INC., ROCKSTAR GAMES, INC., and 2K

Civil Action No. 16-455-RGA For the reasons stated in the accompanying Memorandum Opinion, Defendants' Motion for Summary Judgment (D.I.

462) is GRANTED.

Entered this 23rd day of March, 2020.

Isl Richard G. Andrews United States District Judge

Indeed, Take-Two’s counsel acknowledged during a deposition that the image was “to illustrate your testimony as opposed to evidence that it actually happened.” Declaration of Aaron Frankel (“Frankel Decl.”) filed herewith, Ex. 1 (Mitzenmacher Tr.) at 66:5-7 (emphasis added).

Thus, Take Two recognized long ago that this image was illustrative and not evidence, but nonetheless argues now that this demonstrative is “evidence.” Take Two’s reliance on an easily disproven claim as its lead argument confirms the meritless nature of its Motion.

For example, Acceleration Bay cooperated with Take Two on numerous occasions to provide extensions of time requested by Take Two or to use streamlined case management procedures to minimize the burden on the Court and the parties.

“[B]ad faith is a necessary predicate for a violation of section 1927 in order to ‘avoid chilling an attorney’s legitimate ethical obligation to represent his client zealously.’” Hackman v. Valley Fair, 932 F.2d 239, 243 (3d Cir. 1991) (quoting Baker Indus., Inc. v. Cerberus Ltd., 764 F.2d 204, 208 (3d Cir. 1985)).

To the contrary, as noted in Section III(D), Acceleration Bay cooperated with Take Two on numerous occasions to provide extensions of time requested by Take Two or to use streamlined case management procedures to minimize the burden on the Court and the parties.

Philip A. Rovner (#3215) Jonathan A. Choa (#5319) POTTER ANDERSON & CORROON LLP Hercules Plaza P.O.

I am an attorney with the law firm Kramer Levin Naftalis & Frankel LLP, counsel of record for Acceleration Bay LLC (“Acceleration Bay”) for the above referenced matter.

Attached hereto as Exhibit 1 is a true and correct copy of excerpted pages 54-69 and 166-169 from the deposition transcript of Michael Mitzenmacher, Ph.D., taken on July 27, 2018 in this matter.

Attached hereto as Exhibit 2 is a true and correct copy of excerpted pages 130- 137 from the deposition transcript of Nenad Medvidovic, Ph.D., taken on August 14, 2018 in this matter.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

WHEREAS, on December 7, 2018, the Court entered a Stipulated Order which, among other things: • took the trial dates off calendar for C.A.

619), i.e., Acceleration Bay will serve a supplemental damages expert report, EA and Take-Two will serve responsive reports, Acceleration Bay will serve a proffer of the damages case it intends to offer in each of the EA and Take-Two Actions, and the parties will have an opportunity to take depositions and present further briefing" (EA Action D.I.

694); WHEREAS, the parties in the EA and Take-Two Actions also have very different positions regarding how the Damages Order impacts the EA and Take-Two Actions; WHEREAS, the Court has ruled on the Parties' summary judgment motions in the EA Action, but has not yet ruled on Take-Two 's Motion for Summary Judgment ofNoninfringement in the Take-Two Action; and WHEREAS, the Parties met and conferred and agree that it would conserve the resources of the Court and of the parties to defer addressing damages issues until such time as the damages issues in the Activision Action are fully resolved and the Court has had an opportunity to rule on Take-Two' s Motion for Summary Judgment ofNoninfringement; IT IS HEREBY STIPULATED by the parties, subject to the approval of the Court, that the deadlines in the Scheduling Order in the EA Action and the Take-Two Action are taken off calendar until after both the conclusion of the resolution of damages issues in the Activision Action and the Court issues a ruling on Take-Two' s Motion for Summary Judgment of Noninfringement.

Upon the conclusion of the resolution of damages issues in the Activision Action and the issuance of a ruling on Take-Two's Motion for Summary Judgment of Noninfringement, the parties will submit a Joint Report to the Court with proposals on how the damages issues should proceed in the EA and Take-Two Actions.

WHEREAS, on December 7, 2018, the Court entered a Stipulated Order which, among other things: • took the trial dates off calendar for C.A.

619), i.e., Acceleration Bay will serve a supplemental damages expert report, EA and Take-Two will serve responsive reports, Acceleration Bay will serve a proffer of the damages case it intends to offer in each of the EA and Take-Two Actions, and the parties will have an opportunity to take depositions and present further briefing" (EA Action D.I.

694); WHEREAS, the parties in the EA and Take-Two Actions also have very different positions regarding how the Damages Order impacts the EA and Take-Two Actions; WHEREAS, the Court has ruled on the Parties' summary judgment motions in the EA Action, but has not yet ruled on Take-Two 's Motion for Summary Judgment ofNoninfringement in the Take-Two Action; and WHEREAS, the Parties met and conferred and agree that it would conserve the resources of the Court and of the parties to defer addressing damages issues until such time as the damages issues in the Activision Action are fully resolved and the Court has had an opportunity to rule on Take-Two' s Motion for Summary Judgment ofNoninfringement; IT IS HEREBY STIPULATED by the parties, subject to the approval of the Court, that the deadlines in the Scheduling Order in the EA Action and the Take-Two Action are taken off calendar until after both the conclusion of the resolution of damages issues in the Activision Action and the Court issues a ruling on Take-Two' s Motion for Summary Judgment of Noninfringement.

Upon the conclusion of the resolution of damages issues in the Activision Action and the issuance of a ruling on Take-Two's Motion for Summary Judgment of Noninfringement, the parties will submit a Joint Report to the Court with proposals on how the damages issues should proceed in the EA and Take-Two Actions.

NOTICE IS HEREBY GIVEN that on February 11, 2020, at 2:00 p.m., or as soon thereafter as counsel may be heard by the Honorable Yvonne Gonzalez Rogers in Courtroom 1, 4th Floor, United States District Court of California, 1301 Clay Street, Oakland, CA 94612, Defendant and Counterclaim-Plaintiff Acceleration Bay, LLC will and hereby does move the court for an order granting Acceleration Bay’s Motion to Strike Epic Games, Inc.’s Counterclaims-in-Reply.

To the contrary, its infringement counterclaims were only a small subset of the non-infringement claims Epic Games asserted in its complaint.

In its answer, Epic Games included six purported “counterclaims-in-reply” seeking a declaratory judgment of invalidity for each of the Asserted Patents (the “Invalidity Counterclaims-in-Reply”).

The Invalidity Counterclaims-in-Reply are not directed to any new material in Acceleration Bay’s Counterclaims, and Epic Games could have included them as affirmative claims in its complaint.

Epic Games appears to be attempting to evade this statutory scheme by withholding its invalidity claims from its complaint and characterizing them as Counterclaims-in-Reply.