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.

For the reasons set forth in the accompanying Memorandum Opinion, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment (D.I.

424) is GRANTED-IN PART and DENIED-IN-PART and Plaintiffs Motion for Partial Summary Judgment (D.I.

Defendant is granted: summary judgment of no infringement of the asserted claims of the '344, '966, and '497 Patents based on the FIFA games; summary judgment ofno 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; summary judgment of no infringement of the asserted method claims of the ' 069 Patent; and summary judgment of no literal infringement of the ' 14 7 Patent.

Entered this -ir day of March 2019.

United St tes District Judge

WHEREAS, the Court set the due date for the parties' opening summary judgment briefs to March 15, 2019 (D.I.

456); WHEREAS, the parties submitted a joint stipulation relating to the schedule for opposition and reply briefs; WHEREAS, the parties have further conferred regarding scheduling for summary judgment briefing; IT IS HEREBY STIPULATED AND AGREED, by the parties, subject to the approval of the Court that the opening, opposition and reply briefs shall be scheduled as follows: Event Summary judgment motions, Opening briefs in support and Daubert motions Oppositions to summary judgment and Daubert motions Reply briefs in support of summary judgment and Daubert motions Take Two Action April 26, 2019 June 14, 2019 July 12, 2019

... POTTER ANDERSON & CORROON LLP MORRIS, NICHOLS, ARSHT & TUNNELL LLP By: Isl Philip A. Rovner Philip A. Rovner (#3215) Jonathan A. Choa (#5319) Hercules Plaza P.O.

The Parties dispute whether Defendant must provide Plaintiff with updated user data for World of Warcraft.

They flagged this dispute in their Supplement Joint Proposed Pretrial Order.

Defendant now takes the position that I technically only resolved the issue regarding "financial data."

Rather, I understand the record to support Plaintiffs position that Defendant agreed to update the information which was at issue in Paragraph 56 of the Proposed Pre-Trial Order.

Accordingly, within one week, Defendant shall produce to Plaintiff updated user data for World of Warcraft in the same form provided during fact discovery.

513) directing the parties to meet and confer regarding the schedule for the resolution of damages issues in C.A.

No. 16-455 (RGA) (the "Take Two Action"); WHEREAS, the parties stipulated that Acceleration Bay' s damages theories based on the Uniloc verdict are stricken, that Acceleration Bay may serve a single supplemental expert report in each of the EA Action and the Take Two Action, and that the supplemental expert reports shall be substantially similar to the supplemental damages report that Acceleration Bay provided in C.A.

512), but were unable to reach agreement on other case management issues; and WHEREAS, the Court scheduled oral argument on the parties' motions for summary judgment in the EA Action to be held of February 28, 2019 (D.I.

517); WHEREAS, the Parties have agreed to follow the staggering of dates as set forth in the Activision case, but disagree when the process should begin; WHEREAS, as set forth below, Acceleration Bay requests that the process commence after the Court has ruled on the damages issues in the Activision case, and Defendants request that the process commence in late February 2019.

The parties' proposals are set forth below and will be explained in letters to be filed tomorrow.

WHEREAS, opening summary judgment motions are currently due in this action on February 15, 2019; WHEREAS , the Court scheduled oral argument on the parties' motions for summary judgment in C.A.

No. 16-454 (RGA) (the "EA Action") on February 28, 2019; WHEREAS , Acceleration Bay requests that this Court continue the date for opening summary judgment motions until thirty days after the Court rules on the summary judgment motions in the EA Action; WHEREAS, Take Two opposes Acceleration Bay' s request for a continuance; WHEREAS , the parties ' positions regarding Acceleration Bay' s request for a continuance are set forth in letters to be filed tomorrow.

.. -~ POTTER ANDERSON & CORROON LLP MORRIS, NICHOLS, ARSHT & TUNNELL LLP By: Isl Philip A. Rovner Philip A. Rovner (#3215) Jonathan A. Choa (#5319) Hercules Plaza P.O.

SO ORDERED this If> day of~ , 2019

Client-server middleware systems where a server coordinates the communications between the various clients who are sharing the information existed and were in public use prior to the alleged inventions of the Asserted Patents.

Defendant Acceleration, upon information and belief, is a Delaware limited liability company, which has at all times represented that it has a principal place of business within the Northern District of California.

Presently, Acceleration’s website states that its principal and only place of business is located at 951 Mariners Island Blvd, San Mateo, California, 94404.

Acceleration has established minimum contacts with the forum and the exercise of jurisdiction would not offend traditional notions of fair play and substantial justice.

1 2 3 4 5 6 7 8 9 the right to challenge prudential standing, Plaintiff brings this declaratory judgment action seeking a declaration that it and the Accused Products do not infringe any of the Asserted Patents.