Case 4:19-cv-04133-YGR Document 1 Filed 07/18/19 Page 1 of 25
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`David P. Enzminger (SBN: 137065)
`denzminger@winston.com
`Michael A. Tomasulo (SBN: 179389)
`mtomasulo@winston.com
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071-1543
`Telephone:
`(213) 615-1700
`Facsimile:
`(213) 615-1750
`
`Louis L. Campbell (SBN:221282)
`llcampbell@winston.com
`Matthew R. McCullough (SBN: 301330)
`mrmccullough@winston.com
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, California 94025-4004
`Telephone:
`(650) 858-6500
`Facsimile:
`(650) 858-6550
`
`Attorneys for Plaintiff
`EPIC GAMES, INC.
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`EPIC GAMES, INC., a Maryland Corporation,
`
`Plaintiff,
`
`v.
`
`ACCELERATION BAY LLC, a Delaware
`Limited Liability Corporation,
`
`Defendant.
`
`Case No.: 3:19-cv-04133
`
`COMPLAINT FOR DECLARATORY
`JUDGMENT OF NON-INFRINGEMENT OF
`U.S. PATENT NOS. 6,701,344, 6,714,966,
`6,829,634, 6,732,147, 6,910,069 6,920,497, AND
`7,412,537
`
`JURY TRIAL DEMANDED
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`Case 4:19-cv-04133-YGR Document 1 Filed 07/18/19 Page 2 of 25
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`Plaintiff Epic Games, Inc. (“Epic” or “Plaintiff”) by and through its attorneys, alleges
`against Defendant Acceleration Bay, LLC (“Acceleration” or “Defendant”) as follows:
`PARTIES AND BACKGROUND
`1.
`Plaintiff Epic is one of the leading video game companies in the world. It develops
`and publishes, among other things, the “Fortnite” video game. Epic publicly released Fortnite’s
`cooperative Save the World game mode in or around July 2017. Epic publicly released Fortnite’s
`free-to-play Battle Royale game mode in or around September 2017. Fortnite is an extremely
`popular game with over two hundred and fifty million players.
`2.
`On information and belief, sometime around February 2015, Defendant Acceleration
`acquired certain rights to certain patents previously assigned to The Boeing Company. Those patents
`include U.S. Patent Nos. 6,701,344 (“the ’344 Patent”), 6,714,966 (“the ’966 Patent”), 6,829,634
`(“the ’634 Patent”), 6,732,147 (“the ’147 Patent”), 6,910,069 (“the ’069 Patent”), 6,920,497 (“the
`’497 Patent”) and 7,412,537 (“the ’537 Patent) (collectively, the “Asserted Patents”). The Asserted
`Patents are attached as Exhibits 1-7.
`3.
`On December 28, 2018, Acceleration sent a letter to Epic’s address. The letter states
`without explanation that Epic’s videogame Fortnite “requires a license.” The December 28 letter
`makes an explicit and direct charge of infringement, stating that six of the Asserted Patents are
`“Patents Infringed By Epic Games.”
`4.
`The December 28 letter appears to have been a “cut-and-paste” from a letter sent to a
`totally unrelated company. For instance, it states that “[UNRELATED COMPANY] has an
`affirmative responsibility to ensure that it has secured all necessary patent rights to sell the products
`and services identified in this letter” and concludes by stating “[w]e look forward to your working
`with [UNRELATED COMPANY] on a business solution, and thank you in advance for your prompt
`attention to this matter.” Therefore, on information and belief, Acceleration sent the same generic,
`substance-free form letter alleging infringement to at least one, and perhaps many, other companies.
`5.
`On March 4, 2019, Acceleration sent a second letter to Epic’s address. This letter
`states without explanation that “[o]ur analysis of our patent portfolio and Epic Games’ multi-player
`games indicates use of Acceleration Bay patented technologies, at minimum, the following games
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`Case 4:19-cv-04133-YGR Document 1 Filed 07/18/19 Page 3 of 25
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`require a license: Fortnite: Save the World, Fortnite Battle Royale, and potentially other games.”
`(hereinafter, the “Accused Products”).
`6.
`As with the prior letter, the March 4 letter makes an explicit and direct charge of
`infringement, stating that six of the Asserted Patents are “Patents Infringed By Epic Games.”
`7.
`Neither of these letters mention the ’537 Patent, but Acceleration subsequently
`advised that the ’537 Patent was at issue as well.
`8.
`On our around July 10, 2019, representatives of Epic and Acceleration had a
`teleconference.
`9.
`None of Acceleration’s communications provided an explanation for its repeated
`charges of infringement. No claim charts have been provided. Neither letter explains what claims
`Epic allegedly infringes, or which patents or claims are supposedly infringed by each of the games
`named in the letters.
`10.
`In addition, on information and belief, both letters contain statements about
`Acceleration itself that are incorrect or, at best, misleading. For instance, the letters state that
`Acceleration was “[f]ounded in 2012” and that it is a “technology incubator” that “partners with
`inventors, corporations and entrepreneurs to accelerate growth in creating innovative companies.”
`11. On information and belief, and based on publicly available records and publicly
`available Court-filings, Acceleration is not a “technology incubator” and was not “[f]ounded in
`2012.”
`12. Acceleration was formed by its litigation counsel in August 2014 for the purpose of
`acquiring and enforcing the Asserted Patents.
`13. Acceleration is not a “technology incubator” and does not “partner” with “inventors,
`corporations and entrepreneurs” and does not “accelerate growth in creating innovative companies.”
`14. Publicly available information does not indicate that Acceleration provides any
`product or service or has any non-litigation-based income or revenue.
`15. On information and belief, Acceleration is exclusively in the business of monetizing
`patents acquired from third parties.
`16. Epic’s games do not infringe the Asserted Patents.
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`Case 4:19-cv-04133-YGR Document 1 Filed 07/18/19 Page 4 of 25
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`17. The claims of six of the seven Asserted Patents (all but the ’497) all relate to a
`computer network and/or broadcast channel with an m-regular, incomplete topology.
`18. These six Asserted Patents require a specific “peer to peer” computer network where
`computers in the network communicate directly with each other as opposed to communicating
`through a central server.
`19. Certain of the claims are directed to a computer network.
`20. Computer networks existed and were in public use prior to the alleged inventions of
`the Asserted Patents.
`21. Certain of the claims are directed to a broadcast channel.
`22. The Asserted Patents state that “[e]ach computer that is connected to the broadcast
`channel receives all messages that are broadcast while it is connected.” See, e.g., Ex. 1, ’344 Patent
`at 4:12–14.
`23. Broadcast channels existed and were in public use prior to the alleged inventions of
`the Asserted Patents.
`24. The “Background” section of the Asserted Patents identifies “client/server
`middleware systems” as prior art to the Asserted Patents. See, e.g., Ex. 1, Background ’344 Patent
`at 1:58–2:14.
`25. The Asserted Patents state that “The client/server middleware systems provide a
`server that coordinates the communications between the various clients who are sharing the
`information.” See, e.g., Ex. 1, Background ’344 Patent at 1:58–60.
`26. 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.
`27. The main purported point of novelty for these six patents is that the claimed network
`forms an m-regular, incomplete graph instead of the prior art client-server or full mesh networks.
`28. The claims of these patents all require that (1) each participant/computer in the
`network must have connections to at least three other neighboring participants.
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`Case 4:19-cv-04133-YGR Document 1 Filed 07/18/19 Page 5 of 25
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`29. The claims of these patents all require that (2) the network must be “m-regular” where
`each participant is connected to the exact same number, m, of neighbor participants.
`30. The claims of these patents all require that (3) the network must be incomplete – m
`must be at least two less than the total number of participants.
`31.
`In other words, each participant must be connected to at least three neighbor
`participants, and no participant can be connected to all of the other participants in the network.
`32. Before the technologies covered by the Asserted Patents were allegedly invented,
`other types of networks such as client-server and “full mesh” networks were well known and used
`for videogames.
`33. Multiplayer videogames using computer networks existed and were in public use prior
`to the alleged inventions of the Asserted Patents.
`34. Multiplayer videogames using broadcast channels existed and were in public use prior
`to the alleged inventions of the Asserted Patents.
`35. The Asserted Patents state that client-server systems are “not particularly well suited
`to sharing of information among many participants.” See, e.g., Ex. 1, Background section of ’344
`Patent at 1:65–67.
`36. The Asserted Patents state that client-server networks are inferior and different from
`the claimed invention because, with a client-server network, “a failure at a single computer (i.e., the
`server) would prevent communications between any of the clients.” See, e.g., Ex. 1, Background
`section of ’344 Patent at 1:58–2:14.
`37.
`In contrast, the Asserted Patents contend that “[t]he use of a 4-regular graph means
`that a computer would become disconnected from the broadcast channel only if all four of the
`connections to its neighbors fail.” See, e.g., Ex. 1, Background section of ’344 Patent at 4:39-42.
`38. A comparison of the three network types is shown below:
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`39. At all times, the Accused Products have used the non-infringing, client-server
`architecture that was well known in the prior art.
`40.
`In this architecture, Fortnite players are connected to a server and send and receive
`information only to/from a server.
`41. Fortnite players are not connected to other Fortnite players and do not directly
`exchange information with other Fortnite players.
`42. The final Asserted Patent is the ’497 Patent. Neither Epic nor the Accused Products
`infringe this patent.
`43. The claims of the ’497 Patent require, among other things, the use of a non-random
`“port ordering algorithm” where “the communications ports selected by the port ordering algorithm”
`are re-ordered.
`44. Thus, for instance, Claim 9 of the ’497 Patent claims a “component in a computer
`system for locating a call-in port of a portal computer” which includes “means for selecting the call-
`in port of the identified portal computer using a port ordering algorithm” and “means for re-ordering
`the communications ports selected by the port ordering algorithm.”
`45. Fortnite does not “select” a “call-in port” of an identified portal computer using a non-
`random port ordering algorithm and does not include means for re-ordering the communications
`ports selected by any non-random port ordering algorithm.
`46. For these and many other reasons, Epic does not infringe any claim of the Asserted
`Patents.
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`Case 4:19-cv-04133-YGR Document 1 Filed 07/18/19 Page 7 of 25
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`NATURE OF THE ACTION
`47. This is an action brought pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201,
`for a declaratory judgment that Epic does not infringe any of the Asserted Patents, including through
`its Fortnite products.
`48. Epic seeks a declaratory judgment that neither it nor the Accused Products infringe
`any of the Asserted Patents under the Patent Laws of the United States, 35 U.S.C. §§ 101, et seq.
`PARTIES, JURISDICTION AND VENUE
`49. The parties to this lawsuit are Plaintiff Epic and Defendant Acceleration.
`50. Plaintiff Epic is a Maryland corporation with its principal place of business at 620
`Crossroads Blvd, Cary, North Carolina, 27518.
`51. 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. In multiple complaints against other companies, Acceleration has
`pleaded that it has a principal place of business in this District. Presently, Acceleration’s website
`states that its principal and only place of business is located at 951 Mariners Island Blvd, San Mateo,
`California, 94404. Both of the letters that Acceleration sent to Epic bear this address as well.
`52. This is an action under the Federal Declaratory Judgments Act, 28 U.S.C. §§ 2201
`and 2202, against Defendant for a declaration that, pursuant to the patent laws of the United States,
`35 U.S.C. §§ 1 et seq., the disputed claims of U.S. Patent Nos. 6,701,344, 6,714,966, 6,829,634,
`6,732,147, 6,910,069, 7,412,537, and 6,920,497 are not infringed by Plaintiff or its games.
`Jurisdiction as to these claims is conferred on this Court by 28 U.S.C. §§ 1331 and 1338(a).
`53. This Court has personal jurisdiction over Defendant Acceleration at least because of
`its continuous and systematic contacts with the State of California and with this District. As noted
`above, Acceleration’s principal place of business is located within this District. Acceleration has
`also registered to do business in California with the California Secretary of State since March 13,
`2015, and keeps a designated agent for service of process in Foster City, California. Acceleration
`has established minimum contacts with the forum and the exercise of jurisdiction would not offend
`traditional notions of fair play and substantial justice.
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`54. Venue is proper in this jurisdiction under 28 U.S.C. §§ 1391 and 1400(b), at least
`because Defendant maintains its principal place of business in this district, a substantial part of the
`events or omissions giving rise to the claims occurred in this district, and Defendant purposefully
`directed activities to this district.
`55. An actual controversy exists between Defendant and Plaintiff as to whether Plaintiff
`infringes the Asserted Patents. In both its December 28, 2018 and March 4, 2019 letters,
`Acceleration identifies specific patent numbers, made an explicit and direct statement that Epic is
`infringing the Asserted Patents, and asserted that Fortnite “require[s] a license.” The March 4 letter
`further adds that Acceleration’s “analysis” of “Epic Games’ multi-player games indicates use of
`Acceleration Bay patented technologies.”
`56. Epic denies that any of its activities or the Accused Products infringe any claim of the
`Asserted Patents purportedly owned by Defendant.
`57. Epic is aware that Acceleration has asserted the same six patents against other major
`videogame publishers, even though Epic can see no applicability of the claimed technology to the
`videogame industry. In addition, Acceleration’s December 28, 2018 letter to Epic also included
`claims regarding an unrelated third party in the videogame industry. This, in combination with
`Acceleration’s litigious history with other companies in the industry, suggests that Acceleration’s
`business model is limited to enforcing these patents.
`58. On information and belief, Acceleration engages in no business activity other than
`seeking to enforce the Asserted Patents. As a result of Defendant’s actions and repeated licensing
`demands, Plaintiff has a reasonable apprehension that Defendant will commence litigation against
`Plaintiff on the Asserted Patents.
`59. There is an immediate, real, and substantial justiciable controversy between Plaintiff
`and Defendant as to its purported right to threaten or maintain suit for infringement of the Asserted
`Patents; as to the scope and enforceability thereof; and as to whether Plaintiff or any Accused
`Product infringes any enforceable claims of the Asserted Patents. This controversy is of such
`immediacy and reality as to warrant declaratory relief so that the parties may ascertain their rights
`and duties with respect to the Asserted Patents. Therefore, without waiver of any rights, including
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`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.
`INTRADISTRICT ASSIGNMENT
`60. This is an intellectual property action subject to district-wide assignment pursuant to
`Local Rules 3-2(c) and 3-5(b).
`
`CAUSES OF ACTION
`FIRST CAUSE OF ACTION
`(Declaratory Judgment of Non-Infringement of the ’344 Patent)
`61. Plaintiff incorporates herein by reference and re-alleges all preceding paragraphs as
`though fully set forth herein.
`62. Defendant Acceleration has alleged and continues to assert that Plaintiff and its
`Accused Products and services infringe the ’344 Patent.
`63. Claims 1–11 and 16–19 of the ’344 Patent were cancelled, and claim 21 added in inter
`partes review proceedings before the USPTO. See Ex. 1.
`64. Dependent claim 12 and the surviving independent claims of the ’344 Patent are
`shown below (with claim element enumeration added for convenience).
`
`
`Dependent Claim 12 (inheriting all limitations from Claim 1)
`12-a. A computer network for providing a game environment for a plurality of participants,
`12-b. each participant having connections to at least three neighbor participants,
`12-c. wherein an originating participant sends data to the other participants by sending the
`data through each of its connections to its neighbor participants and
`12-d. wherein each participant sends data that it receives from a neighbor participant to its
`other neighbor participants,
`12-e. further wherein the network is m-regular, where m is the exact number of neighbor
`participants of each participant and
`12-f. further wherein the number of participants is at least two greater than m thus resulting
`in a non-complete graph.
`12-g. The computer network of claim 1 wherein the interconnections of participants form a
`broadcast channel for a game of interest.
`Claim 13
`13-a. A distributed game system comprising:
`13-b. a plurality of broadcast channels, each broadcast channel for playing a game,
`13-c. each of the broadcast channels for providing game information related to said game to
`a plurality of participants,
`13-d. each participant having connections to at least three neighbor participants,
`13-e. wherein an originating participant sends data to the other participants by sending the
`data through each of its connections to its neighbor participants and
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`13-f. wherein each participant sends data that it receives from a neighbor participant to its
`neighbor participants,
`13-g. further wherein the network is m-regular, where m is the exact number of neighbor
`participants of each participant and
`13-h. further wherein the number of participants is at least two greater than m thus resulting
`in a non-complete graph;
`13-i. means for identifying a broadcast channel for a game of interest;
`13-j. and means for connecting to the identified broadcast channel.
`Substitute Claim 21
`21-a. A computer network for providing a game environment for a plurality of gaming
`participants, each gaming participant having connections to at least three neighbor gaming
`participants,
`21-b. wherein an originating gaming participant sends gaming data to the other gaming
`participants by sending the gaming data through each of its connections to its neighbor
`gaming participants and
`21-c. wherein each gaming participant sends gaming data that it receives from a neighbor
`gaming participant to its other neighbor gaming participants,
`21-d. further wherein the network is m-regular, where m is the exact number of neighbor
`gaming participants of each gaming participant,
`21-e. further wherein the number of gaming participants is at least two greater than m thus
`resulting in a non-complete graph,
`21-f. further wherein the connections between the gaming participants are peer-to-peer
`connections,
`21-g. further wherein the network is formed through a broadcast channel that overlays an
`underlying network
`21-h. further wherein the game environment is provided by at least one game application
`program executing on each computer of the computer network that interacts with the
`broadcast channel, and
`21-i. further wherein gaming participants can join and leave the network using the broadcast
`channel.
`65. Plaintiff does not infringe any claim of the ’344 Patent, at least because, by way of
`non-limiting example, Plaintiff does not make, use, or sell the “computer network” or “distributed
`game system” as required by the claims of the ’344 Patent.
`66. Plaintiff does not infringe any of the claims of the ’344 Patent, at least because, by
`way of non-limiting example, the Accused Products do not meet the following claim limitations of
`the claims shown above: claim 12, elements 12-a through 12-f; claim 13, elements 13-a through 13-
`j; claim 18, elements 18-a through 18-e; and claim 21, elements 21-a through 21-i.
`67. For instance, each “participant” in Fornite is not connected to at least three “neighbor”
`participants as required by elements 12-b, 13-d and 21-a.
`68. Fortnite does not form m-regular and incomplete/non-complete networks as required
`by elements 12-e, 12-f, 13-g, 13-h, 18-e, 21-d, and 21-e.
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`69. Fortnite does not send data to the other participants and nodes as required by elements
`12-c, 12-d, 13-e, 13-f, 18-c, 18-d, 21-b, and 21-c.
`70. Plaintiff’s activities, Accused Products, and services have not and do not directly
`infringe, do not infringe by inducement, and do not contributorily infringe any enforceable claims
`of the ’344 patent.
`71. Plaintiff’s activities, Accused Products, and services have not and do not infringe,
`willfully or otherwise, any enforceable claims of the ’344 Patent.
`72. Plaintiff’s activities, Accused Products, and services have not and do not infringe,
`literally or under the doctrine of equivalents, any enforceable claims of the ’344 Patent.
`73.
`In 2006, Boeing licensed the ’344 Patent to Sony.
`74. Sony makes multiplayer videogame products that, according to Acceleration, meet
`the limitations of the claims of the ’344 patent.
`75. Sony did not mark the ’344 Patent number on any such Sony products.
`76. Acceleration has not provided constructive notice of infringement of the ’344 Patent
`to Plaintiff.
`77. As to the ’344 Patent, Plaintiff has not complied with the requirements of 35 U.S.C.
`§ 287(a).
`78. An actual controversy thus exists between Plaintiff and Defendant as to whether the
`Accused Products infringe the ’344 Patent.
`79. Plaintiff seeks a declaratory judgment from this Court under Rule 57 of the Federal
`Rules of Civil Procedure and 28 U.S.C. § 2201 declaring that Plaintiff and each of the Accused
`Products is not infringing and has not infringed the ’344 Patent and granting Plaintiff all other
`declaratory relief to which it may be entitled.
`SECOND CAUSE OF ACTION
`(Declaratory Judgment of Non-Infringement of the ’966 Patent)
`80. Plaintiff incorporates herein by reference and re-alleges all preceding paragraphs as
`though fully set forth herein.
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`81. Defendant Acceleration has alleged and continues to assert that Plaintiff and its
`Accused Products and services infringe the ’966 Patent.
`82. Claims 1–11 and 16–17 of the ’966 Patent were cancelled, and claim 19 added in inter
`partes review proceedings before the USPTO. See Ex. 2.
`83. Dependent claim 12 and the surviving independent claims of the ’966 Patent are
`shown below (with claim element enumeration added for convenience).
`
`
`Dependent Claim 12 (inheriting all limitations from Claim 1)
`12-a. A computer network for providing an information delivery service for a plurality of
`participants,
`12-b. each participant having connections to at least three neighbor participants,
`12-c. wherein an originating participant sends data to the other participants by sending the
`data through each of its connections to its neighbor participants and
`12-d. wherein each participant sends data that it receives from a neighbor participant to its
`other neighbor participants,
`12-e. further wherein the network is m-regular, where m is the exact number of neighbor
`participants of each participant and
`12-f. further wherein the number of participants is at least two greater than m thus resulting
`in a non-complete graph.
`12-g. The computer network of claim 1 wherein the interconnections of participants form a
`broadcast channel for a topic of interest.
`Claim 13
`13-a. An information delivery service comprising:
`13-b. a plurality of broadcast channels, each broadcast channel for distributing information
`relating to a topic,
`13-c. each of the broadcast channels for providing said information related to a topic to a
`plurality of participants,
`13-d. each participant having connections to at least three neighbor participants,
`13-e. wherein an originating participant sends data to the other participants by sending the
`data through each of its connections to its neighbor participants and
`13-f. wherein each participant sends data that it receives from a neighbor participant to its
`neighbor participants,
`13-g. further wherein the network is m-regular, where m is the exact number of neighbor
`participants of each participant and
`13-h. further wherein the number of participants is at least two greater than m thus resulting
`in a non-complete graph;
`13-i. means for identifying a broadcast channel for a topic of interest; and
`13-j. means for connecting to the identified broadcast channel.
`Substitute Claim 19
`19-a. A computer network for providing an information delivery service for a plurality of
`participants, each participant having connections to at least three neighbor participants,
`19-b. wherein an originating participant sends data to the other participants by sending the
`data through each of its connections to its neighbor participants and
`19-c. wherein each participant sends data that it receives from a neighbor participant to its
`other neighbor participants,
`19-d. further wherein the network is m-regular, where m is the exact number of neighbor
`participants of each participant, and further wherein the number of participants is at least
`two greater than m thus resulting in a non-complete graph
`19-e. further wherein the connections are peer-to-peer connections,
`
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`19-f. further wherein the network is formed through a broadcast channel that overlays an
`underlying network,
`19-g. further wherein the information delivery service is provided by at least one
`information delivery service application program executing on each computer of the
`computer network that interacts with the broadcast channel,
`19-h. and further wherein participants can join and leave the network using the broadcast
`channel.
`84. Plaintiff does not infringe any claim of the ’966 Patent, at least because, by way of
`non-limiting example, Plaintiff does not make, use, or sell the “computer network” or “information
`delivery service” as required by the claims of the ’966 Patent.
`85. Plaintiff does not infringe any of the asserted claims, at least because, by way of non-
`limiting example, the Accused Products do not meet the following limitations of the claims shown
`above: claim 12, elements 12-a to 12-e, claim 13, elements 13-a to 13-g and 13-i to 13-j, and claim
`19, elements 19-a to 19-h.
`86. For instance, each “participant” in Fornite is not connected to at least three “neighbor”
`participants as required by elements 12-b, 13-d and 19-a.
`87.
` Fortnite does not form m-regular and incomplete/non-complete networks as required
`by elements 12-e, 12-f, 13-g, 13-h, and 19-d.
`88. Fortnite does not send data to the other participants and nodes as required by elements
`12-c, 12-d, 13-e, 13-f, 19-b, and 19-c.
`89. Plaintiff’s activities, Accused Products, and services have not and do not directly
`infringe, do not infringe by inducement, and do not contributorily infringe any enforceable claims
`of the ’966 Patent.
`90. Plaintiff’s activities, Accused Products, and services have not and do not infringe,
`willfully or otherwise, any enforceable claims of the ’966 Patent.
`91.
`In 2006, Boeing licensed the ’966 Patent to Sony.
`92. Sony makes multiplayer videogame products that, according to Acceleration, meet
`the limitations of the claims of the ’966 patent.
`93. Sony did not mark the ’966 Patent number on any such Sony products.
`94. Acceleration has not provided constructive notice of infringement of the ’966 Patent
`to Plaintiff.
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`95. As to the ’966 Patent, Plaintiff has not complied with the requirements of 35 U.S.C.
`§ 287(a).
`96. Plaintiff’s activities, Accused Products, and services have not and do not infringe,
`literally or under the doctrine of equivalents, any enforceable claims of the ’966 Patent. An actual
`controversy thus exists between Plaintiff and Defendant as to whether the Accused Products infringe
`the ’966 Patent.
`97. Plaintiff seeks a declaratory judgment from this Court under Rule 57 of the Federal
`Rules of Civil Procedure and 28 U.S.C. § 2201 declaring that Plaintiff and each of the Accused
`Products is not infringing and has not infringed the ’966 Patent and granting Plaintiff all other
`declaratory relief to which it may be entitled.
`THIRD CAUSE OF ACTION
`(Declaratory Judgment of Non-Infringement of the ’634 Patent)
`98. Plaintiff incorporates herein by reference and re-alleges all preceding paragraphs as
`though fully set forth herein.
`99. Defendant Acceleration has alleged and continues to assert that Plaintiff and its
`Accused Products and services infringe the ’634 Patent.
`100. Claims 1–9 of the ’634 Patent were cancelled, and substitute claim 25 added in inter
`partes review proceedings before the USPTO. See Ex. 3.
`101. Claims 19 and