Case 6:21-cv-00738-ADA Document 22 Filed 10/28/21 Page 1 of 14
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`ANCORA TECHNOLOGIES, INC.,
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`Plaintiff,
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`
`
`v.
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`NINTENDO CO., LTD., and RETRO
`STUDIOS, INC.
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`Defendants.
`
`CIVIL NO. 6:21-CV-738-ADA
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`RETRO STUDIOS, INC.’S MOTION FOR
`SUMMARY JUDGMENT OF NON-INFRINGEMENT
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`

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`1.
`2.
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`3.
`4.
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`4.
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`Case 6:21-cv-00738-ADA Document 22 Filed 10/28/21 Page 2 of 14
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`TABLE OF CONTENTS
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`4.2
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`INTRODUCTION .......................................................................................................... 1
`RELEVANT FACTS ...................................................................................................... 1
`2.1
`The Complaint .................................................................................................... 1
`2.2
`Retro Studios, NCL, and NOA ........................................................................... 2
`2.3
`The ’941 Patent ................................................................................................... 2
`2.4
`The Infringement Allegations ............................................................................. 3
`LEGAL STANDARD ..................................................................................................... 5
`RETRO DOES NOT PERFORM THE ACTIONS THAT ANCORA ALLEGES
`CONSTITUTE INFRINGEMENT. ................................................................................ 5
`Retro is not responsible for the server software and game console system
`4.1
`software accused of practicing the asserted claims. ............................................ 6
`Ancora’s reliance on an unrelated third-party complaint does not implicate
`any activities by Retro. ....................................................................................... 7
`Ancora’s reliance on SiRF is misplaced, because Retro does not cause any
`of the steps of the asserted claims to be performed. ........................................... 8
`Ancora’s reliance on Akamai is misplaced, because Retro does not direct
`or control performance of the asserted claims. ................................................... 9
`CONCLUSION ............................................................................................................... 9
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`4.3
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`4.4
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`-i-
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`Case 6:21-cv-00738-ADA Document 22 Filed 10/28/21 Page 3 of 14
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`CASES
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`TABLE OF AUTHORITIES
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`Akamai Techs., Inc. v. Limelight Networks, Inc.,
`797 F.3d 1020 (Fed. Cir. 2015)..............................................................................................5, 9
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`Ancora Techs., Inc. v. HTC Am., Inc.,
`908 F.3d 1343 (Fed. Cir. 2018)..................................................................................................3
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`Celotex Corp. v. Catrett,
`477 U.S. 317 (1986) ...................................................................................................................5
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`SiRF Tech., Inc. v. ITC,
`601 F.3d 1319 (Fed. Cir. 2010)..........................................................................................5, 8, 9
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`OTHER AUTHORITIES
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`Fed. R. Civ. P. 56(a) ........................................................................................................................5
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`-ii-
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`Case 6:21-cv-00738-ADA Document 22 Filed 10/28/21 Page 4 of 14
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`1. Introduction
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`Retro does not belong in this patent infringement case. The Complaint alleges infringe-
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`ment based on the use of over-the-air updates to Nintendo game consoles, and then verification of
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`the updates on the Nintendo game consoles. Because Retro is a game development studio and has
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`no involvement in either of these activities, there can be no dispute of material fact that Retro does
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`not infringe the asserted patent.
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`Retro previously moved to dismiss the Complaint because Ancora failed to plead any ac-
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`tivities performed by Retro, as opposed to Retro’s parent, Nintendo Co., Ltd. (“NCL”). See
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`Dkt. 17 (“Motion to Dismiss”). Ancora’s recently-served preliminary infringement contentions
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`(“PICs”) now confirm that all of the allegedly infringing activities are activities performed by NCL
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`or non-party Nintendo of America Inc. (“NOA”), and not Retro.
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`Ancora makes only two, faulty attempts to implicate Retro. First, Ancora relies on a state-
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`ment in an unrelated complaint by NOA that does not mention Retro at all, but says that game
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`software and system software (e.g., the operating system) use similar security measures. But as
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`explained by the sworn declarations attached hereto, NCL—not Retro—is responsible for the se-
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`curity measures for both game software and system software. Second, Ancora presents unsup-
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`ported allegations that Retro controls the over-the-air update and verification processes. But far
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`from controlling those processes, Retro has essentially no involvement in either.
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`Retro is not responsible for and does not perform the functionality accused of infringement,
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`so judgment of non-infringement is appropriate as to Retro.
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`2. Relevant Facts
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`2.1 The Complaint
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`The Complaint names NCL and Retro as defendants. Ancora accuses NCL and Retro of
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`directly infringing U.S. Patent No. 6,411,941 (“the ’941 patent”). Compl. (Dkt. 1), ¶ 34. The ’941
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`-1-
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`Case 6:21-cv-00738-ADA Document 22 Filed 10/28/21 Page 5 of 14
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`patent expired over three years ago. See ’941 Patent (Dkt. 17-2) (priority claim to 1998). Ancora
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`does not allege that Retro indirectly infringes the ’941 patent, presumably because Ancora gave
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`no pre-expiration notice of the patent.
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`2.2 Retro Studios, NCL, and NOA
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`Retro is a game development studio that develops games for Nintendo game consoles. Lit-
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`tle Decl., ¶ 4; Compl. ¶ 4. Retro is one among hundreds of game developers that develop games
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`for Nintendo game consoles, and it has developed six game titles. Dkt. 17-3 (www.retrostu-
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`dios.com/games/). Retro submits the games it develops to NOA and NCL for approval. Little
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`Decl., ¶¶ 5‒6. After submitting a game to NOA and NCL, Retro has no involvement in the sales
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`or distribution of that game to end users or to Nintendo game consoles. Id. Retro does not develop
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`software for any Nintendo over-the-air update server, or any game console system software (i.e.,
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`the operating system and boot-related software). Little Decl., ¶¶ 10‒12.
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`NCL and NOA are responsible for the distribution, sales, and delivery of the games that
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`Retro develops, as well as for the Nintendo game consoles themselves. NCL is responsible for
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`designing and coordinating manufacture of Nintendo game consoles. Tokunaga Decl., ¶¶ 5‒9;
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`Wada Decl., ¶¶ 5‒9. NOA is responsible for sales and distribution of the Nintendo game consoles
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`in the United States. Kiel Decl., ¶ 5. When Retro delivers game software to NCL and NOA for
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`approval, it is NCL and NOA that approve, package, and deliver that game software to game con-
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`soles in any over-the-air updates. Little Decl., ¶¶ 5‒6; Tokunaga Decl., ¶¶ 10‒14; Wada Decl.,
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`¶¶ 10‒13. The software on the game consoles that performs the alleged “verification” and instal-
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`lation of the game update is developed by NCL. Tokunaga Decl., ¶¶ 7‒11, 15‒17; Wada Decl.,
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`¶¶ 7‒11, 14‒16.
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`2.3 The ’941 Patent
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`The ’941 patent describes a method of using license information to verify that software is
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`Case 6:21-cv-00738-ADA Document 22 Filed 10/28/21 Page 6 of 14
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`licensed. Ancora asserts claims 1, 2, 6, 7, and 9‒12, all of which are methods. PICs, p. 1.1 The
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`alleged point of novelty of the claims is that a license record for the software is stored in the BIOS
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`memory, as opposed to some other memory. See Ancora Techs., Inc. v. HTC Am., Inc., 908 F.3d
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`1343, 1345 (Fed. Cir. 2018) (explaining the “asserted innovation of the patent”). This was a pur-
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`ported improvement over existing computer security because “successfully hacking BIOS memory
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`(i.e., altering it without rendering the computer inoperable) is much harder than hacking” the
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`memory previously used for storing license-verification information. Id.
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`2.4 The Infringement Allegations
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`In the Motion to Dismiss, Retro explained Ancora’s failure to plead infringing acts by
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`Retro. Motion to Dismiss, pp. 4‒5. Retro noted that the Complaint failed to describe any actions
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`by Retro with respect to the over-the-air update process. Id. at 4. Retro described how the Com-
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`plaint did not even allege that any Retro games were accused products. Id. at 4‒5. Retro noted
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`how the allegations against Retro were based on Ancora’s definition of “Nintendo” as including
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`Retro and NCL, and then describing acts by NCL as being performed by “Nintendo.” Id.
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`Ancora served PICs after Retro’s Motion to Dismiss. The PICs identify three groups of
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`accused products: the Nintendo Switch (PICs, Exs. A‒B); the Nintendo 2DS and 3DS (PICs,
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`Exs. C‒D); and the Nintendo Wii and Wii U (PICs, Exs. E‒F). For each group, Ancora identifies
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`the accused products as Nintendo game consoles or controllers, as well as a single Retro game.
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`PICs, Exs. A, C, E. In the claim charts, Ancora maps each step of the asserted methods to alleged
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`functionality of Nintendo over-the-air update servers and alleged functionality of Nintendo game
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`consoles that receive and install an over-the-air update. See generally, PICs, Exs. B, D, F.2 As
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`1 The PICs are attached as Exhibit 1 to the Declaration of Kyle R. Canavera. The PICs them-
`selves contain six exhibits, which are cited herein as “PICs, Ex. A, p. 1” and similar.
`2 The PICs rely on third-party documents describing alleged functionality of Nintendo game
`consoles. Only for the purposes of this motion, Retro will treat those descriptions as accurate.
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`-3-
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`Case 6:21-cv-00738-ADA Document 22 Filed 10/28/21 Page 7 of 14
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`the phrase is used by Ancora in its PICs against NCL and Retro, an “over-the-air” update is the
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`downloading of a software update package from a server to a game console. See, e.g., PICs, Ex. B,
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`p. 4. Ancora alleges that, after a Nintendo game console downloads a software update package,
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`the console verifies that the software update package is licensed and then installs it. See, e.g., id.
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`at 30‒31. As to verification, Ancora specifically points to activities allegedly performed by boot-
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`related software on the consoles. See, e.g., id. at 17‒20, 22‒29, 31‒40, 42‒49. Ancora alleges
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`that these over-the-air update, verification, and installation activities infringe the asserted claims.
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`Ancora does not point to any functionality of Retro game software as performing the steps of the
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`asserted methods. See generally PICs, Exs. B, D, F.
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`In its PICs, Ancora makes two attempts to implicate Retro in the activities performed by
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`Nintendo servers or Nintendo console system software.
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`First, Ancora alleges that Retro game software actually performs all of the same activities
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`as the servers and console system software, relying on a single paragraph in a complaint filed by
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`non-party NOA. See, PICs, Ex. B, p. 14 (citing Paragraph 55 of Dkt. 17-7). In that complaint,
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`NOA explained the way in which encryption is used to prevent piracy of the operating system
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`software on game consoles. See Dkt. 17-7, ¶¶ 49‒58. In Paragraph 55, NOA explained that game
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`consoles “employ encryption and signature checks” similar to those used for the operating system
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`in order to prevent piracy of game software. Id. ¶ 55. In its PICs, Ancora alleges that Retro per-
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`forms every step of every asserted method based solely on the statement in Paragraph 55. See,
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`e.g., PICs, Ex. B, pp. 14, 20‒21, 30, 40‒41, 49, 53‒54, 59, 66, 70‒71, 80‒81, 81‒82, 90‒91. The
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`PICs contain, in effect, a claim chart against NCL, with Paragraph 55 acting as a copy-and-paste
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`stand-in for “Retro too.”
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`Second, Ancora reaches for various alternative infringement theories that are premised on
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`an unsupported (and incorrect) allegation that Retro controls the over-the-air update process and
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`-4-
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`Case 6:21-cv-00738-ADA Document 22 Filed 10/28/21 Page 8 of 14
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`console security measures. Ancora alleges that Retro performs one or more of the claimed method
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`steps and then causes the remaining method steps to be performed. See Ex. B, p. 14 (relying on
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`SiRF Tech., Inc. v. ITC, 601 F.3d 1319 (Fed. Cir. 2010)). Ancora alleges that Retro directs or
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`controls third parties to perform the claimed method steps. See id. (relying on Akamai Techs., Inc.
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`v. Limelight Networks, Inc., 797 F.3d 1020 (Fed. Cir. 2015)). For both the SiRF and Akamai the-
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`ories, Ancora cites no evidence other than, in some cases, an NOA webpage showing that game
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`updates exist (PICs, Ex. B, p. 14‒15; PICs, Ex. F, pp. 14‒15), and in some cases, nothing at all
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`(PICs, Ex. D, p. 11). As explained below, Retro does not perform any of the steps of the claimed
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`methods, does not cause any of them to be performed, and does not control the allegedly infringing
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`activity.
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`3. Legal Standard
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`Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
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`to any material fact and the movant is entitled to judgment as a matter of law.”
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`Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Direct infringement
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`under § 271(a) occurs where all steps of a claimed method are performed by or attributable to a
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`single entity.” Akamai, 797 F.3d at 1022.
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`4. Retro does not perform the actions that Ancora alleges constitute infringement.
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`Summary judgment is appropriate because Retro does not perform the actions that Ancora
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`alleges constitute infringement. Ancora alleges in its PICs that activities performed by Nintendo
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`over-the-air update servers and Nintendo game console system software collectively result in per-
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`formance of the asserted methods. But Retro does not perform any of these activities. Ancora’s
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`attempts to fill that hole factually (with Paragraph 55) and legally (with reliance on SiRF and
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`Akamai) fall far short of showing that Retro performs any, much less all, of the steps of the asserted
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`claims. As the sworn declarations accompanying this motion explain, Retro is simply not involved
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`Case 6:21-cv-00738-ADA Document 22 Filed 10/28/21 Page 9 of 14
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`in the activities that Ancora alleges constitute infringement.
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`4.1 Retro is not responsible for the server software and game console system software
`accused of practicing the asserted claims.
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`Retro does not infringe the asserted claims because it does not develop and is not respon-
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`sible for the software that Ancora alleges performs the asserted method.
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`In the hundreds of pages of claim charts in the PICs, Ancora identifies only activities per-
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`formed by Nintendo over-the-air update servers and Nintendo game console system software as
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`infringing the asserted claims. For the preamble of claim 1, Ancora cites information about Nin-
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`tendo game console hardware and webpages showing that console system software and game soft-
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`ware can be updated. See, e.g., PICs, Ex. B, pp. 2‒15. For all of the steps of claim 1, Ancora cites
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`to information describing the activities allegedly performed by boot-related software and operating
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`system software on the Nintendo game consoles. See, e.g., id. at 15‒21 (“selecting” step), 21‒30
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`(“using an agent” step), 30‒41 (“verifying” step), and 41‒49 (“acting” step). For the dependent
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`claims, Ancora likewise cites only information describing the over-the-air update server, the boot-
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`related software on the game consoles, and the operating system software on the game consoles.
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`See, e.g., id. at 49‒54 (claim 2), 55 (claim 6), 56‒66 (claim 7), 67‒81 (claim 9), 81‒82 (claim 10),
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`82‒83 (claim 11), 84‒91 (claim 12).
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`But Retro does not develop the software that Ancora accuses of infringement. Retro does
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`not develop the over-the-air update server software, rather NCL does. Little Decl., ¶ 12; Tokunaga
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`Decl., ¶ 10; Wada Decl., ¶ 10. Retro is not responsible for the operation of those servers, rather
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`NCL and NOA are. Little Decl., ¶¶ 12‒14; Tokunaga Decl., ¶¶ 10‒14; Wada Decl., ¶¶ 10‒13.
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`Retro does not develop the boot-related software on the game consoles, rather NCL does. Little
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`Decl., ¶¶ 10, 16; Tokunaga Decl., ¶¶ 7‒8, 16; Wada Decl., ¶¶ 7‒8, 15. Retro does not develop the
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`operating system software on the game consoles, rather NCL does. Little Decl., ¶ 11; Tokunaga
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`-6-
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`Case 6:21-cv-00738-ADA Document 22 Filed 10/28/21 Page 10 of 14
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`Decl., ¶ 9; Wada Decl., ¶ 9. Retro does not design or manufacture the hardware in the game con-
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`soles, rather NCL and other third-parties do. Little Decl., ¶¶ 8‒9; Tokunaga Decl., ¶¶ 5‒6; Wada
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`Decl., ¶¶ 5‒6. Retro does not sell game consoles or game software to end users. Little Decl., ¶¶ 4‒
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`6. In the United States, NOA does. Kiel Decl., ¶ 5.
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`Rather, Retro develops game software, and that game software is incapable of performing
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`any of the steps of the asserted claims. Retro develops only the content of the games themselves.
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`Little Decl., ¶¶ 4, 12. Retro does not develop software that delivers the games to the consoles or
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`that install the games on the consoles. Little Decl., ¶ 12. Retro’s game software does not perform
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`any encryption, signature checking, copy protection, or digital rights management functions. Little
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`Decl., ¶¶ 16‒17.
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`In sum, the software that Ancora accuses of infringement is not Retro’s, so Retro does not
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`practice even a single step of any of the asserted claims.
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`4.2 Ancora’s reliance on an unrelated third-party complaint does not implicate any
`activities by Retro.
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`Ancora’s reliance on Paragraph 55 of the unrelated NOA complaint does nothing to im-
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`prove Ancora’s case against Retro. As Paragraph 55 states, the technological measures for games
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`“employ encryption and signature checks similar to that of the Nintendo Switch’s operating system
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`described above.” Dkt. 17-7, ¶ 55. As just explained, Retro’s game software does not perform
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`encryption and signature checking. Little Decl., ¶¶ 16‒17. Rather, it is the console system soft-
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`ware, developed by NCL, that performs the encryption and signature checking activities with re-
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`spect to games. Tokunaga Decl., ¶¶ 7‒9, 16‒17; Wada Decl., ¶¶ 7‒9, 15‒16. Thus, Ancora’s
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`attempt to copy and paste its allegations for console system software (NCL) onto game software
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`(Retro) is circular because it still only implicates NCL.
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`Furthermore, Ancora does not even have a reasonable basis for using the NOA complaint
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`-7-
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`Case 6:21-cv-00738-ADA Document 22 Filed 10/28/21 Page 11 of 14
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`to make allegations against Retro. That complaint describes activities by “Nintendo,” defined
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`therein as NCL and NOA. See Dkt. 17-7, ¶ 1. The document explains that “Nintendo,”—again,
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`NCL and NOA—implemented “technological security protections” in the Nintendo game con-
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`soles. See id. at ¶ 48. Those are the “technological measures” described in the paragraphs leading
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`up to and including Paragraph 55. See id. at ¶¶ 48–55. The NOA complaint could not be any
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`clearer that it is NCL and NOA, not Retro, that are responsible for the product features referenced
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`in Paragraph 55, the same ones that Ancora now attempts to attribute to Retro.
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`4.3 Ancora’s reliance on SiRF is misplaced, because Retro does not cause any of the
`steps of the asserted claims to be performed.
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`Ancora’s attempt to use SiRF to implicate Retro is also misplaced because, unlike in SiRF,
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`Retro neither performs any of the method steps nor causes any of them to be performed. In SiRF,
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`the defendant made GPS chips incorporated in end-user devices. SiRF, 601 F.3d at 1323‒24.
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`Those GPS devices interacted with defendant’s own servers to receive files used for GPS opera-
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`tion. Id. The court found that defendant’s server performed one of the steps of the asserted method
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`claim, and that the server caused the GPS devices to automatically perform the remaining steps of
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`the asserted method claim. Id. at 1329‒31. Based on these and other facts unique to that case, the
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`court found that the defendant performed all of the steps of the asserted method claim. Id.
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`Ancora attempts to invoke SiRF by alleging (1) that Retro “perform[s] one or more claimed
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`method steps that cause each remaining method step to be performed automatically on each Ac-
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`cused Switch Product,” and (2) “by maintaining end-to-end control over the Accused Switch
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`Produ[c]t’s installation of any OTA update to an Accused Game Product.” See, e.g., PICs, Ex. B,
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`p. 14. Both of these propositions are false and will never be a genuine dispute of material fact. As
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`explained above, Retro’s game software is incapable of performing any of the steps of the asserted
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`methods. Retro does not develop the software for the over-the-air update servers and has no
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`Case 6:21-cv-00738-ADA Document 22 Filed 10/28/21 Page 12 of 14
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`control over its operation. Little Decl., ¶¶ 12‒14; Tokunaga Decl., ¶¶ 10‒14; Wada Decl., ¶¶ 10‒
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`13. Retro does not develop nor does it have control over the console system software that installs
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`the game update. Little Decl., ¶ 12; Tokunaga Decl., ¶ 10; Wada Decl., ¶ 10.
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`Contrary to Ancora’s unsupported assumptions, Retro performs none of the asserted
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`method steps, causes none of the asserted method steps to be performed, and has no control over
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`the console’s installation of any over-the-air update. Instead, this is another unsupported attempt
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`to copy and paste the allegations against NCL onto Retro. Compare PICs, Ex. B, p. 11 (SiRF
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`allegations against NCL) with id. at 14 (nearly identical SiRF allegations against Retro).
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`4.4 Ancora’s reliance on Akamai is misplaced, because Retro does not direct or con-
`trol performance of the asserted claims.
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`Ancora’s attempt to use Akamai to implicate Retro is also misplaced. Ancora attempts to
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`invoke Akamai by alleging that “Retro exercises direction or control over said third parties [of end
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`users, NCL, and NOA], including by conditioning participation in an activity or receipt of a benefit
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`upon performance of a step or steps and establishing the manner or timing of that performance.”
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`PICs, Ex. B, p. 14. This too is demonstrably false and will never be a genuine dispute of material
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`fact. Retro exerts no control over the over-the-air update process, either at the server or on the
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`game consoles. Little Decl., ¶¶ 5‒6, 12‒14. Retro does not control when game updates are deliv-
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`ered to game consoles. Id. Retro does not reward or otherwise provide a benefit to end users,
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`NCL, or NOA in exchange for performance of an over-the-air update. Id. Instead, Ancora’s Ak-
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`amai allegations are another unsupported copy and paste of its NCL allegations. Compare PCIs,
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`Ex. B, p. 11 with id. at 14.
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`4. Conclusion
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`Ancora’s infringement allegations are based entirely on activities not performed by Retro.
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`Ancora has not and cannot identify a genuine dispute of material fact to support its infringement
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`allegations against Retro, so entry of judgment of non-infringement for Retro is appropriate.
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`-9-
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`Case 6:21-cv-00738-ADA Document 22 Filed 10/28/21 Page 13 of 14
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`Dated: October 28, 2021
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`Respectfully submitted,
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`
`
`/s/ Jose C. Villarreal
`Jose C. Villarreal, State Bar No. 24003113
`JVillarreal@perkinscoie.com
`PERKINS COIE LLP
`500 W. 2nd Street, 19th Floor
`Austin, TX 78701
`Telephone: 737.256.6100
`Facsimile: 737.256.6300
`
`Jerry A. Riedinger, Admitted Pro Hac Vice
`JReidinger@perkinscoie.com
`Theresa H. Nguyen, Admitted Pro Hac Vice
`RNguyen@perkinscoie.com
`PERKINS COIE LLP
`1201 Third Avenue, 49th Floor
`Seattle, WA 98101
`Telephone: 206.359.8000
`Facsimile: 206.359.9000
`
`Kyle R. Canavera, Admitted Pro Hac Vice
`KCanavera@perkinscoie.com
`PERKINS COIE LLP
`1452 El Camino Real, Suite 300
`San Diego, CA92130
`Telephone: 858.720.5700
`Facsimile: 858.720.5799
`
`Tara Kurtis, Pro Hac Vice Pending
`TKurtis@perkinscoie.com
`PERKINS COIE LLP
`131 South Dearborn St. Suite 1700
`Chicago, IL 60603
`Telephone: 312.324.8400
`Facsimile: 312.324.9400
`
`Attorneys for Retro Studios, Inc.
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`-10-
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`Case 6:21-cv-00738-ADA Document 22 Filed 10/28/21 Page 14 of 14
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`CERTIFICATE OF SERVICE
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`This is to certify that a true and correct copy of the above and foregoing has been served
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`upon all counsel of record, via the Court’s CM/ECF system on this 28th day of October 2021.
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`
`
`/s/ Jose C. Villarreal
`Jose C. Villarreal
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`