is entitled
`
`“CONTACTING A BROADCAST CHANNEL” (a copy of which appears to be Exhibit 6), and
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`that the face of the patent indicates that it was issued on July 19, 2005. Defendants lack
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`5
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`Case 1:16-cv-00455-RGA Document 270 Filed 09/12/17 Page 6 of 17 PageID #: 19938
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`knowledge or information sufficient to form a belief as to the truth of the remaining allegations
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`set forth in paragraph 32 and therefore deny them.
`
`33.
`
`34.
`
`Denied.
`
`Denied.
`
`AS TO THE ACCUSED PRODUCTS
`
`35.
`
`Defendants admit that Rockstar publishes the GTA-V and GTA-O. Defendants
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`also admit that GTA-O includes features relating to multiplayer but deny that such technology
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`has ever infringed any of the Acceleration Bay Patents. Defendants deny the remaining
`
`allegations of paragraph 35.
`
`36.
`
`37.
`
`38.
`
`39.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Defendants admit that there is a feature called Social Club. Defendants deny the
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`remaining allegations of paragraph 39.
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`40.
`
`Defendants admit that GTA-O includes features relating to Crews. Defendants
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`deny the remaining allegations of paragraph 40.
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`41.
`
`42.
`
`Denied.
`
`Defendants admit that GTA-O includes features relating to Team DeathMatch.
`
`Defendants deny the remaining allegations of paragraph 42.
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`43.
`
`44.
`
`Denied.
`
`Defendants admit that GTA-O includes features relating to Heists. Defendants
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`deny the remaining allegations of paragraph 43.
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`45.
`
`Denied.
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`6
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`Case 1:16-cv-00455-RGA Document 270 Filed 09/12/17 Page 7 of 17 PageID #: 19939
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`46.
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`Defendants admit that GTA-O includes features relating to Come Out To Play.
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`Defendants deny the remaining allegations of paragraph 46.
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`47.
`
`48.
`
`Denied.
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`Defendants admit that GTA-O includes features relating to Siege Mentality.
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`Defendants deny the remaining allegations of paragraph 48.
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`49.
`
`50.
`
`Denied.
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`Defendants admit that GTA-O includes features relating to Hasta La Vista.
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`Defendants deny the remaining allegations of paragraph 50.
`
`51.
`
`52.
`
`53.
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`54.
`
`Denied.
`
`Denied.
`
`Denied.
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`Defendants admit that NBA 2K15 and NBA 2K16 include features relating to
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`multiplayer but denies that such technology has ever infringed any of the Acceleration Bay
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`Patents. Defendants deny the remaining allegations of paragraph 54.
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`55.
`
`Defendants admit that NBA 2K15 and NBA 2K16 include features relating to
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`Online Leagues. Defendants deny the remaining allegations of paragraph 55.
`
`56.
`
`57.
`
`Denied.
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`Defendants admit that NBA 2K15 and NBA 2K16 include features relating to
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`MyPark. Defendants deny the remaining allegations of paragraph 57.
`
`58.
`
`59.
`
`Denied.
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`Defendants admit that NBA 2K15 and NBA 2K16 include features relating to Rec
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`Hall. Defendants deny the remaining allegations of paragraph 59.
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`7
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`Case 1:16-cv-00455-RGA Document 270 Filed 09/12/17 Page 8 of 17 PageID #: 19940
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`60.
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`Defendants admit that NBA 2K15 and NBA 2K16 include features relating to
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`Stage. Defendants deny the remaining allegations of paragraph 60.
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`61.
`
`62.
`
`Denied.
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`Defendants admit that NBA 2K15 includes features relating to Crew. Defendants
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`deny the remaining allegations of paragraph 62.
`
`63.
`
`64.
`
`Denied.
`
`Denied.
`
`AS TO DEFENDANTS’ ALLEGED INFRINGEMENT
`OF ACCELERATION BAY’S PATENTS
`
`65.
`
`Denied.
`
`AS TO COUNT I
`(Alleged Direct Infringement of the ’344 Patent)
`
`66.
`
`Defendants hereby incorporate by reference the responses of the preceding
`
`paragraphs.
`
`67.
`
`68.
`
`69.
`
`70.
`
`71.
`
`72.
`
`73.
`
`74.
`
`75.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`8
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`Case 1:16-cv-00455-RGA Document 270 Filed 09/12/17 Page 9 of 17 PageID #: 19941
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`AS TO COUNT II
`(Alleged Direct Infringement of the ’966 Patent)
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`76.
`
`Defendants hereby incorporate by reference the responses of the preceding
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`paragraphs.
`
`77.
`
`78.
`
`79.
`
`80.
`
`81.
`
`82.
`
`83.
`
`84.
`
`85.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`AS TO COUNT III
`(Alleged Direct Infringement of the ’147 Patent)
`
`86.
`
`Defendants hereby incorporate by reference the responses of the preceding
`
`paragraphs.
`
`87.
`
`88.
`
`89.
`
`90.
`
`91.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Defendants admit that they provide an End User License Agreement and Terms of
`
`Service for their products and services (examples of which appear to be Exhibits 9-12). The
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`remaining allegations in paragraph 91 constitute conclusions of law to which no response of
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`9
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`Case 1:16-cv-00455-RGA Document 270 Filed 09/12/17 Page 10 of 17 PageID #: 19942
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`Defendants is required; to the extent a response is required, Defendants deny the remaining
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`allegations of paragraph 91.
`
`92.
`
`93.
`
`94.
`
`95.
`
`96.
`
`97.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`Denied.
`
`AS TO COUNT IV
`(Alleged Direct Infringement of the ’634 Patent)
`
`98.
`
`Defendants hereby incorporate by reference the responses of the preceding
`
`paragraphs.
`
`99.
`
`Denied.
`
`100. Denied.
`
`101. Denied.
`
`102. Denied.
`
`103. Denied.
`
`104. Denied.
`
`105. Denied.
`
`106. Denied.
`
`107. Denied.
`
`AS TO COUNT V
`(Alleged Direct Infringement of the ’069 Patent)
`
`108. Defendants hereby incorporate by reference the responses of the preceding
`
`paragraphs.
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`10
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`
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`Case 1:16-cv-00455-RGA Document 270 Filed 09/12/17 Page 11 of 17 PageID #: 19943
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`109. Denied.
`
`110. Denied.
`
`111. Denied.
`
`112. Denied.
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`113. Defendants admit that they provide an End User License Agreement and Terms of
`
`Service for their products and services (examples of which appear to be Exhibits 9-12). The
`
`remaining allegations in paragraph 113 constitute conclusions of law to which no response of
`
`Defendants is required; to the extent a response is required, Defendants deny the remaining
`
`allegations of paragraph 113.
`
`114. Defendants admit that they provide an End User License Agreement and Terms of
`
`Service for their products and services (examples of which appear to be Exhibits 9-12). The
`
`remaining allegations in paragraph 114 constitute conclusions of law to which no response of
`
`Defendants is required; to the extent a response is required, Defendants deny the remaining
`
`allegations of paragraph 114.
`
`115. Denied.
`
`116. Denied.
`
`117. Denied.
`
`118. Denied.
`
`119. Denied.
`
`120. Denied.
`
`AS TO COUNT VI
`(Alleged Direct Infringement of the ’497 Patent)
`
`121. Defendants hereby incorporate by reference the responses of the preceding
`
`paragraphs.
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`11
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`
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`Case 1:16-cv-00455-RGA Document 270 Filed 09/12/17 Page 12 of 17 PageID #: 19944
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`122. Denied.
`
`123. Denied.
`
`124. Denied.
`
`125. Denied.
`
`126. Defendants admit that they provide an End User License Agreement and Terms of
`
`Service for their products and services (examples of which appear to be Exhibits 9-12). The
`
`remaining allegations in paragraph 126 constitute conclusions of law to which no response of
`
`Defendants is required; to the extent a response is required, Defendants deny the remaining
`
`allegations of paragraph 126.
`
`127. Denied.
`
`128. Denied.
`
`129. Denied.
`
`130. Denied.
`
`131. Denied.
`
`132. Denied.
`
`AS TO PLAINTIFF’S PRAYER FOR RELIEF
`
`These Paragraphs set forth the statement of relief requested by Plaintiff, to which no
`
`response is required. To the extent that these paragraphs require a response, Defendants deny
`
`that Plaintiff is entitled to any of the requested relief and denies any allegations contained herein.
`
`Defendants request that a take-nothing judgment be entered in their favor and against Plaintiff on
`
`the entire Complaint.
`
`AS TO PLAINTIFF’S DEMAND FOR JURY TRIAL
`
`This section purports to request a trial by jury and does not require a response.
`
`12
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`Case 1:16-cv-00455-RGA Document 270 Filed 09/12/17 Page 13 of 17 PageID #: 19945
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`AFFIRMATIVE DEFENSES
`
`Further answering the Complaint, Defendants assert the following affirmative defenses,
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`undertaking the burden of proof only as to those defenses required by law, regardless of how
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`such defenses are denominated here. Defendants reserve the right to rely upon any additional
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`defenses that become available or apparent during discovery, and reserve their right to amend
`
`this Answer and to assert such additional defenses or, if appropriate, delete additional defenses as
`
`discovery proceeds, including the right to assert claims for inequitable conduct. Defendants
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`assert each of these affirmative defenses in the alternative, without admitting that Defendants are
`
`in any way liable to Plaintiff, that Plaintiff has been or will be injured or damaged in any way, or
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`that Plaintiff is entitled to any relief whatsoever. As a defense to the Complaint and each and
`
`every allegation contained in it, Defendants allege as follows:
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`FIRST AFFIRMATIVE DEFENSE
`(Failure to State a Claim for Relief)
`
`The Complaint fails to state a claim upon which relief may be granted against
`
`Defendants, and fails to allege sufficient facts.
`
`SECOND AFFIRMATIVE DEFENSE
`(Invalidity)
`
`The Patents-in-Suit are invalid and void, at least, for failure to meet one or more of the
`
`conditions for patentability set forth in 35 U.S.C. §§ 101 et seq., including but not limited to
`
`failure to comply with the requirements of 35 U.S.C. §§ 101, 102, 103, and 112.
`
`THIRD AFFIRMATIVE DEFENSE
`(Failure to Provide Notice and/or Failure to Mark)
`
`By reason of Plaintiff’s failure to meet the requirements of 35 U.S.C. § 287, Plaintiff is
`
`precluded from seeking damages from Defendants for any and all alleged infringement prior to
`
`13
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`Case 1:16-cv-00455-RGA Document 270 Filed 09/12/17 Page 14 of 17 PageID #: 19946
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`the filing of the Complaint. Any claim for damages is limited by the requirements of 35 U.S.C.
`
`§ 287(a).
`
`FOURTH AFFIRMATIVE DEFENSE
`(Claim Is Not Entitled to Injunctive Relief)
`
`Plaintiff is not entitled to injunctive relief because any alleged injury to them is not
`
`immediate or irreparable, and because Plaintiff has an adequate remedy at law for any claims it
`
`can prove.
`
`FIFTH AFFIRMATIVE DEFENSE
`(Waiver / Estoppel)
`
`Plaintiff’s claims against Defendants are barred and unenforceable against Defendants, in
`
`whole or in part, by one or more of the equitable doctrines of waiver and estoppel.
`
`SIXTH AFFIRMATIVE DEFENSE
`(Damage Limitation)
`
`Plaintiff shall not be entitled to seek damages for alleged infringement prior to April 14,
`
`2015.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Defendants respectfully request that the Court enter a judgment in its
`
`favor and against Acceleration Bay as follows:
`
`A.
`
`An order declaring and entering judgment that Defendants have not infringed and
`
`do not infringe directly (or under the doctrine of equivalents) any valid and
`
`enforceable claim of the Patents-in-Suit;
`
`B.
`
`C.
`
`An order declaring and entering judgment that the Patents-in-Suit are invalid;
`
`An order dismissing with prejudice all of Acceleration Bay’s claims against
`
`Defendants;
`
`14
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`
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`Case 1:16-cv-00455-RGA Document 270 Filed 09/12/17 Page 15 of 17 PageID #: 19947
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`D.
`
`An order declaring that Defendants are a prevailing party and that this is an
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`exceptional case, awarding Defendants their costs, expenses, disbursements, and
`
`reasonable attorneys’ fees under 35 U.S.C. §§ 284 and 285;
`
`E.
`
`An order compelling Acceleration Bay to pay all costs associated with this action;
`
`and
`
`F.
`
`An order granting Defendants any such other and further relief as the Court deems
`
`just and proper.
`
`DEMAND FOR JURY TRIAL
`
`Defendants demand a jury trial on all issues so triable.
`
`
`
`
`
`
`
`OF COUNSEL:
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`David P. Enzminger
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`
`/s/ Stephen J. Kraftschik
`__________________________________
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`
`Attorneys for Defendants
`
`15
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`Case 1:16-cv-00455-RGA Document 270 Filed 09/12/17 Page 16 of 17 PageID #: 19948
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`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
`
`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`
`Andrew R. Sommer
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`September 12, 2017
`
`16
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`Case 1:16-cv-00455-RGA Document 270 Filed 09/12/17 Page 17 of 17 PageID #: 19949
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`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on September 12, 2017, I caused the foregoing to be
`
`
`
`
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`electronically filed with the Clerk of the Court using CM/ECF, which will send notification of
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`such filing to all registered participants.
`
`
`
`
`
`I further certify that I caused copies of the foregoing document to be served on
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`September 12, 2017, upon the following in the manner indicated:
`
`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
`
`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`Greg Proctor, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
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`Aaron M. Frankel, Esquire
`Marcus A. Colucci, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Attorneys for Plaintiff
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`/s/ Stephen J. Kraftschik
`Stephen J. Kraftschik (#5623)
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