`M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P
`1201 NORTH MARKET STREET
`P.O. BOX 1347
`WILMINGTON, DELAWARE 19899-1347
`
`(302) 658-9200
`(302) 658-3989 FAX
`
`JACK B. BLUMENFELD
`(302) 351-9291
`(302) 425-3012 FAX
`jblumenfeld@mnat.com
`
`
`The Honorable Richard G. Andrews
`United States District Court
` for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
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`February 5, 2020
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`VIA ELECTRONIC FILING
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`Re:
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`Acceleration Bay LLC v. Take-Two Interactive Software, Inc., et al.
`C.A. No. 16-455 (RGA)
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`Dear Judge Andrews:
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`We write on behalf of Defendants in response to the Court’s request during yesterday’s
`summary judgment hearing for authority supporting the grant of summary judgment where the
`patentee had initially accused certain products but later dropped those accusations.
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`In Intellectual Ventures I, LLC v. Canon Inc., the patentee’s expert “did not include in his
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`expert report numerous products listed in [the patentee’s] infringement contentions,” and the
`defendant sought “summary judgment of non-infringement with respect to such ‘omitted’
`products.” 143 F. Supp. 3d 143, 156 (D. Del. 2015). The district court held that “a claim of
`infringement relating to a product identified in [the patentee’s] infringement contentions but not
`in its expert’s report shall be considered dismissed from the case with prejudice.” Id.
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`At the time of Dr. Mitzenmacher’s report, Plaintiff was accusing five modes of NBA2K
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`of infringement. See, e.g., D.I. 464-1, Ex. A-2 at ¶¶ 63 (accusing MyTEAM, MyPARK, Rec
`Hall (MyPark), Stage (myCareer), and Crew), 66 (same). At the time of summary judgment,
`Plaintiff contends that only three modes infringe. See D.I. 472 at 7 n.4 (accusing ProAm,
`MyPark, and Rec Hall). It is undisputed that the no-longer-accused game modes do not infringe
`for at least the reasons explained in Defendants’ motion for summary judgment. See D.I. 463.
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`Defendants therefore request the Court dismiss with prejudice the game modes of
`NBA2K that Plaintiff no longer contends infringe the asserted claims.
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`Case 1:16-cv-00455-RGA Document 488 Filed 02/05/20 Page 2 of 2 PageID #: 34308
`The Honorable Richard G. Andrews
`February 5, 2020
`Page 2
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`JBB/bac
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`cc:
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`Jack B. Blumenfeld (#1014)
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`Clerk of the Court (via hand delivery)
`All Counsel of Record (via electronic mail)
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`Respectfully,
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`/s/ Jack B. Blumenfeld
`
`
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