`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ACCELERATION BAY LLC,
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`TAKE-TWO INTERACTIVE SOFTWARE,
`INC. ROCKSTAR GAMES, INC. and 2K
`SPORTS, INC.,
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`Plaintiff,
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`v.
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`Defendants.
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`C.A. No. 16-455 (RGA)
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`))))))))))
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`
`
`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
`
`
`DECLARATION OF MARCUS COLUCCI IN SUPPORT OF PLAINTIFF
`ACCELERATION BAY LLC’S OPPOSITION TO TAKE-TWO DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT
`
`
`
`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
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`PUBLIC VERSION
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`Public version dated: July 3, 2019
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`
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`Case 1:16-cv-00455-RGA Document 476 Filed 07/03/19 Page 2 of 6 PageID #: 33727
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`
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`I, Marcus A. Colucci, hereby declare as follows:
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`1.
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`I am an attorney with the law firm Kramer Levin Naftalis & Frankel LLP, counsel
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`of record for Plaintiff Acceleration Bay LLC (“Acceleration Bay”). I have personal knowledge
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`of the facts set forth in this declaration and can testify competently to those facts. I submit this
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`declaration in support of Acceleration Bay’s Opposition to Take-Two Defendants’ Motion for
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`Summary Judgment of Non-Infringement.
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`2.
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`Attached hereto as Exhibit 1 is a true and correct copy of pages 77-81 from the
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`Expert Report of Dr. Michael R. Macedonia Regarding Non-Infringement of U.S. Patent Nos.
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`6,732,147 and 6,910,069 and Certain Other Matters, served on March 20, 2018, in the present
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`action.
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`3.
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`Attached hereto as Exhibit 2 is a true and correct copy of the Expert Report of
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`Patrick Conlin Regarding Testing of Take-Two Interactive Software Accused Products, served
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`on October 10, 2017, in the present action.
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`4.
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`Attached hereto as Exhibit 3 is a true and correct copy of an online wiki entitled
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`“Deathmatches in GTA Online,” available at
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`https://gta.fandom.com/wiki/Deathmatches_in_GTA_Online?file=Deathmatch-GTAO.jpg,
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`accessed on June 21, 2019.
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`5.
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`Attached hereto as Exhibit 4 is a true and correct copy of U.S. Patent No.
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`6,701,344 entitled “Distributed Game Environment,” issued on March 2, 2004, produced by
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`Acceleration Bay bearing production numbers AB-TT 000001-56.
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`6.
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`Attached hereto as Exhibit 5 is a true and correct copy of the box art design of
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`Grand Theft Auto Five for Xbox 360, produced by Take-Two Interactive Software, Inc. (“Take-
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`Two”), bearing production number TTWO0024487.
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`1
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`Case 1:16-cv-00455-RGA Document 476 Filed 07/03/19 Page 3 of 6 PageID #: 33728
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`7.
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`Attached hereto as Exhibit 6 is a true and correct copy of the box art design of
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`Grand Theft Auto Five for Xbox One, produced by Take-Two, bearing production number
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`TTWO0025277.
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`8.
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`Attached hereto as Exhibit 7 is a true and correct copy of the box art design of
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`Grand Theft Auto Five for PC, produced by Take-Two, bearing production number
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`TTWO0025282.
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`9.
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`Attached hereto as Exhibit 8 is a true and correct copy of a Rockstar Games
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`webpage entitled “Terms of Service” dated October 1, 2013, available at
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`http://www.rockstargames.com/legal, produced by Take-Two, bearing production numbers
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`TTWO0023903-10.
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`10.
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`Attached hereto as Exhibit 9 is a true and correct copy of a webpage entitled
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`“Terms of Use,” available at http://gta-5.com/terms-and-conditions/, accessed on October 9,
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`2017, produced by Acceleration Bay, bearing production numbers AB-TT 007718-20.
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`11.
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`Attached hereto as Exhibit 10 is a true and correct copy of a brochure entitled
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`“NBA 2K16 for XBOX One,” produced by Take-Two, bearing production numbers
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`TTWO0022674-86.
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`12.
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`Attached hereto as Exhibit 11 is a true and correct copy of Defendants Take-Two
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`Interactive Software, Inc., Rockstar Games, Inc., and 2K Sports, Inc. July 31, 2017 Supplemental
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`Responses to Acceleration Bay LLC’s First Set of Common Interrogatories (No. 3) and Second
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`Set of Common Interrogatories (No. 6), served on July 31, 2017.
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`13.
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`Attached hereto as Exhibit 12 is a true and correct copy of a webpage entitled
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`“NBA 2K15 Update: 2K Release Major Patch 4 for Xbox One, PS4, PC; NBA 2k16 October
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`Release Confirmed?”, available at https://www.crossmap.com/news/nba-2k15-update-2k-
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`2
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`Case 1:16-cv-00455-RGA Document 476 Filed 07/03/19 Page 4 of 6 PageID #: 33729
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`
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`released-major-patch-4-for-xbox-one-ps4-pc-nba-2k16-october-release-confirmed.html, accessed
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`on June 21, 2019.
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`14.
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`Attached hereto as Exhibit 13 is a true and correct copy of an online wiki entitled
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`“NBA 2K16 Official Patches,” available at https://www.nba-
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`live.com/nbalivewiki/index.php/NBA_2K16_Official_Patches, accessed on June 21, 2019.
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`15.
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`Attached hereto as Exhibit 14 is a true and correct copy of a Rockstar Games
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`webpage entitled “GTAV Title Update 1.28 Notes (PS4/Xbox One/PS3/Xbox 360/PC),”
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`available at https://support.rockstargames.com/articles/206137368/GTAV-Title-Update-1-28-
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`Notes-PS4-Xbox-One-PS3-Xbox-360-PC, dated October 19, 2017.
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`16.
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`Attached hereto as Exhibit 15 is a true and correct copy of a Rockstar Games
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`webpage entitled “GTAV Title Update 1.27 Notes (PS4/Xbox One/PS3/Xbox 360/PC),”
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`available at https://support.rockstargames.com/articles/205705358/GTAV-Title-Update-1-27-
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`Notes-PS4-Xbox-One-PS3-Xbox-360-PC, dated October 19, 2017.
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`17.
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`Attached hereto as Exhibit 16 is a true and correct copy of a Rockstar Games
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`webpage entitled “GTAV Title Update 1.36 Notes (PS4/Xbox One/PC),” available at
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`https://support.rockstargames.com/articles/228742727/GTAV-Title-Update-1-36-Notes-PS4-
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`Xbox-One-PC, dated May 23, 2017.
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`18.
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`Attached hereto as Exhibit 17 is a true and correct copy of a Kotaku article
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`entitled “Quality Assured: What It’s Really Like to Test Games for a Living,” by Jason Schreler,
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`available at https://kotaku.com/quality-assured-what-it-s-really-like-to-play-games-fo-
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`1720053842, dated January 18, 2017.
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`3
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`Case 1:16-cv-00455-RGA Document 476 Filed 07/03/19 Page 5 of 6 PageID #: 33730
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`19.
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`Attached hereto as Exhibit 18 is a true and correct copy of a Rockstar Games
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`webpage entitled “Rockstar Games Careers – Technical QA,” available at
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`https://www.rockstargames.com/careers/openings/position/308e4204, accessed on June 21, 2019.
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`20.
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`Attached hereto as Exhibit 19 is a true and correct copy of U.S. Patent 6,714,966
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`entitled “Information Delivery Service,” issued on March 30, 2004, produced by Acceleration
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`Bay, bearing production numbers AB-TT 000291-348.
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`21.
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`Attached hereto as Exhibit 20 is a true and correct copy of page 83 from the
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`transcript of the deposition of Michael Macedonia, taken on July 30, 2018.
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`22.
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`Attached hereto as Exhibit 21 is a true and correct copy of U.S. Patent 6,732,147
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`entitled “Leaving a Broadcast Channel,” issued on May 4, 2004, produced by Acceleration Bay,
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`bearing production numbers AB-TT 000779-836.
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`23.
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`Attached hereto as Exhibit 22 is a true and correct copy of U.S. Patent 6,910,069
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`entitled “Joining a Broadcast Channel,” issued on June 21, 2005, produced by Acceleration Bay,
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`bearing production numbers AB-TT 001392-448.
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`24.
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`Attached hereto as Exhibit 23 is a true and correct copy of pages 235-236 from
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`the transcript of the deposition of Michael Mitzenmacher, taken on July 27, 2018.
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`25.
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`Attached hereto as Exhibit 24 is a true and correct copy of a Wikipedia webpage
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`entitled “Teredo tunneling”, available at https://en.wikipedia.org/wiki/Teredo_tunneling,
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`accessed on June 23, 2019.
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`26.
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`Attached hereto as Exhibit 25 is a true and correct copy of a Microsoft
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`Presentation entitled “Teredo @ Microsoft – Present and Future,” by Christopher Palmer,
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`produced by Acceleration Bay, bearing production numbers AB-TT 002681-97.
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`Case 1:16-cv-00455-RGA Document 476 Filed 07/03/19 Page 6 of 6 PageID #: 33731
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`27.
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`Attached hereto as Exhibit 26 is a true and correct copy of a Microsoft document
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`entitled “Xbox One – Technical information on P2P Networking Behavior,” dated October 6,
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`2013, produced by Acceleration Bay, bearing production numbers AB-TT 007536-39.
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`28.
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`Attached hereto as Exhibit 27 is a true and correct copy of page 203 from the
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`Expert Report of Dr. John P.J. Kelly Regarding Non-Infringement of U.S. Patent Nos.
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`6,701,344; 6,829,634; 6,714,966; and 6,920,497, served on March 20, 2018.
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`29.
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`Attached hereto as Exhibit 28 is a true and correct copy of pages 91-93 from the
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`transcript of proceedings from the Markman Hearing which took place on December 18, 2017, in
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`the present action.
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`30.
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`Attached hereto as Exhibit 29 is a true and correct copy of pages 29-30 from the
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`transcript of the deposition of Kevin Baca, taken on March 29, 2017.
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`31.
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`Attached hereto as Exhibit 30 is a true and correct copy of a Memorandum
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`Opinion, issued in the matter Princeton Digital Image Corp. v. Office Depot Inc., Case No. 13-
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`cv-00239-LPS (D.Del), Dkt. No. 220, filed on August 1, 2017.
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` declare under penalty of perjury under the laws of the United States of America that the
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` I
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`foregoing is true and correct. Executed on June 24, 2019, in New York, New York.
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`/s/ Marcus A. Colucci
` Marcus A. Colucci
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`5
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