Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 1 of 43 PageID #: 33683
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-455 (RGA)
`
`))))))))
`
`
`)
`
`))
`
`
`)
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC., and 2K
`SPORTS, INC.,
`
`Defendants.
`
`PLAINTIFF ACCELERATION BAY LLC’S OPPOSITION TO TAKE-TWO
`DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT
`
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff
`ACCELERATION BAY LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`James Hannah
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`jhannah@kramerlevin.com
`
`Aaron M. Frankel
`Marcus A. Colucci
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`afrankel@kramerlevin.com
`mcolucci@kramerlevin.com
`
`Dated: June 24, 2019
`
`6279429/42021
`
`Public version dated: July 3, 2019
`
`PUBLIC VERSION
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 2 of 43 PageID #: 33684
`
`TABLE OF CONTENTS
`
`Page
`
`SUMMARY OF ARGUMENT ...................................................................................................... 1
`I.
`The Accused Networks are M-Regular and Incomplete ..................................................... 2
`A.
`Grand Theft Auto Uses M-Regular and Incomplete Networks .............................. 2
`
`B.
`
`NBA 2K Uses M-Regular and Incomplete Networks ............................................. 7
`
`II.
`
`Take-Two Infringes the ‘344, ‘966 and ‘497 Patents ....................................................... 11
`A.
`Take-Two Infringes the ‘344, ‘966 and ‘497 Patents Through its Own Use
`of the Claimed Computer Networks and Broadcast Channels .............................. 12
`
`1. NBA 2K15 and 2K16................................................................................. 13
`
`2. GTA Online ............................................................................................... 14
`
`B.
`
`C.
`
`Take-Two Makes the Networks of the ‘344 and ‘966 Patents.............................. 16
`
`Take-Two Sells and Offers to Sell the Claimed Computer Networks and
`Broadcast Channels ............................................................................................... 19
`
`D.
`
`Take-Two Makes, Uses and Sells the Component of the ‘497 Patent .................. 19
`
`III.
`
`Take-Two Infringes the Asserted Method Claims ............................................................ 21
`A.
`GTA Infringes the Asserted Method Claims ........................................................ 21
`
`B.
`
`C.
`
`Take-Two Infringes the ‘069 Patent ..................................................................... 23
`
`Take-Two Infringes the ‘147 Patent ..................................................................... 26
`
`IV.
`
`Take-Two Infringes the ‘497 Patent ................................................................................. 30
`A.
`NBA 2K Uses a Port Ordering Algorithm ............................................................ 30
`
`B.
`
`Grand Theft Auto Uses a Port Ordering Algorithm .............................................. 33
`
`CONCLUSION ............................................................................................................................. 36
`
`i
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 3 of 43 PageID #: 33685
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Federal Cases
`
`Atlas IP, LLC v. Medtronic, Inc.,
`No. 13-23309-CIV, 2014 WL 5040317 (S.D. Fla. Oct. 8, 2014) ............................................18
`
`Boehringer Ingelheim Int’l GMBH v. Barr Labs., Inc.,
`562 F. Supp. 2d 619 (D. Del. 2008), rev’d on other grounds ..................................................28
`
`Brilliant Instruments, Inc. v. GuideTech, LLC,
`707 F.3d 1342 (Fed. Cir. 2013)..........................................................................................35, 36
`
`Cadence Pharms. Inc. v. Exela PharmSci Inc.,
`780 F.3d 1364 (Fed. Cir. 2015)................................................................................................35
`
`Centillion Data Sys., LLC v. Qwest Commc’ns Int’l, Inc.,
`631 F.3d 1279 (Fed. Cir. 2011)................................................................................................18
`
`Centrak, Inc. v. Sonitor Techs., Inc.,
`No. 14-183-RGA, 2017 WL 3730617 (D. Del. Aug. 30, 2017) ..............................................12
`
`CNET Networks, Inc. v. Etilize, Inc.,
`528 F. Supp. 2d 985 (N.D. Cal. 2007) .....................................................................................19
`
`Metro–Goldwyn–Mayer Studios, Inc. v. Grokster, Ltd.,
`545 U.S. 913 (2005) .................................................................................................................20
`
`Microsoft Corp. v. AT&T Corp.,
`550 U.S. 437, 451-52 (2007) ..................................................................................................19
`
`Planet Bingo, LLC v. GameTech Int’l, Inc.,
`472 F.3d 1338 (Fed. Cir. 2006)................................................................................................35
`
`Princeton Digital Image Corp. v. Office-Depot, Inc.,
`C.A. Nos. 13-239-LPS, D.I. 220 (D. Del. Aug 1, 2017)..........................................................33
`
`Segan LLC v. Zynga Inc.,
`No. CV 11-670-GMS, 2013 WL 12156529 (D. Del. May 2, 2013) ........................................12
`
`Trading Techs. Int’l, Inc. v. eSpeed, Inc.,
`595 F.3d 1340 (Fed. Cir. 2010)................................................................................................35
`
`Transcenic, Inc. v. Google, Inc.,
`No. 11-582-LPS, 2014 WL 7275835 (D. Del. Dec. 22, 2014) ........................................ passim
`
`ii
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 4 of 43 PageID #: 33686
`
`Travel Sentry, Inc. v. Tropp,
`877 F.3d 1370 (Fed. Cir. 2017)................................................................................................20
`
`Wishkin v. Potter,
`476 F.3d 180 (3d Cir. 2007).....................................................................................................22
`
`Federal Statutes
`
`35 U.S.C. § 271(a) ...................................................................................................................12, 19
`
`Rules
`
`Federal Rules of Evidence 803 ......................................................................................................32
`
`Federal Rules of Evidence 703 ......................................................................................................33
`
`iii
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 5 of 43 PageID #: 33687
`
`TABLE OF ABBREVIATIONS
`
`The Parties & Motion
`
`Acceleration Bay, LLC
`
`Take-Two Interactive Software, Inc., Rockstar Games, Inc. and 2K
`Sports, Inc.
`
`Take-Two’s Brief in Support of its Motion for Summary Judgment of
`Non-Infringement (D.I. 463)
`
`Acceleration Bay
`
`Take-Two or
`Defendant
`
`Def. Br.
`
`Declaration of Joe Netikosol in Support of Take-Two’s Motion for
`Summary Judgment of Non-Infringement (D.I. 464)
`
`Netikosol Decl.
`
`Activision-Blizzard, Inc.
`
`Electronic Arts, Inc.
`
`The “Asserted Patents”
`
`U.S. Patent No. 6,701,344 (Ex. 4)
`
`U.S. Patent No. 6,714,966 (Ex. 19)
`
`U.S. Patent No. 6,910,069 (Ex. 22)
`
`U.S. Patent No. 6,732,147 (Ex. 21)
`
`The “Accused Products”
`
`Grand Theft Auto V Online
`
`NBA 2K15 and NBA 2K16
`
`Activision
`
`EA
`
`‘344 Patent
`
`‘966 Patent
`
`‘069 Patent
`
`‘147 Patent
`
`GTA
`
`NBA 2K
`
`iv
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 6 of 43 PageID #: 33688
`
`Expert Reports
`
`Expert report of Patrick Conlin Regarding Testing of Take-Two
`Interactive Software Accused Products (Ex. 2)
`
`Expert Report of Nenad Medvidović, Ph.D., Regarding Infringement by
`Take-Two, dated October 10, 2017 (Ex. A-1)
`
`Conlin Rpt.
`
`Med. Rpt.
`
`Supplemental Expert Report of Nenad Medvidović, Ph.D., Regarding
`Infringement by Take-Two, dated January 22, 2018 (Ex. A-3)
`
`Med. Supp. Rpt.
`
`Reply Expert Report of Nenad Medvidović, Ph.D., Regarding
`Infringement by Take-Two, dated July 18, 2018 (Ex. A-5)
`
`Med. Reply
`
`Expert Report of Michael Mitzenmacher, Ph.D., Regarding Infringement
`by Take-Two, dated October 10, 2017 (Ex. A-2)
`
`Mitz. Rpt.
`
`Supplemental Opening Expert Report of Michael Mitzenmacher, Ph.D.,
`Regarding Infringement by Take-Two, dated January 22, 2018 (Ex. A-4)
`
`Mitz. Supp. Rpt.
`
`Reply Expert Report of Michael Mitzenmacher, Ph.D., Regarding
`Infringement by Take-Two, dated July 18, 2018 (Ex. A-6)
`
`Expert Report of John P.J. Kelly Regarding Non-Infringement, dated
`March 20, 2018 (Ex. 27)
`
`Mitz. Reply
`
`Kelly Rpt.
`
`Expert Report of Michael Macedonia Regarding Non-Infringement,
`dated March 20, 2018 (Ex. 1)
`
`Macedonia Rpt.
`
`v
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 7 of 43 PageID #: 33689
`
`SUMMARY OF ARGUMENT
`
`Take-Two’s motion for summary judgment of non-infringement falls far short of
`
`showing that there are no disputed issues of material fact. Consequently, it should be denied.
`
`Acceleration Bay’s technical experts provided detailed analyses showing that the
`
`Accused Products use m-regular, incomplete networks to broadcast gameplay data. The experts
`
`based their opinions on extensive citations to the source code providing the functionality that
`
`makes these networks m-regular. The experts also relied on confirmatory testimony from Take-
`
`Two’s corporate witnesses and documents and test data verifying various aspects of the games
`
`that give rise to infringement. This evidence creates an overwhelming case for infringement. At
`
`a minimum, it presents triable issues of fact that preclude summary judgment.
`
`While claiming that it accepted all of Acceleration’s allegations, allegedly basing its
`
`positions “according to Acceleration Bay’s own contentions,” (Def. Br. at 2, 9-10), Take-Two
`
`instead advances several arguments that boil down to factual disagreements with Acceleration
`
`Bay’s expert, rejected claim constructions, and incorrect characterizations of the source code
`
`citations and diagrams provided by Acceleration Bay’s expert. Acceleration Bay, however, is
`
`entitled to all reasonable inferences from the evidence and arguments that it is asserting, which
`
`Take-Two simply ignores.
`
`As to the various other limitations upon which Take-Two moves for summary judgment,
`
`Take-Two improperly asks the Court to resolve factual disputes, takes out of context snippets
`
`from the experts’ opinions while ignoring the totality of their analyses, and advances infirm
`
`theories based on non-existent claim limitations and claim construction positions that the Court
`
`already rejected and that Defendant previously abandoned. For example, Take-Two now asserts
`
`that a “list of neighbors” cannot contain any additional information beyond the neighbors – a
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 8 of 43 PageID #: 33690
`
`position that violates the open-ended nature of “comprising” claims and that Take-Two
`
`previously abandoned as a proposed claim construction.
`
`For these reasons and as set forth below, the Court should deny Take-Two’s Motion.
`
`I.
`
`The Accused Networks are M-Regular and Incomplete
`
`Drs. Medvidović and Mitzenmacher demonstrate with ample evidence that GTA and
`
`NBA 2K use incomplete, m-regular networks to broadcast data. This evidence, summarized
`
`below and cataloged in detail in their reports, precludes the grant of summary judgment of non-
`
`infringement.
`
`A.
`
`Grand Theft Auto Uses M-Regular and Incomplete Networks
`
`GTA uses m-regular, incomplete networks to distribute gameplay data to participants in a
`
`gameplay session. Ex. A-21, Mitz. Rpt. at ¶¶ 121-137. The gameplay data are broadcast using
`
`peer-to-peer connections. Id. at ¶ 90. Because not all players can directly connect, and to avoid
`
`overloading individual participants, the network includes peer relays to broadcast messages,
`
`making the network incomplete, as Take-Two’s non-infringement expert concedes. Id. at ¶¶ 91
`
`and 111; Ex. 12, Macedonia Rpt. at ¶¶ 180-192
`
`
`
` GTA’s application layer
`
`overlay network is built on these underlying connections. Mitz. Rpt. at ¶ 101. Acceleration
`
`Bay’s experts provided pinpoint source code citations evidencing this functionality. See, e.g., id.
`
`at ¶¶ 98, 111, 117
`
`, ¶ 116 (
`
`
`
`
`
`1 Exhibits A-1 through F-10 are attached to the April 26, 2019 Declaration of Joe Netikosol (D.I.
`464).
`2 Exhibits 1 through 30 are attached to the June 24, 2019 Declaration of Marcus Colucci,
`submitted herewith.
`
`2
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 9 of 43 PageID #: 33691
`
`During live gameplay sessions, GTA becomes an m-regular, incomplete network due to
`
`the application of various rules that limit and balance the number of direct connections between
`
`the participants. Id. at ¶ 121. GTA gameplay sessions are programmed to
`
`
`
`
`
`
`
` causing the network to converge to the same number of connections for each
`
`participant. Id. at ¶¶ 121-122. GTA then uses
`
`
`
` yielding a regular network (see
`
`exemplary network diagram below for a 4-on-4 Deathmatch game on the left and a 3-on-3
`
`Deathmatch with two relays on the right). Id. at ¶¶ 123 and 131-132; see also Ex. A-6, Mitz
`
`Reply Rpt. at ¶ 51. In both examples, each participant is connected to exactly the same number
`
`of other participants, but not to all other participants, making the networks m-regular and
`
`incomplete.
`
`Acceleration Bay’s experts relied on the experimental test data of Patrick Conlin, whose
`
`observations further confirm the functionality of GTA set forth in its source code and discussed
`
`3
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 10 of 43 PageID #: 33692
`
`above. Mr. Conlin’s testing demonstrates the direct peer-to-peer connections between
`
`participants, relaying and that the network is incomplete. Ex. 2, Conlin Rpt. at ¶¶ 20-25; Mitz.
`
`Rpt. at ¶ 115. Mr. Conlin also conducted extensive testing demonstrating GTA’s use of
`
` Mitz Rpt. at ¶ 131 (“Mr. Conlin’s testing confirmed that GTA uses
`
`
`
`
`
`
`
`
`
`
`
`; Conlin Rpt. at ¶¶ 26-28. A screenshot of a Deathmatch is shown
`
`below:
`
`Ex. 3, https://gta.fandom.com/wiki/Deathmatches_in_GTA_Online?file=Deathmatch-GTAO.jpg
`
`Dr. Mitzenmacher provides several diagrams, reproduced below, showing the m-regular,
`
`incomplete networks that arise during gameplay due to GTA’s configuration. This first diagram
`
`is a schematic for an eight participant session (
`
`) where
`
`m=6. Mitz. Reply Rpt. at ¶¶ 52-53. The second diagram is for a 16 participant session
`
`
`
`4
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 11 of 43 PageID #: 33693
`
` where m=12. Id. Both networks are m-regular (all participants have the
`
`same number of connections) and incomplete (not all participants are directly connected).3
`
`Take-Two fails to explain how a finding of non-infringement is possible in view of the
`
`above examples of the m-regular networks used by GTA, which Take-Two does not even
`
`address in its Motion (let alone assume to be correct). Take-Two acknowledges the analysis by
`
`Acceleration Bay’s technical experts that GTA
`
`
`
`, causing the GTA network to be
`
`3 Take-Two makes much ado about an image in the experts’ reports intended to illustrate the
`connections between geographically dispersed players overlaid on a gameplay image, devoting
`six pages to discussing this image. Def. Br. at 16-22. Take-Two fails to credit the statements in
`both experts’ reports that the image was (1) “modified” to illustrate the connections between the
`players, (2) “was created and copied for illustration purposes,” and (3) is consistent with the
`experimental data observed by Mr. Conlin. Id; Mitz Rpt. at ¶¶ 129, 131. Take-Two ignores the
`point of the image; to illustrate the concept of the application of the proximity rules between
`players. It would not have been possible to use an actual, unmodified game screen capture to
`illustrate this point because the overlay network connections between players are not depicted by
`the game.
`
`5
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 12 of 43 PageID #: 33694
`
`m-regular and incomplete as discussed above. Def. Br. at 10. Faced with this evidence, Take-
`
`Two erroneously claims there is no evidence about how these features operate. Id. at 11.
`
`Take-Two simply ignores the analysis of Acceleration Bay’s technical experts,
`
`summarized above, which specifically identifies
`
` explains how they make
`
`the network m-regular, provides specific citations to source code, and relies on Mr. Conlin’s
`
`experimental data confirming the operation of
`
` (which Take-Two notably
`
`never denies operate exactly as described by Acceleration Bay’s experts). See, e.g., Mitz. Rpt. at
`
`¶ 118 (
`
`
`
`
`
`
`
` and ¶ 128
`
`
`
`Take-Two also repeats its unsuccessful argument that the network should not be deemed
`
`m-regular because it is not m-regular all of the time, such as when it is replacing a hole left by a
`
`departing player. The Court previously rejected that argument, explaining that, “[m]y
`
`construction does not require the network to have each participant be connected to m neighbors
`
`at all times; rather, the network is configured (or designed) to have each participant be connected
`
`to m neighbors. In other words, if the network does not have each participant connected to m
`
`neighbors, this is fine so long as, when appropriate, it tries to get to that configuration.” D.I. 244
`
`(8/29/17 Claim Construction Opinion) at 14. That is the case here, given the rules and load
`
`balancing that GTA applies to even the number of connections (trying to get to the regular
`
`configuration), as discussed above.
`
`Take-Two attempts to shift the blame for its infringement to its customers, arguing that it
`
`is the customers who decide where their “avatars” (characters they control in the game) move to,
`
`6
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 13 of 43 PageID #: 33695
`
`so when the network settles into an m-regular state, this is somehow not the doing of Take-Two.
`
`Take-Two fails to appreciate that it is Take-Two’s software that manages and equalizes the
`
`number of connections between the participants and forms the network, not the players. Mitz.
`
`Rpt. at ¶¶ 121-128. Players have no control over or input into the connections that Take-Two’s
`
`software builds for them. Rather, it is Take-Two’s software that determines who should be
`
`connected, and Take-Take cannot pass-off this networking structure as the result of its
`
`customers’ choice.
`
`Accordingly, Take-Two fails to establish that summary judgment of non-infringement is
`
`warranted as to GTA because a “reasonable juror, taking all the evidence in the light most
`
`favorable to [Acceleration Bay] . . . could find” infringement, and the Court should deny Take-
`
`Two’s Motion. Transcenic, Inc. v. Google, Inc., No. 11-582-LPS, 2014 WL 7275835, at *3 (D.
`
`Del. Dec. 22, 2014).
`
`B.
`
`NBA 2K Uses M-Regular and Incomplete Networks
`
`NBA 2K uses m-regular, incomplete networks to provide its critical “parks”
`
`functionality, allowing as many as 100 players to participate in a shared location, such as a park,
`
`“Pro Am” center, or even Michael Jordan’s recreational center. Mitz Reply Rpt. at ¶ 72. While
`
`they appear different graphically, each of these parks works with the same underlying network
`
`structure. Id.4 A screen shot from the Jordan center is reproduced below.
`
`4 Acceleration Bay is not asserting infringement by single-player or single-court multiplayer
`game modes. However, Take-Two incorrectly claims that Acceleration Bay’s infringement
`theory is limited to the ProAm and MyPark modes. Take-Two overlooks that Acceleration Bay
`also accuses the Rec Hall game modes of infringement. Def. Br. at 24; Mitz. Reply Rpt. e.g., at
`¶ 72 (discussing infringement by Rec Hall mode).
`
`7
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 14 of 43 PageID #: 33696
`
`Each park is
`
`
`
`
`
`
`
` Players in a specific game (for example a 5-on-5
`
`basketball game within the Pro Am area), are directly connected at the application layer
`
`
`
`
`
`
`
`
`
`
`
` making the network incomplete and m-regular. Id. The NBA 2K matchmaking
`
`service
`
` attempts to maintain a balanced number of participants and connections,
`
`removing inactive participants and selecting the sessions to which to add new players, thereby
`
`maintaining the m-regular state of the network. Id. at ¶ 77.
`
`8
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 15 of 43 PageID #: 33697
`
`Take-Two’s sole argument for non-infringement is that because each player is connected
`
`to the number of participants in a sub-game (
`
` the network is not m-regular because
`
`
`
`
`
` The Asserted Patents contemplate such variations in a network,
`
`allowing for certain ports to be limited to connections in the m-regular network, and other ports
`
`to be used for other connections. Ex. 4, ‘344 Patent at 6:19-23 (“The fifth port is referred to as
`
`an ‘external’ port because it is used for sending non-broadcast messages between two computers.
`
`Neighbors can send non-broadcast messages either through their internal ports of their
`
`connection or through their external ports.”); id. at 6:42-44 (“Each computer that is connected to
`
`the broadcast channel can receive non-broadcast messages through its external port”).
`
`At a minimum, this variation is equivalent to a fully m-regular network. As Dr.
`
`Mitzenmacher explains, NBA 2K satisfies the function-way-result test for equivalence. NBA 2K
`
`performs substantially the same function as a fully m-regular network because the network is
`
`configured so each player
`
`Mitz. Reply Rpt. at ¶ 84. NBA 2K performs the function in substantially the same way by
`
`limiting each participant’s connections (
`
`
`
`
`
`
`
`. Id. at ¶ 85. And NBA 2K achieves “substantially the same result because all
`
`data are distributed to every participant in the broadcast channel in a balanced fashion over the
`
`network such that no node is overloaded and data are efficiently distributed, permitting a reliable
`
`game play experience.” Id. at ¶ 87.
`
`Prosecution history estoppel does not apply here. Take-Two only cites a portion of the
`
`prosecution history to incorrectly argue that the applicant disavowed dynamic networks that form
`
`9
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 16 of 43 PageID #: 33698
`
`m-regular and incomplete graphs. To the contrary, the applicant noted that dynamic networks
`
`which form m-regular graphs are covered by the claims and explained that the Alagar reference
`
`did not disclose the combination of an m-regular and incomplete graph. Ex. F-1, ‘344 Patent
`
`File History (9/10/2003) Response to Office Action at 10-11. Further, the applicant’s complete
`
`statement regarding “indiscriminate linking” was tied to the number of connections that form,
`
`not that the linking is dynamic or indiscriminate: “the Alagar reference teaches the
`
`indiscriminate linking with neighbors regardless of the number of total neighbors that are
`
`capable of being connected.” Id. at 9 (emphasis added). Thus, Acceleration Bay’s doctrine of
`
`equivalents analysis alleging infringement where logics and rules control the selective
`
`distribution and formation of graphs.
`
`There is no merit to Take-Two’s claim that Dr. Mitzenmacher failed to articulate a basis
`
`for infringement under the doctrine of equivalents as to the ‘069 Patent. Def. Br. at 32-33.
`
`Notably, Take-Two does not dispute that Dr. Mitzenmacher did provide such an analysis for the
`
`‘147 Patent. In his reports, Dr. Mitzenmacher first discusses the ‘147 Patent and then discusses
`
`the ‘069 Patent. For elements that are common between the two patents, such as the requirement
`
`that the network be m-regular, Dr. Mitzenmacher refers back to his discussion of the ‘147 Patent,
`
`rather than repeat it for the ‘069 Patent. Dr. Mitzenmacher expressly does so with respect to the
`
`m-regular limitation that is the subject of Take-Two’s argument. Mitz. Reply Rpt. at ¶ 258 (“As
`
`discussed above with respect to ‘147 Claim 1 and 11 … GTA forms and maintains m-regular and
`
`incomplete graphs”); id. at ¶ 263 (incorporating discussion of Element 1(a) of the ‘147 Patent,
`
`which includes the m-regular limitation). Accordingly, as Take-Two concedes that Dr.
`
`Mitzenmacher provided a doctrine of equivalents analysis with respect to the ‘147 Patent and he
`
`10
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 17 of 43 PageID #: 33699
`
`incorporates that analysis into his discussion of the ‘069 Patent, there is no merit to Take-Two’s
`
`argument that Dr. Mitzenmacher did not provide an analysis for the ‘069 Patent.
`
`Indeed, Dr. Mitzenmacher’s discussion of the doctrine of equivalents as applied to the m-
`
`regularly network element (to the extent the network is not literally m-regular), provides his
`
`basis for each prong of the function-way-result test. Id. at e.g., ¶ 87. Accordingly, the
`
`substantial evidence of Take-Two’s infringement and material factual disputes precludes a grant
`
`of summary judgment of no infringement as to the claims with m-regular network requirements.
`
`Transcenic, Inc., 2014 WL 7275835, at *3.
`
`II.
`
`Take-Two Infringes the ‘344, ‘966 and ‘497 Patents
`
`In the Activision and EA cases, the Court denied in part and granted in part Defendants’
`
`motions for summary judgment as to non-infringement of the Asserted Claims of the ‘344, ‘966
`
`and ‘497 Patents. Activision, D.I. 578 at 9-20; EA, D.I. 545 at 5-11. Take-Two presents parallel
`
`arguments to those presented by Activision and EA. As to some of these arguments, the Court’s
`
`resolution of the prior motions was highly fact specific, necessitating an examination of the
`
`particular evidence of Take-Two’s infringement and minimizing the impact of those prior
`
`decisions on this motion. For example, based on the specific record of EA’s testing, the Court
`
`denied EA’s motion for non-infringement of the ‘344, ‘966 and ‘497 Patents as its own use of the
`
`accused products in that case. EA, D.I. 545 at 5-8. Acceleration Bay discusses below in Section
`
`II(A) the specific evidence of Take-Two’s internal use that would similarly result in denial of
`
`Take-Two’s motion for non-infringement. The remaining sections below acknowledge the
`
`impact of the Court’s prior decisions, but highlight the facts unique to this case for the Courts
`
`further consideration.
`
`11
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 18 of 43 PageID #: 33700
`
`A.
`
`Take-Two Infringes the ‘344, ‘966 and ‘497 Patents Through its Own Use of
`the Claimed Computer Networks and Broadcast Channels
`
`Take-Two directly infringes the ‘344, ‘966 and ‘497 Patents through its development,
`
`updating and testing of the Accused Products, including the accused online game modes, on
`
`Xbox platforms, in the United States during the infringing time period. As this Court
`
`recognized, “[i]t is certainly true that testing a system may constitute an infringing use.”
`
`Centrak, Inc. v. Sonitor Techs., Inc., No. 14-183-RGA, 2017 WL 3730617, at *7 (D. Del. Aug.
`
`30, 2017).
`
`
`
` there is substantial evidence regarding Take-Two’s
`
`continued infringement through its development and testing of patches and updates of the
`
`accused online game modes for the Xbox platform during the infringing time period. Based on
`
`the totality of the evidence, a jury could reasonably conclude that Take-Two tested the Accused
`
`Products games in an infringing manner in the United States. Thus, Take-Two’s Motion should
`
`be denied as to its infringement from its own development and use of the Accused Products.
`
`Take-Two fails to demonstrate that its use through testing is not a compensable act of
`
`infringement. Internal use of the accused product is sufficient to give rise to an infringement
`
`claim. Segan LLC v. Zynga Inc., No. CV 11-670-GMS, 2013 WL 12156529, at *1 n.1 (D. Del.
`
`May 2, 2013) (accused infringer’s “accessing of its own games is sufficient” to constitute “use”
`
`under 35 U.S.C. § 271(a)). For these reasons, a “reasonable juror, taking all the evidence in the
`
`light most favorable to [Acceleration Bay] . . . could find” infringement, and the Court should
`
`deny Take Two’s Motion for summary judgment. Transcenic, Inc., 2014 WL 7275835, at *3.
`
`Take-Two’s non-infringement argument hinges on the incorrect premise that
`
`Acceleration Bay and its experts cannot show that Take-Two tested the Accused Products in an
`
`infringing manner in the relevant timeframe. As explained by Acceleration Bay’s experts, Take-
`
`12
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 19 of 43 PageID #: 33701
`
`Two directly infringes through its use of the Accused Products including testing, development
`
`and gameplay. Mitz Rpt. ¶¶81, 139, 205, 228, 335, 349, 360, 375, 389; Mitz. Reply Rpt. at ¶¶
`
`66, 83; 278, 279; Med. Rpt. ¶¶ 293, 302, 316, 325, 333, 337, 344, Ex. 29, Baca Tr. 29:6-30:17;
`
`see Ex. 5, TTWO0024487 (Xbox 360 game box); Ex. 6, TTWO0025277 (Xbox One game box);
`
`Ex. 7, TTWO0025282 (PC game box); Ex. 8, TTWO0023903-910 (TTWO Terms of Service),
`
`https://www.rockstargames.com/legal; Ex. 9, AB-TT 007718-20, http://www.gta-5.com/terms-
`
`and-conditions/; Ex. 10, TTWO022674 at 85 (NBA2K 16 XBOX ONE game box).
`
` as explained below for NBA2K and GTA Online.
`
`1.
`
`NBA 2K15 and 2K16
`
`In its Responses to Interrogatory No. 6, Take-Two made
`
`
`
`
`
`
`
` In its Supplemental Response to Interrogatory No. 6, Take-Two provided
`
`additional detail regarding the particular platforms (e.g., Xbox and Sony) and locations of
`
`testing.
`
`
`
`Take-Two’s Supplemental Response, confirmed that NBA 2K15 and 2K16 were
`
`developed in
`
`
`
` Id. (First Supp.
`
`13
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 20 of 43 PageID #: 33702
`
`Resp. Interrogatory No. 6). Thus, Take-Two
`
`platform.
`
`
`
` for the Xbox and PC
`
`Id. (highlighting added).
`
`During the damages time period (starting April 13, 2015), Take-Two continued to
`
`develop, test and release patches and updates for NBA 2K15. For examples, Take-Two released
`
`Patch No. 4 to NBA 2K for Xbox One and PC that continued to be tested and NBA 2K16 was
`
`not launched until October 2015 and included numerous patches and updates afterwards in 2016
`
`(e.g., Patch 5 and Patch 6). See Ex. 12, https://www.crossmap.com/news/nba-2k15-update-2k-
`
`released-major-patch-4-for-xbox-one-ps4-pc-nba-2k16-october-release-confirmed.html; Ex. 13,
`
`https://www.nba-live.com/nbalivewiki/index.php/NBA_2K16_Official_Patches. Thus, Take-
`
`Two continued to develop, update and test the Accused Products, giving rise to compensable
`
`injury.
`
`2.
`
`GTA Online
`
`Take-Two’s Supplemental Response to Interrogatory No. 6 confirmed that
`
`(Responses to Interrogatory No. 6).
`
` Ex. 11
`
`
`
`
`
`
`
`
`
`14
`
`

`

`Case 1:16-cv-00455-RGA Document 475 Filed 07/03/19 Page 21 of 43 PageID #: 33703
`
`Two
`
` (First Supp. Resp. Interrogatory No. 6). Further, Take-
`
`
`
` Id.
`
`During the infringing time period, Take-Two continued to develop, test and release
`
`patches and updates (and continues to do so today) for all Platforms. For example Updates 1.27
`
`and 1.28 to GTA provided new content for all platforms (e.g., Xbox and PC) including the ability
`
`to create “Jobs,” Adversary Modes (with up to 16 players), new weapons, vehicles, clothing
`
`items and other bug fixes. See Ex. 14, https://support.rockstargames.com/articles/206137368/
`
`GTAV-Title-Update-1-28-Notes-PS4-Xbox-One-PS3-Xbox-360-PC; Ex. 15,
`
`https://support.rockstargames.com/articles/205705358/GTAV-Title-Update-1-27-Notes-PS4-
`
`Xbox-One-PS3-Xbox-360-PC; Ex. 16, https://support.rockstargames.com/articles/228742727/
`
`GTAV-Title-Update-1-36-Notes-PS4-Xbox-One-PC.
`
`Testing for purpose of quality assurance (QA) prior to launching the updates and patches
`
`involves extensive use of all possible features, game modes, manner of connecting,
`
`disconnecting interacting with other players and the environment to confirm the update is ready
`
`to be released in the live/produ