Case 1:16-cv-00455-RGA Document 523-1 Filed 02/15/22 Page 1 of 429 PageID #: 36941
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`EXHIBIT A
`EXHIBIT A
`·
`
`

`

`Case 1:16-cv-00455-RGA Document 523-1 Filed 02/15/22 Page 2 of 429 PageID #: 36942
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`
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`
`
`MICHAEL A. TOMASULO
`Partner
`213.615.1848
`mtomasulo@winston.com
`
`March 15, 2016
`
`VIA EMAIL & CERTIFIED U.S. MAIL
`
`James Hannah
`jhannah@kramerlevin.com
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road
`Menlo Park, California 94025
`
`Re:
`
`Acceleration Bay LLC v. Take-Two Interactive Software, Inc., C.A. No. 15-311-RGA
`
`Dear James,
`
`I write on behalf of Defendants Take-Two Interactive Software, Inc., 2K Sports, Inc., and Rockstar
`Games, Inc. (collectively, “Take Two”) regarding Plaintiff’s Infringement Contentions (“Contentions”),
`which you signed. While we are still making our way through them, it is already apparent that the
`Contentions are entirely deficient. They provide Defendants with no notice of what networks are accused
`or how those networks allegedly meet the limitations of the claims. Indeed, after demanding and
`receiving detailed supplemental interrogatory responses regarding the accused networks and after
`inspecting Take Two’s heavily commented Source Code Materials for the accused products, Plaintiff was
`apparently unable to cite any evidence at all relating the accused products to key limitations of each
`asserted patent, including the network topology limitations, the “non-routing table-based” limitations, the
`port ordering algorithm limitations. These limitations were all added during prosecution to avoid prior
`art. Plaintiff’s inability to provide evidence or even a credible infringement theory – even after
`inspecting Take Two’s Source Code Materials – calls into serious question whether Plaintiff and its
`representatives had an appropriate basis under Fed. R. Civ. Proc. Rule 11 to bring these cases in the first
`place or has an appropriate basis to maintain them.
`
`Nor can it be said that your Contentions are deficient as to Take Two because you need additional
`documents or source code. Not only was Plaintiff required to have a basis to bring the case in the first
`place, the Contentions as to all Defendants are deficient in many key respects. Plaintiff asked for and
`received additional time for its Contentions because your team supposedly needed more time to review
`and understand Defendants’ Source Code Materials. And since that time, your team has collectively spent
`hundreds of hours reviewing all of the Defendants’ Source Materials and printed hundreds of pages. Yet,
`none of the Contentions as to any of the Defendants make more than a passing reference to Defendants’
`Source Code Materials. Given the fact that all of the Contentions suffer common failings and none of
`them make more than a passing reference to actual Source Code Materials, it cannot credibly be said that
`the Contentions as to Take Two are deficient due to the state discovery.
`
`

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`Case 1:16-cv-00455-RGA Document 523-1 Filed 02/15/22 Page 3 of 429 PageID #: 36943
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`
`
`James Hannah
`March 15, 2016
`Page 2
`
`Our concerns about the basis of Plaintiff’s claims are amplified by the fact that you signed the
`Contentions. You are lead counsel for Defendants in the inter partes review proceedings, and the
`Protective Order in this case therefore specifically bars you from viewing Defendants’ Source Code
`Materials. Moreover, we were specifically assured that you would not “be reviewing” materials that have
`been designated as Source Code Materials under the Protective Order. Yet, the Contentions you signed
`are all designated as including Source Code Materials under the protective order. And, presumably, as
`the person signing the Contentions, it was necessary for you to review and understand Defendants’
`Source Code Materials to ensure that the Contentions have factual and legal legitimacy.
`
`INFRINGEMENT CONTENTIONS
`
`Plaintiff’s Contentions are plainly insufficient because they fail to identify where each and every element
`of each asserted claim is allegedly found in the Accused Products. Plaintiff’s Contentions are prejudicial
`in that they merely parrot claim language, cite documents with no explanation as to their relevance, and
`in some cases fail to even cite a single document (public or private) for certain limitations. Plaintiff’s
`Contentions span thousands of pages, yet provide no specificity as to what networks are actually being
`accused or how the accused networks supposedly meet the asserted claim limitations.
`
`Plaintiff was required by the Scheduling Order to provide a “claim chart relating each accused product to
`the asserted claims each product allegedly infringes.” Each and every one of Plaintiffs Contentions are
`deficient as to each asserted claim, in ways that are so significant that render the entire pleading deficient
`in its entirety, in violation of the Court’s Scheduling Order.
`
`General common failings:
`
` Failure to plainly identify what is actually accused.
`
`o Five of the six patents are specifically directed to a network of participants (or broadcast
`channel of computers) where the network is comprised of a group of “participants,” and
`each participant is connected to at “least three neighbor participants” and forms an
`incomplete m-regular graph where m is at least 3. As explained in greater detail below,
`the Contentions fail to plainly identify what “network of participants” or “broadcast
`channel of computers” is actually accused. Indeed, it is impossible to know from the
`Contentions what network(s) or broadcast channel(s) are actually being accused. Instead
`of providing a plain and straightforward identification of the accused networks, the
`Contentions provide broad, muddled and open-ended descriptions. As claimed, the
`network of participants is defined by the participants and how they are connected. Yet,
`the Contentions do not give any indication as to what networks are accused, who or what
`are the participants or the nature of any connections among them (or, for that matter, what
`networks are not accused). Instead, the Contentions seem to sweepingly suggest that any
`exchange of data is potentially accused. For instance:
`
` Nearly all of the Contentions (as to all Defendants) include the same vague,
`boilerplate assertion that “the Accused Product creates m-regular topologies of
`
`

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`Case 1:16-cv-00455-RGA Document 523-1 Filed 02/15/22 Page 4 of 429 PageID #: 36944
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`James Hannah
`March 15, 2016
`Page 3
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`players when setting up logical and physical network topologies for the Accused
`Product using different networking libraries, SDKs and APIs.” NBA 2K Claim
`Chart at 18; Grand Theft Auto Five/Grand Theft Auto Online Claim Chart at 92.
`See also FIFA Claim Chart at 27; Call of Duty Claim Chart at 208 (emphasis
`added).
`
`o Accusing “logical and physical network topologies” set up by an open-ended and
`undefined set of “libraries, SDKs and APIs” does not provide Defendants adequate notice
`to litigate their case, in violation of the Scheduling Order. Because the Contentions do not
`give sufficient indication of what networks or broadcast channels are accused, exactly
`what participants comprise those networks or broadcast channels and the nature of any
`supposed connections among the participants, the Contentions are deficient because they
`fail to provide notice of what is actually accused, why it is accused or otherwise provide
`Plaintiff’s legal theories in this case.
`
`o Plaintiff’s failure to do so is compounded by the fact that, as Take Two understands the
`accused networks, none of them meets the basic topology requirements of the Asserted
`Patents. See Supplemental Interrogatory Responses to Common Interrogatory No. 5.
`
`o Plaintiff’s failure to identify exactly what is accused is further compounded by its refusal
`to provide a substantive response to Defendants’ Common Interrogatory No. 9, which
`specifically asks Plaintiff to identify with specificity the accused networks.1
`
` Failure to rely on relevant evidence. Defendants made source code available in December
`2015, nearly three months ago. Since that time, Plaintiff has had two experts and multiple
`technically trained lawyers spend many hours inspecting and printing the relevant source code for
`the Accused Products. Moreover, Defendants’ Supplemental Interrogatory Responses to
`Interrogatory Nos. 5 and 9 describe the topologies that govern multiplayer features and cite to the
`source code that create the structure of those topologies. Yet, Plaintiff’s thousands of pages of
`claim charts completely ignore this evidence altogether. They do not cite the interrogatory
`responses or the code that is referred to in those responses. The charts make, at most, passing use
`of the Source Code Materials. Instead, they are almost entirely composed of publicly available
`information such as screen shots and third party observations about how the games might work.
`In the case of GTAO, the chart includes a reference to a LinkedIn page, which, of course, is not
`evidence of any of the complex networking procedures claimed in the patents.
`
`o I also note that these failings are common to all of the Contentions, not just for those for
`the accused Take Two products. For instance, the Call of Duty Contentions cite to a 2006
`web archive post, but make no effort to explain how that post could be relevant to the
`operation of the Accused Products, the earliest of which was released in 2014. The vast
`
`
`1 Interrogatory No. 9 requires that Plaintiff “Identify with specificity all accused methods, broadcast channels and
`networks, including by identifying with particularity each and every network and broadcast channel which you
`contend is m-regular, identifying each and every participant of each such network and broadcast channel.”
`
`

`

`Case 1:16-cv-00455-RGA Document 523-1 Filed 02/15/22 Page 5 of 429 PageID #: 36945
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`
`
`James Hannah
`March 15, 2016
`Page 4
`
`majority of the information cited in all of the Contentions for all of the Defendants is
`irrelevant to the claims and is, as explained below, insufficient on at least two key
`elements for every asserted claim.
`
` Failure to explain the evidence relied upon. As noted above, Plaintiff’s Contentions are largely
`comprised of publicly available information such as screen shots and third party observations
`about the games. In most instances, the evidence cited (such as screen shots) is not explained or
`mapped specifically to the limitations. Contentions such as these have been found to be
`inadequate where they rely on “screen shots in lieu of explanatory text” such that the defendant
`must “guess what particular system (or aspect of a particular system) [plaintiff] is accusing of
`meeting each limitation.” Digital Reg. Of Tex., LLC v. Adobe Sys. Inc., No. 12-cv-01971, 2013
`WL 3361241, at *3-4 (N.D. Cal. July 3, 2013). This is exactly the case here. Indeed, it appears
`likely that Plaintiff cites to thousands of pages of unexplained screenshots and third party
`documents due to the fact that evidence produced in this case does not and cannot show
`infringement. Again, Plaintiff has failed to comply with the Scheduling Order.
`
` Failure to rely on any evidence. For a significant number of limitations across all accused
`products and asserted patents, Plaintiff cited no evidence whatsoever, merely relying on attorney
`argument. One or more of the charts contain only attorney argument in support of the following
`limitations:
`
`o ‘344 Patent Claims 1-e, 1-f, 4, 5, 11, 13b, 13-c, 13-d, 13-e, 13-f, 13-g, 13-h, 18-d, 18-e;
`
`o ‘634 Patent Claims 1-d, 1-f, 1-g, 9, 19-c, 19-h;
`
`o ‘966 Patent Claims 1-d, 1-e, 1-f, 4, 11, 13-f, 13-g, 13-h;
`
`o ‘147 Patent Claims 1-b, 1-d, 3, 6-b, 11-b, 11-c, 11-d;
`
`o ‘069 Patent Claims 1-b, 1-d, 1-e, 1-f.
`
`o ‘497 Patent Claims 1-c, 1-d, 1-e, 1-f, 1-g, 9-a, 9-c, 9-d, 9-e;
`
`Courts have held that contentions are inadequate where (as here) they do not contain evidence but
`merely parrot the claim language. See, e.g., H-W Tech., L.C. v. Apple, Inc., No. 11-cv-651, 2012
`WL 3650597, at *4, *7 (E.D. Tex. Aud. 2, 2012) (patentee ordered to supplement infringement
`contentions, in part because the contentions “merely recite[d] language from the claims at issue
`without providing any support for some of their elements”) (emphasis added). Thus, this is yet
`another example of how Plaintiff has failed to comply with the Scheduling Order.
`
`Notable specific deficiencies:
`
`
`
`‘344, ‘634, ‘069, ‘147, ‘966 Patents: Failure to cite to evidence to support the contention that
`accused networks meet the topology requirements of any of the asserted claims. With the
`exception of the ‘497 patent, all or nearly all of the asserted claims explicitly require that the accused
`
`

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`Case 1:16-cv-00455-RGA Document 523-1 Filed 02/15/22 Page 6 of 429 PageID #: 36946
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`
`
`James Hannah
`March 15, 2016
`Page 5
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`network have a specific topology – namely, that the network is incomplete and m-regular, where m is
`the exact number of neighbors of each participant, and m is at least 3.
`
`o Claim 1 of the ‘344 patent, for instance, is directed to a “computer network for providing a
`game environment for a plurality of participants” and requires that, among other things:
`
` “each participant” has “connections to at least three neighbor participants,”
`
` “the network is m-regular”
`
` “where m is the exact number of neighbor participants of each participant”; and
`
` “the number of participants is at least two greater than m thus resulting in a non-
`complete graph.”
`
`o These limitations were added to claims to overcome examiner rejections and are thus central
`to patentability. For instance, the Examiner specifically relied on the following argument in
`allowing the patents to issue:
`
`Figure 1 of the Alagar reference is deceiving in that it coincidentally shows
`a 4-regular network. However, that is not the typical situation as is clear
`from a careful review of the Alagar reference. Column 1 of page 238 of the
`Alagar reference clearly indicates that there is in fact nonregularity in a
`computer network formed because the number of neighbors is not set at a
`predetermined number, but rather based upon the particular encountered
`terrain of the mobile nodes.
`
`Claim 1 as amended requires that the computer network be m regular at
`substantially all times where there are not new nodes entering or leaving
`the network. … For this reason, the claims are allowable over the cited
`prior art. 9/10/2003 Office Action Response and 10/1/2003 Notice of
`Allowability.
`
`o Yet, for nearly all of the Accused Products, Plaintiff offers no evidence that these limitations
`are met but instead, offers only the same boilerplate attorney argument. The treatment of
`claim element 1-e of the ‘344 patent is exemplary.
`
` That element requires Plaintiff to prove that the accused network is “network is m-
`regular, where m is the exact number of neighbor participants of each participant.”
`Yet, none of the Contentions for any product contain any evidence suggesting how this
`limitation is met. In fact, none of the Contentions for this element cite to any
`confidential documents or source code produced by the Defendants.
`
`

`

`Case 1:16-cv-00455-RGA Document 523-1 Filed 02/15/22 Page 7 of 429 PageID #: 36947
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`
`
`James Hannah
`March 15, 2016
`Page 6
`
` The Contentions for ‘344 patent element 1-e for NBA 2K and Grand and Grand Theft
`Auto all include the same boilerplate accusations and none of them cite to any
`evidence at all.
`
` This is also true for other Defendants’ Accused Products.
`
`o The charts for this limitation for EA’s Accused Products (FIFA, NHL,
`Tiger Woods, Plants v. Zombies:Garden Warfare) also do not cite to
`any evidence at all.
`
`o The Contentions for Call of Duty ‘344 patent element 1-e also include
`the same boilerplate attorney argument as the aforementioned
`Contentions and also do not cite to any source code or other evidence
`produced by Activision in the case. The only “evidence” cited is a 2006
`web archive post and a 2012 video. Neither the 2006 post nor the 2012
`video suggest or demonstrate that any accused network is m-regular,
`and the Contentions do not even attempt to explain how the cited
`material could possibly do so.
`
`o The Contentions for Worlds of Warcraft ‘344 patent element 1-e also
`include the same boilerplate attorney argument and also do not cite to
`any source code or other evidence produced by Activision in the case.
`Instead, the Contentions include screen shots and other publicly
`available documents. None of the material cited in the Contentions
`suggest or demonstrate that any accused network is m-regular, and the
`Contentions do not even attempt to explain how the cited material could
`possibly do so.
`
` Plaintiff’s failure to cite to relevant evidence supported by a plausible infringement
`theory renders its Contentions deficient as to all 5 of the network topology patents.
`Moreover, the allegations directly contradict the evidence that has been provided in
`this case, such as the source code, Defendants’ Supplemental Interrogatory Responses
`and the source code specifically cited in those responses. We assume that Plaintiff
`does not cite to evidence produced in this case because it recognizes that the source
`code does not support its allegations. Instead, Plaintiff bases its contention for such
`limitations on unsupported attorney argument. See, e.g. Grand Theft Auto Five/Grand
`Theft Auto Online Claim Chart at 92-93.
`
`
`
`‘344, ‘634, ‘966 Patents: Failure to cite evidence to support contention that the flooding
`limitations are supposedly met. These three patents claim a very specific data propagation
`technique in the network, namely, that data is propagated by a forward-oriented flooding approach,
`where data is propagated by a participant sending received data to all of its neighbors except the
`original sender.
`
`

`

`Case 1:16-cv-00455-RGA Document 523-1 Filed 02/15/22 Page 8 of 429 PageID #: 36948
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`
`
`James Hannah
`March 15, 2016
`Page 7
`
`o For instance, claim element 1-d of the ‘344 patents requires that a “participant sends data that
`it receives from a neighbor participant to its other neighbor participants.”
`
`o Plaintiff emphasized the importance of this limitation in arguing for patentability, stating: “In
`contrast, by limiting the rebroadcast to ‘other neighbors,’ this reduces the number of
`messages to be broadcast to (m-1)N + 1. For large networks, the saved bandwidth can be
`significant. For this sole reason alone, Claim 1 has a requirement of ‘other neighbors’ which
`is not fairly shown in the Alagar reference. Therefore, Claim 1 and all dependent claims
`therefrom are in condition for allowance.” 9/10/2003 Office Action Response.
`
`o Yet, the Contentions do not offer any specific evidence as to how this very specific data
`propagation limitation is met. And, especially for client server topologies, it would seem
`impossible that this limitation could ever be met, because the communication is inherently
`back and forth between client and server.
`
`
`
`‘634 Patent (all claims), ‘069 Patent (all asserted claims): Failure to cite evidence to support
`contention that the “non-routing table based” limitations are supposedly met. These claims all
`include a limitation that the claim be “non-routing table based.” For example, Claim 1 of the ‘634
`patent claims “A non-routing table based computer network having a plurality of participants....”
`
`o These “non-routing table based” limitations were all added by amendment to overcome
`examiner rejections and the cited prior art and are thus central to patentability.
`
`o Yet, for nearly all of the Accused Products, Plaintiff offers no evidence that these limitations
`are met but instead, offers only the same boilerplate attorney argument. See, e.g. Claim 1 of
`the ‘634 Patents (NBA 2k Chart at 118-139 (only parroting the claim language, citing
`irrelevant publicly available documents, and not explaining how the non-routing table
`limitation is met). This lack of evidence or theory is mirrored in the other Contentions. See,
`e.g. Call of Duty Chart at 286-298; FIFA Chart at 215-225. Moreover, the Contentions fail to
`even offer attorney argument to explain why the “non-routing table based” limitations are
`supposedly met.
`
`o Further, much of the communications apparently accused by Plaintiff are over the internet.
`Because the internet inherently uses routing tables, it would seem implausible if not
`impossible for such communication to be “non-routing table based.” Plaintiff’s inability to
`provide any credible evidence or even an explanation of its theory suggests that Plaintiff does
`not have any basis for asserting the ‘634 or ‘069 patents at all.
`
`
`
`‘147 and ‘069 Patents (all asserted claims): Failure to cite evidence to support Contentions that
`the Accused Products employ the specific methods of adding or deleting a participant from an
`incomplete m-regular network. The asserted claims of these two patents recite very specific
`methods of adding or deleting participants from an m-regular, incomplete network where m is at least
`
`

`

`Case 1:16-cv-00455-RGA Document 523-1 Filed 02/15/22 Page 9 of 429 PageID #: 36949
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`
`
`James Hannah
`March 15, 2016
`Page 8
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`3. The claims were amended to add several very specific limitations to avoid prior art.2 Yet, as to all
`asserted claims, Plaintiff cites no evidence at all as to at least one limitation, rendering its charts
`deficient.
`
`o As to the ‘069 patent, no evidence at all is provided for four of the limitations of independent
`claim 1. (‘069 Patent Claim elements 1-b, 1-d, 1-e, 1-f). Because this is the only independent
`claim asserted, the Contentions are deficient as to all asserted claims.
`
`o As to the ‘147 patent, for at least one element of every asserted claim, the Contentions provide
`no evidence whatsoever. For one or both of the Contentions as to NBA2k and GTAO, the
`Contentions provide no evidence at all for the following limitations: Claim elements 1-b, 1-d,
`3, 6-b, 11-b, 11-c, 11-d. Claims 1, 6 and 11 are the only independent claims asserted. Thus,
`the Contentions are deficient as to all asserted claims.
`
`
`
`‘344 Patent, ‘634 Patent, ‘966 Patent, ‘069 Patent – “Participant” limitations. For each and
`every limitation of the Asserted Patents that involves “participants,” Plaintiff does not explain who or
`what the participants are. For instance, Plaintiff merely argues that “[t]he Accused Product meets the
`recited claim language because it provides a computer network in which each participant sends to
`each of its neighbors only one copy of the data.” But it is unclear if “participant” means an end-user,
`a server, or something different, because again for many limitations, no actual evidence is cited. See,
`e.g., Grand Theft Auto Five/Grand Theft Auto Online Chart at ‘344 Patent Claim 11; Call of Duty
`Chart at ‘069 Patent Claim 1-f; FIFA Chart at ‘069 Patent Claim 1-f.
`
`o Again, not only is this information required by the Scheduling Order, we also specifically
`asked for it via Defendants’ Interrogatory No. 9, which asks Plaintiff to “[i]dentify with
`specificity all accused methods, broadcast channels and networks, including by identifying
`with particularity each and every network and broadcast channel which you contend is m-
`regular, identifying each and every participant of each such network and broadcast
`channel.” See Defendants’ Interrogatory No. 9 (emphasis added).
`
`o Plaintiff’s failure to provide this basic information deprives Defendants of notice as to what
`conduct is actually accused in this case.
`
`
`
`‘497 Patent (all claims): Failure to cite evidence to support contention that the algorithm and
`port reordering limitations are supposedly met. The key limitations of this patent are elements 1-f
`and 1-g in Plaintiff’s charts, which require use of a “a port ordering algorithm” to “identify the call-in
`
`2 For example, the bolded limitations were added to Claim 1 of the ‘147 Patent avoid the prior art:
` when the first computer decides to disconnect from the second computer, the first computer sends a
`disconnect message to the second computer, said disconnect message including a list of neighbors of the
`first computer; and
` when the second computer receives the disconnect message from the first computer, the second computer
`broadcasts a connection port search message on the broadcast channel to find a third computer to which it
`can connect in order to maintain an m-regular graph, said third computer being one of the neighbors on
`said list of neighbors.
`
`

`

`Case 1:16-cv-00455-RGA Document 523-1 Filed 02/15/22 Page 10 of 429 PageID #: 36950
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`James Hannah
`March 15, 2016
`Page 9
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`port” and further require that “the communications ports selected by the port ordering algorithm may
`be re-ordered.” Asserted claim 9 includes similar limitations in elements and 9-d and 9-e.
`
`o These two sets of limitations were added by amendment to overcome examiner rejections and
`the cited prior art. 6/14/2004 Office Action Response.
`
`o Yet, for GTAO, the Contentions include no evidence whatsoever as to at least 2 elements of
`all asserted claims, because the Contentions cite to no evidence for Claim elements 1-e, 1-f,
`and 1-g and 9-d and 9-e. The material cited for NBA 2K for these elements lacks any
`explanation and does not appear to support the contention that NBA 2k includes those
`elements.
`
` These deficiencies in these Contentions mirror the deficiencies of the Contentions as
`to the other Defendants. See, e.g., FIFA Chart at ‘497 Patent Claim 1-f (citing no
`evidence, instead parroting the claim language and adding “[t]esting of the Accused
`Product is consistent with the above contention.”).
`
`o Plaintiff’s inability to provide any evidence (in the case of GTAO) or credible evidence (in the
`case of NBA 2K) suggests that it does not have any basis for asserting the ‘497 patent at all.
`
`PROTECTIVE ORDER PROSECUTION BAR
`
`Given your role as lead counsel in the inter partes review proceedings involving the Asserted Patents, we
`are troubled by your apparent role in preparing and signing the Infringement Contentions. The Protective
`Order provides:
`
`“Any attorney, consultant, witness, or other person who views
`RESTRICTED CONFIDENTIAL – SOURCE CODE material prior to trial
`shall not participate, directly or indirectly, in any patent application
`prosecution or any post-grant review proceeding for the particular
`technology field at issue in the patents-in-suit, nor consult with attorneys or
`experts participating in any such prosecution or post-grant review
`proceeding.”
`
`Most of the Contentions are specifically designated as including Source Code Materials under the
`Protective Order. Your signature on the Contentions constitutes a representation that you read the
`pleading (which was designated as containing source code) and made a reasonable inquiry into the
`factual and legal legitimacy of the pleading. Vehicle Operations Techns. LLC v. American Honda Motor
`Co., Inc., 67 F. Supp. 3d 637, 649 (D. Del. 2014) (J. Andrews). Therefore, having “viewed” such
`materials, pursuant to the protective order you are no longer permitted to “participate, directly or
`indirectly,” in any of the inter partes review proceedings regarding the Asserted Patents.
`
`Nor could this be considered an oversight. Earlier this year, your consultant Andy Jian was caught using
`his cell phone in the source code review room, in violation of the Protective Order. Your colleague, Mr.
`Frankel, refused to provide an explanation or even assurances that Plaintiff’s counsel was in compliance
`
`

`

`Case 1:16-cv-00455-RGA Document 523-1 Filed 02/15/22 Page 11 of 429 PageID #: 36951
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`
`
`James Hannah
`March 15, 2016
`Page 10
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`with the Protective Order. Among other things, we specifically asked that Plaintiff’s counsel provide a
`representation that “Mr. Jian and the source code review team are complying with the protective order”
`and explain “how your firm is segregating source code material and communications between the source
`code review team and IPR counsel.” Mr. Frankel refused to provide even these basic assurances.
`(2/8/2016 email from Frankel to Tomasulo). Shortly thereafter, we specifically requested that, given
`your role as lead IPR counsel, you be removed from the pleadings in the District Court cases to prevent
`you from having even inadvertent access to Defendants’ confidential Source Code Materials. Mr.
`Frankel responded that Plaintiff refused to withdraw you from the pleadings in this case but did represent
`that you would not “be reviewing materials designated RESTRICTED CONFIDENTIAL – SOURCE
`CODE.” 2/23/16 Email from Frankel to Tomasulo. Yet, less than ten days later, you signed the “Initial
`Claim Charts,” which include, by your own designation, Source Code Materials. These events give us
`great concern about the security of Defendants’ source code materials.
`
`Accordingly, we request that:
`
`CONCLUSION
`
`(1) Unless Plaintiff provides proper supplemental Infringement Contentions as to all asserted
`claims and proper responses to Interrogatory Nos. 7 and 9 within a week, it stipulate to
`noninfringement and dismiss all claims against Defendants with prejudice; and
`
`(2) That you and anyone else who had a role in preparing the Contentions withdraw from the IPR
`proceedings.
`
`Finally, Defendants intend to seek their attorneys’ fees for having to defend this case at the appropriate
`time.
`
`Very truly yours,
`
`/s/
`
`Michael A. Tomasulo
`
`MAT/m
`
`cc: Paul J. Andre, Lisa Kobialka, Hannah Lee, Aaron Frankel, Phil Rovner, Jack Blumenfeld
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`Case 1:16-cv-00455-RGA Document 523-1 Filed 02/15/22 Page 12 of 429 PageID #: 36952
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`EXHIBIT B
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`CONFIDENTIAL – OUTSIDE COUNSEL ONLY
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`Case 1:16-cv-00455-RGA Document 523-1 Filed 02/15/22 Page 13 of 429 PageID #: 36953
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`Plaintiff,
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`Plaintiff,
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`C.A. No. 16-454 (RGA)
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`CONFIDENTIAL –
`OUTSIDE COUNSEL ONLY
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`C.A. No. 16-455 (RGA)
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`CONFIDENTIAL –
`OUTSIDE COUNSEL ONLY
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`v.
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`v.
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`ACCELERATION BAY LLC,
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`ELECTRONIC ARTS INC.,
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`Defendant.
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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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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`DEFENDANTS’ BRIEF IN SUPPORT OF THEIR MOTION (“A”) TO COMPEL
`COMPLIANCE WITH SPECIAL MASTER ORDER NO. 2 AND SANCTIONS
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`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
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`Attorneys for Defendants
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`Defendants.
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`OF COUNSEL:
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
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`

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`Case 1:16-cv-00455-RGA Document 523-1 Filed 02/15/22 Page 14 of 429 PageID #: 36954
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`David P. Enzminger
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
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`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
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`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
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`Andrew R. Sommer
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
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`August 16, 2017
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`

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`Case 1:16-cv-00455-RGA Document 523-1 Filed 02/15/22 Page 15 of 429 PageID #: 36955
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`Electronic Arts Inc. (“EA”) and Take-Two Interactive Software, Inc., Rockstar Games,
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`Inc., and 2K Sports, Inc. (“Take-Two”) (collectively “Defendants”) move for the following:
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`1. An order precluding Plaintiff from accusing of infringement any broadcast channel, any
`method, or any “part” of the so-called networks;
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`2. An order precluding Plaintiff from arguin