Case 1:16-cv-00453-RGA Document 708 Filed 04/01/20 Page 1 of 9 PageID #: 52431
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`Plaintiff,
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`v.
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`ACCELERATION BAY LLC,
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`ACTIVISION BLIZZARD, INC.,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ACTIVISION BLIZZARD’S MOTION FOR LEAVE
`TO FILE A SUPPLEMENTAL SUMMARY JUDGMENT BRIEF
`BASED ON NEW LEGAL CONCLUSIONS FROM THE COURT
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`C.A. No. 16-453 (RGA)
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`Defendant.
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`OF COUNSEL:
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`B. Trent Webb
`Aaron Hankel
`John Garretson
`Tanya Chaney
`Jordan T. Bergsten
`Maxwell C. McGraw
`SHOOK, HARDY & BACON LLP
`2555 Ground Boulevard
`Kansas City, MO 64108
`(816) 474-6550
`
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
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`April 1, 2020
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
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`Attorneys for Defendant
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`David P. Enzminger
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
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`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
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`

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`Case 1:16-cv-00453-RGA Document 708 Filed 04/01/20 Page 2 of 9 PageID #: 52432
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`INTRODUCTION
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`This Court’s March 23, 2020 Summary Judgment Order in the related Acceleration Bay
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`v. Take-Two case, Ex. A,1 clarified its prior claim constructions and made legal holdings that
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`foreclose any finding of infringement in the present case. Specifically, the Court’s
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`Memorandum Opinion in Take-Two (“Take-Two Order”) clarified the construction of the “m-
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`regular” and “participant” limitations in the same patents asserted here and found non-
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`infringement as a matter of law under substantively identical infringement theories asserted
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`against Activision Blizzard, Inc. (“Activision”). Activision requests fifteen pages for a
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`supplemental summary judgment brief to articulate why the Court’s Take-Two holdings also put
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`an end to Acceleration Bay’s case against Activision as a matter of law.2 See D.I. 619, p. 2.
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`Activision is prepared to file that brief by April 8, 2020. Although this case can be disposed of
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`on the currently pending joint status report in which Activision requests that the Court enter
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`judgment of no damages, D.I. 694, the non-infringement issue is equally dispositive.3
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`M-Regular
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`In Take-Two, the Court previously construed “m-regular” to mean “[a] state that the
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`network is configured to maintain, where each computer is connected to exactly m neighbor
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`computers.” (D.I. 244 at 14). In that Order, the Court further explained that its “construction
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`1 Acceleration Bay LLC v. Take-Two Interactive Software, Inc., et al., C.A. No. 16-455 RGA,
`D.I. 492 (D. Del. March 23, 2020).
`2 Activision met and conferred with Acceleration Bay’s counsel on March 31, 2020, and
`Acceleration Bay’s counsel did not consent to the filing of this motion.
`3 Activision moved for summary judgment on non-infringement on February 2, 2018, raising
`multiple theories, including those at issue in this motion under this Court’s constructions and
`legal holdings at that time. D.I. 440, 442, 505. The Court denied several of Activision’s non-
`infringement arguments, explaining that the “parties may have made some valid arguments
`buried among their conclusorily-supported arguments and genuine disputes of material fact, but I
`do not see them.” D.I. 578, at p. 23. On March 15, 2019, Activision requested leave to renew its
`summary judgment. D.I. 654. The Court denied Activision’s request via oral order. D.I. 661.
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`1
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`Case 1:16-cv-00453-RGA Document 708 Filed 04/01/20 Page 3 of 9 PageID #: 52433
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`does not require the network to have each participant be connected to m neighbors at all times;
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`rather, the network is configured (or designed) to have each participant be connected to m
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`neighbors.” (Id.). In other words, “if the network does not have each participant connected to m
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`neighbors, this is fine so long as, when appropriate, it tries to get to that configuration.” (Id.).
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`In the Take-Two Order, the Court clarified the scope of this construction by explaining
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`that the m-regular state must be “the default state of the network or that the network is in that
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`state substantially all the time.”4 Ex. A, Memorandum Opinion, Acceleration v. Take Two, 16-
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`455, D.I. 492 at 15. The Court further explained that “if the network falls out of the m-regular
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`state, the network responds by immediately trying to return to that configuration” and that it is
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`not sufficient “that the network might return to m-regular or it might not, depending on various
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`factors.” Id. The Court rejected Plaintiff’s theories that various constants, maximums and rules
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`“‘drive[] the formation’ of an . . . m-regular network” or that an m-regular network “tends” to be
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`formed in practice or that the rules “cause the network to converge” on m-regularity as
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`inconsistent with the claim construction. Id. at 13–14.
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`The arguments the Court rejected in the Take-Two Order are substantively the same
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`arguments Plaintiff is making in Activision’s case, alleging that even happenstance m-regularity
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`infringes. For example, with respect to Call of Duty, Plaintiff relies on its expert who states,
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`“[t]his relaying has constants and rules that converge the network to the same optimal number
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`of participants to which any one participant may relay data (i.e. the same number of connections
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`4 “Under Markman, claim interpretation is a matter of law. However, Markman does not
`obligate the trial judge to conclusively interpret claims at an early stage in a case.” Sofamor
`Danek Group, Inc. v. DePuy-Motech, Inc., 74 F.3d 1216, 1221 (Fed. Cir. 1996). Rather, the
`Federal Circuit has “long held that a district court may engage in rolling claim construction, in
`which the court revisits and alters its interpretation of the claim terms as its understanding of the
`technology evolves.” Wi-LAN USA, Inc. v. Apple Inc., 830 F.3d 1374, 1385 (Fed. Cir. 2016)
`(affirming summary judgment of no infringement based on construction entered after initial
`summary judgment order).
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`2
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`Case 1:16-cv-00453-RGA Document 708 Filed 04/01/20 Page 4 of 9 PageID #: 52434
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`to neighbors).” See D.I. 443, Decl. of Kathleen Barry, at Ex. A-1, Sept. 23, 2017 Medvidovic
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`Expert Report at p. 2 (emphasis added); see also id. at ¶ 204 (“The constants . . . [in World of
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`Warcraft] are used in conjunction with a variety of algorithms and rules . . . to distribute data
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`traffic among the participating application programs to form an m-regular network.”); see also
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`D.I.443, Decl. of Kathleen Barry, Ex. A-2, Sept. 23, 2017 Mitzenmacher Expert Report at ¶ 121
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`(“‘M’ [in Destiny] is a constant in the code that limits the number of connections that each peer
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`application can connect with other application programs. This constant is used in conjunction
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`with a variety of rules to distribute data traffic among the participating application programs to
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`form an m-regular network.”).
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`Because Plaintiff’s infringement positions regarding the m-regular limitations here are
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`substantively identical to those the Court found to be insufficient as a matter of law in Take-Two,
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`Activision respectfully requests leave to submit supplemental briefing on this issue.
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`Participant
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`The Court has not previously construed “participant.” The definition of “participant” is
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`important because m-regularity is determined by the participants and their connections. In this
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`case and in Take-Two, Plaintiff tries to exempt certain servers from the definition of
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`“participants” in a network for determining m-regularity by contending that any server that
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`would render the network non m-regular is not a participant at the “application layer.”
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`In Take Two, Acceleration argued that “GTA’s application layer overlay network is built
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`on these underlying conditions,” and, with respect to NBA 2K, that “[p]layers in a specific game
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`. . . are directly connected at the application layer [redacted] making the network incomplete and
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`m-regular.” Ex. B, Acceleration Bay’s Opp’n Br., Acceleration v. Take Two, 16-455, D.I. 475, at
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`pp. 2, 8; see also Ex. C, Feb. 4, 2020 Hearing Tr., Acceleration v. Take Two, 16-455, at 89:17-
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`3
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`Case 1:16-cv-00453-RGA Document 708 Filed 04/01/20 Page 5 of 9 PageID #: 52435
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`90:9 (arguing there are “ten application layer connections per participant,” which does not count
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`the “park server’ because it “is not playing the game”), 100:11-23 (“[I]t’s the number of
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`connections at the application layer that makes the network both M-Regular and incomplete”).
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`The Court appropriately rejected Acceleration’s argument that the server in the network may be
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`ignored for purpose of determining whether the network is m-regular.
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` In doing so, the Court clarified its construction of “participant” and rejected Plaintiff’s
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`attempt to sidestep the definition, finding “[t]he server is, however, a participant in the network
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`because it transfers data back and forth between other network participants.” Ex. A,
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`Memorandum Opinion at 17. “These patent claims are directed to network management, so what
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`matters is whether the server is a participant in the network, not whether it is making jump shots
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`or grabbing rebounds.” Id. This clarification and legal holding equally forecloses a finding of
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`infringement as to each of Activision’s accused products.
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`Plaintiff’s infringement theories against all of the accused products in the Activision case
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`similarly asks the Court to ignore participant servers, because they are purportedly not
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`participants at the “application overlay network.” There is no dispute that servers in Activision’s
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`accused products that Plaintiff identifies as network participants are ignored in Plaintiff’s
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`infringement positions. See D.I. 443, Decl. of Kathleen Barry, Ex. A-3, Dec. 14, 2017
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`Medvidovic Reply Report at ¶ 43 (“Dr. Kelly focuses on the underlying client-server network,
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`not the application layer overlay that is the focus of my analysis.”). Substantively identical
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`infringement theories were rejected as a matter of law in Take Two.
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`In view of the Court’s guidance and clarification in Take-Two, Activision respectfully
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`requests supplemental summary judgment briefing to address this issue.
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`4
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`Case 1:16-cv-00453-RGA Document 708 Filed 04/01/20 Page 6 of 9 PageID #: 52436
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`Doctrine of Equivalents
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`The issues of prosecution history estoppel and vitiation are both questions of law
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`exclusively reserved for the Court. Warner-Jenkinson Co., Inc. v. Hilton Davis Chemical Co.,
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`520 U.S. 17, 39 n.8 (1997) (“[T]he various legal limitations on the application of the doctrine of
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`equivalents are to be determined by the court, either on a pretrial motion for partial summary
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`judgment or on a motion for judgment as a matter of law.”).
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`In Take-Two, this Court rejected Acceleration’s doctrine of equivalents (“DoE”) theories
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`on both grounds. Ex. A at 16 (Acceleration’s DoE theory “effectively reads the m-regular
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`limitation out of the patent” and “is especially weak for [three] patents because the patentee
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`added the m-regular limitation during prosecution”).
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`These findings foreclose Acceleration’s substantively identical DoE theories here:
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`Take-Two
`“GTAO performs ‘substantially the same
`function’ as the m-regular claim element
`because it maintains ‘a balanced and even
`topography in the network, which [allows the
`game] to relay game data efficiently so as to
`not overload a particular software application
`node on the network.’” (Ex. A at 15-16).
`in
`“[GTAO]
`performs
`this
`function
`‘substantially the same way,’ he said, by
`‘optimizing the entire network processing of
`the network by limiting each participant's
`connections.’” (Ex. A at 16).
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`“[GTAO] achieves ‘substantially the same
`result’ because ‘data are distributed in a
`balanced fashion over the network such that
`no node is overloaded and data are efficiently
`distributed.’” (Ex. A at 16).
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`Activision
`the same
`“WoW performs substantially
`function because the WoW software program
`establishes a topography of the network
`which allows it to relay high speed game play
`data efficiently so as to not overload a
`particular software application node on the
`network.” (D.I. 443, Ex. A-1 at ¶ 220).
`“WoW performs this function in substantially
`the
`same way by utilizing
`software
`definitions,
`guidelines,
`references
`and
`constructs to optimize the entire network
`processing of the networking data needed to
`play a WoW game, by limiting and balancing
`the number of each participant’s connections
`through static configurations[.]” (D.I. 443,
`Ex. A-1 at ¶ 221).
`“WoW achieves substantially the same result
`because each of the nodes balances the
`processing of networking information where
`no node is overloaded and data are efficiently
`distributed.” (D.I. 443, Ex. A-1 at ¶ 222).
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`5
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`Case 1:16-cv-00453-RGA Document 708 Filed 04/01/20 Page 7 of 9 PageID #: 52437
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`Because these theories fail as a matter of law, Activision respectfully requests
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`supplemental summary judgment briefing to address these legally infirm theories.
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`CONCLUSION
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`For the reasons stated above, Activision respectfully requests leave of Court to file a
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`supplemental summary judgment brief to address the impact of the Court’s guidance in Take-
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`Two.
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`OF COUNSEL:
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`B. Trent Webb
`Aaron Hankel
`John Garretson
`Tanya Chaney
`Jordan T. Bergsten
`Maxwell C. McGraw
`SHOOK, HARDY & BACON LLP
`2555 Ground Boulevard
`Kansas City, MO 64108
`(816) 474-6550
`
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
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`April 1, 2020
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
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`/s/ Jack B. Blumenfeld
`____________________________________
`Jack B. Blumenfeld (#1014)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
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`Attorneys for Defendant
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`David P. Enzminger
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`
`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`
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`6
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`Case 1:16-cv-00453-RGA Document 708 Filed 04/01/20 Page 8 of 9 PageID #: 52438
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`RULE 7.1.1 CERTIFICATE
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`I hereby certify that the subject of the foregoing motion has been discussed with counsel
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`for the plaintiff and that we have not been able to reach agreement.
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`/s/ Jack B. Blumenfeld
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`Jack B. Blumenfeld (#1014)
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`Case 1:16-cv-00453-RGA Document 708 Filed 04/01/20 Page 9 of 9 PageID #: 52439
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`CERTIFICATE OF SERVICE
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`I hereby certify that on April 1, 2020, I caused the foregoing to be electronically filed
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`with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
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`registered participants.
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`I further certify that I caused copies of the foregoing document to be served on
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`April 1, 2020, upon the following in the manner indicated:
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`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
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`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`Greg Proctor, Esquire
`Michael H. Lee, Esquire
`William Hannah, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
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`Aaron M. Frankel, Esquire
`Marcus A. Colucci, Esquire
`Cristina Martinez, Esquire
`Shannon H. Hedvat, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Attorneys for Plaintiff
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`/s/ Jack B. Blumenfeld
`________________________________
`Jack B. Blumenfeld (#1014)
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