I concluded that, because Dr. Valerdi's opinion was "speculative, untestable, and divorced from the facts of the case," it was not a proper basis for assessing costs saved by using an accused infringing technology.

A motion for reconsideration is only appropriate to "correct a clear error of law or to prevent a manifest injustice in the District Court's original ruling.

Plaintiff has not demonstrated that clear error led me to determine that Dr. Valerdi ' s cost savings conclusions do "not articulate any characteristics of a non-infringing network."

LLC v. Sprint Spectrum LP, 849 F.3d 1360 (Fed. Cir. 2017), ignores the fact that the expert's estimation in that case was "based on [the defendant's] particular technical requirements" as opposed to generic ones.

Plaintiff does not claim an intervening change in controlling law or that new evidence has become available since September 4, 2019 which would warrant reconsideration.

Activision’s infringing games, which have no relationship to the gamesof its competitor Take-Two, use networkstructures that are very different from those at issue in Take-Two, precluding any application of collateral estoppel, particularly on summary judgment, where Acceleration Bayis entitled to all reasonable inferences from the record.

Activision, as “[t]he proponent of claim or issue preclusion bears the burden of showing that the accused devices are essentially the sameas thosein the prior litigation.” ArcelorMittal, 908 F.3d at 1274; In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303, 1311 (Fed. Cir. 2011).

At most, Activision’s arguments, which are contradicted by the record, highlight the material disputed factual issues that preclude summary judgment, including that Call of Dutyis configured to have an m-regular Connectivity Graph Network that is not dependent on player action.

At a minimum,this substantial evidence confirms the existence of a genuine material factual dispute, precluding summary judgment that WoW is indistinguishable from GTAandtherefore subject to collateral estoppel.

at 12 (WoW:“Thus, Dr. Medvidovic’s hypothetical is at most a transient and coincidental occurrence resulting from howplayers are interacting with each other”) (citation and footnote omitted); id. at 19-20 (Destiny: “Setting an optimal number or maximum numberof neighbors does not meet this limitation”); D.I.

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.

On April 21, 2020, the Court sua sponte stayed these actions pending the resolution of the appeal from related case Acceleration Bay LLC, v. 2K Sports, Inc., 1:16-cv-00455 (the “Take Two Action”).

1 See also Phil-Insul Corp. v. Airlite Plastics Co., 854 F.3d 1344, 1353 (Fed. Cir. 2017) (explaining collateral estoppel applies on infringement “where the differences between” two products are “unrelated to the limitations in the claim of the patent”); Studiengesellschaft Kohle, mbH v. USX Corp., 675 F. Supp.

As to the ‘344 and ‘966 patents, the only remaining claim is Acceleration Bay’s argument that the Plants vs. Zombies (PvZ) and NHL games supposedly infringe through internal testing.

As to the ‘497 patent, although the Court declined to grant summary judgment on the issue of internal testing, it negated the significance of that ruling when it rejected Acceleration Bay’s sole, substantive infringement theory.

Notably, Acceleration Bay did not appeal this Court’s decision that neither of the accused networks meets the m-regular limitations, either literally or by equivalents, because each participant player connects to a server, which cannot be m-regular.

By means of a so-called "Daubert hearing," the district court acts as a gatekeeper, preventing opinion testimony that does not meet the requirements of qualification, reliability and fit from reaching the jury.

I will grant Defendant's motion to strike in 1 The Court of Appeals wrote under an earlier version of Rule 702, but the 2011 amendments to it were not intended to make any substantive change.

LLC v. Sprint Spectrum L.P., 849 F.3d 1360, 1376 (Fed. Cir. 2017) (affirming damages award that was based, in part, on the costs saved by renting an infringing backhaul structure versus building a non-infringing backhaul structure); Powell v. Home Depot US.A ., Inc. , 663 F.3d 1221 , 1240-41 (Fed. Cir. 2011) (affirming jury damages award that was based, in part, on savings from a reduction in injuries caused by a prior art radial arm saw as a result of the patented invention).

Mr. Parr's use of Defendant's survey to apportion between the value to consumers of the multiplayer functionality versus unpatented features is insufficient to meet the standard set by the Federal Circuit for proper apportionment. "

Although Plaintiff pushed the bounds of what I reasonably meant to allow it to do in supplementing its damages case, I find that, regardless of anything else, the changes do not prejudice Defendant under Pennypack.

For the reasons set forth in the accompanying Memorandum Opinion, IT IS HEREBY ORDERED that Plaintiffs Motion to Exclude Opinions of Catharine M. Lawton (D.I.

647) is GRANTED-IN-PART and DISMISSED-IN-PART as MOOT; Defendant' s Motion in Response to Acceleration Bay's Damages Proffer (D.I.

Ms. Lawton' s opinions assuming certain games are non-infringing alternatives are excluded.

Mr. Parr' s "cost savings" reasonable royalty opinions and apportionment opinions based on Activision' s customer surveys are excluded.

The Parties shall provide the Court with a status update within one week of this order.

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.

appropriate where the patent owner's proof is deficient in meeting an essential part of the legal standard for infringement, because such failure will render all other facts immaterial.").

Thus, summary judgment of non-infringement can only be granted if, after viewing the facts in the light most favorable to the non-movant, there is no genuine issue as to whether the accused product is covered by the claims (as construed by the court).

Second, Plaintiff points out, "EA works with early pre-release testers in the United States to obtain feedback regarding the Accused Products, such as FIFA, as reflected in surveys."

This foundational factual question, in addition to the hundreds of cited pages of expert reports and deposition testimony, precludes summary judgment on the issue of infringement of the topology limitations of the ' 344, '966, '069, and ' 147 Patents.

I will grant Defendant summary judgment of no infringement of the asserted claims of the ' 344, ' 966, and '497 Patents by making, selling or use, other than testing, of the NHL and PvZ games.