Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page 1 of 36 PageID #: 34241
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`C.A. No. 16-455 (RGA)
`
`REDACTED
`PUBLIC VERSION
`
`REPLY BRIEF IN SUPPORT OF DEFENDANTS’ MOTION FOR
`SUMMARY JUDGMENT OF NON-INFRINGEMENT
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`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 Defendant
`
`OF COUNSEL:
`
`David P. Enzminger
`Michael A. Tomasulo
`Gino Cheng
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`
`Daniel K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`

`

`Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page 2 of 36 PageID #: 34242
`
`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`
`Paul N. Harold
`Joseph C. Masullo
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`
`Original Filing Date: July 22, 2019
`Redacted Filing Date: July 30, 2019
`
`

`

`Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page 3 of 36 PageID #: 34243
`
`
`
`TABLE OF CONTENTS
`
`II.
`
`
`Table of Authorities ........................................................................................................................ ii
`Table of Exhibits and Abbreviations ............................................................................................. iv
`I.
`Acceleration concedes its make, sell, or offer to sell arguments for the ’344, ’966, and
`’497 patents are the same as those the Court rejected in Activision and EA. ...................... 1
`Take-Two does not “use” the “computer network,” “broadcast channel,” or “component”
`of the ’344, ’966, and ’497 patent claims through testing. ................................................. 1
`A. Exhibits 12, 13, and 17 are inadmissible hearsay. ........................................................... 3
`B. Acceleration has no evidence any of the accused game modes were tested in the
`damages period at all, let alone on an accused platform. ................................................. 4
`C. Acceleration has no evidence that any testing infringed the asserted patents. ................. 6
`GTAO does not infringe the ’344, ’966, ’147 and ’069 patents because it does not meet
`the topology limitations. ..................................................................................................... 8
`NBA 2K does not infringe the ‘344, ‘966, ‘147 and ‘069 patents because Acceleration
`admits that not all participants have the same number of connections. ............................ 14
`A. Single-player and single-court modes do not infringe. .................................................. 14
`B. Multi-court modes do not infringe. ................................................................................ 14
`GTAO & NBA 2K: No infringement by equivalents of ’344, ’966, ’147, and ’069. ....... 16
`’344, ’966, and ’147: The DOE allegations are barred. ................................................. 16
`A.
`B. Acceleration’s expert presents no doctrine of equivalents argument for the m-regular
`limitations of the ’069 patent. ........................................................................................ 17
`GTAO & NBA 2K: The method claims are not infringed (’147/1 and ’069/1). .............. 19
`VI.
`A. GTAO: No evidence the claimed methods have ever been performed. ......................... 19
`B. Acceleration has failed to show infringement of the ’069 patent (all games). ............... 20
`C. Acceleration has failed to show infringement of the ’147 patent, either literally or by
`equivalents (all games). ................................................................................................ 22
`VII. Acceleration failed to proffer evidence to show infringement of the ’497 patent. ........... 23
`A. Acceleration has no relevant or admissible evidence regarding NBA 2K. .................... 23
`B. GTAO does not infringe for the same reasons. .............................................................. 25
`VIII. Conclusion. ....................................................................................................................... 25
`
`III.
`
`IV.
`
`V.
`
`i
`
`

`

`Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page 4 of 36 PageID #: 34244
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Acceleration Bay LLC v. Activision Blizzard, Inc.,
`324 F. Supp. 3d 470 (D. Del. 2018) ................................................................................. passim
`
`Acceleration Bay LLC v. Elec. Arts Inc.,
`No. 16-454-RGA, 2019 WL 1376036 (D. Del. Mar. 27, 2019) ....................................2, 3, 7, 9
`
`ACCO Brands, Inc. v. ABA Locks Mfrs. Co.,
`501 F.3d 1307 (Fed. Cir. 2007)................................................................................................13
`
`Amgen, Inc. v. Sandoz, Inc.,
`923 F.3d 1023 (Fed. Cir. 2019)................................................................................................18
`
`Avanir Pharm., Inc. v. Actavis S. Atl. LLC,
`36 F. Supp. 3d 475 (D. Del. 2014) ...........................................................................................12
`
`Centrak, Inc. v. Sonitor Techs., Inc.,
`2017 WL 3730617 (D. Del. Aug. 30, 2017), reversed and remanded on other
`grounds, 915 F.3d 1360 (Fed. Cir. 2019) ......................................................................1, 4, 5, 6
`
`Dippin’ Dots, Inc. v. Mosey et al.,
`476 F.3d 1337 (Fed. Cir. 2007)................................................................................................23
`
`Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co.,
`535 U.S. 722 (2002) .................................................................................................................17
`
`Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd.,
`344 F.3d 1359 (Fed. Cir. 2003)................................................................................................17
`
`Int’l, Inc. v. Sterlite Corp.,
`164 F.3d 1372 (Fed. Cir. 1998)................................................................................................23
`
`IPPV Enterprises, LLC v. Echostar Communications, Corp.,
`191 F. Supp. 2d 530 (D. Del. 2002) .........................................................................................12
`
`Mirror Worlds, LLC v. Apple Inc.,
`692 F.3d 1351 (Fed. Cir. 2012)..........................................................................................20, 21
`
`Montgomery County v. Microvote Corp.,
`320 F.3d 440 (3d Cir. 2003).....................................................................................................24
`
`Novartis Corp. v. Ben Venue Labs., Inc.,
`271 F.3d 1043 (Fed. Cir. 2001)................................................................................................13
`
`ii
`
`

`

`Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page 5 of 36 PageID #: 34245
`
`
`
`Omega Engineering, Inc. v. Raytek Corp.,
`334 F.3d 1314 (Fed. Cir. 2003)....................................................................................21, 22, 23
`
`Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc.,
`711 F.3d 1348 (Fed. Cir. 2013)................................................................................................24
`
`Ricoh Co. v. Quanta Computer Inc.,
`550 F.3d 1325 (Fed. Cir. 2008)..........................................................................................1, 4, 6
`
`Safas Corp. v. Etura Premier, L.L.C.,
`293 F. Supp. 2d 442 (D. Del. 2003) ...........................................................................................4
`
`Warner-Jenkinson Co. v. Hilton Davis Chemical Co.,
`520 US 17 (1997) .....................................................................................................................19
`
`Wi-LAN Inc. v. Sharp Elecs. Corp.,
`362 F. Supp. 3d 226 (D. Del. 2019) .........................................................................................24
`
`XpertUniverse, Inc. v. Cisco Sys., Inc.,
`2013 WL 1702159 (D. Del. Feb. 25, 2013) .............................................................................25
`
`Other Authorities
`
`Fed. R. Evid. 803(6) .......................................................................................................................23
`
`Rule 703 .........................................................................................................................................24
`
`
`
`
`iii
`
`

`

`Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page 6 of 36 PageID #: 34246
`Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page 6 of 36 PagelD #: 34246
`
`TABLE OF EXHIBITS AND ABBREVIATIONS
`
`ASSERTED PATENTS
`
`USS. Pat. No. 6,714,966 (D.I. 1, Ex.2)
`
`USS.Pat. No. 6,910,069 (D.I. 1, Ex.5)
`
`U.S. Pat. No. 6,732,147 (D.I. 1, Ex.3)
`
`°069 patent
`
`’147 patent
`
`USS. Pat. No. 6,920,497 (D.I. 1, Ex.6)
`
`°497 patent
`
`NON-INFRINGEMENT AND RELATED MATERIALS
`
`
`Inc., of U.S. Patent Nos. 6,920,497; 6,910,069
`
`Expert Report of Nenad Medvidovic, Ph.D., Regarding
`Infringement by Take-TwoInteractive Software,Inc., Rockstar
`Games, Inc., and 2KSports, Inc., of U.S. Patent Nos.
`6,701,344; 6,829,634; 6,714,966; 6,732,147
`
`Med.Rpt.
`
`Expert Report of Michael Mitzenmacher, Ph.D., Regarding
`Infringement by Take-TwoInteractive Software, Inc., Rockstar
`Games,Inc., and 2KSports, Inc., of U.S. Patent Nos.
`6,920,497: 6,910,069
`
`Mitz.Rpt.
`
`Supplemental Opening Expert Report of Nenad Medvidovié,
`Ph.D., Regarding Infringement by Take-TwoInteractive
`Software, Inc., Rockstar Games, Inc., and 2KSports, Inc., of
`U.S. Patent Nos. 6,701,344; 6,829,634; 6,714,966; 6,732,147
`
`Med.Supp.Rpt.
`
`Supplemental Opening Expert Report of Michael
`Mitzenmacher, Ph.D., Regarding Infringement by Take-Two
`Interactive Software, Inc., Rockstar Games, Inc., and 2KSports,
`
`Mitz.Supp.Rpt.
`
`' This Reply cites to a number ofexhibits previously provided with Take-Two’s prior papers. See
`D.I. 464-1 (Exs. A-1 to A-7; D-1 to D-2; E-1 to E-9; F-1 to F-11). Therefore, this reply will continue
`the numbering from those papers.
`
`iv
`
`

`

`Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page 7 of 36 PageID #: 34247
`Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page 7 of 36 PagelD #: 34247
`
`A-5|Expert Reply Report of Nenad Medvidovi¢, Ph.D., Regarding|Med.Reply
`Infringement by Take-TwoInteractive Software, Inc., Rockstar
`Games,Inc., and 2KSports, Inc., of U.S. Patent Nos.
`6,701,344; 6,829,634; 6,714,966
`
`Expert Reply Report of Michael Mitzenmacher, Ph.D.,
`Regarding Infringement by Take-TwoInteractive Software,
`Inc., Rockstar Games, Inc., and 2KSports, Inc., of U.S. Patent
`Nos. 6,732,147; 6,920,497; 6,910,069
`
`Mitz.Reply
`
`Take-Two Responseto Plaintiffs Interrogatory Nos. 5 and 9
`
`Resp. to Rogs 5
`and 9
`
`Take-Two Responseto Plaintiffs Interrogatory No. 6
`
`Resp. to Rog 6
`
`Take-Two Responseto Plaintiff's Interrogatory No. 1
`
`Resp. to Rog 1
`
`A-10|Excerpts of Acceleration Bay’s infringement contentions for Inf.Ctns.
`
`
`GTAand NBA2K,dated July 11, 2017.
`
`DEMONSTRATIVES
`
`
`2017)
`
`
`
`Dl Appendix 1: ClaimAmendments
`Appendix 2: ClaimAmendments
`
`po
`pe
`
`DEPOSITION AND HEARING TRANSCRIPTS
`
`x[powiniiet
`
`
`
`E-1 Excerpts of Deposition Transcript of Dr. Eric Cole (February 7,|Cole.Tr
`2017)
`
`Excerpts of Deposition Transcript of Kevin Baca (March 29,
`2017)
`
`E-3
`
`Excerpts of Deposition Transcript of John Hynd (July 21,
`2017)
`
`Hynd.Tr
`
`Excerpts of Deposition Transcript of Daniel Yelland (July 20,|Yelland.Tr
`
`

`

`Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page 8 of 36 PageID #: 34248
`Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page8 of 36 PagelD #: 34248
`
`E-5
`
`Excerpts of Deposition Transcript of Dr. Michael
`Mitzenmacher(Jul. 27, 2018)
`
`Mitz.Tr.
`
`E-6|Excerpts of Deposition Transcript of Dr. Nenad Medvidovi¢ Med.Tr.
`
`
`(August 14, 2018)
`
`Excerpts of Deposition Transcript of Tim Walter (March 31,
`2017)
`
`E-8
`
`Excerpts of Deposition Transcript of Chris Larson (June 20,
`2017)
`
`Lars.Tr.
`
`E-9|Excerpts of Deposition Transcript of Evan Harsha (August 15,|Hars.Tr.
`2017)
`
`E-10|Additional Excerpts of Deposition Transcript of Dr. Michael Mitz.Tr.
`
`
`Mitzenmacher(Jul. 27, 2018)
`
`E-11|Additional Excerpts of Deposition Transcript of Dr. Nenad Med.Tr.
`
`
`Medvidovié (August 14, 2018)
`
`ADDITIONAL MATERIALS
`
`
`
`F-1] Excerpts of ’344 Patent File History, annotated to show related|’344 FH
`amendment(s) and/or argument(s) made during prosecution
`
`Excerpts of 966 Patent File History, annotated to show related|966 FH
`amendment(s) and/or argument(s) made during prosecution
`
`
`
`F-3 Excerpts of ’147 Patent File History, annotated to show related|’147 FH
`amendment(s) and/or argument(s) made during prosecution
`
`F-4|Excerpts of ’497 Patent File History, annotated to show related|’497 FH
`amendment(s) and/or argument(s) made during prosecution
`
`
`madebythe patentee
`
`Excerpts of ’147 Patent Owner Preliminary Response
`(IPR2016-00747, Pap. 11), annotated to show related
`arguments made bythe patentee
`
`-5
`
`’147 Pat., IPR
`POPR
`
`°344 Pat., IPR
`Excerpts of ’344 Patent Owner Preliminary Response
`(IPR2015-01970, Pap. 6), annotated to show related arguments|POPR
`
`

`

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`Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page 9 of 36 PagelD #: 34249
`
`°966 Pat., IPR
`Excerpts of ’966 Patent Owner Preliminary Response
`(IPR2015-01951, Pap. 8), annotated to show related arguments|POPR
`madeby the patentee
`
`Excerpts of ’069 Patent Owner Preliminary Response
`(IPR2017-01600, Pap. 8), annotated to show related arguments
`madeby the patentee
`
`
`
`069 Pat., IPR
`
`F-9
`
`Documentbearing Bates no. MS/SUB ACCELERATIONBAY
`000105-112, entitled (“Microsoft Winsock Overview’’)
`
`F-10|Document bearing Bates no. MSFT/SUB
`ACCELERATIONBAY 000160-165 (entitled “Durango
`Teredo NATdetection handoff’)
`
`Frankel-Tomasulo Correspondence from April 4, 2019 to April
`18, 2019
`
`GENERAL ABBREVIATIONS FOR DOCUMENTSCITED IN REPLY
`
`Description
`
`Abbreviation
`
` Platinff Acceleration Bay LLC’s Oppositiong to Take-Two
`
`Opening Brief in Support of Defendants’ Motion For Summary
`Judgment of Non-Infringement
`
`Defendants’ Motion for Summary Judgment of Non-Infringement
`
`TT.Br.
`
`AB.Opp.
`
`Vii
`
`

`

`Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page 10 of 36 PageID #: 34250
`
`
`
`I.
`
`Acceleration concedes that its make, sell, and offer to sell arguments for the ’344,
`’966, and ’497 patents are the same as those the Court rejected in Activision and EA.
`
`Take-Two does not make, sell, or provide the user consoles and PCs that Acceleration alleges
`
`comprise the “computer network,” “broadcast channel,” and “component” of these asserted claims.
`
`Although Acceleration declined to drop its contrary contentions before briefing, it now concedes that
`
`“the Court rejected similar arguments in connection with the summary judgment orders in Activision
`
`and EA.” AB.Opp. at 16, n.5. Acceleration suggests nothing that would lead to a different result here,
`
`and admits that it opposes Take-Two’s motion only to “preserve the argument” for “subsequent
`
`appellate review.” Id. Thus, the Court should grant summary judgment for Take-Two on
`
`Acceleration’s make, sell, and offer to sell allegations of literal and DoE infringement for the ’344,
`
`’966, and ’497 patents.
`
`II.
`
`Take-Two does not “use” the “computer network,” “broadcast channel,” or
`“component” of the ’344, ’966, and ’497 patent claims through testing.
`
`Acceleration’s only remaining infringement allegation on the system claims is that Take-Two
`
`performed infringing internal product testing that constituted an infringing “use” of the claimed
`
`inventions during the damages period. It does not argue that Take-Two “made” or “sold” the
`
`claimed inventions. There is no evidence to support this claim.
`
`A plaintiff must advance “specific evidence that [defendant] tested [the products actually
`
`accused of infringement] in a way that would constitute infringement.” Ricoh Co. v. Quanta
`
`Computer Inc., 550 F.3d 1325, 1335–36 (Fed. Cir. 2008). Evidence that “some products” are tested,
`
`or that the tests might have infringed, was rejected as insufficient. Id. at 1336. This Court addressed
`
`this issue in both the Activision and EA cases, as well as in other recent unrelated cases. In Centrak,
`
`the Court surveyed the Federal Circuit cases on the topic and noted that in “all of the cases where use
`
`was found, there was specific evidence in the record that testing had been performed on the entire
`
`system.” Centrak, Inc. v. Sonitor Techs., Inc., 2017 WL 3730617, at *7 (D. Del. Aug. 30,
`
`1
`
`

`

`Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page 11 of 36 PageID #: 34251
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`
`
`2017), reversed and remanded on other grounds, 915 F.3d 1360 (Fed. Cir. 2019). This Court has
`
`repeatedly rejected the argument that “if the system was sold, Defendant must necessarily have
`
`tested it.” Acceleration Bay LLC v. Activision Blizzard, Inc., 324 F. Supp. 3d 470, 483 (D. Del.
`
`2018) (citing Centrak, 2017 WL 3730617, at *7).
`
`To avoid summary judgment, Acceleration must have evidence that Take-Two “used” the
`
`entire claimed invention (i.e., Take-Two formed an accused broadcast channel with multiple
`
`physical computers, or consoles, running the game in an accused mode) in the United States, on an
`
`accused platform,2 during the damages period. AB.Opp. at 12. In Activision, there were no Activision
`
`testing documents showing relevant testing.
`
`
`
`
`
` Activision (C.A. No. 16-453-RGA),
`
`D.I. 570 at 11–14. This Court rejected that argument, noting that not all game modes are accused,
`
`not all game platforms are accused, and activity occurring before the Complaint was filed is not
`
`actionable. Activision, 324 F. Supp. at 483.
`
`In EA, Acceleration argued in great detail how over 1500 pages of EA internal technical
`
`documents supposedly showed that EA comprehensively tested each accused product, in the United
`
`States, in an accused manner (i.e., with a sufficient number of participants), on an accused platform
`
`(e.g. Xbox or PC). These internal EA technical documents included “QA Test Plans,” a “Test Brief”
`
`for “Connected Game Play,” “Launch” plans and detailed spreadsheets regarding pre-launch testing,
`
`“Testing Tracker” documents, and “Game Services Architecture Reviews.” The Court found that the
`
`documents identified “testing protocols,” “teams responsible for testing,” and “show[] the
`
`methodical way EA tests every mode of every game.” Acceleration Bay LLC v. Elec. Arts Inc., No.
`
`2 Activity on Sony platforms is outside the scope of this case. See D.I. 237.
`
`2
`
`

`

`Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page 12 of 36 PageID #: 34252
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`
`
`16-454-RGA, 2019 WL 1376036, at *3 (D. Del. Mar. 27, 2019). The Court concluded that,
`
`collectively, the “many documents describing EA’s testing practices” provide evidence on which a
`
`jury “might reasonably rely to conclude Defendant tested [two of the accused games] with five or
`
`more players and on an Xbox.” Id. at *3.
`
`Here, just as in Activision, Acceleration does not support its arguments with any Take-Two
`
`testing documents at all, let alone the type of documents that the Court relied on in the EA case.
`
`Instead, Acceleration relies on: (1) an interrogatory response that is completely silent on the issue of
`
`when “multiplayer functionality” was tested or whether the testing included the specific
`
`configurations that Acceleration accuses (AB.Opp., Ex. 11); (2)
`
`
`
`; (3) a hearsay third-party
`
`article regarding how videogame companies generally test their games (Ex. 17); (4)
`
`
`
`18); and (6)
`
` (5) a job posting (Ex.
`
`
`
`.3 None of this shows that the accused game modes were tested at all during the
`
`damages period, let alone in an infringing manner.
`
`A.
`
`Exhibits 12, 13, and 17 are inadmissible hearsay.
`
`Highlighting its failure of proof, Acceleration tries to rely on Internet posts downloaded from
`
`third-party websites,
`
`
`
`. AB.Opp., Exs. 12, 13, and 17. Acceleration offered these articles to prove the facts
`
`asserted by the unknown authors, namely, that
`
`3 Acceleration also string cites, without explanation, to its expert reports, but nowhere in those
`reports is there evidence that
`
`The cited paragraphs of Dr. Medvidovic’s report do not pertain to the ’344, ’966, or ’497 patents and
`offer no evidence of infringement by testing anyway. The cited paragraphs of Dr. Mitzenmacher’s
`report repeat an argument this Court already rejected: that infringing testing can be assumed rather
`than proven. Ex. A-6 (Mitz.Reply) at ¶¶ 66, 83, 279.
`
`
`
`3
`
`

`

`Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page 13 of 36 PageID #: 34253
`
`
`
`. Take-Two did not create the articles, the authors are not
`
`Take-Two employees, and they will not be in court. Thus, the assertions in these articles are
`
`inadmissible hearsay. In addition, neither side produced these Internet postings during discovery,
`
`relied on them in any expert report, or discussed them with any witness, so the documents cannot
`
`even be authenticated. Safas Corp. v. Etura Premier, L.L.C., 293 F. Supp. 2d 442, 447–448 (D. Del.
`
`2003) (excluding as inadmissible hearsay a magazine article purporting to show infringement, and
`
`granting summary judgment of non-infringement).
`
`B.
`
`Acceleration has no evidence that any of the accused game modes were tested
`in the damages period at all, let alone on an accused platform.
`
`Acceleration has no evidence that Take-Two tested the accused functionality in the damages
`
`period. Instead, relying heavily on hearsay Exhibits 12, 13 and 17, Acceleration argues that Take-
`
`Two must have tested the games during the damages period because
`
`
`
` and released one of the three accused games (NBA 2K16) during that period.
`
`AB.Opp. at 14–16. In other words, Acceleration asks the Court to infer from release dates
`
`
`
`games that Take-Two must have tested the accused features in the United States on accused
`
`platforms during that period, even though there is no evidence of that.
`
`This is exactly the type of speculative inference the Federal Circuit and this Court rejected, as
`
`a matter of law, in the Ricoh, Activision, and Centrak cases. In each case, the Plaintiff failed to meet
`
`its “burden to demonstrate that [infringing] testing actually occurred.” E.g., Centrak, 2017 WL
`
`3730617 at *7 (emphasis added). Acceleration’s “patching ergo testing” argument is identical to the
`
`argument rejected in Centrak. There, Plaintiff argued that because “Defendant certifies and
`
`commissions the system,” it must necessarily have conducted infringing testing. Id. at *6. This Court
`
`rejected that argument, finding there was “no evidence … as to what takes place during certifying
`
`and commissioning” or that “Defendant operates any part of the system, or the entire system, during
`
`4
`
`

`

`Case 1:16-cv-00455-RGA Document 480 Filed 07/30/19 Page 14 of 36 PageID #: 34254
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`
`
`certification and commissioning.” Id. at *7. In short, this Court rejected the argument that infringing
`
`testing can be presumed without actual evidence that the testing occurred and was, in fact,
`
`infringing. See Id.
`
`So too here. Acceleration does not connect the supposed patching to any evidence of
`
`infringing testing during the damages period. It presents no evidence that the supposed patching
`
`required any testing of the accused functionality at all, let alone testing during the damages period.
`
`
`
`
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` In light of this, Acceleration cannot merely assume that patching some bugs in
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`the games required Take-Two to test the accused features at all.
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`There is no evidence that the accused patching required Take-Two to operate the “entire”
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`accused system, as Centillion requires. Acceleration’s “patching” evidence also does not show that
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`Take-Two used the accused system on an accused platform.
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` so it cannot infer that Take-Two necessarily tested the accused
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`features on an accused platform. In sum, Acceleration has no evidence that patching requires testing,
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`that any testing would include accused functionality, or that if testing were required, Take-Two did
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`the testing during the damages period, of the entire accused system, on an accused platform.
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`Acceleration’s “release date” argument is identical to the “release ergo testing” arguments
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`5
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`this Court rejected in both Centrak and Activision. The Court has an even better reason to reject
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`those arguments here because all of
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`, there is no reason to infer that
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`they were “tested” during the damages period. Just as in Ricoh, Acceleration has the burden to show
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`the accused products were actually tested in a way that constituted infringement—i.e., in the
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`damages period. Ricoh, 550 F.3d at 1335–36; Activision, 324 F. Supp. at 484; see also Centrak,
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`2017 WL 3730617 at *7 (“cannot survive summary judgment” with “wholly unsupported assertion
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`that if the system was sold, Defendant must necessarily have tested it”).
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`Lastly, for GTAO, neither the job posting nor
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` supports Acceleration’s
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`allegations. The Court rejected reliance on a job posting in Activision; and here, the job posting does
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`not even mention the accused games.
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`
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` But, the game was developed in the years preceding its launch in
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`2013, Ex. A-9 (Resp. to Rog 1) at 9, not during the damages period. Moreover, there is no evidence
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` could constitute infringement of the system claims, which require
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`multiple players on multiple consoles.
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`For all accused games, there is simply no evidence that Take-Two tested the accused features
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`on an accused platform after the damages period commenced in April 2015.
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`C.
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`Acceleration has no evidence that any testing infringed the asserted patents.
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`Even if Acceleration could show that some testing occurred in the damages period, it has no
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`evidence that any testing was infringing. For both games, Acceleration’s only admissible evidence of
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`any testing is Take-Two’s interrogatory response.
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`:
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`6
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`I 85217 4
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`Court has noted,not all multiplayer use is accused of infringement. Acceleration Bay LLCv. Elec.
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`Arts Inc., No. 16-454-RGA, 2019 WL 1376036, at *4 (D. Del. Mar. 27, 2019). This response does
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`not show which modesweretested or the configuration ofthe test consoles, and is far from the 1500
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`pagesofinternal testing documents the Court relied on in the EA case. The interrogatory responseis
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`also silent as to when testing occurred, what modes were tested, and whether testing was done by
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`actual players, or in some other mannerthat did not require “use” of the entire system. For these
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`reasons, the interrogatory response does not show infringement.
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`The requirement that Acceleration show that Take-Twoactually infringed the patents during
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`testing is especially acute here because Acceleration admitsthat, for both games,notall multiplayer
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`play is accused. Multiplayer modes with fewer than four “participants” are not accused in either
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`game. Acceleration also concedes that multiplayer modes do not necessarily infringe in either game
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`even when there are enough participants:
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`e For NBA 2K,“single court” modesare not accused even when they have more than four
`different participating consoles. The only accused configurations are where there are
`multiple games in a “park”or “gym.” AB.Opp.at 7,n 4. Thus, to support its claims,
`Acceleration must show that
`an accused platform, in the damages period. Acceleration has no evidenceofthis.
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`e For GTAO,Dr. Mitzenmacheragreedthat the alleged infringementdoesnot necessaril
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`occur even when there are sufficient players in the game in an accused mode:
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`
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`Given this admission, Acceleration needed actual evidence that such a configuration
`occurred during testing. It has none.
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`
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`Thus, for both games, Acceleration has no evidence that Take-Twoinfringed these three
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`patents during internaltesting.
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`Ill.
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`GTAO does not infringe the ’344, ’966, ’147 and ’069 patents because it does not
`meet the topology limitations.
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`There is no evidencethat any “rules” require allparticipants to have “exactly” the same
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`numberofneighbors, as required by the claims. In its brief, Acceleration explains its theory ofhow
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`this limitation is supposedly met because of “various rules”:
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`
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`AB.Opp.at 3.
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`But none of this meets the claim limitation. Take-Two explained howthis theory, even if
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`accepted, does not meet the requirement that the accused network creates and maintains a state
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`“where each participant is connected to exactly m neighborparticipants,” with m being at least
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`three. See TT.Br. at 11—12. In its response, Acceleration still has no evidence or explanation as to
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`howthe cited “rules” create a state where each and every participant has the “exact same number of
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`neighbors.” Acceleration’s experts never even state that the cited “rules” drive each participant in
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`the network to have the exact same numberofneighbors, or that that number1s at least three, as the
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`claims require. See Ex. A-1 (Med.Rpt.) at §§ 161-181; Ex. A-2 (Mitz.Rpt.) at §§121—137.
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`There is no dispute that the “proximity rules” are based on playerdecisions (TT.Br. at 13—
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`16), or that the other cited rules supposedly set upper boundaries on various things, such as the
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`“numberofparticipants.” Setting an upper boundary for the numberofparticipants does not meet the
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`limitation of configuring the network so each participant has exactly the same number of
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`neighbors—no morethan setting a monthly credit card upperlimit defines an “exact” amountto be
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`spent each month. See id. at 12. Nor does setting an upper limit require that all other card holders—
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`i.e., the neighbors in this case—spend exactly the same amount. The claims require each participant
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`to have exactly the same number of neighbors, not an upper boundary on the number of neighbors.
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`Nor is there evidence that this gets to at least three connections, as required. Simply put,
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`Acceleration’s theory of infringement, even if accepted as true, does not meet the claim limitation.
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`Summary judgment should be granted.
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` are not required to be connected to at least three other participants, as the
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`claims require. Take-Two explained how Acceleration’s experts admit that there is no requirement
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`that the
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`” in the accused network connect to at least three other participants
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`as the claims require. See TT.Br. at 22–23. Acceleration did not respond to this argument at all.
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`This is a separate and independent basis for granting summary judgment.
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`As explained, the only accused network/broadcast channel in the GTAO games is made up of
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`the
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`71:13.
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`.” AB.Opp. at 2–7. The
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`. Ex. E-5 (Mitz.Tr.) at 71:4–
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`. Id. Dr.
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`Mitzenmacher hypothesizes that
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`10 (Mitz.Tr.) at 75:4–23; 76:19–77:7.
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`. Ex. A-2 (Mitz.Rpt) at ¶¶ 121–122; see also Ex. E-
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`The claims, however, require that each participant, including the
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`9
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`”—which Acceleration says are participants when they are used (Ex. E-5 (Mitz.Tr.) at
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`71:18-71:24)—be connected to three or more “neighbor participants.” See e.g., ’344 and ’966
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`patents, cls. 1, 13; ’069 & ’147 patents, cl. 1. Both experts acknowledged that
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`
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`A-5 (Med.Reply) at ¶ 39. So, even when
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`” Ex. A-6 (Mitz.Reply) at ¶ 51; Ex.
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`. Ex. E-5 (Mitz.Tr.) at 91:9–91:13. This is an
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`admission of non-infringement—because the cla