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Case 1:16-cv-00455-RGA Document 476 Filed 07/03/19 Page 1 of 6 PageID #: 33726
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC. ROCKSTAR GAMES, INC. and 2K
`SPORTS, INC.,
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`C.A. No. 16-455 (RGA)
`
`
`
`
`))))))))))
`
`
`
`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
`
`PUBLIC VERSION
`
`Public version dated: July 3, 2019
`
`

`

`Case 1:16-cv-00455-RGA Document 476 Filed 07/03/19 Page 2 of 6 PageID #: 33727
`
`
`
`I, Marcus A. Colucci, hereby declare as follows:
`
`1.
`
`I am an attorney with the law firm Kramer Levin Naftalis & Frankel LLP, counsel
`
`of record for Plaintiff Acceleration Bay LLC (“Acceleration Bay”). I have personal knowledge
`
`of the facts set forth in this declaration and can testify competently to those facts. I submit this
`
`declaration in support of Acceleration Bay’s Opposition to Take-Two Defendants’ Motion for
`
`Summary Judgment of Non-Infringement.
`
`2.
`
`Attached hereto as Exhibit 1 is a true and correct copy of pages 77-81 from the
`
`Expert Report of Dr. Michael R. Macedonia Regarding Non-Infringement of U.S. Patent Nos.
`
`6,732,147 and 6,910,069 and Certain Other Matters, served on March 20, 2018, in the present
`
`action.
`
`3.
`
`Attached hereto as Exhibit 2 is a true and correct copy of the Expert Report of
`
`Patrick Conlin Regarding Testing of Take-Two Interactive Software Accused Products, served
`
`on October 10, 2017, in the present action.
`
`4.
`
`Attached hereto as Exhibit 3 is a true and correct copy of an online wiki entitled
`
`“Deathmatches in GTA Online,” available at
`
`https://gta.fandom.com/wiki/Deathmatches_in_GTA_Online?file=Deathmatch-GTAO.jpg,
`
`accessed on June 21, 2019.
`
`5.
`
`Attached hereto as Exhibit 4 is a true and correct copy of U.S. Patent No.
`
`6,701,344 entitled “Distributed Game Environment,” issued on March 2, 2004, produced by
`
`Acceleration Bay bearing production numbers AB-TT 000001-56.
`
`6.
`
`Attached hereto as Exhibit 5 is a true and correct copy of the box art design of
`
`Grand Theft Auto Five for Xbox 360, produced by Take-Two Interactive Software, Inc. (“Take-
`
`Two”), bearing production number TTWO0024487.
`
`
`
`1
`
`

`

`Case 1:16-cv-00455-RGA Document 476 Filed 07/03/19 Page 3 of 6 PageID #: 33728
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`
`
`7.
`
`Attached hereto as Exhibit 6 is a true and correct copy of the box art design of
`
`Grand Theft Auto Five for Xbox One, produced by Take-Two, bearing production number
`
`TTWO0025277.
`
`8.
`
`Attached hereto as Exhibit 7 is a true and correct copy of the box art design of
`
`Grand Theft Auto Five for PC, produced by Take-Two, bearing production number
`
`TTWO0025282.
`
`9.
`
`Attached hereto as Exhibit 8 is a true and correct copy of a Rockstar Games
`
`webpage entitled “Terms of Service” dated October 1, 2013, available at
`
`http://www.rockstargames.com/legal, produced by Take-Two, bearing production numbers
`
`TTWO0023903-10.
`
`10.
`
`Attached hereto as Exhibit 9 is a true and correct copy of a webpage entitled
`
`“Terms of Use,” available at http://gta-5.com/terms-and-conditions/, accessed on October 9,
`
`2017, produced by Acceleration Bay, bearing production numbers AB-TT 007718-20.
`
`11.
`
`Attached hereto as Exhibit 10 is a true and correct copy of a brochure entitled
`
`“NBA 2K16 for XBOX One,” produced by Take-Two, bearing production numbers
`
`TTWO0022674-86.
`
`12.
`
`Attached hereto as Exhibit 11 is a true and correct copy of Defendants Take-Two
`
`Interactive Software, Inc., Rockstar Games, Inc., and 2K Sports, Inc. July 31, 2017 Supplemental
`
`Responses to Acceleration Bay LLC’s First Set of Common Interrogatories (No. 3) and Second
`
`Set of Common Interrogatories (No. 6), served on July 31, 2017.
`
`13.
`
`Attached hereto as Exhibit 12 is a true and correct copy of a webpage entitled
`
`“NBA 2K15 Update: 2K Release Major Patch 4 for Xbox One, PS4, PC; NBA 2k16 October
`
`Release Confirmed?”, available at https://www.crossmap.com/news/nba-2k15-update-2k-
`
`
`
`2
`
`

`

`Case 1:16-cv-00455-RGA Document 476 Filed 07/03/19 Page 4 of 6 PageID #: 33729
`
`
`
`released-major-patch-4-for-xbox-one-ps4-pc-nba-2k16-october-release-confirmed.html, accessed
`
`on June 21, 2019.
`
`14.
`
`Attached hereto as Exhibit 13 is a true and correct copy of an online wiki entitled
`
`“NBA 2K16 Official Patches,” available at https://www.nba-
`
`live.com/nbalivewiki/index.php/NBA_2K16_Official_Patches, accessed on June 21, 2019.
`
`15.
`
`Attached hereto as Exhibit 14 is a true and correct copy of a Rockstar Games
`
`webpage entitled “GTAV Title Update 1.28 Notes (PS4/Xbox One/PS3/Xbox 360/PC),”
`
`available at https://support.rockstargames.com/articles/206137368/GTAV-Title-Update-1-28-
`
`Notes-PS4-Xbox-One-PS3-Xbox-360-PC, dated October 19, 2017.
`
`16.
`
`Attached hereto as Exhibit 15 is a true and correct copy of a Rockstar Games
`
`webpage entitled “GTAV Title Update 1.27 Notes (PS4/Xbox One/PS3/Xbox 360/PC),”
`
`available at https://support.rockstargames.com/articles/205705358/GTAV-Title-Update-1-27-
`
`Notes-PS4-Xbox-One-PS3-Xbox-360-PC, dated October 19, 2017.
`
`17.
`
`Attached hereto as Exhibit 16 is a true and correct copy of a Rockstar Games
`
`webpage entitled “GTAV Title Update 1.36 Notes (PS4/Xbox One/PC),” available at
`
`https://support.rockstargames.com/articles/228742727/GTAV-Title-Update-1-36-Notes-PS4-
`
`Xbox-One-PC, dated May 23, 2017.
`
`18.
`
`Attached hereto as Exhibit 17 is a true and correct copy of a Kotaku article
`
`entitled “Quality Assured: What It’s Really Like to Test Games for a Living,” by Jason Schreler,
`
`available at https://kotaku.com/quality-assured-what-it-s-really-like-to-play-games-fo-
`
`1720053842, dated January 18, 2017.
`
`
`
`3
`
`

`

`Case 1:16-cv-00455-RGA Document 476 Filed 07/03/19 Page 5 of 6 PageID #: 33730
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`
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`19.
`
`Attached hereto as Exhibit 18 is a true and correct copy of a Rockstar Games
`
`webpage entitled “Rockstar Games Careers – Technical QA,” available at
`
`https://www.rockstargames.com/careers/openings/position/308e4204, accessed on June 21, 2019.
`
`20.
`
`Attached hereto as Exhibit 19 is a true and correct copy of U.S. Patent 6,714,966
`
`entitled “Information Delivery Service,” issued on March 30, 2004, produced by Acceleration
`
`Bay, bearing production numbers AB-TT 000291-348.
`
`21.
`
`Attached hereto as Exhibit 20 is a true and correct copy of page 83 from the
`
`transcript of the deposition of Michael Macedonia, taken on July 30, 2018.
`
`22.
`
`Attached hereto as Exhibit 21 is a true and correct copy of U.S. Patent 6,732,147
`
`entitled “Leaving a Broadcast Channel,” issued on May 4, 2004, produced by Acceleration Bay,
`
`bearing production numbers AB-TT 000779-836.
`
`23.
`
`Attached hereto as Exhibit 22 is a true and correct copy of U.S. Patent 6,910,069
`
`entitled “Joining a Broadcast Channel,” issued on June 21, 2005, produced by Acceleration Bay,
`
`bearing production numbers AB-TT 001392-448.
`
`24.
`
`Attached hereto as Exhibit 23 is a true and correct copy of pages 235-236 from
`
`the transcript of the deposition of Michael Mitzenmacher, taken on July 27, 2018.
`
`25.
`
`Attached hereto as Exhibit 24 is a true and correct copy of a Wikipedia webpage
`
`entitled “Teredo tunneling”, available at https://en.wikipedia.org/wiki/Teredo_tunneling,
`
`accessed on June 23, 2019.
`
`26.
`
`Attached hereto as Exhibit 25 is a true and correct copy of a Microsoft
`
`Presentation entitled “Teredo @ Microsoft – Present and Future,” by Christopher Palmer,
`
`produced by Acceleration Bay, bearing production numbers AB-TT 002681-97.
`
`
`
`4
`
`

`

`Case 1:16-cv-00455-RGA Document 476 Filed 07/03/19 Page 6 of 6 PageID #: 33731
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`
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`27.
`
`Attached hereto as Exhibit 26 is a true and correct copy of a Microsoft document
`
`entitled “Xbox One – Technical information on P2P Networking Behavior,” dated October 6,
`
`2013, produced by Acceleration Bay, bearing production numbers AB-TT 007536-39.
`
`28.
`
`Attached hereto as Exhibit 27 is a true and correct copy of page 203 from the
`
`Expert Report of Dr. John P.J. Kelly Regarding Non-Infringement of U.S. Patent Nos.
`
`6,701,344; 6,829,634; 6,714,966; and 6,920,497, served on March 20, 2018.
`
`29.
`
`Attached hereto as Exhibit 28 is a true and correct copy of pages 91-93 from the
`
`transcript of proceedings from the Markman Hearing which took place on December 18, 2017, in
`
`the present action.
`
`30.
`
`Attached hereto as Exhibit 29 is a true and correct copy of pages 29-30 from the
`
`transcript of the deposition of Kevin Baca, taken on March 29, 2017.
`
`31.
`
`Attached hereto as Exhibit 30 is a true and correct copy of a Memorandum
`
`Opinion, issued in the matter Princeton Digital Image Corp. v. Office Depot Inc., Case No. 13-
`
`cv-00239-LPS (D.Del), Dkt. No. 220, filed on August 1, 2017.
`
` declare under penalty of perjury under the laws of the United States of America that the
`
` I
`
`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
`
`5
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`

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