INC., ROCKSTAR GAMES, INC., and 2K

Defendants.

Civil Action No. 15-311-RGA For the reasons discussed in open court, IT IS HEREBY ORDERED:

Ill Ill The following motions: C.A.

!._ day of January, 2017.

Institution of an inter partes review is authorized by statute when “the information presented in the petition ... and any response ... shows that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” 35 U.S.C. § 314(a); see 37 C.F.R. § 42.108.

Upon consideration of the Petition and Preliminary Response, we conclude the information presented does not show there is a reasonable likelihood that Petitioner would prevail in establishing the unpatentability of any of claims 1–5, 7, 8, and 11–13 of the ’069 patent.

Relying on the testimony of Dr. Nicholas Bambos, Petitioner explains how the combined prior art allegedly teaches or suggests all of the claim limitations.

Petitioner contends that Gilbert’s disclosed “alternative embodiment,” in which “the step of contacting two adjacent nodes ... can be ‘executed by a joinder module within the network manager,’” meets the claim language concerning an edge connection request to a number of [randomly selected] neighboring participants.

Petitioner, however, has not sufficiently explained how or why a person having ordinary skill in the art would have combined Francis and Gilbert to achieve this claim element.

Pursuant to 37 C.F.R. § 42.108(c), a “petitioner may seek leave to file a reply to the preliminary response,” and “[a]ny such request must make a showing of good cause.” Petitioner requests authorization to file a reply to Patent Owner’s Preliminary Response to address two issues: (1) Patent Owner’s argument relating to 35 U.S.C. § 315(b), and more specifically to the effect of a district court complaint filed in 2015 and Patent Owner’s reliance on the Decision Denying Institution of Inter Partes Review in Apple Inc. v. Rensselaer Polytechnic Institute, Case IPR2014-00319 (PTAB June 12, 2014) (Paper 12); and (2) Patent Owner’s attempt to antedate a reference.

After considering the positions of the parties, we find that Petitioner has established good cause for further briefing with respect to the first issue identified above.

Because the issue of a one-year bar under § 315(b) is potentially dispositive, we believe that additional briefing will assist the panel at this stage of the proceedings.

With respect to Patent Owner’s attempt to antedate a reference, Petitioner’s request to file a reply is denied.

We are mindful of Petitioner’s position that it has not yet had an opportunity to address the evidence supplied by Patent Owner, and we will take that into account when rendering a decision whether to institute trial.

62), Defendants hereby move to compel Acceleration Bay to comply with Special Master Order No. 13.

I hereby certify that the subject of the foregoing motion has been discussed with counsel for the plaintiff and that we have not been able to reach agreement.

WHEREAS, the Special Master, having consider Defendants’ Motion to Enforce Special Master Order No. 13; IT IS HEREBY ORDERED this _______ day of _______________, 2018, that Defendants’ Motion is GRANTED as follows: 1) Acceleration Bay shall conduct a search for documents and electronically stored information that complies with the Federal Rules of Civil Procedure and the District of Delaware’s Default Standard for Discovery, including by conducting searches of the email accounts of any person from Acceleration Bay or Kramer Levin who communicated with Hamilton Capital or its counsel regarding diligence on the Hamilton Capital loan (including but not limited to Paul Andre, Jonathan S. Caplan, Steve Dennison, James Hannah and William Hannah) for emails sent to or received from Hamilton Capital or its counsel during the diligence period (including but not limited to Jonathan I. Detrixhe, James T. Hultquist, Marc S. Kaufman, and Jack Simony); 2) Acceleration Bay shall produce all documents provided to Hamilton Capital or its counsel or discussed at any meeting during the diligence period, including but not limited to the pre-filing analysis of Dr. Medvidovic, any infringement analysis, infringement claim charts, methodology for selecting the patents, “closing documents”, copies and the pricing for the licenses to the patents, information regarding the intended use of the Assigned Patents, copies of any security agreements and/or releases thereof relating to the patents; 3) Acceleration Bay shall produce all documents (including emails) in the format required by Federal Rules of Civil Procedure and the Delaware Default Standard for Discovery, including by producing the documents (and emails) as they are kept in the course of business, complete with any attachments to emails (as they were kept in the course of business) and any metadata.

4) Acceleration Bay shall make Dr. Medvidovic available for a deposition concerning his pre-suit involvement in the case, including his role in choosing the patents, his involvement in securing funding for the case, the Hamilton Capital diligence materials and his pre-filing opinions and analysis.

5) Acceleration Bay shall pay to Defendants their reasonable expenses (including attorneys’ fees) incurred as a result of Acceleration Bay’s failure to produce or log the diligence documents it exchanged with Hamilton Capital in an amount that I will determine after further submissions.

WHEREAS Activision Blizzard, Inc., Electronic Arts Inc., Take-Two Interactive Software, Inc., Rockstar Games, Inc. and 2K Sports, Inc. (collectively, "Video Game Companies") filed the following actions in the Northern District of California on June 16, 2016 seeking declaratory judgment: Activision Blizzard Inc. v. Acceleration Bay LLC, C.A.

6) ("Motion to Dismiss, Stay or Transfer"), and that motion is still pending; WHEREAS on September 1, 2016, Judge Seeborg in the Northern District of California granted Acceleration Bay's motion to transfer the DJ Actions to the District of Delaware; WHEREAS the DJ Actions were transferred to the District of Delaware and docketed as Activision Blizzard Inc. v. Acceleration Bay LLC, C.A.

); WHEREAS the parties have agreed that for the convenience of the parties and the Court the Video Game Companies will (I) withdraw their Motion to Dismiss, Stay or Transfer and (2) dismiss the DJ Actions without prejudice, with the Video Game Companies reserving all rights, including to file the claims asserted in those actions as counterclaims in the 2016 Delaware Actions; '

the Video Game Companies' Motion to Dismiss, Stay or Transfer is withdrawn; and

The Video Game Companies' time to respond to Acceleration Bay's complaints in the 2016 Delaware Actions is extended until October 4, 2016.

WHEREAS Activision Blizzard, Inc., Electronic Arts Inc., Take-Two Interactive Software, Inc., Rockstar Games, Inc. and 2K Sports, Inc. (collectively, "Video Game Companies") filed the following actions in the Northern District of California on June 16, 2016 seeking declaratory judgment: Activision Blizzard Inc. v. Acceleration Bay LLC, C.A.

6) ("Motion to Dismiss, Stay or Transfer"), and that motion is still pending; WHEREAS on September 1, 2016, Judge Seeborg in the Northern District of California granted Acceleration Bay's motion to transfer the DJ Actions to the District of Delaware; WHEREAS the DJ Actions were transferred to the District of Delaware and docketed as Activision Blizzard Inc. v. Acceleration Bay LLC, C.A.

); WHEREAS the parties have agreed that for the convenience of the parties and the Court the Video Game Companies will (I) withdraw their Motion to Dismiss, Stay or Transfer and (2) dismiss the DJ Actions without prejudice, with the Video Game Companies reserving all rights, including to file the claims asserted in those actions as counterclaims in the 2016 Delaware Actions; '

the Video Game Companies' Motion to Dismiss, Stay or Transfer is withdrawn; and

The Video Game Companies' time to respond to Acceleration Bay's complaints in the 2016 Delaware Actions is extended until October 4, 2016.

In addition, nearly all of the pretrial materials would need to be revised, including exhibits lists, deposition designations, demonstratives, jury instructions, and more.

Issues related to non-infringing alternatives, state of the art, and the role of the allegedly infringing functionality in the accused products would be presented in both trials.

The resulting inefficiency and waste can be avoided by simply continuing trial until clarity can be provided as to how to proceed.

Under these circumstances, Acceleration cannot show that bifurcation will “avoid prejudice, conserve judicial resources, enhance juror comprehension” or be more likely to “result in a just final disposition of the litigation.” Fed. R. Civ.

The Court should be afforded sufficient time to evaluate these issues before a potentially unnecessary or improper jury trial commences.

Some of the questions contain legal terms that are defined and explained in detail in the Jury Instructions.

Please refer to the Jury Instructions if you are unsure about the meaning or usage of any legal term that appears in the questions below.

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.

You have now reached the end of the verdict form and should review it to ensure it accurately reflects your unanimous determinations.

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

Activision’s Motion ignores the specific citations in the Damages Letter that demonstrate Acceleration Bay timely disclosed these claims and evidence to Activision over a year ago.

Given this good faith disclosure over a year ago, there is no prejudice or surprise to Activision and no need to disrupt the trial date nor impose the extreme and unwarranted result of precluding Acceleration Bay’s long-disclosed damages case.

Thus, the Federal Circuit’s directive is unmistakable — in instances in which a damages expert has been excluded, a plaintiff should still be allowed to present fact evidence supporting the determination of a reasonable royalty.

Activision cites the Court’s decision in AVM Techs, for the proposition that “[r]easonable royalty calculations are ‘the providence of expert analysis’” and that a lay witness should not offer an opinion on “ultimate patent damages.” Br.

And Dr. Meyer can guide the jury as to how the Georgia- Pacific factors apply to these case, as fully disclosed in her expert reports and not impacted by the Court’s Daubert Order.

Pursuant to Federal Rule of Evidence 702, Activision Blizzard, Inc. (“Activision”) hereby moves to exclude certain expert testimony propounded by Plaintiff Acceleration Bay LLC.

The precise relief sought is detailed in a proposed order accompanying this motion.

I hereby certify that the subject of the foregoing motion has been discussed with counsel for the plaintiff and that we have not been able to reach agreement.

WHEREAS, the Court, having consider Activision Blizzard, Inc.’s Daubert Motion To Exclude Expert Opinions Of Dr. Nenad Medvidovic, Dr. Michael Mitzenmacher Dr. Christine Meyer, Dr. Harry Bims and Dr. Ricardo Valerdi; IT IS HEREBY ORDERED this _______ day of _______________, 2018, that Activision’s Motion is GRANTED.

d. Dr. Meyer’s opinions that the Uniloc v. Electronic Arts verdict supports a royalty rate of 20 cents per unit.

The preliminary response is limited to setting forth the reasons why the requested review should not be Case IPR2017-01600 Patent No. 6,910,069 B1 instituted.

For more information, please consult the Office Patent Trial Practice Guide, 77 Fed. Reg. 48756 (Aug. 14, 2012), which is available on the Board Web site at http://www.uspto.gov/PTAB.

Patent Owner is advised of the requirement to submit mandatory notice information under 37 C.F.R. § 42.8(a)(2) within 21 days of service of the petition.

Such motions shall be filed in accordance with the “Order -- Authorizing Motion for Pro Hac Vice Admission” in Case IPR2013-00639, Paper 7, a copy of which is available on the Board Web site under “Representative Orders, Decisions, and Notices.” The parties are reminded that unless otherwise permitted by 37 C.F.R. § 42.6(b)(2), all filings in this proceeding must be made electronically in the Patent Review Processing System (PRPS), accessible from the Board Web site at http://www.uspto.gov/PTAB.

If the parties actually engage in alternative dispute resolution, the PTAB would be interested to learn what mechanism (e.g., arbitration, Case IPR2017-01600 Patent No. 6,910,069 B1 mediation, etc.) was used and the general result.

PLEASE TAKE NOTICE THAT pursuant to and in accordance with Rules 26 and 30 of the Federal Rules of Civil Procedure, Defendants Take-two Interactive Software, Inc., Rockstar Games, Inc., and 2K Sports, Inc., (“Defendants”), by and through its counsel, will take the deposition upon oral examination of Michael Mitzenmacher, Ph.D., before a notary public or other officer authorized to administer oaths on J u l y 27 , 2018, at 9:00 a.m., at the law firm of Ropes & Gray LLP, 800 Boylston Street, Boston, MA 02199, or on some other date and location agreed upon by the named parties to the above-styled litigation.

The deposition will be stenographically recorded and videotape recorded, and will continue until completed.

You are invited to attend and participate as provided in the Federal Rules of Civil Procedure.

INC., ROCKSTAR GAMES, INC., and 2K

In light of the Court's previous Memorandum (C.A.

145), filed on June 3, 2016, and Plaintiffs letter (C.A.

Defendants' motion to dismiss for lack of standing (C.A.

Entered this Jvo day of June, 2016.

In light of Judge Andrews' Opinion and Order in these actions, as provided today by Mr. Blumenfeld, I am ordering that the June 8, 2016 hearing be cancelled.

The parties can advise me if these actions are ultimately dismissed or if Boeing joins in the cases.

If the latter occurs, we might have a conference to discuss how to proceed with any discovery issues.

Today defendants have requested an 'emergency' conference tomorrow to postpone the scheduled hearing on plaintiff's motion to compel discovery.

For the reasons below, I decline to hold such emergency conference and require defendants to respond as follows: I was advised on May 20th that the parties had agreed on a schedule for briefing and hearing plaintiff's motion.

Nevertheless, if defendants sincerely believe that progress can be made to resolve some or all of the issues in plaintiff's motion, I would be pleased to learn that.

Nothing herein should preclude defendants from raising in their brief the points and issues in their e mail today if plaintiff won't participate in a meaningful 'meet and confer'.

Finally, defendants now or in their brief need to respond to the legal basis for plaintiff's motion, which is that the George-Pacific case makes much of the sought discovery relevant to calculating damages, assuming that liability is determined.