throbber
Case 1:16-cv-00455-RGA Document 286 Filed 10/03/17 Page 1 of 17 PageID #: 20906
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`C.A. No. 16-455 (RGA)
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`JURY TRIAL DEMANDED
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`DEFENDANTS’ AMENDED ANSWER TO
`COMPLAINT AND AFFIRMATIVE DEFENSES
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`
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`
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`v.
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`
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`ACCELERATION BAY LLC,
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`
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`
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`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
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`
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`Plaintiff,
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`Defendants.
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`
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`Defendants Take-Two Interactive Software, Inc., Rockstar Games, Inc. and 2K Sports,
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`Inc. (collectively, “Defendants”) submit the following amended answer and affirmative defenses
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`to the Complaint for Patent Infringement (D.I. 1) filed by Plaintiff Acceleration Bay LLC
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`(“Acceleration Bay”).
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`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
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`response.
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`GENERAL DENIAL
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`Unless specifically admitted below, Defendants deny each and every allegation in
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`Plaintiff’s Complaint.
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`AS TO THE BACKGROUND
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`1.
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`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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`
`
`

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`Case 1:16-cv-00455-RGA Document 286 Filed 10/03/17 Page 2 of 17 PageID #: 20907
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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
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`standing. Except as expressly admitted, Defendants deny the remainder of the allegations in
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`paragraph 1.
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`AS TO THE PARTIES
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`2.
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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 2 and therefore, deny them.
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`3.
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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 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.
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`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
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`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.
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`7.
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`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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`

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`Case 1:16-cv-00455-RGA Document 286 Filed 10/03/17 Page 3 of 17 PageID #: 20908
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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.
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`9.
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`10.
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`11.
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`12.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`AS TO JURISDICTION AND VENUE
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`13.
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`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
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`matter jurisdiction over federal questions and patent infringement actions. Except as expressly
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`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 286 Filed 10/03/17 Page 4 of 17 PageID #: 20909
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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.
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`AS TO THE PATENTS-IN-SUIT
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`16.
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`Defendants admit that the Complaint asserts the following six patents: U.S. Patent
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`Nos. 6,701,344, 6,714,966, 6,732,147, 6,829,634, 6,910,069, and 6,920,497. Except as expressly
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`admitted, Defendants deny the remainder of the allegations in paragraph 16.
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`17.
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`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
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`or information sufficient to form a belief as to the truth of the remaining allegations set forth in
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`paragraph 17 and therefore deny them.
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`18.
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`19.
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`20.
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`Denied.
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`Denied.
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`Defendants admit that U.S. Pat. No. 6,714,966 (“the ’966 Patent”) is entitled
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`“INFORMATION DELIVERY SERVICE” (a copy of which appears to be Exhibit 2), and that
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`the face of the patent indicates that it was issued on March 30, 2004. Defendants lack
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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 20 and therefore deny them.
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`21.
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`22.
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`23.
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`Denied.
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`Denied.
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`Defendants admit that U.S. Pat. No. 6,732,147 (“the ’147 Patent”) is entitled
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`“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 286 Filed 10/03/17 Page 5 of 17 PageID #: 20910
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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
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`paragraph 23 and therefore deny them.
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`24.
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`25.
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`26.
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`Denied.
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`Denied.
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`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
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`the patent indicates that it was issued on December 7, 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
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`paragraph 26 and therefore deny them.
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`27.
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`28.
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`29.
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`Denied.
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`Denied.
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`Defendants admit that U.S. Pat. No. 6,910,069 (“the ’069 Patent”) is entitled
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`“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
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`or information sufficient to form a belief as to the truth of the remaining allegations set forth in
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`paragraph 29 and therefore deny them.
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`30.
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`31.
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`32.
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`Denied.
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`Denied.
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`Defendants admit that U.S. Pat. No. 6,920,497 (“the ’497 Patent”) is entitled
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`“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 286 Filed 10/03/17 Page 6 of 17 PageID #: 20911
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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.
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`33.
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`34.
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`Denied.
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`Denied.
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`AS TO THE ACCUSED PRODUCTS
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`35.
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`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
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`allegations of paragraph 35.
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`36.
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`37.
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`38.
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`39.
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`Denied.
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`Denied.
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`Denied.
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`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.
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`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.
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`42.
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`Denied.
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`Defendants admit that GTA-O includes features relating to Team DeathMatch.
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`Defendants deny the remaining allegations of paragraph 42.
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`43.
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`44.
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`Denied.
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`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.
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`Denied.
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`6
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`

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`Case 1:16-cv-00455-RGA Document 286 Filed 10/03/17 Page 7 of 17 PageID #: 20912
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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.
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`48.
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`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.
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`50.
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`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.
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`51.
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`52.
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`53.
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`54.
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`Denied.
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`Denied.
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`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.
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`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.
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`56.
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`57.
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`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.
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`58.
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`59.
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`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 286 Filed 10/03/17 Page 8 of 17 PageID #: 20913
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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.
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`62.
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`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.
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`63.
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`64.
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`Denied.
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`Denied.
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`AS TO DEFENDANTS’ ALLEGED INFRINGEMENT
`OF ACCELERATION BAY’S PATENTS
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`65.
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`Denied.
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`AS TO COUNT I
`(Alleged Direct Infringement of the ’344 Patent)
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`66.
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`Defendants hereby incorporate by reference the responses of the preceding
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`paragraphs.
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`67.
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`68.
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`69.
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`70.
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`71.
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`72.
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`73.
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`74.
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`75.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`8
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`

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`Case 1:16-cv-00455-RGA Document 286 Filed 10/03/17 Page 9 of 17 PageID #: 20914
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`AS TO COUNT II
`(Alleged Direct Infringement of the ’966 Patent)
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`76.
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`Defendants hereby incorporate by reference the responses of the preceding
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`paragraphs.
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`77.
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`78.
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`79.
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`80.
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`81.
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`82.
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`83.
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`84.
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`85.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`AS TO COUNT III
`(Alleged Direct Infringement of the ’147 Patent)
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`86.
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`Defendants hereby incorporate by reference the responses of the preceding
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`paragraphs.
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`87.
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`88.
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`89.
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`90.
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`91.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Defendants admit that they provide an End User License Agreement and Terms of
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`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 286 Filed 10/03/17 Page 10 of 17 PageID #: 20915
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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.
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`92.
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`93.
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`94.
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`95.
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`96.
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`97.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`AS TO COUNT IV
`(Alleged Direct Infringement of the ’634 Patent)
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`98.
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`Defendants hereby incorporate by reference the responses of the preceding
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`paragraphs.
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`99.
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`Denied.
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`100. Denied.
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`101. Denied.
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`102. Denied.
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`103. Denied.
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`104. Denied.
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`105. Denied.
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`106. Denied.
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`107. Denied.
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`AS TO COUNT V
`(Alleged Direct Infringement of the ’069 Patent)
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`108. Defendants hereby incorporate by reference the responses of the preceding
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`paragraphs.
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`10
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`Case 1:16-cv-00455-RGA Document 286 Filed 10/03/17 Page 11 of 17 PageID #: 20916
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`109. Denied.
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`110. Denied.
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`111. Denied.
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`112. Denied.
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`113. Defendants admit that they provide an End User License Agreement and Terms of
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`Service for their products and services (examples of which appear to be Exhibits 9-12). The
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`remaining allegations in paragraph 113 constitute conclusions of law to which no response of
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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 113.
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`114. Defendants admit that they provide an End User License Agreement and Terms of
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`Service for their products and services (examples of which appear to be Exhibits 9-12). The
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`remaining allegations in paragraph 114 constitute conclusions of law to which no response of
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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 114.
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`115. Denied.
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`116. Denied.
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`117. Denied.
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`118. Denied.
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`119. Denied.
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`120. Denied.
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`AS TO COUNT VI
`(Alleged Direct Infringement of the ’497 Patent)
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`121. Defendants hereby incorporate by reference the responses of the preceding
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`paragraphs.
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`11
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`

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`Case 1:16-cv-00455-RGA Document 286 Filed 10/03/17 Page 12 of 17 PageID #: 20917
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`122. Denied.
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`123. Denied.
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`124. Denied.
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`125. Denied.
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`126. Defendants admit that they provide an End User License Agreement and Terms of
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`Service for their products and services (examples of which appear to be Exhibits 9-12). The
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`remaining allegations in paragraph 126 constitute conclusions of law to which no response of
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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 126.
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`127. Denied.
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`128. Denied.
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`129. Denied.
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`130. Denied.
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`131. Denied.
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`132. Denied.
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`AS TO PLAINTIFF’S PRAYER FOR RELIEF
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`These Paragraphs set forth the statement of relief requested by Plaintiff, to which no
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`response is required. To the extent that these paragraphs require a response, Defendants deny
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`that Plaintiff is entitled to any of the requested relief and denies any allegations contained herein.
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`Defendants request that a take-nothing judgment be entered in their favor and against Plaintiff on
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`the entire Complaint.
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`AS TO PLAINTIFF’S DEMAND FOR JURY TRIAL
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`This section purports to request a trial by jury and does not require a response.
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`12
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`Case 1:16-cv-00455-RGA Document 286 Filed 10/03/17 Page 13 of 17 PageID #: 20918
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`AFFIRMATIVE DEFENSES
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`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
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`this Answer and to assert such additional defenses or, if appropriate, delete additional defenses as
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`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
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`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
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`every allegation contained in it, Defendants allege as follows:
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`FIRST AFFIRMATIVE DEFENSE
`(Failure to State a Claim for Relief)
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`The Complaint fails to state a claim upon which relief may be granted against
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`Defendants, and fails to allege sufficient facts.
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`SECOND AFFIRMATIVE DEFENSE
`(Invalidity)
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`The Patents-in-Suit are invalid and void, at least, for failure to meet one or more of the
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`conditions for patentability set forth in 35 U.S.C. §§ 101 et seq., including but not limited to
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`failure to comply with the requirements of 35 U.S.C. §§ 101, 102, 103, and 112.
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`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
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`13
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`

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`Case 1:16-cv-00455-RGA Document 286 Filed 10/03/17 Page 14 of 17 PageID #: 20919
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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).
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`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.
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`FIFTH AFFIRMATIVE DEFENSE
`(Prosecution History Estoppel)
`
`By virtue of statements, amendments made, or positions taken during prosecution of the
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`applications for the Patents-in-Suit and/or related patents or patent applications, Acceleration
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`Bay is barred from claiming that the Patents-in-Suit cover or include, either literally or by
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`application of the doctrine of equivalents, any of Defendants’ products, and is further barred
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`from alleging infringement, either literally or under the doctrine of equivalents, because its
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`infringement allegations ensnare the prior art, including prior art it specifically amended its
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`claims to avoid.
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`SIXTH AFFIRMATIVE DEFENSE
`(Damage Limitation)
`
`Plaintiff shall not be entitled to seek damages for alleged infringement prior to
`
`April 14, 2015.
`
`14
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`

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`Case 1:16-cv-00455-RGA Document 286 Filed 10/03/17 Page 15 of 17 PageID #: 20920
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`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;
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`An order dismissing with prejudice all of Acceleration Bay’s claims against
`
`Defendants;
`
`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
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`reasonable attorneys’ fees under 35 U.S.C. §§ 284 and 285;
`
`E.
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`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
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`just and proper.
`
`DEMAND FOR JURY TRIAL
`
`Defendants demand a jury trial on all issues so triable.
`
`
`
`15
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`

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`Case 1:16-cv-00455-RGA Document 286 Filed 10/03/17 Page 16 of 17 PageID #: 20921
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`
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`
`
`
`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
`
`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
`
`October 3, 2017
`
`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
`
`16
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`

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`Case 1:16-cv-00455-RGA Document 286 Filed 10/03/17 Page 17 of 17 PageID #: 20922
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`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on October 3, 2017, I caused the foregoing to be electronically filed
`
`
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`with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
`
`registered participants.
`
`
`
`I further certify that I caused copies of the foregoing document to be served on
`
`October 3, 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
`
`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
`
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`
`
`/s/ Stephen J. Kraftschik
`Stephen J. Kraftschik (#5623)
`
`
`
`
`
`

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