Case 1:16-cv-00455-RGA Document 532-1 Filed 04/04/22 Page 1 of 46 PageID #: 37541
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`Case 1:16-cv-00455-RGA Document 532-1 Filed 04/04/22 Page 2 of 46 PageID #: 37542
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` IN THE UNITED STATES DISTRICT COURT
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` FOR THE DISTRICT OF DELAWARE
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` - - - - - - - - - - - - - -x
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` ACCELERATION BAY, LLC,
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` Plaintiff,
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` v. C.A. No. 16-455 (RGA)
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` TAKE-TWO INTERACTIVE
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` SOFTWARE, INC., et al.,
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` Defendants.
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` - - - - - - - - - - - - - -x
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` CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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` Videotaped deposition of Michael Mitzenmacher, Ph.D.
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` Boston, Massachusetts
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` July 27, 2018
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` 9:01 a.m.
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` Job No.: 710962
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` Pages: 1 - 266
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` Reported By: Alan H. Brock, RDR, CRR
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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`Michael Mitzenmacher, Ph.D.· Confidential - Outside Counsel Only
`July 27, 2018
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`U.S. Legal Support | www.uslegalsupport.com
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`Michael Mitzenmacher, Ph.D.· Confidential - Outside Counsel Only
`July 27, 2018
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`U.S. Legal Support | www.uslegalsupport.com
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`Michael Mitzenmacher, Ph.D.· Confidential - Outside Counsel Only
`July 27, 2018
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`U.S. Legal Support | www.uslegalsupport.com
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`·
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`YVer1f
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`Michael Mitzenmacher, Ph.D.· Confidential - Outside Counsel Only
`July 27, 2018
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`U.S. Legal Support | www.uslegalsupport.com
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`Case 1:16-cv-00455-RGA Document 532-1 Filed 04/04/22 Page 3 of 46 PageID #: 37543
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`1 Videotaped deposition of Michael Mitzenmacher,
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`Page 2
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`1 C O N T E N T S
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`Page 4
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`2 Ph.D., held at the offices of:
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`2 EXAMINATION OF MICHAEL MITZENMACHER, Ph.D. PAGE
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`3 Mr. Tomasulo 7
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`4 Mr. Frankel 222
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`5 Mr. Tomasulo 251
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`6 Mr. Frankel 263
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`7 Mr. Tomasulo 264
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`8 9
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`10 E X H I B I T S
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`11 MARKED DESCRIPTION PAGE
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`12 Exhibit 1 Expert report of Michael 6
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`13 Mitzenmacher, Ph.D.
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`14 Exhibit 2 Supplemental opening expert report 6
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`15 of Michael Mitzenmacher, Ph.D.
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`16 Exhibit 3 Expert reply report of Michael 6
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`17 Mitzenmacher, Ph.D.
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`18 Exhibit 4 Expert report of Patrick Conlin 6
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`19 Exhibit 5 Handwritten diagram 40
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`20 Exhibit 6 Illustrative figure 55
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`21 Exhibit 7 Illustrative figure 70
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`22 Exhibit 8 Illustrative figure 80
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`23 Exhibit 9 "2K Support," AB-TT 002722 - 116
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`24 AB-TT 002726
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` Ropes & Gray
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`3 4 5
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`6 800 Boylston Street
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`7 Boston, Massachusetts
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`8 9
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`10
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`11
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`12
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`13 Before Alan H. Brock, RDR, CRR, Notary Public
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`14 in and for the Commonwealth of Massachusetts.
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`1 A P P E A R A N C E S
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`2 ON BEHALF OF PLAINTIFF:
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`3 AARON M. FRANKEL, ESQ.
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`Page 3
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`1 Exhibit 10 "2K Support," TTWO0023885 - 116
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`Page 5
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`2 TTWO0023889
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`3 Exhibit 11 Internet printout 188
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`4 KRAMER LEVIN NAFTALIS & FRANKEL LLP
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`4 Exhibit 12 Email and attachment, ATI03620 - 206
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`5 ATI03621
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`6 Exhibit 13 Email chain, ATI03613 - ATI03618 207
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`7 Exhibit 14 Memorandum opinion 250
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`8 9
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`5 1177 Avenue of the Americas
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`6 New York, New York 10036
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`7 650.752.1700
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`8 afrankel@kramerlevin.com
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`9
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`10 ON BEHALF OF DEFENDANTS:
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`11 MICHAEL A. TOMASULO, ESQ.
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`12 WINSTON & STRAWN LLP
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`13 333 South Grand Avenue, 38th Floor
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`14 Los Angeles, California 90071
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`15 213.615.1700
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`16 mtomasulo@winston.com
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`17
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`18 ANDREW R. SOMMER, ESQ.
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`19 WINSTON & STRAWN LLP
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`20 1700 K Street, N.W.
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`21 Washington, D.C. 20006
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`22 202.282.5000
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`23 asommer@winston.com
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`24
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`25 ALSO PRESENT: Bill Slater, Videographer
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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`Michael Mitzenmacher, Ph.D.· Confidential - Outside Counsel Only
`July 27, 2018
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`U.S. Legal Support | www.uslegalsupport.com
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`Michael Mitzenmacher, Ph.D.· Confidential - Outside Counsel Only
`July 27, 2018
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`U.S. Legal Support | www.uslegalsupport.com
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`Michael Mitzenmacher, Ph.D.· Confidential - Outside Counsel Only
`July 27, 2018
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`Case 1:16-cv-00455-RGA Document 532-1 Filed 04/04/22 Page 4 of 46 PageID #: 37544
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`Page 50
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`Page 52
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`1 breaking point?
`2 MR. TOMASULO: In a moment.
`3 Q. I just want to confirm my understanding,
`4 though, was correct, because there was an objection:
`5 It is correct that in the context of your
`6 play-testing you did not take any data, do any
`7 screen grabs, capture any video, or set up a packet
`8 detector or take any notes; correct?
`9 MR. FRANKEL: Objection to form.
`10 A. No, I can't -- well, I didn't set up a
`11 packet sniffer or any of those things, and no, I
`12 can't recall taking any notes.
`13 MR. TOMASULO: Okay, we can take a
`14 break.
`15 THE VIDEOGRAPHER: The time is 10:07.
`16 We're off the record.
`17 (Recess taken.)
`18 THE VIDEOGRAPHER: Here begins Media
`19 No. 2. We're back on the record. Time is 10:21.
`20 Q. In the context -- I'm going to try to start
`21 with some yes-or-no questions, because they talk
`22 about the issues of preparing your report, and I'd
`23 just as soon have -- we can start with yes or no, so
`24 it will make your counsel a little more comfortable.
`25 That's my intention.
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`1 independent.
`2 MR. FRANKEL: Hold on. Objection.
`3 Q. If that's the case, could you explain why
`4 you don't consider your work to be independent of
`5 his?
`6 MR. FRANKEL: Objection to form. You
`7 can answer that at a general level, but I instruct
`8 you in answering this question not to reveal
`9 discussions with counsel.
`10 A. The reason I hesitate -- and I believe your
`11 previous question was different, and that may be
`12 what relates to the answer.
`13 Both Dr. Medvidovic and I worked with
`14 counsel, and, you know, it may be that things like,
`15 you know, examples or certain phrasing of situations
`16 may have been, you know, suggested by counsel, and
`17 it may be the case that, you know, that I said
`18 something that counsel thought was a nice way of
`19 viewing or looking or thinking about something and
`20 may have suggested it to Neno. It may have come,
`21 similarly, the other direction. But I wouldn't
`22 know, like -- I didn't talk with Neno, so I would
`23 say they're not independent in the sense that we
`24 were both working with counsel.
`25 MR. FRANKEL: Just before you go on: By
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`Page 51
`1 In the context of preparing your report,
`2 did you work with Dr. Medvidovic to develop any of
`3 your opinions?
`4 A. No.
`5 Q. Did you work with Dr. Medvidovic to develop
`6 any of the illustrations that were in your report?
`7 A. No.
`8 Q. So your work in developing the opinions
`9 that are expressed in your report, is it correct
`10 that it was independent of Dr. Medvidovic's work?
`11 A. I'd say I don't know that it was
`12 independent of.
`13 Q. Did you have conversations with Dr.
`14 Medvidovic about the opinions that you were
`15 expressing in this report? Any of the three
`16 reports.
`17 A. I believe as discussed in Paragraph 16 of
`18 the original report, I had a conversation on -- with
`19 him where I believe we discussed the contents of his
`20 report.
`21 Q. I asked you something along the lines of is
`22 it correct that in the context of developing the
`23 opinions that were expressed in your report that
`24 your work was independent from Dr. Medvidovic, and
`25 it seemed to be that you didn't agree that it was
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`Page 53
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`1 "Neno," what did you mean?
`2 THE WITNESS: Dr. Medvidovic.
`3 Q. Neno was his nickname or something like
`4 that?
`5 A. Yeah, that's what I hear people call him.
`6 Q. Is that what you call him?
`7 A. Yeah, that's what I've....
`8 Q. So I think I understand what you're saying.
`9 Is it correct that you and Dr. Medvidovic did not
`10 directly collaborate on the opinions expressed in
`11 your report?
`12 A. Yes, we did not directly collaborate.
`13 Q. And is it correct that you did not directly
`14 collaborate with respect to any illustrations or
`15 figures that are in your reports?
`16 A. Yes, we did not directly collaborate.
`17 Q. Did you ever email with Dr. Medvidovic
`18 about this case?
`19 MR. FRANKEL: Objection to form. I
`20 instruct you to answer that question yes or no.
`21 A. No, I don't recall so -- like, me emailing
`22 him.
`23 Q. We talked about your play-testing of the
`24 game. Is there any other testing that you
`25 personally did, besides the play-testing that we
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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`Michael Mitzenmacher, Ph.D.· Confidential - Outside Counsel Only
`July 27, 2018
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`U.S. Legal Support | www.uslegalsupport.com
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`Michael Mitzenmacher, Ph.D.· Confidential - Outside Counsel Only
`July 27, 2018
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`U.S. Legal Support | www.uslegalsupport.com
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`Michael Mitzenmacher, Ph.D.· Confidential - Outside Counsel Only
`July 27, 2018
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`U.S. Legal Support | www.uslegalsupport.com
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`Case 1:16-cv-00455-RGA Document 532-1 Filed 04/04/22 Page 5 of 46 PageID #: 37545
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`Page 74
`1 specific instance in the game that I can recall
`2 where I set up or designed or was playing in this
`3 configuration. But....
`4 Q. In your view, this is a possible
`5 configuration?
`6 A. Yes. I believe the term I use in the
`7 report is an "illustration."
`8 Q. So if we go to your Paragraph 132: This is
`9 another illustration?
`10 A. Yes, that's just meant for illustrative
`11 purposes.
`12 Q. And it shows two relay servers?
`13 A. Yes.
`14 Q. And again, this isn't -- your report
`15 doesn't indicate that this is something that is
`16 derived from your personal testing of the game?
`17 A. Right, in the sense that I did not create a
`18 number of players to set up this configuration or
`19 that I specifically recall this specific
`20 configuration from an instance of gameplay.
`21 Q. Well, in fact, from what I -- from what you
`22 did, it would be impossible to know whether there
`23 was two relay servers in a three-on-three
`24 Deathmatch? From the work that you personally did
`25 in play-testing the game, it would be impossible to
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`Page 76
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`1 A. Yes.
`2 Q. And the play-testing that you did did not
`3 include any observations or an intent to record the
`4 use of relay servers; correct?
`5 A. In the attempt of my own game-play testing,
`6 it was not to -- I forget the way you phrased it.
`7 But it was not to record the existence of relay
`8 servers.
`9 Q. Let's go to your reply report, please.
`10 MR. FRANKEL: Counsel, let's take a
`11 break in about 10, 15 minutes.
`12 MR. TOMASULO: That's fine.
`13 THE WITNESS: Do you mind if I get up
`14 one second and just refill my water? Or if counsel
`15 wants to --
`16 MR. TOMASULO: Maybe he could do both.
`17 MR. FRANKEL: Sure.
`18 (Discussion off the record.)
`19 Q. And if we go to Page 22 of your reply
`20 report, Page 23 and 26 of your reply report -- I'm
`21 going to see if it can be handled all at once. If
`22 not, I'll take them one at a time.
`23 A. Okay.
`24 Q. I'm correct -- is it correct that, as with
`25 the prior illustrations, these two are illustrations
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`Page 75
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`1 know that.
`2 MR. FRANKEL: Objection to form.
`3 Q. Correct?
`4 A. I'd say without further -- in what I did, I
`5 did not actively check for relay servers or which
`6 relay servers existed.
`7 Q. I just want to be clear: This is a
`8 theoretical illustration of how the game could be
`9 configured, in your opinion?
`10 MR. FRANKEL: Objection to form.
`11 A. Yes, I would say this is one of the ways
`12 the games could be configured.
`13 Q. And similarly, in Paragraph 133 there's yet
`14 another illustration; correct?
`15 A. Yeah. I think particularly 132 and 133
`16 are, again, meant for illustrative purposes.
`17 Q. Again and not based on some test you ran.
`18 MR. FRANKEL: Objection to form.
`19 A. To the extent that -- I am not saying that
`20 here's a time instance of gameplay where I exactly
`21 had this configuration. If that's what you mean by
`22 your question, then no, I'm not trying to map this
`23 to a specific time instance of gameplay.
`24 Q. And this figure that's shown in Paragraph
`25 133, that includes relay servers as well?
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`Page 77
`1 which are meant to reflect your view of how the game
`2 could be configured?
`3 MR. FRANKEL: Objection to form.
`4 A. I'd say yes, although like "configured" is
`5 maybe an odd term in this use here. I might better
`6 say it's the way the game -- the way the connections
`7 in the game could occur in the course of gameplay.
`8 Q. Again, these figures that are at Pages 22
`9 through 26 of your reply report are not derived from
`10 testing that you personally did?
`11 MR. FRANKEL: Objection to form.
`12 A. Again, I would not say that they don't
`13 correspond to specific time instances of gameplay.
`14 They're representative of in the course of -- as I
`15 played the game and based further on things like the
`16 deposition-testimony documentation and so on,
`17 they're configurations that I think are -- I think
`18 represent occurrences that I think can occur during
`19 gameplay.
`20 Q. So they represent occurrences that you
`21 believe could occur during gameplay; right?
`22 A. Could and would occur during gameplay.
`23 Q. But what they aren't is something that you
`24 personally observed through testing; correct?
`25 MR. FRANKEL: Objection to form.
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`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`
`Michael Mitzenmacher, Ph.D.· Confidential - Outside Counsel Only
`July 27, 2018
`
`U.S. Legal Support | www.uslegalsupport.com
`
`Michael Mitzenmacher, Ph.D.· Confidential - Outside Counsel Only
`July 27, 2018
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`U.S. Legal Support | www.uslegalsupport.com
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`Michael Mitzenmacher, Ph.D.· Confidential - Outside Counsel Only
`July 27, 2018
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`Case 1:16-cv-00455-RGA Document 532-1 Filed 04/04/22 Page 6 of 46 PageID #: 37546
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`HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY
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`Case 1:16-cv-00455-RGA Document 532-1 Filed 04/04/22 Page 7 of 46 PageID #: 37547
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`· · · · · · · · · ·UNITED STATES DISTRICT COURT
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`· · · · · · · · · ·FOR THE DISTRICT OF DELAWARE
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`·
`· · ACCELERATION BAY, LLC,
`·
`· · · · · · · · · · ·Plaintiffs,
`·
`· · · · · · · · · ·vs.· · · · · · · No. 16-453 (RGA)
`·
`· · ACTIVISION BLIZZARD, INC.,
`·
`· · · · · · · · · · ·Defendant.
`· · __________________________________ /
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`·
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`· · · · · · HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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`·
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`· · VIDEO RECORDED INDIVIDUAL AND FRCP 30(b)(6) DEPOSITION OF
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`· · · · · · · · · · · · · · ·JOE WARD
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`·
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`· · · · · · · · · · · · · JUNE 15, 2017
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`· · · · · · · · · · · · · · 9:13 A.M.
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`·
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`·
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`· · · · · · · · · · · · · 990 Marsh Road
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`· · · · · · · · · · · Menlo Park, California
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`·
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`·
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`· · REPORTED BY:
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`· · Mark W. Banta
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`· · CSR No. 6034, CRR
`
`HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY
`
`Joe Ward
`June 15, 2017
`
`Highly Confidential
`Outside Counsel Only
`
`U.S. LEGAL SUPPORT
`(415) 362-4346
`
`Joe Ward
`June 15, 2017
`
`Highly Confidential
`Outside Counsel Only
`
`U.S. LEGAL SUPPORT
`(415) 362-4346
`
`Joe Ward
`June 15, 2017
`
`Highly Confidential
`Outside Counsel Only
`
`U.S. LEGAL SUPPORT
`(415) 362-4346
`
`·
`
`Joe Ward
`June 15, 2017
`
`Highly Confidential
`Outside Counsel Only
`
`U.S. LEGAL SUPPORT
`(415) 362-4346
`
`·
`
`

`

`Case 1:16-cv-00455-RGA Document 532-1 Filed 04/04/22 Page 8 of 46 PageID #: 37548
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`Page 30
`·1· · · · · ·We spent a lot of time specifically with Fred
`·2· looking at the potential of Phone Torrent.· I was very
`·3· excited to hear that my idea and theory for using the
`·4· SWAN technology for -- of -- for Phone Torrent is just
`·5· outstanding.
`·6· · · · · ·The potential to build networks, the potential
`·7· to build new products, to build an ecosystem, you know,
`·8· was heavily validated in -- in our discussions.
`·9· · · · · ·Fred was the first to acknowledge, you know,
`10· how -- how wonderful the ideas were, particularly
`11· starting with things like Phone Torrent.· And so I
`12· continued on.· That's why the -- that's why the meetings
`13· went on for a long time.
`14· · · · · ·The SWAN technology that they invented is -- is
`15· superb and outstanding from my -- given my background and
`16· focus on realtime technologies.· So I was very excited to
`17· be able to meet together with them independently and have
`18· those discussions both on the phone and in person.
`19· · · Q.· ·You mentioned -- by the way, have you read
`20· Mr. Agiato's deposition?
`21· · · A.· ·I have not.
`22· · · Q.· ·He was referring to an Acceleration Bay product
`23· called phone tort.· Does that ring a bell with you?
`24· · · A.· ·Phone Torrent.
`25· · · Q.· ·No.· Phone tort.· T-O-R-T.
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`Page 32
`·1· · · Q.· ·Okay.· With respect to Phone Torrent, does
`·2· Acceleration Bay have anything other than the PowerPoint
`·3· document that it produced in this case?
`·4· · · · · ·MR. ANDRE:· Objection.· Form of the question.
`·5· · · · · ·THE WITNESS:· I can't recall whether we have
`·6· more.· I believe we have more than the -- we may have
`·7· more than the PowerPoint document.· It's an Apple Keynote
`·8· document.· That document.· We don't have -- the Phone
`·9· Torrent product that we've been working on, so, you know,
`10· it talks about -- it's a virtual telecommunications
`11· carrier.· It's all built in Apple, in -- no, sorry. I
`12· apologize.
`13· · · · · ·It's -- that's built in Google Sheets.· We have
`14· documents in different forms.· So Google Sheets is the
`15· product, the tool that we used to build out the product
`16· concept.
`17· · · · · ·So Phone Torrent is the concept that leverages
`18· the SWAN technology to build a virtual telecommunications
`19· carrier.· The concept is to -- to focus in on mesh
`20· networking to have phones communicate without cell phone
`21· towers.· So this is significantly our product concept.
`22· · · Q.· ·I'm just trying to understand whether it's
`23· anything but a concept.· Okay?
`24· · · · · ·Do you have -- do you have any design documents,
`25· development, engineering documents of any kind?
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`Page 31
`·1· · · · · ·MR. ANDRE:· Objection.· Mischaracterizes
`·2· testimony.
`·3· BY MR. ENZMINGER:
`·4· · · Q.· ·Is that an Acceleration Bay product?
`·5· · · A.· ·He's probably referring to Phone Torrent.
`·6· · · Q.· ·That's what I think, too.· But there's no second
`·7· product; right?
`·8· · · A.· ·That's not accurate.· There's no second -- there
`·9· isn't a product called phone tort.
`10· · · Q.· ·Okay.· With respect to Phone Torrent, has
`11· Acceleration Bay developed any code?
`12· · · A.· ·We're in the process of developing code.
`13· · · Q.· ·Who is doing the coding?
`14· · · A.· ·I have an offer out to a developer.
`15· · · Q.· ·Okay.· So the answer to my question is that you
`16· haven't done any coding; right?
`17· · · A.· ·That's correct.
`18· · · Q.· ·And so there's no product?
`19· · · A.· ·I'm not too sure whether code equals product.
`20· · · Q.· ·Okay.· At the moment, you have no -- no product
`21· to -- to test, right?
`22· · · A.· ·Product to test?
`23· · · Q.· ·Yeah.
`24· · · A.· ·I'm not sure I can say whether we have a product
`25· to test, but we don't have a product for sale yet.
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`Page 33
`·1· · · · · ·MR. ANDRE:· Objection.· Form of the question.
`·2· · · · · ·THE WITNESS:· I don't have any engineering
`·3· documents for Phone Torrent.
`·4· BY MR. ENZMINGER:
`·5· · · Q.· ·Okay.· Can you think of any documents that you
`·6· have with respect to Phone Torrent other than a -- what
`·7· I'll call sort of a PowerPoint presentation?
`·8· · · A.· ·I can't -- no.· Everything that we do is in --
`·9· in that PowerPoint presentation form, as you put it.
`10· · · Q.· ·Can we -- let's go back to your meetings with
`11· Mr. Holt and Mr. Bourassa.
`12· · · A.· ·Sure.
`13· · · Q.· ·We started talking about SWAN, but I had asked
`14· you about the defendants' products.· You are aware,
`15· obviously, of this lawsuit?
`16· · · A.· ·I'm aware of it.
`17· · · Q.· ·Okay.· And you have had some involvement in
`18· deciding -- let me ask a different question.
`19· · · · · ·Have you had any involvement in deciding what
`20· products to accuse of infringement?
`21· · · A.· ·I leave that to the counsel.
`22· · · Q.· ·Is the answer you've had no involvement in
`23· deciding what products to accuse?
`24· · · A.· ·I leave -- always leave that to counsel.
`25· · · Q.· ·All right.· The problem I'm having, just so you
`
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`

`Case 1:16-cv-00455-RGA Document 532-1 Filed 04/04/22 Page 9 of 46 PageID #: 37549
`
`Page 34
`
`·1· know --
`·2· · · A.· ·Um-hmm.
`·3· · · Q.· ·-- is I don't want you coming to trial and
`·4· saying, "Oh, I left it to counsel but we discussed and
`·5· here was my involvement."· If you've had no involvement
`·6· in deciding what products to accuse or discussions about
`·7· it, I want to know that.· But the answer that you leave
`·8· the decision to counsel isn't answering my question.
`·9· · · · · ·So have you personally had involvement in
`10· deciding what products to sue?
`11· · · · · ·MR. ANDRE:· Objection.· Asked and answered.
`12· · · · · ·THE WITNESS:· I leave those decisions to
`13· counsel.
`14· BY MR. ENZMINGER:
`15· · · Q.· ·So is the answer you have not personally been
`16· involved in deciding what of the defendants' products to
`17· accuse infringement?
`18· · · · · ·MR. ANDRE:· Objection.· Asked and answered.
`19· · · · · ·THE WITNESS:· Yeah, I leave that decision to
`20· counsel.
`21· BY MR. ENZMINGER:
`22· · · Q.· ·And you had no involvement?
`23· · · · · ·MR. ANDRE:· Objection.· Asked and answered.
`24· · · · · ·THE WITNESS:· I don't get -- I don't get
`25· involved in the legal side.· I leave that side to the
`
`Page 36
`·1· · · A.· ·I believe it may have come up, but that wasn't
`·2· the purpose of our meeting.
`·3· · · Q.· ·Whether it was the purpose of the meeting or
`·4· not, do you have any recollection of discussing anything
`·5· related to this litigation?
`·6· · · A.· ·I don't recall what we talked about.· It really
`·7· wasn't the purpose of the meeting.
`·8· · · Q.· ·Have you ever had any conversations with any
`·9· experts retained by Acceleration Bay for purpose of
`10· testifying in this case?
`11· · · A.· ·I have not.
`12· · · Q.· ·Have you personally ever looked at any of the
`13· defendant's products that are accused of infringement in
`14· this case?
`15· · · · · ·MR. ANDRE:· Objection.· Form of the question.
`16· · · · · ·THE WITNESS:· I don't recall looking at any of
`17· their products.· I'm aware of the products but I don't
`18· recall looking at products related to the case.
`19· BY MR. ENZMINGER:
`20· · · Q.· ·When you say you're aware of it, what do you
`21· mean?
`22· · · A.· ·I'm aware of the product names.· I'm aware of
`23· what they -- what they do, but I haven't researched them
`24· or done any work.
`25· · · Q.· ·When you say you're aware of what -- what they
`
`Page 35
`
`Page 37
`
`·1· counsel, to our counsel.
`·2· BY MR. ENZMINGER:
`·3· · · Q.· ·Okay.· Have you done any factual analysis of any
`·4· of the defendants' products?
`·5· · · A.· ·I haven't done any factual analysis.
`·6· · · Q.· ·Do you know anyone who has done any factual
`·7· analysis of defendants' products?
`·8· · · · · ·MR. ANDRE:· Objection.· Form of the question.
`·9· · · · · ·THE WITNESS:· That's -- that's the role for
`10· counsel.
`11· BY MR. ENZMINGER:
`12· · · Q.· ·Did you discuss the lawsuit, this lawsuit, with
`13· Mr. Holt and Mr. Bourassa?
`14· · · A.· ·I believe it may have came up.
`15· · · Q.· ·And what is your recollection?
`16· · · A.· ·I don't recall specifically.· That --
`17· · · Q.· ·Okay.
`18· · · A.· ·-- wasn't the purpose of the meeting.
`19· · · Q.· ·Let's take Mr. Holt.· What recollection do you
`20· have of with Mr. Holt discussing this lawsuit?
`21· · · A.· ·I have no recollection of what we talked about.
`22· That wasn't the purposes -- a purpose of a meeting.
`23· · · Q.· ·How about with Mr. Bourassa, do you have any
`24· recollection of discussing anything to do with this
`25· litigation with Mr. Bourassa?
`
`·1· do, what do you mean by that?
`·2· · · A.· ·I'm aware of the defendants, that they have
`·3· multiplayer games.
`·4· · · Q.· ·Anything else?
`·5· · · A.· ·Such as?
`·6· · · Q.· ·Is there anything else that you know about the
`·7· defendants' games?
`·8· · · A.· ·They have multiplayer games.· I'm aware of
`·9· some -- some of the titles.· Of those games, I know
`10· they're very successful.· I know the nature of the games.
`11· · · Q.· ·When you say you know the nature of the games,
`12· what do you mean?
`13· · · A.· ·Well, I know that, you know, if -- you know,
`14· there's a lot of gunfire and there's a lot of game
`15· playing going on.· You -- yeah.
`16· · · Q.· ·Are you able to list any of the games as you sit
`17· here that your company has accused of infringement?
`18· · · A.· ·I can probably name a couple.
`19· · · Q.· ·Okay.
`20· · · A.· ·So Call of Duty.
`21· · · Q.· ·Who makes that?
`22· · · A.· ·I believe it's Activision Blizzard.
`23· · · Q.· ·Okay.· Any others?
`24· · · A.· ·World of Warcraft.· I believe that's Activision
`25· Blizzard, also.
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`34 to 37 YVer1f
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`

`

`Case 1:16-cv-00455-RGA Document 532-1 Filed 04/04/22 Page 10 of 46 PageID #: 37550
`
`Page 38
`
`Page 40
`
`·1· · · Q.· ·Any others?
`·2· · · A.· ·Not -- with relation to Activision Blizzard
`·3· specifically?
`·4· · · Q.· ·Any games that are accused in this case?
`·5· · · A.· ·In the Activision Blizzard case?
`·6· · · Q.· ·Okay.· Let's start with that one.· Any others?
`·7· · · A.· ·I don't recall exactly what the list is.
`·8· There's -- there's --
`·9· · · Q.· ·That's fair enough.· I just am trying to get the
`10· level of your involvement in the lawsuit.
`11· · · A.· ·(Witness nods head.)
`12· · · Q.· ·How about Electronic Arts?
`13· · · A.· ·So Electronic Arts, I believe, has titles that
`14· are in sports such as basketball, like NBA.
`15· · · Q.· ·Any others that you can recall?
`16· · · A.· ·I believe there's one called FIFA.
`17· · · Q.· ·Any others?
`18· · · A.· ·I don't recall the specific names.
`19· · · Q.· ·What about Take-Two?
`20· · · A.· ·Take-Two has one product.· I believe it's called
`21· Grand Theft Auto.
`22· · · Q.· ·Any others?
`23· · · A.· ·I'm -- I'm not aware of what the other titles
`24· are.
`25· · · Q.· ·Have you ever played any of these games?
`
`·1· work.· That's a role for counsel.
`·2· BY MR. ENZMINGER:
`·3· · · Q.· ·Did anyone at Acceleration Bay at any time ever
`·4· do any work to identify products to accuse of
`·5· infringement?
`·6· · · A.· ·That's a role for counsel.
`·7· · · Q.· ·So no one at the company other than your outside
`·8· counsel has done anything at all to investigate potential
`·9· infringement of the patent portfolio?
`10· · · · · ·MR. ANDRE:· Objection.· Form of the question.
`11· BY MR. ENZMINGER:
`12· · · Q.· ·Is that a fair statement?
`13· · · · · ·MR. ANDRE:· Objection.· Form --
`14· · · · · ·THE WITNESS:· I'm not aware of any additional --
`15· any work that's been done.
`16· BY MR. ENZMINGER:
`17· · · Q.· ·You say any additional work.· I'm asking about
`18· any work at all.
`19· · · A.· ·Which type of work again?· Sorry?
`20· · · Q.· ·Has anyone at Acceleration Bay, from the history
`21· of its foundation 'til today, ever done anything to
`22· investigate infringement, patent infringement?
`23· · · A.· ·Not that I'm aware of.
`24· · · Q.· ·Do you have an understanding of what patents are
`25· asserted in this case?
`
`Page 39
`·1· · · A.· ·I don't recall if I've played any of these
`·2· games.
`·3· · · Q.· ·So I take it it's fair to say that you've never
`·4· tested any of these games for infringement?
`·5· · · A.· ·No, I have not tested these games for
`·6· infringement.
`·7· · · Q.· ·And no employee of Acceleration Bay has ever
`·8· tested any of these games for infringement; correct?
`·9· · · · · ·MR. ANDRE:· Objection.· Form of the question.
`10· · · · · ·THE WITNESS:· We have not tested.· That's --
`11· that's a role for counsel.
`12· BY MR. ENZMINGER:
`13· · · Q.· ·Has any -- has any employee at Acceleration Bay
`14· done anything at all to investigate the infringement
`15· claims Acceleration Bay has made in these lawsuits?
`16· · · · · ·MR. ANDRE:· Objection.· Form of the question.
`17· · · · · ·THE WITNESS:· I'm not aware of anyone doing any
`18· infringement analysis.· That's the role for counsel.
`19· BY MR. ENZMINGER:
`20· · · Q.· ·Has anyone at Acceleration Bay ever done any --
`21· anything at all to look at the validity of the patent
`22· portfolio?
`23· · · · · ·MR. ANDRE:· Objection.· Form of the question.
`24· · · · · ·THE WITNESS:· We -- no.· We -- we're not aware
`25· of anyone at Acceleration Bay doing any of that kind of
`
`Page 41
`·1· · · A.· ·I'm not -- I don't specifically -- I can't
`·2· specifically tell you the patent numbers.
`·3· · · Q.· ·Have you ever read the patents that are at issue
`·4· in this case?
`·5· · · A.· ·I have read parts of the patents.
`·6· · · Q.· ·Does that mean you haven't read all of them from
`·7· cover to cover?
`·8· · · A.· ·I haven't read all of them from cover to cover.
`·9· · · Q.· ·Have you read any of them from cover to cover?
`10· · · A.· ·I can't recall specifically whether I've read
`11· them exactly from cover to cover.· My focus has been on
`12· the -- the technology.· When I first read the -- the
`13· first few pages of the patents, the technology itself was
`14· what jumped out to me, jumped off the page.· So it really
`15· wasn't about the patents so much as what the technology,
`16· the SWAN technology, has achieved.· So you know, when I
`17· first came to the U.S., I came here to, you know, to
`18· really focus on realtime communications and my big focus
`19· was, you know, trying to do real live broadcast
`20· communications.
`21· · · · · ·I wasn't aware that it was possible to do what
`22· the SWAN technology achieved before I saw the patents.
`23· So it's -- I mean, you know, to come to the U.S. and
`24· then, you know, eventually find one day that there's
`25· something like this quite extraordinary like the SWAN
`
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`

`Case 1:16-cv-00455-RGA Document 532-1 Filed 04/04/22 Page 11 of 46 PageID #: 37551
`
`Page 78
`
`·1· implementation of SWAN technology?
`·2· · · · · ·MR. ANDRE:· Objection.· Form of the question.
`·3· · · · · ·THE WITNESS:· Yeah, I don't think that that's --
`·4· that's not the way I would characterize it.
`·5· · · · · ·I would certainly like to be, and so that's very
`·6· much my focus.
`·7· BY MR. ENZMINGER:
`·8· · · Q.· ·But as we sit here today, it's fair to say that
`·9· you would not consider yourself an expert in even
`10· implementation of SWAN technology?
`11· · · · · ·MR. ANDRE:· Objection.· Form of the question.
`12· · · · · ·THE WITNESS:· I don't consid