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.