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

WHEREAS, the Court, having considered both parties' submissions setting forth their respective positions concerning pre-trial deadlines in the above captioned action; IT IS HEREBY ORDERED this 2f day of-++-"~'"',.___••_""-_..,..-~- -~ 2018, that: Acceleration Bay' s proposed schedule is..aci~M-9!==•!!?.

ichard G. Andrews Honorable United St es District Judge 5850581

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

WHEREAS, the Court ordered the parties to file a stipulation with trial dates for C.A.

No. 16-455 (RGA (the "Take-Two Action) as well as certain due dates concerning the conclusion of expert discovery in the Take-Two Action; and WHEREAS, the parties conferred regarding scheduling in these actions; IT IS HEREBY STIPULATED AND AGREED, by the parties, subject to the approval of the Court that the trials and pre-trial conferences shall be scheduled as follows: • Pre-Trial Conference (EA Action) - February 22, 2019 @ \Q".OO A-r" • Trial (EA Action) - March 4, 2019 @ q:~ NV\ • Pre-Trial Conference (Take-Two Action) -April 26, 2019-(ifthe trial starts Ma)' 6, 2019) or May 3, 2019 (if the trial starts May 13, 2019) @ oi·,oo NY' • Trial (Take-Two Action) - May 6, 2019 or Ma:y 13, 2019 (ifthe Court is unavailable on May 6, 2019); and @ C\~-WA-1"'- The parties shall simultaneously file letters explaining their respective competing positions concerning pre-trial deadlines and briefing issues in the Take-Two Action by June 22, 2018: Event Reply Expert Reports (Take Two Action Close of expert discovery (Take-Two Action Opening summary judgment and Daubert motions (Take Two Action Oppositions to summary judgment and Daubert motions Take-Two Action Reply briefs in support of summary judgment and Daubert motions.

At the pretrial conference on April 20, 2018, I indicated that I would direct the parties to specific summary judgment issues on which I want to hear argument on May 17, 2018.

The parties are directed to focus their arguments on the following issues: (1) whether Kegel and ActiveNet do not invalidate the asserted claims of the '497 patent (D.I.

448 at 14); (2) whether the asserted claims of the '634 patent are indefinite and therefore invalid (D.I.

474 at 32); (3) whether the "computer readable media" claims are invalid as including non-statutory subject matter (Id. at 37); (4) whether Activision does not infringe the '344 and '966 patents because Activision does not make, use, or sell the accused networks (CoD, Destiny) (Id. at 3); and (5) whether Activision does not infringe the '474 patent because it does not make, use, or sell the accused hardware component (CoD, Destiny) (Id. at 6).

Entered this Ji_ day of May, 2018. t ~ t

At the pretrial conference on April 20, 2018, I indicated that I would direct the parties to specific summary judgment issues on which I want to hear argument on May 17, 2018.

The parties are directed to focus their arguments on the following issues: (1) whether Kegel and ActiveNet do not invalidate the asserted claims of the '497 patent (D.I.

448 at 14); (2) whether the asserted claims of the '634 patent are indefinite and therefore invalid (D.I.

474 at 32); (3) whether the "computer readable media" claims are invalid as including non-statutory subject matter (Id. at 37); (4) whether Activision does not infringe the '344 and '966 patents because Activision does not make, use, or sell the accused networks (CoD, Destiny) (Id. at 3); and (5) whether Activision does not infringe the '474 patent because it does not make, use, or sell the accused hardware component (CoD, Destiny) (Id. at 6).

Entered this Ji_ day of May, 2018. t ~ t

At the pretrial conference on April 20, 2018, I indicated that I would direct the parties to specific summary judgment issues on which I want to hear argument on May 17, 2018.

The parties are directed to focus their arguments on the following issues: (1) whether Kegel and ActiveNet do not invalidate the asserted claims of the '497 patent (D.I.

448 at 14); (2) whether the asserted claims of the '634 patent are indefinite and therefore invalid (D.I.

474 at 32); (3) whether the "computer readable media" claims are invalid as including non-statutory subject matter (Id. at 37); (4) whether Activision does not infringe the '344 and '966 patents because Activision does not make, use, or sell the accused networks (CoD, Destiny) (Id. at 3); and (5) whether Activision does not infringe the '474 patent because it does not make, use, or sell the accused hardware component (CoD, Destiny) (Id. at 6).

Entered this Ji_ day of May, 2018. t ~ t

To just briefly take up the procedural point first, we do think it's important to note that Sony was responding to a motion to compel in which the Plaintiff sought preclusion under Rule 37 as its primary relief, and only as an alternative did Acceleration Bay seek production of an unredacted agreement.

This agreement between Sony and the Defendants are not comparable and thus do not fit within the damages rubric established under Georgia-Pacific and that have been amplified by the Federal Circuit in what we see as a consistent and persistent trend of caselaw over at least the last six years clarifying what types of information are accessible forces for an analysis concerning what an appropriate reasonable royalty is.

And I did listen carefully to Mr. Frankel's argument and the Special Master's question on this point, and I keep coming back to the same observations, which are the Plaintiff has in the information already produced the very structure of the relationships between Sony and the publisher Defendants.

Not only does it say it in the reply, but it also says it in Exhibit B-8 to our motion where Mr. Frankel writes to Kathleen and he says, and I quote, "As I indicated during our meet and confer, I confirmed that Kramer Levin informed Mr. Barbanel of Defendants' request for a deposition and acted under his direction.

And then it goes on -- and if we turn to page 13 and 14 of their reply we get into real Alice in Wonderland territory where they make the argument -- they don't respond to our cases that say if you refresh your recollection of the witness, the other side gets to see the documents, which is a pretty fundamental bedrock principle that's codified in the Federal Rules of Evidence.

Defendants argued that Figures 3A and 3B of the '344 patent do not provide "sufficient structure" for performing the recited function of "connecting to the identified broadcast channel."

Paragraph 57 of Plaintiffs expert Dr. Nenad Medvidovic's declaration identifies a single "algorithm" described in Figure 8 and its corresponding descriptions in the '966 and '344 patent specifications.

"Plaintiff, on the other hand, argued that Figures 3A and 3B and corresponding specifications do in fact provide an independent algorithm for 'connecting,' citing a new declaration from Dr. Medvidovic (D.I.

388 at 3; Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1313-14 (Fed. Cir. 2012) (holding that the issue of whether structure is "sufficient ... requir[ es] consideration of what one skilled in the art would understand from [the] disclosure, whether by way of expert testimony or otherwise")).

But by eliminating Defendants' "at all times" language, my construction requires only that the network is configured to have each participant be connected to m neighbors.

My prior Order did not permit Plaintiff to so limit production of its communications with Reed Smith regarding possible funding of this litigation.

RD 10439410v.1 Much of Plaintiff’s defense is based on the parties’ Protective Order dated February 22, 2017, which it interprets as the sole guidance on discovery regarding a testifying expert.

However, I do not read this Protective Order as precluding discovery permitted by applicable procedural rules into whatever pre filing evaluation or opinions Dr. Medvidovic may have reached, irregardless of whether he relied upon them for his expert report submitted in this case.

RD 10439410v.1 signing of a funding agreement,; and [b] Dr. Medvidovic can be deposed for four hours on any subjects; other than his communications with counsel; and drafts of his expert report that he submitted in the litigation need not be produced.

While I am sympathetic to Plaintiff’s argument at this late stage of the litigation and in light of the busy schedule for counsel and their witnesses, I find a further deposition of Dr. Bims to be important and useful in understanding the basis for Plaintiff’s damages claims.

Plaintiff Acceleration Bay LLC respectfully moves the Court for leave to file the attached, two-page reply (Ex. 1 hereto), in response to Defendant’s Opposition (D.I.

The requested relief is sought in order to address three points raised in Defendant’s Opposition (1) Defendant’s admission that SEER-SEM is a reliable methodology, (2) Defendant’s characterization of Dr. Valerdi’s inputs to the SEER-SEM model as unreliable, and (3) Defendant’s characterization of the Federal Circuit’s decision in Prism Techs.

A response is required to address Defendant’s mischaracterizations on each of these issues.

On September 26 and 27, 2019, Delaware counsel for Acceleration Bay contacted Defendant’s Delaware counsel by telephone and email to discuss this motion.

Defendant does not agree to the relief requested.

Defendants argued that Figures 3A and 3B of the '344 patent do not provide "sufficient structure" for performing the recited function of "connecting to the identified broadcast channel."

Paragraph 57 of Plaintiffs expert Dr. Nenad Medvidovic's declaration identifies a single "algorithm" described in Figure 8 and its corresponding descriptions in the '966 and '344 patent specifications.

"Plaintiff, on the other hand, argued that Figures 3A and 3B and corresponding specifications do in fact provide an independent algorithm for 'connecting,' citing a new declaration from Dr. Medvidovic (D.I.

388 at 3; Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1313-14 (Fed. Cir. 2012) (holding that the issue of whether structure is "sufficient ... requir[ es] consideration of what one skilled in the art would understand from [the] disclosure, whether by way of expert testimony or otherwise")).

But by eliminating Defendants' "at all times" language, my construction requires only that the network is configured to have each participant be connected to m neighbors.

Defendants argued that Figures 3A and 3B of the '344 patent do not provide "sufficient structure" for performing the recited function of "connecting to the identified broadcast channel."

Paragraph 57 of Plaintiffs expert Dr. Nenad Medvidovic's declaration identifies a single "algorithm" described in Figure 8 and its corresponding descriptions in the '966 and '344 patent specifications.

"Plaintiff, on the other hand, argued that Figures 3A and 3B and corresponding specifications do in fact provide an independent algorithm for 'connecting,' citing a new declaration from Dr. Medvidovic (D.I.

388 at 3; Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1313-14 (Fed. Cir. 2012) (holding that the issue of whether structure is "sufficient ... requir[ es] consideration of what one skilled in the art would understand from [the] disclosure, whether by way of expert testimony or otherwise")).

But by eliminating Defendants' "at all times" language, my construction requires only that the network is configured to have each participant be connected to m neighbors.

My prior Order did not permit Plaintiff to so limit production of its communications with Reed Smith regarding possible funding of this litigation.

RD 10439410v.1 Much of Plaintiff’s defense is based on the parties’ Protective Order dated February 22, 2017, which it interprets as the sole guidance on discovery regarding a testifying expert.

However, I do not read this Protective Order as precluding discovery permitted by applicable procedural rules into whatever pre filing evaluation or opinions Dr. Medvidovic may have reached, irregardless of whether he relied upon them for his expert report submitted in this case.

RD 10439410v.1 signing of a funding agreement,; and [b] Dr. Medvidovic can be deposed for four hours on any subjects; other than his communications with counsel; and drafts of his expert report that he submitted in the litigation need not be produced.

While I am sympathetic to Plaintiff’s argument at this late stage of the litigation and in light of the busy schedule for counsel and their witnesses, I find a further deposition of Dr. Bims to be important and useful in understanding the basis for Plaintiff’s damages claims.