UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`
`ACTIVISION BLIZZARD, INC.,
`ELECTRONIC ARTS INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC.,
`ROCKSTAR GAMES, INC., and
`BUNGIE, INC.,
`Petitioner,
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`
`____________________
`
`Case IPR2015-019721
`U.S. Patent No. 6,701,344
`
`__________________________________________________________
`
`PATENT OWNER’S REPLY TO PETITIONERS’ CONSOLIDATED
`OPPOSITION TO PATENT OWNER’S MOTION TO EXCLUDE
`
`
`1 Bungie, Inc., who filed a Petition in IPR2016-00934, has been joined as a
`petitioner in this proceeding.
`
`
`
`__________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`
`ACTIVISION BLIZZARD, INC.,
`ELECTRONIC ARTS INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC.,
`ROCKSTAR GAMES, INC., and
`BUNGIE, INC.,
`Petitioner,
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`
`____________________
`
`Case IPR2015-019721
`U.S. Patent No. 6,701,344
`
`__________________________________________________________
`
`PATENT OWNER’S REPLY TO PETITIONERS’ CONSOLIDATED
`OPPOSITION TO PATENT OWNER’S MOTION TO EXCLUDE
`
`
`1 Bungie, Inc., who filed a Petition in IPR2016-00934, has been joined as a
`petitioner in this proceeding.
`
`
`
`Patent Owner’s Reply ISO Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Patent Owner’s Motion to Exclude (“Motion,” Paper 81) should be granted.
`
`I.
`
`Exhibits 1125-26, 1128, 1130-31, 1136-38, 1144-45 Should Be Excluded
`
`The new evidence Petitioner introduced in its Reply should be excluded.
`
`Motion at 1-5. “[T]he expedited nature of IPRs bring with it an obligation for
`
`petitioners to make their case in their petition to institute,” unlike in district courts
`
`where parties have “greater freedom” to revise their arguments. Intelligent Bio-
`
`Sys., Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359, 1369–70 (Fed. Cir. 2016).
`
`First, Dr. Karger’s Rebuttal Declaration (Ex. 1125) does not “summarize[] POR’s
`
`and PO’s experts’ … statements and directly respond[] to them.” Paper 88 at 3
`
`(“Opp.”). Rather, it introduces new positions and evidence outside of the scope of
`
`the Reply that also could have been included in the Petition. Motion at 2-3; Office
`
`Patent Trial Practice Guide, 77 Fed. Reg. at 48,767 (Aug. 14, 2012) (“[R]eply that
`
`raises a new issue or belatedly presents evidence will not be considered….”).
`
`Second, the above exhibits are new evidence that Petitioner uses to supplement its
`
`prima facie invalidity case and to revise its argument regarding the Shoubridge’s
`
`(Exhibit 1105) public availability. Motion at 2-5. However, Patent Owner has not
`
`had a fair opportunity to respond to this evidence because Petitioner’s belated
`
`introduction of the evidence has “denied [Patent Owner] the opportunity to file
`
`responsive evidence.” The Scotts Co. LLC v. Encap, LLC, IPR 2013-00110, Paper
`
`79, 5-6 (June 24, 2014); Opp. at 3-4. Further, even if Exhibits 1128, 1130 and
`
`
`
`1
`
`
`
`Patent Owner’s Reply ISO Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`1144 were “relevant to the Board’s obviousness analysis,” this simply
`
`demonstrates Petitioner’s belated attempt to remedy its failure to include this
`
`evidence in its Petition. Opp. at 4. Because the foregoing is “new evidence [] to
`
`make out a prima facie case for … unpatentability” and “could have been
`
`presented in a prior filing,” it must be excluded. 7 Fed. Reg. at 48,767.
`
`II. The Karger Declarations Should Be Excluded (Exs. 1119, 1124, 1145)
`Petitioner disregards Dr. Karger’s repeated admission that he did not have an
`
`understanding or construe several terms of the challenged claims. Id. Dr. Karger
`
`could have, but did not, properly interpret the claim language to compare it to the
`
`prior art. Petitioner also ignores that Dr. Karger was required to take into account
`
`secondary considerations in his obviousness analysis and only intended to include
`
`them as an afterthought in his analysis. Motion at 7 (citing ¶ 245); compare Opp.
`
`at 5-7. Thus, Dr. Karger’s declarations should be excluded because his opinions
`
`are conclusory, unreliable and fail to disclose any support for his opinions. Motion
`
`at 5-7.
`
`III. The Shoubridge Declarations (Exhibits 1120 and 1036) and Bennett
`Declaration (Exhibit 1026) Should be Excluded
`
`Petitioner ignores that Dr. Shoubridge’s Declarations (Exs. 1120, 1036) rely
`
`on Exhibit B which is not relied upon in the Petition or Reply. In fact, Petitioner
`
`relies on an entirely different exhibit that it refers to as the Shoubridge reference
`
`and thus Dr. Shoubridge’s opinions are conclusory, unreliable and irrelevant.
`
`
`
`2
`
`
`
`Patent Owner’s Reply ISO Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Motion at 7-8. Similarly, Dr. Bennett’s Declaration (Ex. 1026) purports to
`
`“authenticate” the Shoubridge reference but what Dr. Bennett “authenticates” is a
`
`different version of Shoubridge. For these reasons and as set forth in the Motion,
`
`these Declarations should be excluded. Motion at 7-9.
`
`IV. The Grenier Declarations (Exhibits 1141, 1144, and 1132) and the Glenn
`Little Declaration (Exhibit 1104) Should be Excluded
`
`The Grenier Declarations should be excluded because the declarations fail to
`
`authenticate Shoubridge, Gautier and McCanne. Petitioner ignores that (1) Mr.
`
`Grenier’s IEEE version of Shoubridge is different than the Shoubridge reference
`
`Petitioner relies upon; and (2) Mr. Grenier relies on a different version of Gautier,
`
`not Exhibit 1030 (Gautier) that Petitioner relies upon. Opp. at 8-9. The Little
`
`Declaration should also be excluded. Petitioner’s reliance on Mr. Little’s
`
`“personal knowledge of the CSE’s regular business practices and records” is
`
`misplaced.2 Opp. at 9-10. Petitioner cites to the Little Declaration to support when
`
`Lin was allegedly publicly available but Mr. Little does not claim any actual
`
`knowledge as to whether a POSITA would have been able to locate Lin which is
`
`required for public availability. Kyocera Wireless Corp. v. Int’l Trade Com’n, 545
`
`F.3d 1340, 1350 (Fed. Cir. 2008). Petitioner also does not dispute that a document
`
`2 Petitioner misrepresents the Motion in stating that Mr. Little’s declaration is
`
`regarding Shoubridge when in fact it relates to Lin. Pet. Opp. at 9; Motion at 9-10.
`
`
`
`3
`
`
`
`Patent Owner’s Reply ISO Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`existing on a website cannot establish its public accessibility. Blue Calypso, LLC
`
`v. Groupon, Inc., 815 F.3d 1331, 1349–50 (Fed. Cir. 2016). Thus, the Grenier and
`
`Little Declarations should be excluded. Motion at 9-10.
`
`V.
`
`Shoubridge (Exhibit 1105) Should be Excluded
`
`Petitioner fails to address why the Shoubridge Document (Exhibit 1105) is
`
`unauthenticated, hearsay and irrelevant. First, as explained supra and in the
`
`Motion, none of the declarations Petitioner submitted authenticate Shoubridge
`
`because they rely on different versions from the exhibit Petitioner cites to. Motion
`
`at 10-13. Second, the “IEEE copyright” does not “independently authenticate[]
`
`Shoubridge” because a copyright date fails to establish that a document is a printed
`
`publication or publicly accessible. TRW Automotive U.S. LLC v. Magna Elecs.
`
`Inc., Case IPR2014-01347, Paper 25 at 5–12 (P.T.A.B. Jan. 6, 2016) (“Although
`
`[a] copyright notice is probative that IEEE owns a copyright to the article, it is not
`
`probative that the article was ever published by IEEE or anyone else.”). Thus,
`
`Shoubridge should be excluded.
`
`VI. The Stansbury Affidavit (Ex. 1131) and Gautier Document (Ex. 1030)
`Should be Excluded
`
`The Stansbury Affidavit should be excluded. Petitioner ignores that the
`
`affidavit makes reference to no exhibit of record. The affidavit’s reference to
`
`“Design and Evaluation of MiMaze, a multi-player game on the Internet” by
`
`Gautier (1) does not prove that it is the same as the Gautier reference (Ex. 1130)
`
`
`
`4
`
`
`
`Patent Owner’s Reply ISO Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`that Petitioner relies upon and (2) the Shapiro Declaration (Ex. 1134), an attorney
`
`declaration, neither remedies nor addresses that the Stansbury Affidavit references
`
`no exhibit. Opp. at 12-13. Thus, Exhibit 1131 should be excluded. Motion at 13.
`
` The Gautier Document should also be excluded. Petitioner disregards that
`
`the declarations it relies upon to authenticate Gautier cite to a different version of
`
`the document. Motion 13; Opp. at 12-13. Moreover, neither Exhibit 1134 nor
`
`Exhibit 1152 rectifies Petitioner’s failure to authenticate Gautier because (1)
`
`Exhibit 1134 is an attorney declaration that proffers no testimony to establish that
`
`Gautier was available to a POSITA and (2) Exhibit 1152 (Diot Declaration)3 is not
`
`relevant, inadmissible and highly prejudicial. See Motion at 15 n.4.
`
`VII. The Board Should Exclude Exhibits 1149-51
`Petitioner does not contest that Exhibits 1149-1151, that it relies upon to
`
`establish public availability of Exhibit 1130 (Gautier), do not reference Exhibit
`
`1130 itself. Petitioner even acknowledges they reference a different document.
`
`Opp. at 15. Exhibits 1049-1051 fail to authenticate or even reference Exhibit 1030
`
`and thus should be excluded. Motion at 14-15.
`
`
`3 Petitioner improperly filed a Request for Rehearing with the Board that grossly
`
`mischaracterizes the facts surrounding the deposition of Dr. Diot. Despite this
`
`filing, the Board denied Petitioner’s untimely request for his deposition.
`
`
`
`5
`
`
`
`Patent Owner’s Reply ISO Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`VIII. Conclusion
`
`For the foregoing reasons and those set forth in the Motion, the Board
`
`should grant Patent Owner’s Motion to Exclude.
`
`
`
`Dated: November 23, 2016
`
`(Case No. IPR2015-01972)
`
`
`Respectfully submitted,
`
`
`
`
`
`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`jhannah@kramerlevin.com
`Michael Lee (Reg. No. 63,941)
`mhlee@kramerlevin.com
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Tel: 650.752.1700 Fax: 650.752.1800
`
`Shannon Hedvat (Reg. No. 68,417)
`shedvat@kramerlevin.com
`Jeffrey H. Price (Reg. No. 69,141)
`jprice@kramerlevin.com
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Tel: 212.715.9185 Fax: 212.715.8000
`
`Attorneys for Patent Owner
`
`
`
`6
`
`
`
`Patent Owner’s Reply ISO Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that a true and
`
`correct copy of the foregoing Patent Owner’s Reply to Petitioners’ Consolidated
`
`Opposition to Patent Owner’s Motion to Exclude was served on November 23,
`
`2016, by filing this document through the PTAB E2E System as well as delivering
`
`via electronic mail upon the following counsel of record for Petitioner:
`
`
`
`J. Steven Baughman
`Ropes & Gray LLP
`2099 Pennsylvania Ave., NW
`Washington D.C. 20006-6807
`steven.baughman@ropesgray.com
`Activision_Blizzard_PTAB_Service@ropesgray.com
`
`Andrew Thomases
`Daniel W. Richards
`James L. Davis, Jr.
`ROPES & GRAY LLP
`1900 University Ave., 6th Floor
`East Palo Alto, CA 94303
`andrew.thomases@ropesgray.com
`Daniel.w.richards@ropesgray.com
`james.l.davis@ropesgray.com
`
`Matthew R. Shapiro
`Joseph E. Van Tassel
`ROPES & GRAY LLP
`1211 Avenue of the Americas
`New York, NY 10036
`matthew.shapiro@ropesgray.com
`joseph.vantassel@ropesgray.com
`
`
`
`
`
`7
`
`
`
`Patent Owner’s Reply ISO Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Mike Tomasulo
`WINSTON &STRAWN LLP
`333 S. Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`mtomasulo@winston.com
`
`Michael M. Murray
`WINSTON &STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`mmurray@winston.com
`
`Andrew R. Sommer
`WINSTON &STRAWN LLP
`1700 K. Street, N.W.
`Washington D.C. 20006-3817
`asommer@winston.com
`
`Counsel for Petitioner Activision Blizzard, Inc.,
`Electronic Arts Inc., Take-Two Interactive Software,
`Inc., 2K Sports, Inc., and Rockstar Games, Inc.
`
`
`
`
`
`8
`
`
`
`Patent Owner’s Reply ISO Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Michael T. Rosato
`Andrew S. Brown
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`mrosato@wsgr.com
`asbrown@wsgr.com
`
`Jose C. Villarreal
`Eric C. Arnell
`WILSON SONSINI GOODRICH & ROSATI
`900 South Capital of Texas Hwy
`Las Cimas IV, Fifth Floor
`Austin, TX 78746-5546
`jvillarreal@wsgr.com
`earnell@wsgr.com
`
`Counsel for Petitioner Bungie, Inc.
`
`
`
`
`
`
`
`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road,
`Menlo Park, CA 94025
`(650) 752-1700
`
`
`
`
`
`
`
`
`
`9
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