Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 1 of 133 PageID #: 34312
`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`))
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`ACCELERATION BAY LLC
`Plaintiff,
`
`v.
`)
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and )
`2K SPORTS, INC.
`
`))
`
`))
`
`C.A. No. 16-455-RGA
`
`))
`
`) J
`
`. Caleb Boggs Courthouse
`844 North King Street
`Wilmington, Delaware
`Tuesday, February 4, 2020
`10:00 a.m.
`Oral Argument
`
`Defendants.
`
`BEFORE: THE HONORABLE RICHARD G. ANDREWS, U.S.D.C.J.
`APPEARANCES:
`
`POTTER ANDERSON & CORROON LLP
`BY: PHILIP A. ROVNER, ESQUIRE
`-and-
`KRAMER LEVIN NAFTALIS & FRANKEL
`BY: AARON M. FRANKEL, ESQUIRE
`BY: PAUL J. ANDRE, ESQUIRE
`BY: MARCUS A. COLUCCI, ESQUIRE
`For the Plaintiff
`
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`))
`
`ACCELERATION BAY LLC
`Plaintiff,
`
`v.
`)
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and )
`2K SPORTS, INC.
`
`))
`
`))
`
`C.A. No. 16-455-RGA
`
`))
`
`) J
`
`. Caleb Boggs Courthouse
`844 North King Street
`Wilmington, Delaware
`Tuesday, February 4, 2020
`10:00 a.m.
`Oral Argument
`
`Defendants.
`
`BEFORE: THE HONORABLE RICHARD G. ANDREWS, U.S.D.C.J.
`APPEARANCES:
`
`POTTER ANDERSON & CORROON LLP
`BY: PHILIP A. ROVNER, ESQUIRE
`-and-
`KRAMER LEVIN NAFTALIS & FRANKEL
`BY: AARON M. FRANKEL, ESQUIRE
`BY: PAUL J. ANDRE, ESQUIRE
`BY: MARCUS A. COLUCCI, ESQUIRE
`For the Plaintiff
`
`
`
`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 2 of 133 PageID #: 34313
`2
`
`APPEARANCES CONTINUED:
`MORRIS NICHOLS ARSHT & TUNNELL LLP
`BY: JACK B. BLUMENFELD, ESQUIRE
`BY: STEPHEN J. KRAFTSCHIK, ESQUIRE
`-and-
`WINSTON & STRAWN, LLP
`BY: DAVID P. ENZMINGER, ESQUIRE
`BY: MICHAEL A. TOMASULO, ESQUIRE
`BY: LOUIS L. CAMPBELL, ESQUIRE
`BY: PAUL HAROLD, ESQUIRE
`-and-
`TAKE TWO INTERACTIVE SOFTWARE, INC.
`BY: LINDA ZABRISKIE, ESQUIRE
`For the Defendants
`
`*** PROCEEDINGS ***
`DEPUTY CLERK: All rise.
`THE COURT: All right. Please be seated,
`
`everyone.
`
`So this is the time set for oral argument in
`Acceleration Bay versus Take-Two, Civil Action Number
`16-455.
`
`Mr. Rovner, good morning. Who have you got with
`
`you?
`
`MR. ROVNER: Good morning, Your Honor. Phil
`Rovner from Potter Anderson for plaintiff, Acceleration Bay.
`And with me from Kramer Levin, Mr. Paul Andre, Aaron
`Frankel, and Marcus Colucci.
`THE COURT: All right. Good morning to you all.
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 3 of 133 PageID #: 34314
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`And Mr. Kraftschik. Oh, Mr. Blumenfeld.
`Sorry, Mr. Kraftschik put his name down in a
`different ink, so I figured he was the man.
`MR. BLUMENFELD: No, I actually put it down for
`him because he wasn't signed up, but here we go.
`THE COURT: Well, no good deed goes unpunished.
`Who have you got with you?
`MR. BLUMENFELD: Good morning, Your Honor.
`David Enzminger and Mike Tomasulo from Winston & Strawn.
`And behind me, Lewis Campbell, Paul Harold also from
`Winston & Strawn. And Mr. Kraftschik, you already
`recognized, and Linda Zabriskie who is in-house at Take-Two.
`THE COURT: Okay. Good morning to all of you.
`All right. So before we get started here, I
`just wanted to check and make sure that what I gathered from
`the briefing is correct which is because of some prior order
`of mine, the '634 patent is not at issue; right?
`MR. ENZMINGER: Correct.
`MR. FRANKEL: That's correct.
`THE COURT: And we're still only dealing with
`direct infringement; right?
`MR. FRANKEL: Correct, Your Honor.
`THE COURT: Okay. So it wasn't apparent to me,
`maybe by like the close of business tomorrow, could the
`plaintiff just submit a letter that states what all the
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 4 of 133 PageID #: 34315
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`presently asserted claims from the five patents are and also
`all the limitations that we're going to talk about today in
`which you have a DOE argument in addition or maybe in place
`of literal infringement?
`Do you think you can do that by the close of
`business tomorrow?
`MR. FRANKEL: We'll do that, Your Honor.
`THE COURT: Okay. Thank you, Mr. Frankel.
`All right. So what I was thinking is to make
`this something where I get the parties' opposing positions
`firmly placed in my mind that essentially we sort of break
`this down into kind of argument by argument, one side then
`the other side.
`And I guess actually then, before we go actually
`any further, if I don't change anything that I said in
`regards to particularly the Activision case, does that mean
`that the '344, and '966, and '497 claims are essentially
`limited to testing?
`MR. FRANKEL: Your Honor, testing development,
`but it would be internal --
`THE COURT: Okay.
`MR. FRANKEL: -- use by the defendant.
`THE COURT: All right. But they're limited to
`
`use --
`
`MR. FRANKEL: Correct.
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 5 of 133 PageID #: 34316
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`THE COURT: -- if you don't change anything.
`Okay. All right. So that's good.
`So why don't we go on to the argument about
`whether or not there is use for these three patents.
`MR. ENZMINGER: Your Honor, we have a small
`slide deck for this issue. May I pass it to the court
`reporter?
`
`THE COURT: Okay. Yes.
`So I see you've broken the slide decks down
`argument by argument.
`MR. ENZMINGER: We have.
`THE COURT: That's a clever way to make me think
`it's not too thick.
`MR. ENZMINGER: Okay. Well, we tried to get
`them to be as precise as possible, but there are a lot of
`issues.
`
`So the Court has focused on use by internal
`testing and in the prior two cases we've had, including this
`one, we've had five rounds of briefing on this particular
`issue. This is the first time for Take-Two. What we will
`show you is that the testing for internal use evidence for
`Take-Two is even weaker than the other two and certainly
`weaker than in Activision in which the Court found that
`there was no evidence from which to support a claim by
`internal use of testing. You granted summary judgment in
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 6 of 133 PageID #: 34317
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`our favor.
`
`Under the Federal Circuit's decisions in Ricoh,
`this Court's decision in Activision and EA, the plaintiff
`has to have specific evidence of testing, and it has to
`occur in a way that would constitute infringement. It needs
`to be the testing on an accused instrumentality, the mode
`that is accused of infringement. And because certain
`platforms for these games are not at issue in this case, it
`has to be platform specific to an accused platform. The
`testing also has to fall within the dates covered by this
`case which is after March 2015.
`And that's very important to the Take-Two case
`because the functionality that they are accusing was
`developed by Take-Two in 2013 for Grand Theft Auto and in
`2014 for NBA 2K. And the testing --
`THE COURT: So just hold on a second,
`Mr. Enzminger --
`MR. ENZMINGER: Yeah.
`THE COURT: -- because plaintiff agrees that for
`the use to matter, it has to be on the same platform,
`presumably Microsoft as opposed to Sony. It has to be in
`the same mode, multi-player as opposed to single player.
`And multi-player has to be, I think, at least four or more
`players, and it has to occur during the damages period, and
`it has to occur in the United States.
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 7 of 133 PageID #: 34318
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`MR. COLUCCI: Your Honor, yes, we do. We
`believe that there's evidence for that.
`THE COURT: Well, okay. No. No, I just wanted
`to -- I kind of thought you did, but so as long as we have
`the ground rules the same, then we can go on to the
`evidence.
`
`MR. ENZMINGER: Okay. I want to make one
`further observation with respect to the Court's question.
`In this case, merely having enough players in the Take-Two
`case, merely having enough players does not mean a
`multi-player mode is accused of infringement. In this case,
`there are numerous modes of play with more than enough
`players that are still not accused of infringement. This
`goes to like later on there's talk about, for example,
`single-court play in NBA 2K.
`THE COURT: I saw the NBA 2K multi-court modes
`include Pro Am, MyPark and Rec Hall. Are there other
`multi-court modes besides for those?
`MR. ENZMINGER: Those are the multi-court modes,
`but not all the multi-court modes are accused, only the ones
`where the courts have the same number of players. So there
`are --
`
`THE COURT: Oh, okay.
`MR. ENZMINGER: There are modes of those
`elements that have different numbers of players on the
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 8 of 133 PageID #: 34319
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`courts, and those are not accused.
`THE COURT: Is that right, plaintiff?
`MR. COLUCCI: Your Honor, I'm not exactly sure
`what he means by different numbers of players that -- I
`mean, the teams are five on five. I mean, I'm not sure
`exactly what he's --
`MR. ENZMINGER: What I'm saying is they're
`accusing the games where there are the same number of
`players like a gym full of five-on-five games. But if one
`of the games in the gym is a three-on-three game, then
`that's not accused.
`THE COURT: Because it doesn't meet m --
`MR. ENZMINGER: It could never be m-regular
`because a three-on-three game and a five-on-five game could
`never be the same number of connections.
`THE COURT: So do you agree with that?
`MR. COLUCCI: Your Honor, we've accused the
`multi-court. So if there's the three on three in the
`multi-court setting like in the rec area that we've accused
`or the Pro Am, those would be, but I think we may be talking
`about the same thing where there's multiple games going on
`at the same time.
`THE COURT: Okay. Well, maybe I misunderstood
`what you just said, but if there's a three-on-three game,
`that's possible to go on on something like Pro Am or MyPark,
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 9 of 133 PageID #: 34320
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`but that would not infringe the patent because it would be
`m-regular so it's not accused?
`MR. COLUCCI: Correct. If there's not enough
`players, they are not accused. That's correct.
`THE COURT: Okay. All right.
`Go ahead, Mr. Enzminger.
`MR. ENZMINGER: Okay. So let's take a look at
`what Acceleration's evidence of use or by testing is. The
`first is a string cite of inapposite paragraphs from their
`expert reports, and we'll go to that.
`Experts, not one of those paragraphs actually
`cite evidence of testing.
`Two, an interrogatory response that merely says
`that some of the game testing is done in the United States,
`a proposition we do not contest.
`Third, hearsay third-party articles that talk
`about generic testing and do not relate to any of the
`accused modes.
`Four, documents that show the games were updated
`or patched during the damages period, but also do not relate
`to asserted modes.
`One job posting hiring somebody in which Grand
`Theft Auto is trying to hire an engineer who would have
`testing under their -- I'm sorry, Rockstar would hire a
`testing engineer, and that job posting doesn't actually
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 10 of 133 PageID #: 34321
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`mention any of the accused games. And then some testimony,
`four lines of testimony in all the depositions taken in this
`case, that one engineer said he played Grand Theft Auto
`during development. There's no testimony with respect to
`internal use by NBA 2K, the other game that's accused.
`So in reaching --
`THE COURT: I'm sorry, the engineer who
`testified that he played Grand Theft Auto during
`development, was that a Rule 30(b)(6) deposition, or was
`that something else?
`MR. ENZMINGER: He was a designated --
`THE COURT: Okay.
`MR. ENZMINGER: -- person. But all his
`testimony, and we'll show it to you, all it says is I played
`the game. The Court said or the Federal Circuit said in
`Ricoh vs. Quanta that specific evidence that defendant
`tested the accused products in a way, that would constitute
`infringement.
`THE COURT: Yeah. You know, the part you quote
`there, that was actually what the District Court said, not
`what the Court of Appeals said. They were just quoting what
`the District Court had said.
`MR. ENZMINGER: They affirmed the District
`
`Court.
`
`THE COURT: Well, they did, but when you affirm,
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 11 of 133 PageID #: 34322
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`that doesn't mean every word that the District Court said is
`now the law.
`
`MR. ENZMINGER: Right. But it's clear that to
`find infringement by testing, the testing that you're
`talking about has to actually be infringing.
`THE COURT: Well, that's true.
`MR. ENZMINGER: And that's the only point we're
`making. The timing is important here because the plaintiff
`cannot rely -- as they have already conceded, they can't
`rely on testing that occurred before the earliest
`infringement allegations. And they need to have specific
`testing about what they are accusing of infringement, and it
`has to be platform specific.
`So in the Activision case, this Court granted
`summary judgment of no use by testing, and I wanted to just
`show this summary slide, lay out how this case is actually
`even weaker than the Activision case in which no testing by
`use was found. The plaintiff tried to rely on evidence that
`we tested the game, general testing, and the Court found
`that was insufficient because it was silent as to date,
`mode, number of players.
`They provided the same conclusory expert
`testimony in Activision that they provided here which is
`just their experts saying in a number of paragraphs, oh, and
`they test internally, but citing no evidence.
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 12 of 133 PageID #: 34323
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`In Activision, they pointed to an SEC filing
`that they said all the games were subject to extensive
`testing. Here, they have a third-party news article that
`says video game companies test their games. Testimony that
`Activation's employees played the game to test them, like
`here we have one testimony for one engineer from one of the
`games that said he played the game during development.
`THE COURT: And the inference that during
`development occurred sometime before March of 2015?
`MR. ENZMINGER: It was 2013.
`THE COURT: All right. Plaintiff, do you agree
`that development was before 2015?
`MR. COLUCCI: We don't, Your Honor, for the
`purpose I'll explain later. But the patches, the bug fixes,
`those are all part of the development, and those are ongoing
`and continuous. And we'll present some evidence from
`witnesses that testified that these games are developed and
`releases, new releases, and patches are put out every couple
`months over the last few years. So we don't agree with
`that, Your Honor.
`THE COURT: All right. So basically you would
`interpret the testimony of this person as that if he played
`the game during development, then he played it regularly
`from 2013 through the present?
`MR. COLUCCI: So as part of the development, if
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 13 of 133 PageID #: 34324
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`there's bugs, errors in the code, they do reprogramming.
`They add new code. They test it. And that's all part of
`the development, and that is continuous throughout the
`period.
`
`THE COURT: Okay.
`MR. ENZMINGER: There is no evidence that they
`tested as part of the updates and patch notes.
`THE COURT: All right. I understand what you're
`
`saying.
`
`MR. ENZMINGER: The law is pretty clear that
`releasing a game does not allow a court to infer testing
`where there's no evidence of testing. And the evidence that
`he's citing has nothing to do with what they are accusing.
`And then, going to the game updates in the
`damages period as Activision, which the Court found were
`insufficient to show infringement by testing, for the same
`reason that I've just discussed is what they're hanging
`their hat on here. In Activision they had actually 40 game
`updates that were found insufficient.
`I think here they have four, and two of them are
`not even party documents. They're news articles.
`THE COURT: Well, so I think I get the general
`drift of what your argument is. It seems to me if we keep
`on at this rate, we'll be here all day. So unless there's
`something really critical you want to say, why don't I let
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 14 of 133 PageID #: 34325
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`counsel respond to your argument because essentially I think
`we're kind of agreed. They need to show some evidence to go
`forward on, and Mr. Colucci says he has some.
`MR. ENZMINGER: Okay.
`THE COURT: All right?
`MR. COLUCCI: Your Honor, may I approach? We
`have some slides.
`THE COURT: Sure. Yes.
`Mr. Colucci, is this your entire deck for all
`
`arguments?
`
`you.
`
`MR. COLUCCI: It is, yes.
`THE COURT: All right. Well, I already like
`
`And just before you go into what I assume is
`going to be essentially where Mr. Enzminger left off, do you
`agree that if I reject this saying this testing evidence
`isn't sufficient, that that means essentially the '344, the
`'966, and the '497 patents, I'm going to be granting summary
`judgment on everything against them?
`MR. COLUCCI: For those three patents.
`MR. ANDRE: Your Honor, I know we started with
`use. I do want to make a quick argument on making as well,
`and we can do that at the end of the day. But with the
`exception of the making, the use prong, what Mr. Colucci is
`talking about, that's what he's referring to.
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`THE COURT: Okay. Thank you, Mr. Andre.
`MR. ENZMINGER: Your Honor, if I may, the making
`argument that Mr. Andre wants to make is one that's already
`been twice rejected, but --
`THE COURT: All right. Well, I think I
`understand what everybody is saying generally.
`So go ahead, Mr. Colucci.
`MR. COLUCCI: So Your Honor, I'm going to be
`addressing the three main issues, that the development and
`the testing took place in the United States which I really
`don't believe is that controversial.
`THE COURT: Yeah, I think you're probably right
`
`about that.
`
`MR. COLUCCI: And then the testing and the
`updates, they did occur during the damages time period. And
`then the testing performed by Take-Two is what is actually
`accused of infringement.
`So the testing and development did occur in the
`United States. In their interrogatory response, Your Honor,
`they showed only a portion of it, but their interrogatory
`response refers to the manufacture, the development, and the
`testing.
`
`For development, the GTA Online games and the
`NBA 2K games, they both occurred in California. The GTA was
`in San Diego, and the NBA 2K games were in Nevada,
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`California.
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`So their interrogatory response on that is
`pretty definitive. The online multi-player functionality,
`all the development and the testing that is what is accused
`here, the core of what's accused here did occur in the
`United States.
`And on the next slide here, Your Honor, slide
`five, Your Honor, this is their sum total of their
`interrogatory response. I know defendants said some testing
`occurred in the United States, they don't really dispute it,
`but their interrogatory responses don't qualify it. They
`just say multi-player functionality, the core of what's
`accused occurred in the United States.
`So there's --
`THE COURT: So what was the interrogatory that
`they were asked because multi-player functionality was
`tested in at least the United States does not literally say
`it was tested on something other than a Sony platform;
`right?
`
`MR. COLUCCI: It applies to all the platforms.
`They didn't qualify it at all.
`THE COURT: Is there in the question something
`did you test every platform in the United States?
`MR. COLUCCI: So in their response, if I just go
`back there, in response to the development portion, as you
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 17 of 133 PageID #: 34328
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`can see on this slide, they did identify specifically which
`platforms were tested. If there were qualifications, some
`did occur in different locations.
`But for the testing component, they made no
`qualifications. It was applicable to all the platforms.
`THE COURT: And I'm sorry, to just go back a
`
`second.
`
`MR. COLUCCI: Yes.
`THE COURT: PS4, that is Sony?
`MR. COLUCCI: That's correct.
`THE COURT: And what is PC?
`MR. COLUCCI: Yeah. So the Xbox and the PC are
`accused and still in play.
`THE COURT: Okay. I mean, I knew Xbox was
`Microsoft, but I wasn't too sure what PC meant.
`MR. COLUCCI: Yeah, personal computers. So they
`have versions for the computer and the Xbox platforms.
`THE COURT: Okay.
`MR. COLUCCI: And so now I think we're getting
`to the question of when did the testing and development
`occur. And as we said, the development and the testing all
`occurred in the United States.
`So now I just want to transition you to when it
`occurred. And shown here is just from defendants' own
`website, their tech support, they identify a patch which is
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 18 of 133 PageID #: 34329
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`an update to the game that had to be corrected. So there
`was development involved in that.
`This particular example is from July 2015 which
`is within the damages time frame. And as you can see from
`the title, it applies to the Xbox platforms and PC. So it's
`the accused platforms during the infringing time period.
`And this is testimony from one of their
`witnesses. This was from Mr. Moskovitz. He was the
`director of the marketing for Rockstar. He was a 30(b)(6)
`witness also on the topic of communications with customers,
`customer support.
`He was asked, How often do content updates come
`out? And his answer was, Over the last two years, it's been
`every few months. So this is not even minimal. I mean,
`this is ongoing development and testing throughout the
`damages time frame.
`And in particular, he was shown an update or a
`patch that was coming out, it was either a month before or
`after his deposition in July, during the time period, and it
`was specific to an accused game mode for GTA Online. It had
`to do with a heist where there's more than four or more
`players, and so it's an accused mode, and it occurred during
`the accused time frame, time period.
`And again, this couldn't be more clear. He
`testified, Every couple months Rockstar puts out new content
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 19 of 133 PageID #: 34330
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`for the GTA Online; is that correct?
`And he said, Yes, every few months, we put out a
`content update for Grand Theft Auto Online.
`And then when asked whether the content update
`included the accused aspect, the multi-player functionality,
`what he testified was, I can say that the development of the
`game required a lot of coding and complex features, and we
`want to test that game as much as possible.
`This is for NBA 2K. This next slide talks about
`a patch that was updated. So the NBA 2K games, the 15 and
`the 16, it's not an ongoing update development, but there
`are developments for bug fixes. So the games are launched
`in their year, but then they're patched.
`It's a little different than the GTA Online
`which is an evolving game. It's constantly being updated
`every few months. But the NBA 2K 16 for sure launched in
`2016, was developed and tested during that 2015 time period
`for sure. The 2000 -- NBA 2K 15 was updated during that
`period with patches, and you'll see that it says, All patch
`fixes will work with your existing game mode while it saves.
`It's for all game modes.
`So the patches that came out touched all
`platforms, all game modes. So now it's clear the games were
`platform specific in the United States during the infringing
`time period.
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 20 of 133 PageID #: 34331
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`Again, they referred to the testimony of the one
`engineer that they said was asked, and he said he did -- he
`played some games. It was more than just I played some
`games.
`
`He was asked, How much did you play? More than
`
`ten hours?
`
`Answer: More than ten.
`Question: More than a hundred?
`Answer: More than a hundred.
`Question: Close to a thousand?
`Answer: Might be a thousand hours.
`That's not minimal testing, that's not like
`
`oh --
`
`THE COURT: But so what is the argument here?
`If he said I played it two hours, would you say, well,
`that's not enough? I mean, what is enough hours for some
`guy who says, I'm playing the game a lot?
`I mean, in other words --
`MR. COLUCCI: Yeah.
`THE COURT: -- he played it a lot. He played it
`a thousand hours. I mean, is there something where he says,
`and I played it in every mode available, including the
`infringing mode, in so many words?
`MR. COLUCCI: So the number of hours as you
`indicate is not necessarily required, and in fact, it does
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 21 of 133 PageID #: 34332
`21
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`go to the fact that it's consistent with industry standards.
`They test every feature of it.
`But what's accused here, these three patents in
`particular, are about connecting players with one another to
`form the network. So quite honestly, turning on the game
`and joining the game is enough. You don't have to go into
`some special mode for GTA Online. What is accused of the
`online games is just joining the game. Forming M-regular
`networks. It then forms an M-regular incomplete.
`So just connecting to the game is enough. To be
`honest, if players can connect and the game works, that
`is --
`
`THE COURT: Well, so when you have an engineer
`sitting in San Diego or wherever they were doing this, and
`this is during development or testing, wouldn't that mean
`that they're not connecting ongoing actual real games?
`Aren't they simulating in some way or another?
`MR. COLUCCI: In the development phase, that is
`behind the scenes. They are forming these M-regular
`networks. They are doing that to test the multi-player
`online functionality.
`It's not accessible to customers. It's not the
`production environment. It's behind the scenes, but it is
`forming these M-regular networks.
`THE COURT: But I take it that this engineer
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 22 of 133 PageID #: 34333
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`doesn't talk about other than -- so your answer is if the
`engineer had said, yeah, I tested it for one hour, that
`would be enough?
`MR. COLUCCI: Well, yes, but we know they do
`more than testing just for an hour, but it would be. It
`would test the infringing or what's accused of the game
`mode. So yes, technically, but I mean, in reality, I mean,
`it's not even close. They do thousands and thousands of
`hours of testing. So it's -- this is just -- I mean, it's
`almost --
`
`THE COURT: There's a case, I think it was cited
`in a different part of the argument, where one of the
`district judges, it was quoted by the Federal Circuit, said
`something like it was inconceivable that they did this.
`Why don't you have some, you know, I don't know
`Rule 30(b)(6) testimony that says, hey, did you do this
`during the relevant time period?
`MR. COLUCCI: We do have the testimony we
`pointed to earlier that they do the updates every few
`months. This particular witness --
`THE COURT: Right, but the thrust of what the
`District Court in that case said and the Federal Circuit
`said, it's something I can agree with the reasoning is if it
`was obvious that these things happened, why are you reaching
`for little pieces over here and little pieces over there,
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 23 of 133 PageID #: 34334
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`shaking them all up and saying, look, that proves it? Why
`didn't you just ask somebody?
`I'm sure you did hours and hours of
`Rule 30(b)(6) deposition testimony. Why isn't there
`something that you have a clear record that it happens?
`MR. COLUCCI: You know, I think, Your Honor,
`it's because it's almost so obvious that they test that it
`just wasn't even asked. It was just -- it's just so common.
`It's just so well known in the industry. They do so much
`testing of these games before launch and when they release
`updates and patches, it's just it was almost the obvious
`question that didn't get asked because it's just so
`apparent.
`
`I don't believe any of their witnesses would
`say -- I mean, I can't imagine they would say that.
`THE COURT: Well, I mean, I don't question the
`good faith of what you're saying --
`MR. COLUCCI: Yeah.
`THE COURT: -- but speculating about what their
`witness would or would not say, this is not a good place to
`be doing that.
`MR. COLUCCI: Your Honor, I think here the
`development, this witness did testify that they tested the
`game that -- and for this GTA Online, this was the witness
`for GTA Online connecting to the game is what's accused of
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 24 of 133 PageID #: 34335
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`infringement. So this witness did talk about it, the actual
`development and testing, the platforms throughout the
`development process.
`THE COURT: Okay. Is there anything else you
`want to particularly bring to my attention in regards to
`this?
`
`MR. COLUCCI: So --
`THE COURT: I take it that the job posting,
`that's not really an important part of your argument here.
`MR. COLUCCI: It just goes to the nature of the
`type of testing that they're looking, and they are hiring,
`and actively do extensive testing. And I think our experts
`also did opine that these games were tested, and they're
`more than capable of commenting on what --
`THE COURT: So let's go to the expert. You
`know, one of the things I saw, at least briefly in your
`brief, you know, Mitzenmacher, Medvidovic, one or both or
`the other of them, you know, I think it was in relation to
`this point, but maybe it was some other point, you know,
`said X. And then there's a string cite of literally, I
`don't know, hundreds and hundreds of paragraphs which is
`pretty useless to me.
`Can you just cite to me one paragraph in the
`expert report where the expert says, in some way that I can
`understand, the accused product was tested in the infringing
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 25 of 133 PageID #: 34336
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`mode on this occasion, that occasion, or you know, something
`close to that?
`MR. COLUCCI: So I believe, Your Honor, one
`example of the testing might be in the Mitzenmacher
`paragraph 78. I'm sorry, can I just grab this?
`THE COURT: Is this paragraph 78 of the opening
`or the reply?
`MR. COLUCCI: So this paragraph -- I apologize,
`Your Honor. Paragraph 88 of the opening.
`THE COURT: Okay. And you're kind of telling me
`that there's this clear statement in support of your
`argument here in that paragraph as in any other paragraph,
`but more so than in most; right?
`MR. COLUCCI: I believe, Your Honor. So
`Dr. Mitzenmacher testifies that the patches came out, and
`they did the testing. I'm not going to say it says exactly
`what you say. He just mentions and refers to that they
`infringed from their own testing, and their patches, and
`updates, so he refers to that.
`He does say the patches and the updates, and
`that that's also another example of infringement. So that's
`an as clear as it gets.
`THE COURT: Okay.
`MR. COLUCCI: And there may be other examples of
`
`that.
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`Case 1:16-cv-00455-RGA Document 490 Filed 02/07/20 Page 26 of 133 PageID #: 34337
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`THE COURT: All right. Well, in any event,
`that's helpful.
`All right. I think I kind of get the general
`gist of that. Is there something in particular that you'd
`like to bring to my attention that you haven't mentioned
`already in regards to this?
`MR. COLUCCI: Just that what is identified as
`the testing examples, those are accused modes. And just to
`make that a little more clear, GTA 5, which is it could
`either be played in story mode or online mode, what's
`accused of infringement is the online mode. And then
`there's jobs and sessions. Within that, there's more
`examples of infringement, but what was tested, what was
`developed is accused of infringement.
`For the NBA 2K games which, you know, obviously,
`the 2016
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