WHEREAS, the Parties have submitted letters and a joint statement regarding suggested changes to the case schedule (D.I.

424,426,467,476), and Defendant's Daubert Motion to Exclude Expert Opinions of Dr. Nenad Medvidovic, Dr. Michael Mitzenmacher, Dr. Christine Meyer, Dr. Harry Bims, and Dr. Ricardo Valerdi (D.I.

500) which resolved the motions then pending in a related action, Acceleration Bay LLC v. Activision Blizzard Inc., No. 16-453; WHEREAS, my resolution of certain Daubert motions significantly impacted Plaintiffs damages case in the Activision Blizzard matter; WHEREAS, trial in the Activision Blizzard matter has been postponed indefinitely pending resolution of the admissibility of Plaintiff's remaining damages case; WHEREAS, Acceleration Bay's proposed damages expert's opinion is very similar to the opinion I excluded in the Activision Blizzard matter; WHEREAS, I do not intend to change my position that Plaintiffs expert's opinion based oh the Uniloc USA, Inc. v. EA, No. 6: 13-cv-00259-RWA (E.D.

Dec. 15, 2014), jury verdict is inadmissible; WHEREAS, I do not believe that issues with Plaintiffs damages case require delaying trial in this matter, but I agree that the pending damages motions should be addressed, if at all, at a later date; WHEREAS, my initial review of the briefing in this case has revealed that some of the same general summary judgment issues addressed in the Memorandum Opinion are repeated; and WHEREAS, the Parties are in a better position than the Court to determine if, and to what extent, issues resolved in the Memorandum Opinion bear on the appropriate resolution of the summary judgment motions; NOW THEREFORE this 26 day of November 2018, IT IS ORDERED that the oral argument scheduled for December 19, 2018 at 10:00 AM is rescheduled to December 20, 2018 at

499) that may bear on the summary judgment motions; IT IS ORDERED that the Parties' request that I postpone the trial in this matter is DENIED subject to my reconsideration following discussion with the Parties at the December 20, 2018 argument; and IT IS FURTHER ORDERED that, if Plaintiff intends to offer any damages theories in this case other than the ones it currently has, it needs to meet-and-confer with Defendant and file any necessary motion no later than December 7, 2018.

The Parties completed the current briefing on Plaintiffs damages case in great haste and with a focus on the impending trial.

Moreover, I suspect Plaintiffs articulation of its damages case will evolve as it supplements its expert reports and develops its proffer.

Plaintiff argues that I committed legal error requiring reconsideration when I precluded introduction of an agreement between Microsoft and Defendant related to use of the Xbox platform.

Reconsideration is appropriate based on " (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion ... ; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice."

1 Whether an expert is precluded from considering the Agreement among the ancillary indicators of the value of the patented invention is not the issue that was presented to me.

On August 29, 2018, two months before the scheduled trial, I issued an Order striking the portion of Plaintiff's primary damages expert' s reasonable royalty opinion which relied on a jury verdict in Uniloc USA, Inc. v. EA , No. 6:13-cv-00259-RWA (E.D.

I reviewed Plaintiffs revised damages case and precluded certain inadmissible pieces of evidence in an order issued on October 17, 2018, twelve days before trial.

Based on the briefing, I determined that it would not be possible for me to reach a decision on Plaintiffs damages case prior to the scheduled start of trial.

However, neither party should interpret my decision to continue the trial as an indication of my disposition toward the proper resolution of issues surrounding Plaintiffs damages case.

Once any supplementation has occurred, and any further expert depositions have been conducted, Plaintiff shall provide me with a proffer of the case it intends to submit to the jury on damages.

Plaintiffs motion to exclude Pat Griffith' s testimony about non-infringing alternatives for Call of Duty is GRANTED.

Further review of the record confirms my initial view that Defendant did not sufficiently disclose Mr. Griffith as a witness who has knowledge of non-infringing alternatives.

591-1, Exh. HI) is GRANTED for the reasons which I expressed during the pre-trial conference, but is subject to reconsideration if Plaintiff opens the door during trial.

Defendant may not refer to the role of Plaintiffs attorneys in the formation of Acceleration Bay or in the acquisition of the asserted patents.

Since there is no obviousness defense, no evidence will be presented about Sony' s employee, Mr. Van Datta, and copying.

On August 29, 2018, I excluded the opinion of Plaintiffs reasonable royalty expert, Dr. Christine Meyer, to the extent that it relied on a jury verdict from Uniloc USA, Inc. v. EA, No. 6:13-cv-00259-RWA (E.D.

Mr. Ward invoked attorney-client privilege or referenced counsel when asked more specifically about the value of the patents, about prospective licenses, or about any economic fact that might support a reasonable royalty.

At the bottom of the info graphic there are a series of boxes that represent various industries ( accessories, fast food, internet, entertainment, etc.).

Plaintiff has not argued that the "industry report" falls into an exception to the hearsay rule and I do not see any 1 An "infographic" is "a chart, diagram, or illustration ( as in a book or magazine, or on a website) that uses graphic elements to present information in a visually striking way."

The Agreement provides that Defendant will pay Microsoft a percentage of the wholesale price of each physical Xbox game that it produces.

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.

Defendants also represent that Mr. Kegel, the author of the reference, will testify that he last updated his website on July 17, 2 The Court of Appeals wrote under an earlier version of Rule 702, but the subsequent amendments to it were not intended to make any substantive change.

Claim 19 covers, "A non-routing tabled based computer readable medium containing instructions for controlling communications of a participant of a broadcast channel within a network, by a method comprising" several steps.

Plaintiff urges that claim 19 should read: "A computer readable medium containing instructions for controlling communications of a participant of a broadcast channel within a network, by a non-routing tabled based method comprising" several steps.

In Ricoh Co. v. Quanta Computer Inc., the Federal Circuit affirmed summary judgment for lack of "specific evidence that [Defendant] tested [the accused products] in a way that would constitute infringement."

For the reasons set forth in the accompanying memorandum opinion, IT IS HEREBY ORDERED that Plaintiffs Motion for Summary Judgment of Infringement and Validity and Motion to Exclude Expert Testimony of Catharine M. Lawton (D.I.

386) and Plaintiffs Motion to Correct Claim 19 of the '634 patent (D.I.

385) are DENIED; Activision' s Motion for Summary Judgment (D.I.

440) is GRANTED, as to the invalidity of all asserted claims of U.S. Patent No. 6,829,634 and claims 11 , 15, and 16 of U.S. Patent No. 6,732,147, and as to non-infringement of U.S. Patent Nos. 6,701 ,344, 6,714,966, and 6,920,497, limited to the accused CoD and Destiny games, and is otherwise DENIED; and Activision' s Motion to Exclude Expert Opinions of Dr. Nenad Medvidovic, Dr. Michael Mitzenmacher, Dr. Christine Meyer, Dr. Harry Bims, and Dr. Ricardo Valerdi (D.I.

441) is GRANTED, as to Dr. Meyer' s use of the Uniloc jury verdict to establish a royalty, and as to Dr. Meyer' s testimony that the Boeing/Sony License does not cover the accused products, and is otherwise DENIED.

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.

Defendants also represent that Mr. Kegel, the author of the reference, will testify that he last updated his website on July 17, 2 The Court of Appeals wrote under an earlier version of Rule 702, but the subsequent amendments to it were not intended to make any substantive change.

Claim 19 covers, "A non-routing tabled based computer readable medium containing instructions for controlling communications of a participant of a broadcast channel within a network, by a method comprising" several steps.

Plaintiff urges that claim 19 should read: "A computer readable medium containing instructions for controlling communications of a participant of a broadcast channel within a network, by a non-routing tabled based method comprising" several steps.

In Ricoh Co. v. Quanta Computer Inc., the Federal Circuit affirmed summary judgment for lack of "specific evidence that [Defendant] tested [the accused products] in a way that would constitute infringement."

For the reasons set forth in the accompanying memorandum opinion, IT IS HEREBY ORDERED that Plaintiffs Motion for Summary Judgment of Infringement and Validity and Motion to Exclude Expert Testimony of Catharine M. Lawton (D.I.

386) and Plaintiffs Motion to Correct Claim 19 of the '634 patent (D.I.

385) are DENIED; Activision' s Motion for Summary Judgment (D.I.

440) is GRANTED, as to the invalidity of all asserted claims of U.S. Patent No. 6,829,634 and claims 11 , 15, and 16 of U.S. Patent No. 6,732,147, and as to non-infringement of U.S. Patent Nos. 6,701 ,344, 6,714,966, and 6,920,497, limited to the accused CoD and Destiny games, and is otherwise DENIED; and Activision' s Motion to Exclude Expert Opinions of Dr. Nenad Medvidovic, Dr. Michael Mitzenmacher, Dr. Christine Meyer, Dr. Harry Bims, and Dr. Ricardo Valerdi (D.I.

441) is GRANTED, as to Dr. Meyer' s use of the Uniloc jury verdict to establish a royalty, and as to Dr. Meyer' s testimony that the Boeing/Sony License does not cover the accused products, and is otherwise DENIED.

For the reasons set forth in the accompanying memorandum opinion, IT IS HEREBY ORDERED that Plaintiffs Motion for Summary Judgment of Infringement and Validity and Motion to Exclude Expert Testimony of Catharine M. Lawton (D.I.

386) and Plaintiffs Motion to Correct Claim 19 of the '634 patent (D.I.

385) are DENIED; Activision' s Motion for Summary Judgment (D.I.

440) is GRANTED, as to the invalidity of all asserted claims of U.S. Patent No. 6,829,634 and claims 11 , 15, and 16 of U.S. Patent No. 6,732,147, and as to non-infringement of U.S. Patent Nos. 6,701 ,344, 6,714,966, and 6,920,497, limited to the accused CoD and Destiny games, and is otherwise DENIED; and Activision' s Motion to Exclude Expert Opinions of Dr. Nenad Medvidovic, Dr. Michael Mitzenmacher, Dr. Christine Meyer, Dr. Harry Bims, and Dr. Ricardo Valerdi (D.I.

441) is GRANTED, as to Dr. Meyer' s use of the Uniloc jury verdict to establish a royalty, and as to Dr. Meyer' s testimony that the Boeing/Sony License does not cover the accused products, and is otherwise DENIED.

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.

Defendants also represent that Mr. Kegel, the author of the reference, will testify that he last updated his website on July 17, 2 The Court of Appeals wrote under an earlier version of Rule 702, but the subsequent amendments to it were not intended to make any substantive change.

Claim 19 covers, "A non-routing tabled based computer readable medium containing instructions for controlling communications of a participant of a broadcast channel within a network, by a method comprising" several steps.

Plaintiff urges that claim 19 should read: "A computer readable medium containing instructions for controlling communications of a participant of a broadcast channel within a network, by a non-routing tabled based method comprising" several steps.

In Ricoh Co. v. Quanta Computer Inc., the Federal Circuit affirmed summary judgment for lack of "specific evidence that [Defendant] tested [the accused products] in a way that would constitute infringement."

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