Jack B. Blumenfeld, Cameron P. Clark, MORRIS NICHOLS ARSHT & TUNNELLLLP, Wilmington, DE; Michael A. Tomasulo (argued), David P. Enzminger, Gino Cheng,JoeS.

With the Take-Two Case’s appeal resolved, Defendant now moves for summary judgment of noninfringement, arguing that Plaintiff is collaterally estopped from relitigating infringementissues it lost in the Take-Two Case.

Plaintiff argued that GTAO infringes the m-regular limitation because the players’ avatars “share more data when they are near each other” thus causing an m-regular network to “arise naturally as the players are moving throughout the game.” Take-Two SJ Opinion at *8 (cleaned up).

Player Movement Issue Defendant argues that, just as with GTAO in the Take-Two Case, Plaintiff's infringement arguments rely on a “claim that the [Defendant’s] networks may or may not be m-regular depending on the players’ actions in the game.” (D.I.

This reasoning was underscored by the fact that “for the °344, ’966, and ’147 patents ... the patentee added the m-regularlimitation during prosecution” to overcome “a specific prior art reference[,]” thus barring Plaintiff “by prosecution history estoppel from now attempting to erase that limitation from the patents.” (/d.

We, the jury, unanimously agree to the answers to the following questions and return them under the instructions of this Court as our verdict in this case.

Question 2: Has Amazon proven by a preponderance of the evidence that The Boeing Company used CloudFront prior to December 2014?

Question 4: Has Acceleration Bay proven by a preponderance of the evidence that Virtual Private Cloud (“VPC”) infringed either of the Asserted Claims?

Question 5: Has Amazon proven by a preponderance of the evidence that The Boeing Company used VPC prior to December 2014?

The Foreperson should retain possession of the verdict form and bring it when the jury is brought back into the courtroom.

The purpose of this Stipulation is to narrow the issues in dispute and to streamline the presentation of evidence at the trial scheduled to begin on September 23, 2024.

Acceleration Bay may reassert its willful infringement claims against Transit Gateway and Lambda of claim 12 of the ’966 Patent and claim 6 of the ’147 Patent only in the event the case is remanded after appeal with reversal or vacatur of the Court’s grant of summary judgment that Acceleration Bay’s 2019 letter to AWS (D.I.

Case 1:22-cv-00904-RGA-SRF Document 233 Filed 09/19/24 Page 2 of 3 PageID #: 26550 Patent, and may assert that defense in the event that Acceleration Bay reasserts Transit Gateway or Lambda as accused products.

AWS may reassert that there are non-infringing alternatives in the event that Acceleration Bay reasserts its infringement allegations against Transit Gateway or Lambda of claim 12 of the ’966 Patent and claim 6 of the ’147 Patent, so long as Mr. MacCarthaigh is offered for an up-to-two-hour deposition on non-infringing alternatives.

Acceleration Bay’s claim that AWS’ infringement is willful as to CloudFront; c. AWS’s license and non-infringement defenses (including no willfulness) to Acceleration Bay’s claims of infringement; and Case 1:22-cv-00904-RGA-SRF Document 233 Filed 09/19/24 Page 3 of 3 PageID #: 26551 d. The parties’ respective damages cases.

Below, Plaintiff Acceleration Bay, LLC (“Acceleration Bay”) identifies the remaining asserted patents claims:

Obviousness based on the combination of Du, Hughes, Hwang, and Olson ’966 Patent Claim Prior Art Grounds 1.

Obviousness based on the combination of Du, Hughes, Hwang, and Olson ’147 Patent Claim Prior Art Grounds 1.

The claim is directed to unpatentable subject matter (35 U.S.C. § 101) The Honorable Richard G. Andrews August 23, 2024 Page 3 1.

Further excerpts of Mr. Greene’s Opening Report were filed as Exhibit I to AWS’s Opposition to Acceleration Bay’s Motion and can be found at D.I.

I am duly licensed to practice law in the State Maryland and the District of Columbia and am admitted pro hac vice in this action.

Attached as Exhibit 54 is a true and correct copy of Amendment No. 1 to the AWS- Boeing Enterprise Customer Agreement, dated March 22, 2013, bearing production number

Attached as Exhibit 55 is a true and correct copy of Amendment No. 2 to the AWS- Boeing Enterprise Customer Agreement, dated April 2, 2013, bearing production number

Attached as Exhibit 56 is a true and correct copy of Amendment No. 3 to the AWS- Boeing Enterprise Customer Agreement, dated January 26, 2018, bearing production number

Attached as Exhibit 66 is a true and correct copy of the October 11, 2022 version of a webpage entitled, “Amazon EKS features,” bearing production number

There is no genuine disputefortrial that in 2010 bocinii PE Boeing thus could not transferthat right to ABin 2014—indeed, as AWS’s opening brief detailed, patent owners “cannot transfer an interest greaterthanthat which [they] possess[].”!

.8 Thus, of the 2010 AWS-Boeing Agreement unambiguously Nothing supports limiting this license to any time period before patent expiration.10 And there is no genuine dispute that, by 2014, Boeing had AWS produced two spreadsheets detailing , including .9 .

And regardless, it is dispositive that AB’s 2019 letter does not contain any “specific charge[s] of infringement by … specific accused product[s] or device[s].”60 Thus, partial summary judgment limiting the damages period to after July 6, 2022 is warranted.

Similar cases AWS cited further support that, including Bench Walk, in which this Court dismissed willfulness based on substantially identical facts.67 AB only attempts to

AB’s opposition argues Dr. Cole “details his assessment of these considerations on a function-by-function basis.”113 But the passage AB cites does not address whether VPC’s features were standard in the industry (Factor 1) or how much they cost to develop (Factor 2);114 and his analysis of consumer demand (Factor 6) is limited to unsupported assertions regarding how much consumers would use or value particular features.115 AB does not dispute that Dr. Cole never reviewed any evidence underlying these considerations, including customer surveys, financial records, or competitor product materials.116 Instead, it argues his “industry experience and expertise” gave him an “understand[ing]” of these issues, and evidentiary support was unnecessary.117 But Dr. Cole testified, for example, that he did not know whether any AWS competitors offered the features he analyzed.118 And AB cites no caselaw for the proposition that “industry experience” exempts an expert from the requirement their opinions be based on “sufficient facts or data.”119 Furthermore, AB fails to address Dr. Cole’s misapplication of apportionment percentages to the accused products.

The standard to do so is “high,” because to assert inherency for obviousness, “the limitation at issue necessarily must be present, or the natural result of the combination of elements explicitly disclosed by the prior art.” PAR Pharm., Inc. v. TWI Pharms., Inc., 773 F.3d 1186, 1195-96 (Fed. Cir. 2014) (emphasis added).

But that case, Meyer Intellectual Properties Ltd. v. Bodum, Inc., pertains to whether an expert’s report met the disclosure requirements of Rule 26, not whether an opinion was sufficiently supported to be admissible under FRE 702 and Daubert to carry the challenger’s clear and convincing evidentiary burden.

Here, the technology is complex, as demonstrated by Mr. Greene’s admission that explaining how to “combine the teachings of Du, Hughes, Hwang and/or Olson to arrive at the asserted claims” to a jury would not be possible “in a short period of time” and would require “several, fairly thick books on the topic.” D.I.

Finally, AWS’ claim that Ms. Sultanik has 20 years of experience and reviewed “hundreds of documents,” two dozen depositions, and all of the asserted patents is not a basis for her to give an unexplained opinion and just ask the jury to take her word for it.

The result is an input for Ms. Kindler’s Georgia- Pacific analysis that rests exclusively on a stack of assumptions, and not on any reliable basis.6 Ms. Kindler intends to testify to the jury that, inter alia, the alleged NIAs involved minimal cost and effort.

Amazon Web Services, Inc.’s (“AWS”) summary judgment and Daubert motions ignore Acceleration Bay, LLC’s (“AB”) substantial evidence of infringement and damages, including AWS’ technical documents, the binding admissions of its corporate witnesses, and detailed expert opinions.

3d at 831-32 (refusing to dismiss patentee’s claims based on out of court financial spreadsheets being offered to proof truth of required license terms where alleged infringer did not establish that “the statements’ contents could be presented in an admissible form at trial”).

“[J]udicial estoppel is inappropriate unless the earlier position was accepted by a court or agency,” which was not the case here because the Epic Games decision denied AB’s motion to dismiss (a fact that AWS omits from its discussion).

“Under Halo, the concept of ‘willfulness’ requires a jury to find no more than deliberate or intentional infringement.” SRI Int’l, Inc. v. Cisco Sys., Inc., 14 F.4th 1323, 1330 (Fed. Cir. 2021), quoting Eko Brands, LLC v. Adrian Rivera Maynez Enters., Inc., 946 F.3d 1367, 1378 (Fed. Cir. 2020) (reversing JMOL of no willful infringement).

AWS seeks to transform Judge Fallon's Order resolving a discovery dispute over AWS’ failure to produce relevant financial information into a case dispositive ruling on the substance of AB's infringement positions.

Plaintiff Acceleration Bay (“AB”) has filed motions for summary judgment and to exclude testimony of Defendant Amazon Web Services, Inc. (“AWS”) experts Joe Greene, Nadya Sultanik, and Lauren Kindler.

Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate when “there is no genuine issue as to any material fact” and the moving party “is entitled to judgment as a matter of law.” In applying this standard, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [the non-movant’s] favor.”2 So, for instance, AB, as the moving party, bears the burden of proving that there is no genuine issue of material fact that Hyperplane meets the limitations in question.3 To be sure, a patentee “must make a prima facie showing of infringement as to each accused device before the burden shifts to the accused infringer

Moreover,the plaintiff in 2 Wire had affirmatively metits burden by providing facts sufficient to show it was entitled to summary judgment.Here, AB’s own evidence, at best, creates genuine factual disputes since, for example, the diagrams it relies on as proof of infringement do not conclusively depict networks configured to maintain a particular state.

For instance, Dr. Medvidović stated in his opening report that his section on the benefits of AWS’s technology was “adapted from Acceleration Bay’s interrogatory responses and further revised based on [his] review of the evidence.”134 And AB’s assertion that expert testimony must rely on specific documentation or sworn declarations is unfounded.

152-2, Ex. 27 at 25. criticizes Ms. Sultanik for not citing Mr. MacCárthaigh’s deposition testimony, she could not cite what AB chose not to elicit.138 AB’s expert Dr. Cole also confirmed that this NIA was available on the market, because he had “worked on those types of networks before.” 139 He likewise conceded that the resulting network would be non-infringing: “[i]f you start removing some of the nodes, so some have three connections, some have four connections…that could be partially connected, which wouldn’t be an m-regular network.”140 Applying over 20 years of industry experience and information gleaned from hundreds of documents, 23 depositions, and the asserted patents themselves,141 Ms. Sultanik concluded that the NIAs identified in AWS’s November 2023 supplemental interrogatory response were available, acceptable, and easy to implement.142 Her opinions are grounded in facts that AB chose not to question Mr. MacCárthaigh about.

AWS also moves for summary judgment that Plaintiff Acceleration Bay LLC (“Plaintiff” or “AB”) is barred from asserting any claims of infringement against the VPC, EC2, and CloudFront accused products .

AWS also moves for summary judgment that Plaintiff has failed to carry its burden to prove entitlement to pre-suit damages.

AWS also moves to exclude the testimony of Plaintiff’s expert witnesses, Dr. Eric Cole and Lance Gunderson, pursuant to Fed. R. Evid.

The grounds for these motions are fully set forth in the Opening Brief and supporting declaration filed contemporaneously herewith.

Jack B. Blumenfeld (#1014) Jennifer Ying (#5550) 1201 North Market Street P.O.

Hitkansut LLC v. United States, 130 Fed. Cl. 353, 386-87 (2017), aff’d, 721 F. App’x 992 (Fed. Cir. 2018) (citing Princeton Biochems., Inc. v. Beckman Coulter, Inc., 411 F.3d 1332, 1337 (Fed. Cir. 2005)) (denying summary judgment of obviousness where expert utilized similar method as Dr. Greene because such an “approach is not consistent with the language of Section 103 or the teachings of the Federal Circuit”).

Federal Circuit precedent requires “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness” in order to help “a lay jury in avoiding the pitfalls of hindsight that belie a determination of obviousness.” Innogenetics, N.V. v. Abbott Lab’ys, 512 F.3d 1363, 1373 (Fed. Cir. 2008) (citation omitted).

In NXP, as here, Ms. Kindler could not identify at deposition how the witness reached the conclusions that he did, chose not to perform an independent analysis of her own, and failed “at minimum, to ensure that [the apportionment] methodology was adequately explained, either in her report or elsewhere in the record.” Id. at *5.

Essentially, Ms. Kindler tries to shield herself from cross-examination or the consequences of having the inputs into her analysis excluded or disregarded by the fact finder by divorcing her ultimate opinion from the “reams of evidence that she claims she considered.” Open Text S.A. v. Box, Inc., No. 13-cv-04910-JD, 2015 WL 349197, at *3, 6 (N.D. Cal.

In her list of factors considered, Ms. Kindler identified another settlement and patent cross license agreement between Acceleration Bay and Epic Games dated April 2020 that included, among other financial terms,

13 Id. Five are accused “through use of VPC” (CloudFront, Elastic Kubernetes Service, GameLift, App Mesh, and Luna), and three “through use of VPC and Transit Gateway” (EC2, Prime Video, and Twitch).

Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate when “there is no genuine issue as to any material fact” and the moving party “is entitled to judgment as a matter of law.” When the nonmoving party bears the burden of proof on an element at trial, but fails to supply sufficient evidence to establish that element, summary judgment must be granted in favor of the moving party.40 And the nonmoving party “must present more than just ‘bare asser- tions, conclusory allegations or suspicions’” to avoid summary judgment.41 Federal Rule of Evidence 702 requires that expert testimony be “not only relevant, but reliable.”42 Reliable testimony “must be based on the ‘methods and procedures of science’ rather than on ‘subjective belief or unsupported speculation’.”43 And the Federal Circuit has explained

In short, AB’s letter did not provide actual notice of alleged infringement of any products as required under § 287.80 Partial summary judgment limiting the damages period to after July 6, 2022, when AB filed this case, is thus warranted.

Dr. Cole based his determination of the “technical value of infringing functionality” solely “on what…features [were] included on the AWS website.” 166 As such, the reliability of his analysis rested on his use of the right lists’ features, and any change to the published lists could alter his conclusions.167 That means he had to rely on features present in the accused products from March 13, 2019 through August 7, 2022, the maximum damages period in this case.168 But Dr. Cole did not review any versions of the AWS website that existed during this damages period;

Indeed, this Court excluded a similar opinion by AB’s damages expert in the Activision case because “[j]ury-determined damages are not evidence of arm’s-length negotiations between parties, and will not help the trier of fact determine a royalty” and “[a] jury verdict does not represent evidence from which a hypothetical negotiation can be reliably determined.”223 For the same reasons, Mr. Gunderson’s Second Supplemental Expert Report, which solely addresses the Activision jury verdict, should also be excluded.

524 at 2-7, 5 (Plaintiff arguing that, "Even Take Two' s counsel acknowledged the understanding that the [modified GTAO] image was only intended to illustrate concepts and was not offered as evidence of infringement during the experts' depositions.")).

Second, Defendants argue that the impropriety of Plaintiff's litigation conduct-including the lack of candor, forcing relitigation of lost issues, and the pattern of inappropriate conduct in previous cases-further proves that this case was exceptional.

Regarding the lack of candor, I stated in an earlier Order in a related case that I was "concerned that Plaintiff's national counsel cannot be relied upon for 'candor to the tribunal'" based on incidents that occurred during discovery and claim construction.

Dec. 17, 2021) (pending appeal in Fed. Cir. Case No. 22-1425) ("[A] bitter losing party's difficulty in explaining its loss is never a proper basis for counsel to invoke baseless allegations ofracism and anti-Semitism to request a new trial.

I note Defendants' request that I reconsider my decision in Dragon Intellectual Property (somewhat ironically given their complaint that Plaintiff relitigates issues), and extols the virtue of Iris Connex LLC v. Dell, Inc. , 235 F.Supp.

Have you heard of Acceleration Bay or Activision Blizzard before today, and if so do you have any strong feelings about either of those companies that might affect your ability to be a fair and impartial juror in this case?

The lawyers who appeared in this case and who may appear at trial are: a. Paul Andre; b. Jordan T. Bergsten; c. Jack B. Blumenfeld; d. Cameron P. Clark; e. Lauren E. Douville; f. Christina Finn; g. Aaron Frankel; h. John D. Garretson; i. Aaron E. Hankel; j. James Hannah; k. Lisa Kobialka; l. Anita I. Liu m. Cristina Martinez; n. Maxwell C. McGraw; o. Jeremy Tigan; p. David Morehan; q. Philip A. Rovner; and r. B. Trent Webb.

Please say yes if you familiar with any of these witnesses: a. Dr. Harry Bims; b. Virgil Bourassa; c. Steven Caliguri; d. Patrick Conlin; e. Joe Daniele f. Patrick Dawson; g. Pat Griffith; h. Dr. Fred Holt; i. Catharine Lawton; j. Linda Magnotti k. Kurtis McCathern; l. Dr. Nenad Medvidovic; m. Russell Parr; n. Natasha Radovsky; o. Glen Van Datta; p. Joe Ward; and q. Dr. Stephen Wicker.

r. Robert Kostich Now let me turn to questions about your experience with the legal field, patents, or the subject matter involved in this case.

Is there any reason that you could not be a conscientious, fair, and impartial juror in this case and render a true and just verdict without fear, favor, sympathy, or prejudice according to the law as I will explain it to you?