In Dkt. No. 762, the court reiterated that “Acceleration will not be permitted to rely on damages theories that have already been excluded,” including apportionment based on Activision’s consumer survey evidence.

Acceleration Bay’s theory is that Activision uses the infringing system, which consists of servers located entirely within the United States, to support North and South American foreign World of Warcraft players.

Their evidentiary value is limited, however, by, inter alia, the fact that patentees could artificially inflate the royalty rate by making outrageous offers.”); see also Deere & Co. v. Int’l Harvester Co., 710 F.2d 1551, 1557 (Fed. Cir. 1983); Atl.

Activision objects to the inclusion of total user numbers for World of Warcraft and Call of Duty because the court has excluded any per-user damages opinions.

Acceleration argues that the total number of users is relevant to various disputed issues, such as the overall profitability, popularity, and commercial success of the games.

The parties will be jointly responsible for providing lunches to the jurors for each of the five anticipated days of the trial.

The courtroom deputy will inform the parties if additional water is required as the trial progresses.

As previously states, each trial day will run from 9:00 a.m. to between 5:00 p.m. and 5:30 p.m., depending on when a convenient breaking point is reached.

I will make myself available as early as 8 a.m. each morning to address any matters that need to be resolved before the jury arrives.

Additional details regarding trial procedures will be discussed at the pretrial conference, to be held by Zoom at 2:00 p.m. Eastern Time on April 25, 2024.

On July 14, 2023, Activision requested additional briefing to resolve a claim construction issue that had arisen in this case.

I noted that in Acceleration’s view the Call of Duty game set “is configured to create an m-regular network and does not depend on any specific pre-game actions to do so.” Id. at 5.

I added that if Acceleration “is able to establish that proposition as a factual matter at trial, my disposition of the present claim construction dispute would not preclude a finding of infringement.” Id.

Following the issuance of that order, Activision filed its motion seeking to supplement Dr. Wicker’s expert report in response to the court’s claim construction.

Contrary to Activision’s contention, the court’s September 20, 2023, order did not modify the prior claim construction with respect to in-game player actions.

On July 6, 2022, Plaintiff Acceleration Bay filed a complaint against Defendant Amazon Web Services, alleging infringement of the ' 344, ' 966, ' 147, ' 634, and ' 069 patents.

... [It is] the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application."

Extrinsic evidence may assist the court in understanding the underlying technology, the meaning of terms to one skilled in the art, and how the invention works.

Defendant also contends that all asserted claims of the ' 344, ' 966, ' 634, ' 147, and ' 069 patents "include substantially similar limitations requiring ' at least three,' or 'three or more,' directly connected participants."

Defendant contends that the prosecution history supports its position because Plaintiff added '" peer-to-peer connections' and other amended language to overcome rejections" during inter partes review ("IPR").

In a related case involving the same patents, Judge Andrews clarified his construction of “m-regular,” noting that a network is not “configured to maintain” m-regularity when “the players’ actions determine how connections are formed.” Acceleration Bay LLC v. Take-Two Interactive Software, Inc., No. 16-455, Dkt. No. 492 at 15 (D. Del.

In my July 19 order, I agreed with Judge Andrews’ construction and concluded that in this case, a network will similarly “not be considered ‘m-regular’ if the players’ actions determine how connections are formed.” Dkt. No. 781 at 2.

In view of Judge Andrews’s order in Take-Two and the intrinsic record, it is clear that the operative distinction for purposes of determining m-regularity is not whether a player’s actions were taken during the game or prior to the start of gameplay.

For example, Acceleration suggests that regardless of the players’ actions, “so long as there are a sufficient number of participants, the ultimate network that Call of Duty assembles will be m-regular.” Dkt. No. 785 at 6.

If Acceleration is able to establish that proposition as a factual matter at trial, my disposition of the present claim construction dispute would not preclude a finding of infringement.

After clearing objections under the protective order, Activision’s substitute expert shall identify, by report and paragraph number, adopted opinions by no later than August 25, 2023.

Activision’s substitute expert shall not offer new opinions, rely on new documents or exhibits, or provide supplemental reports without agreement by the parties.

Activision will cover the cost of the court reporter and transcript for the deposition of the substitute expert.

Macedonia and Kelly during cross-examination of the substitute expert on issues germane to adopted opinions.

Jack B. Blumenfeld (#1014) Jeremy A. Tigan (#5239) Cameron P. Clark (#6647) 1201 North Market Street P.O.

After substantial pretrial proceedings, he stayed the case pending the Federal Circuit’s disposition of the appeal in the related action of Acceleration Bay LLC v. 2K Sports, Inc., No. 16-455 (D.

Judge Andrews excluded Dr. Valerdi’s opinion because it provided “no basis in fact to conclude that the creation of the infringing network saved Defendant any money over a theoretical alternative.” Id. at 7.

In particular, Judge Andrews explained that the Activision surveys did not “attempt to discern what portion of a gamer’s decision to buy the game is driven by the multiplayer functionality versus all of the other unpatented features.” Dkt. No. 692 at 9.

Cognizant of that statutory directive, the Federal Circuit has held that “reasonable royalty damages can be awarded even without [expert] testimony” in an amount that “the record evidence will support.” Dow Chem.

It is true that the jury may not ultimately arrive at an award that is supported by the record, but it is “entirely speculative” to reach that conclusion before the trial has even begun and to foreclose Acceleration from even attempting to present a persuasive damages case.

AMAZON WEB SERVICES, INC., a Delaware Corporation,

Pursuant to Federal Rule of Civil Procedure 56, Plaintiff Acceleration Bay, LLC (“Acceleration Bay”), hereby moves the Court for (1) partial summary judgment that the Transit Gateway product satisfies the m-regular and incomplete limitations of the asserted claims, (2) summary judgment that the asserted claims are novel and non-obvious, and (3) summary judgment that there are no non-infringing alternatives available to Defendant Amazon Web Services, Inc. Pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993) and Rule 702 of the Federal Rules of Evidence, Acceleration Bay also moves to exclude the proposed (1) invalidity opinions of Mr. Greene, (2) non-infringing alternative opinions of Ms. Sultanik and Ms. Kindler, and (3) damages opinions of Ms. Kindler.

The grounds for these motions are fully set forth in Acceleration Bay’ Opening Brief and the supporting Declaration of Christina M. Finn, filed contemporaneously herewith, and upon the papers, records, and pleadings on file with the Court.

LR 7.1.1, Acceleration Bay certifies that the parties have met and conferred on the subjects of its Daubert Motions, but were unable to reach agreement.

Attorneys for Plaintiff Acceleration Bay, LLC

For the reasons stated in the corresponding Memorandum Opinion, Defendant's motion for summary judgment of non-infringement based on collateral estoppel (D.I.

Activision Blizzard does not infringe any of the asserted claims under the Doctrine of Equivalents because collateral estoppel establishes 11011- infringement.

Entered this 25th day of October, 2022.

Defendant asserts that this theory is collaterally estopped because, as was considered with the player movement issue for GTAO, "whether the Destiny network ever becomes or stays m-regular ... depends on 'players' actions."'

454, Ex. 28 (Mitzenmacher Report) at ifif291-296 (explaining that "the [Destiny] software attempts to maintain connectivity among the players once a multiplayer game session has been established" even "when a peer migrates to a different Bubble")).

454, Ex. 28 at ,r,r80, 89, 191 ("Thus, once this information from the BAP server and gatherer is provided to the incoming participant, connections to the broadcast channel and neighbors in the game session will 1 I understand the expert to mean the asserted claims, not the specifications.

Defendant asserts that, in this case, "Plaintiff's expert opinions on DOE are nearly identical to the ones this Court found legally barred [in Take-Two], such that collateral estoppel applies here as well."

In granting summary judgment in the Take-Two SJ Opinion, I explained that Plaintiffs DOE arguments for both GTAO and NBA 2K were flawed because they attempt "to remove inconvenient claim elements, such as them-regular limitation."

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.