Case 1:16-cv-00455-RGA Document 526 Filed 03/17/22 Page 1 of 25 PageID #: 37414
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`
`
`
`
`Plaintiff,
`
`v.
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`
`
`
`
`C.A. No. 16-455 (RGA)
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`
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`)
`)
`)
`)
`)
`)
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`)
`)
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`ACCELERATION BAY LLC,
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`
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`
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`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC., and 2K
`SPORTS, INC.,
`
`
`
`
`
`
`Defendants.
`
`
`
`ACCELERATION BAY’S OPPOSITION TO
`TAKE-TWO DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
`
`
`
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff
`Acceleration Bay LLC
`
`
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`James Hannah
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M. Frankel
`Marcus A. Colucci
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: March 10, 2022
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`
`
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`Public version dated: March 17, 2022
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`

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`Case 1:16-cv-00455-RGA Document 526 Filed 03/17/22 Page 2 of 25 PageID #: 37415
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`TABLE OF CONTENTS
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`Page
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`SUMMARY OF ARGUMENT ...................................................................................................... 1
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`I.
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`This Case is Not Exceptional .............................................................................................. 2
`
`A.
`
`B.
`
`C.
`
`D.
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`Take-Two’s Reckless Claim That Acceleration Bay “Falsified Evidence”
`is Completely Unsupported..................................................................................... 2
`
`Acceleration Bay Provided a Detailed Infringement Analysis ............................... 7
`
`Acceleration Bay’s Positions Were Reasonable ................................................... 11
`
`Alleged Actions in Other Cases Do Not Make Acceleration Bay’s
`Litigation Conduct in This Case Exceptional ....................................................... 14
`
`II.
`
`There is No Basis to Award Fees Against Acceleration Bay’s Principal ......................... 16
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`III.
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`Fees Under 35 U.S.C. § 285 Are Not Available Against Counsel ................................... 16
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`IV. Acceleration Bay Did Not Multiply These Proceedings................................................... 19
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`CONCLUSION ............................................................................................................................. 20
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`i
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`Case 1:16-cv-00455-RGA Document 526 Filed 03/17/22 Page 3 of 25 PageID #: 37416
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`TABLE OF AUTHORITIES
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`
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`Page(s)
`
`Cases
`
`Acceleration Bay v. Activision Blizzard, Inc.,
`No. 16-cv-00453-RGA, D.I. 192 (D. Del. June 23, 2017).........................................................7
`
`Aptix Corp. v. Quickturn Design Sys,
`269 F.3d 1369 (Fed. Cir. 2001)..................................................................................................6
`
`Baker Indus., Inc. v. Cerberus Ltd.,
`764 F.2d 204, 208 (3d Cir. 1985).............................................................................................20
`
`Dashner v. Riedy,
`197 F. App’x 127 (3d Cir. 2006) .............................................................................................20
`
`Dragon Intell. Prop., LLC v. Dish Network L.L.C.,
`No. 1:13-cv-02067-RGA, 2021 WL 5177680 (D. Del. Nov. 8, 2021) ..............................17, 18
`
`Dragon Intell. Prop., LLC v. DISH Network, LLC,
`No. 1:13-cv-02066-RGA, 2018 WL 5818533 (D. Del. Nov. 7, 2018),
`vacated and remanded, 956 F.3d 1358 (Fed. Cir. 2020) .........................................................19
`
`EON Corp. IP Holdings, LLC v. Flo TV Inc.,
`No. 10-812-RGA, 2014 WL 2196418 (D. Del. May. 27, 2014) ................................................8
`
`Grider v. Keystone Health Plan Cent., Inc.,
`580 F.3d 119 (3d Cir 2009)......................................................................................................19
`
`Hackman v. Valley Fair,
`932 F.2d 239 (3d Cir. 1991)...............................................................................................19, 20
`
`Indivior Inc. v. Dr. Reddy’s Labs. S.A.,
`No. 14-cv-1451-RGA, 2020 WL 1955433 (D. Del. Apr. 23, 2020) ..................................11, 14
`
`Iris Connex LLC v. Dell, Inc.,
`235 F. Supp. 3d 826 (E.D. Tex. 2017) .....................................................................................18
`
`LaSalle Nat. Bank v. First Conn. Holding Grp., LLC.,
`287 F.3d 279 (3d Cir. 2002).....................................................................................................19
`
`Magnetar Techs. Corp. v. Six Flags Theme Parks Inc.,
`No. 07-127-LPS-MPT, 2015 WL 4455606 (D. Del. July 21, 2015) .........................................8
`
`Morgan v. Covington Twp.,
`563 F. App’x 896 (3d Cir. 2014) .............................................................................................20
`
`ii
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`Case 1:16-cv-00455-RGA Document 526 Filed 03/17/22 Page 4 of 25 PageID #: 37417
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`Octane Fitness, LLC v. ICON Health & Fitness, Inc.,
`572 U.S. 545 (2014) .............................................................................................................1, 11
`
`In re Sunstates Corp. S’holder Litig.,
`788 A.2d 530 (Del. Ch. 2001)..................................................................................................16
`
`T-Jat Sys. 2006 Ltd. v. Expedia, Inc.,
`No. 16-581-RGA-MPT, 2017 WL 896988 (D. Del. Mar. 7, 2017) .........................................16
`
`Statutes
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`28 U.S.C. § 1927 ......................................................................................................................19, 20
`
`35 U.S.C. § 101 ........................................................................................................................11, 12
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`35 U.S.C. § 285 ...................................................................................................................... passim
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`
`
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`iii
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`Case 1:16-cv-00455-RGA Document 526 Filed 03/17/22 Page 5 of 25 PageID #: 37418
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`SUMMARY OF ARGUMENT
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`Take Two’s motion for attorneys’ fees and costs (D.I. 521 “Motion”) should be denied
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`because Acceleration Bay’s prosecution of this case was not exceptional. The case was hard-
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`fought and involved complex technology that resulted in numerous disputed legal, factual, and
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`expert issues, many of which were decided in Acceleration Bay’s favor. Take Two fails to
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`demonstrate that this is “the rare case in which a parties unreasonable conduct . . . is . . . so
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`‘exceptional’ as to justify an award of fees,” and instead relies on baseless ad hominem attacks
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`that grossly distort the record and on findings in other cases that are irrelevant here. Octane
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`Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 555 (2014).
`
`Take Two’s primary argument completely distorts what was actually disclosed in
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`Acceleration Bay’s expert reports. Take Two points to a single screenshot that Acceleration
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`Bay’s technical experts stated in their reports had been “modified” to “illustrate” their
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`infringement opinions. Both experts explained that the annotated image was only being used for
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`demonstrative purposes—to graphically illustrate the concept of the underlying connections
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`between participants, which are not displayed in the game—and was not to be relied upon as
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`evidence. Indeed, Take-Two’s counsel acknowledged during a deposition that the image was “to
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`illustrate your testimony as opposed to evidence that it actually happened.” Declaration of
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`Aaron Frankel (“Frankel Decl.”) filed herewith, Ex. 1 (Mitzenmacher Tr.) at 66:5-7 (emphasis
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`added). Thus, Take Two recognized long ago that this image was illustrative and not evidence,
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`but nonetheless argues now that this demonstrative is “evidence.” Take Two’s reliance on an
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`easily disproven claim as its lead argument confirms the meritless nature of its Motion.
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`Take Two’s remaining arguments rely on garden-variety litigation events, such as the
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`invalidation of a handful of claims from the much larger set of claims that Acceleration Bay
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`Case 1:16-cv-00455-RGA Document 526 Filed 03/17/22 Page 6 of 25 PageID #: 37419
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`asserted. Take Two ignores that Acceleration Bay’s patent claims emerged largely unscathed
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`from the gauntlet of 20 petitions for inter partes review (“IPR”) filed by Take Two and
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`defendants in related cases. Acceleration Bay’s success in defeating these and other challenges
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`to validity, claim construction, and infringement confirms that its pursuit of this case was
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`reasonable, and far from exceptionally weak. Thus, Take Two’s motion should be denied.
`
`I.
`
`This Case is Not Exceptional
`
`A.
`
`Take-Two’s Reckless Claim That Acceleration Bay “Falsified Evidence” is
`Completely Unsupported
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`Acceleration Bay’s two infringement experts, Drs. Medvidović and Mitzenmacher, both
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`opined that Take-Two’s Grand Theft Auto V Online game (“GTA”) use m-regular networks,
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`inter alia, because “[w]hen the players are geographically dispersed through the gameplay area,
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`the proximity connection rules will make the network m-regular, with each participant connected
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`to the same number of other participants.” D.I. 464-1, Ex. A-1 (Medvidović Rpt.) at ¶ 173.
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`GTA does not visually display these data connections, which are invisible to players. Thus,
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`merely to illustrate this concept of the connections between players, Drs. Medvidović and
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`Mitzenmacher included in their reports an annotated gameplay image and a corresponding
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`schematic:
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`
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`2
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`Case 1:16-cv-00455-RGA Document 526 Filed 03/17/22 Page 7 of 25 PageID #: 37420
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`
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`Id. at ¶¶ 173-174.
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`Both of Acceleration Bay’s experts explained in their reports that the image had been
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`modified. Id. at ¶ 173 (“As illustrated in the modified image copied below…”) (emphasis
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`added); D.I. 464-1, Ex. A-2 (10/10/17 Mitzenmacher Rpt.) at ¶ 129 (same). Both experts also
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`clearly stated that the image was being used for illustrative purposes, not as evidence of
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`infringement, and that the demonstrative image was consistent with and based on evidence. Dr.
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`Medvidović, for example, could not have been clearer. He stated that the image was only for
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`purposes of “illustration” and explained that it was supported by the gameplay testing data
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`evidence that Acceleration Bay’s testing expert, Mr. Conlin, collected:
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`While the image above was created and copied for illustration purposes, Mr.
`Conlin’s testing confirmed that GTA uses proximity rules to limit the exchange
`of data through direct peer-to-peer connections based on the distance between the
`participants in the game, as he observed a sharp reduction in such exchanges once
`players are a certain distance apart, and an increase in such exchanges when the
`players are brought closer together.
`
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`Id., Ex. A-1 (10/10/17 Medvidović Rpt.) at ¶ 175 (emphasis added); see also id., Ex. A-2
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`(10/10/17 Mitzenmacher Rpt.) at ¶ 131 (same).
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`During their depositions, Drs. Medvidović and Mitzenmacher confirmed that they were
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`only using the image for illustrative purposes, that they were not relying on it as evidence of
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`infringement, and that their m-regular opinions were based on evidence, not the demonstrative
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`3
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`Case 1:16-cv-00455-RGA Document 526 Filed 03/17/22 Page 8 of 25 PageID #: 37421
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`image. For example, Dr. Mitzenmacher testified that the image was intended to illustrate the
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`concepts discussed in his report and not serve as evidence of actual gameplay conditions:
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`Q: How do you know those players were there?
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`A: Again, so I think maybe you’re missing the point of the picture, and I think this
`is discussed in Paragraph 131. . . . this is meant to be an illustration of the four-
`by-four Deathmatch and how it works. . . . their location as shown in Figure 130
`could be set up to have those locations simply by positioning the player. To be
`clear, as stated in 131, the image is for illustration purposes.
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`* * *
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`Q: How do you know this is from a four-on-four Deathmatch?
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`A: This picture I think is for illustrative purposes. It’s a screenshot we were using
`to do it. I don’t think the intention of this is to say I was playing a four-by-four
`Deathmatch and this is the setting that arose. It’s to say this is a setting that can
`arise . . . I did not personally observe this picture, but . . . in playing the game I have
`seen situations like this . . . this matches my understanding of how the game is
`played.
`
`See Frankel Decl., Ex. 1 (Mitzenmacher Tr.) at 55:21-66:22 (emphasis added).
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`Dr. Medvidović provided similar deposition testimony confirming that the image was to
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`illustrate what is happening at the non-visible system level, was not offered as evidence, and was
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`consistent with the evidence he was relying upon:
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`Q: You just don’t know if it’s from a four-on-four death match; right?
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`A: . . . [W]hat it shows is what would happen at the level of the system, how these
`things would network with one another in a four-on-four death match.
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`* * *
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`Q: So did this screen grab, did this influence – do you consider this evidence of
`infringement that you considered and relied on? . . .
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`A: It clearly states in paragraph 173 [of my report] that this is just an example to
`illustrate the discussion. The evidence . . . stretches over to 2, 4, 6, 7, 10, 11 and
`a half pages of which this figure is about a quarter of one page.
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`Frankel Decl., Ex. 2 (Medvidović Tr.) at 133:11-136-8 (emphasis added). Thus, both experts
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`confirmed that these demonstratives were not evidence and were only intended to illustrate the
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`4
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`Case 1:16-cv-00455-RGA Document 526 Filed 03/17/22 Page 9 of 25 PageID #: 37422
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`network connections that occurred during gameplay sessions but were not visible to users of the
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`game. Indeed, experts use annotated images as demonstrative exhibits during trial all the time.
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`Even Take Two’s counsel acknowledged the understanding that the image was only
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`intended to illustrate concepts and was not offered as evidence of infringement during the
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`experts’ depositions. For example, Take Two’s counsel asked Dr. Medvidović, “[t]his is another
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`illustration as opposed to evidence of infringement?” Id. at 136:5-8 (emphasis added). Dr.
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`Medvidović confirmed that Take Two’s understanding was correct: “[t]his is part of the
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`illustration to explain the evidence of infringement.” Id. (emphasis added). Take Two also
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`acknowledged this to be the case during the deposition of Dr. Mitzenmacher: “so this is to
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`illustrate your testimony as opposed to evidence that it actually happened.” Frankel Decl., Ex. 1
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`(Mitzenmacher Tr.) at 66:5-7 (emphasis added). Take Two omitted this key context for this
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`testimony in its Motion and accompanying exhibits. Intentionally excerpting the line of
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`questioning that omits Take Two’s acknowledgement that the demonstrative was not offered as
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`evidence of infringement speaks volumes about the lack of support Take Two has for its
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`argument.
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`Drs. Medvidović and Mitzenmacher set forth in their reports the evidence they relied
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`upon to conclude that GTA uses an m-regular network, which did not include the demonstrative
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`illustration. As stated in their reports, Drs. Medvidović and Mitzenmacher relied on the testing
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`expert report of Mr. Conlin as evidence of the proximity-based data connections. See D.I. 464-1,
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`Ex. A-1 (10/10/17 Medvidović Rpt.) at ¶¶ 22, 104, 137; id., Ex. A-5 (Medvidović Reply) at ¶¶
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`28, 51, 117-121, 389; id., Ex. A-2 (10/10/17 Mitzenmacher Rpt.) at ¶¶ 15, 115, 131, 252; id., Ex.
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`A-6 (Mitzenmacher Reply) at ¶¶ 43, 65, 211-212; D.I. 473-1, Ex. 2 (Conlin Rpt.) at ¶¶ 26-28. In
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`addition, Drs. Medvidović and Mitzenmacher cited to the source code and deposition testimony
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`5
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`

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`Case 1:16-cv-00455-RGA Document 526 Filed 03/17/22 Page 10 of 25 PageID #: 37423
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`evidence that they relied upon. D.I. 464-1, Ex. A-1 (10/10/17 Medvidović Rpt.) at ¶¶ 163-181;
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`id., Ex. A-2 (10/10/17 Mitzenmacher Rpt.) at ¶¶ 121-137; id., Ex. A-6 (Mitzenmacher Reply) at
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`¶¶ 34-66, 112-133; id., Ex. A-5 (Medvidović Reply) at ¶¶ 33-54, 152-166. Nowhere in their
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`reports (or anywhere else in the record), did Drs. Medvidović and Mitzenmacher purport to rely
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`on the annotated gameplay image as evidence.1
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`In view of the above, Take Two had no basis whatsoever to accuse Acceleration Bay of
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`relying on “falsified evidence,” “falsified screenshots,” “phony evidence,” and a “doctored
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`screenshot.” Motion at 1-2, 4-7. Such accusations of significant misconduct by party opponents
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`should be sparingly employed by counsel and not in instances where counsel knows the opposite
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`to be true. Trumping up evidence of misconduct underscores the substantive weakness of Take
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`Two’s Motion. Likewise, Take Two is plainly incorrect to claim that Acceleration Bay’s “only
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`evidence that the accused network was ever m-regular was a screenshot Acceleration [Bay]
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`found on YouTube, doctored to fit its infringement theory,” a claim that ignores the pages of
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`actual evidence that Acceleration Bay’s experts actually relied upon.2 Motion at 1 (emphasis
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`added).
`
`
`1 In opposing summary judgment, Acceleration Bay long ago explained to Take Two that it was
`not offering the image as evidence. D.I. 472 (Opposition to Def. MSJ) at 5, n.3 (“Take-Two fails
`to credit the statements in both experts’ reports that the image was (1) ‘modified’ to illustrate the
`connections between the players, (2) ‘was created and copied for illustration purposes,’ and (3) is
`consistent with the experimental data observed by Mr. Conlin. . . . Take-Two ignores the point of
`the image; to illustrate the concept of the application of the proximity rules between players. It
`would not have been possible to use an actual, unmodified game screen capture to illustrate this
`point because the overlay network connections between players are not depicted by the game.”)
`(citation omitted).
`
`2 For this reason, Take Two’s authorities finding cases exceptional when the plaintiff relied on
`falsified evidence do not apply. See, e.g., Aptix Corp. v. Quickturn Design Sys, 269 F.3d 1369,
`1374-75 (Fed. Cir. 2001) (finding a case exceptional due to falsified evidence).
`
`
`6
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`

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`Case 1:16-cv-00455-RGA Document 526 Filed 03/17/22 Page 11 of 25 PageID #: 37424
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`The Court was troubled in the Activision case when Activision (represented by Take
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`Two’s counsel) filed an unsuccessful Rule 11 motion accusing Acceleration Bay of lying:
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`When I read [Activision’s Rule 11] briefs, one of the things that troubled me was
`Defendant’s assertions that appeared to be an allegation that lead counsel had
`lied. . . . Although the nature of the briefing as a whole made me dubious of the
`merits of Defendant’s motion, my attention was caught by the prospect of a lying
`lawyer.
`
`Acceleration Bay v. Activision Blizzard, Inc., No. 16-cv-00453-RGA (“Activision”), D.I. 192 at
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`2, n.2 (D. Del. June 23, 2017) (citations omitted) (emphasis added).
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`The Court explained that there was no basis in the record to accuse Acceleration
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`Bay’s counsel of lying:
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`Defendant’s accusation was that lead counsel declared, “Acceleration Bay’s
`counsel carefully evaluated and relied upon the additional evidence of Activision’s
`infringement discussed above.” Describing an event occurring at a later time,
`however, “Acceleration [Bay’s] counsel represented that [lead counsel] had not
`reviewed the source code produced by Activision or consulted with those who
`had.” . . . The suggestion being, that lead counsel had told two opposite stories, at
`least one of which was under oath. Not so. . . . The portion Defendant cites only
`supports the italicized portion of the allegation. Nothing is cited in support of the
`rest of the sentence. There does not seem to me to be any necessary reason for lead
`counsel to personally review source code. There is no necessary conflict between
`the two statements.
`
`Id. (citations omitted) (emphasis added).
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`Because the record did not support a conclusion that Acceleration Bay’s counsel had lied,
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`the Court concluded that, “Defendant’s aspersions seem to exceed the bounds of legitimate
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`advocacy.” Id. (emphasis added). Take Two repeats that mistake here. Take Two’s argument
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`that Acceleration Bay relied upon falsified evidence is itself false, fails to establish that this case
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`was exceptional, and warrants denial of Take Two’s motion.
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`B.
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`Acceleration Bay Provided a Detailed Infringement Analysis
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`Acceleration Bay provided a detailed infringement case, backed by thorough and
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`substantive technical reports that set forth in detail the evidence establishing Take Two’s
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`7
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`Case 1:16-cv-00455-RGA Document 526 Filed 03/17/22 Page 12 of 25 PageID #: 37425
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`infringement. That the Court ultimately granted summary judgment of non-infringement does
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`not render the case exceptional. EON Corp. IP Holdings, LLC v. Flo TV Inc., No. 10-812-RGA,
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`2014 WL 2196418, at *2 (D. Del. May. 27, 2014) (denying motion for fees under § 285 after
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`granting summary judgment in favor of defendant because “[t]he substantive strength of
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`[Plaintiff’s] case was not so conspicuously deficient as to justify the award of attorney’s fees.”).
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`To the contrary, fees are only awarded to a prevailing party where the case is “one that
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`stands out from others with respect to the substantive strength of a party’s litigating position
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`(considering both the governing law and the facts of the case) or the unreasonable manner in
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`which the case was litigated.” Magnetar Techs. Corp. v. Six Flags Theme Parks Inc., No. 07-
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`127-LPS-MPT, 2015 WL 4455606, at *3 (D. Del. July 21, 2015), report and recommendation
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`adopted, No. CV 07-127-LPS, 2015 WL 5768385 (D. Del. Sept. 30, 2015) (citation omitted).
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`Only if the case is exceptional, should the Court proceed to “an evaluation of ‘whether an award
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`of attorneys' fees to the prevailing party is justified.’” Id. There is nothing exceptional here
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`about the strength of Acceleration Bay’s case and no justification to award fees.
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` As to the strength of the infringement case against GTA, Take Two primarily relies on
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`its meritless claim that Acceleration Bay relied on falsified evidence, debunked above. Take
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`Two also argues that Acceleration Bay’s analysis of the m-regular limitation was unsupported.
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`See Motion at 5-6. To the contrary, Acceleration Bay’s technical experts discussed at length in
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`their reports how GTA satisfies the m-regular requirement and the evidence supporting their
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`opinions, including the deposition testimony of multiple Take Two engineers who worked on
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`GTA, over a dozen specific source code modules, and gameplay test data, which Take Two
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`simply ignores in its Motion. D.I. 464-1, Ex. A-1 (10/10/17 Medvidović Rpt.) at ¶¶ 163-181; id.,
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`8
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`Case 1:16-cv-00455-RGA Document 526 Filed 03/17/22 Page 13 of 25 PageID #: 37426
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`Ex. A-2 (10/10/17 Mitzenmacher Rpt.) at ¶¶ 121-137; id., Ex. A-6 (Mitzenmacher Reply) at
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`¶¶ 34-66, 112-133; id., Ex. A-5 (Medvidović Reply) at ¶¶ 33-54, 152-166.
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`Acceleration Bay summarized how GTA satisfies the m-regular element in its Opposition
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`to Take Two’s motion for summary judgment of non-infringement:
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`GTA uses m-regular, incomplete networks to distribute gameplay data to
`participants in a gameplay session. . . . The gameplay data are broadcast using peer-
`to-peer connections. . . . Because not all players can directly connect, and to avoid
`overloading individual participants, the network includes peer relays to broadcast
`messages, making the network incomplete, as Take-Two’s non-infringement expert
`concedes.
`
`D.I. 472 at 2 (citations omitted). Acceleration Bay further summarized how GTA makes the
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`network m-regular:
`
`During live gameplay sessions, GTA becomes an m-regular, incomplete network
`due to the application of various rules that limit and balance the number of direct
`connections between the participants. . . . GTA gameplay sessions are programmed
`to have a maximum number of participants and GTA is programmed to add new
`players to sessions to fill them to the maximum number of participants, while
`distributing the relaying load (load balancing) between the different relays, causing
`the network to converge to the same number of connections for each participant. []
`GTA then uses proximity rules to limit the direct exchange of data to participants
`near each other in the gameplay session, yielding a regular network.
`
`Id. at 3 (citations omitted).
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`In their reports, Acceleration Bay’s experts provided diagrams of the m-regular network,
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`identified the specific source code that provides this functionality, identified specific supporting
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`testimony from Take Two’s engineers, and verified their analysis with actual gameplay test data
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`demonstrating the limitation in data flow due to proximity. See id. at 3-5 (summarizing evidence
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`and citing to expert reports).
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`In granting summary judgment of non-infringement, the Court concluded that the
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`“proximity connection rules” do not render the network m-regular because “the players’ actions
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`determine how connections are formed,” and even if “the infringing state ‘just arises naturally
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`9
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`Case 1:16-cv-00455-RGA Document 526 Filed 03/17/22 Page 14 of 25 PageID #: 37427
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`[as] . . . the players are moving throughout the game,’” as Acceleration Bay’s experts opined,
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`that would be insufficient because the result had not been “designed.” D.I. 492 at 15 (citation
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`omitted). While Acceleration Bay respectfully disagreed with the Court’s conclusion, it did not
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`challenge this ruling on appeal given that it was highly factual in nature. After receiving
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`extensive briefing and holding a lengthy hearing on summary judgment, the Court did not make
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`any findings that Acceleration Bay’s position was frivolous or weak. Nor would there have been
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`any basis to do so given the extensive evidence that Acceleration Bay relied upon. There is also
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`no reason for the Court to do so now.
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`The same is the case for NBA 2K, which Take Two only briefly addresses in its Motion.
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`Motion at 8-9. Acceleration Bay relied on literal infringement based on the Park Relay Server
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`being part of the underlying network layer and not a participant in the application layer and, in
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`the alternative, a theory of infringement under the doctrine of equivalents. See D.I. 472
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`(Opposition to Def. MSJ) at 7-11 (citing to evidence). As with GTA, Acceleration Bay’s experts
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`provided a detailed analysis in support of their opinions, including reference to specific source
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`code and deposition citations. See, e.g., D.I. 464-1, Ex. A-1 (10/10/17 Medvidović Rpt.) at
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`¶¶ 182-194; id., Ex. A-2 (10/10/17 Mitzenmacher Rpt.) at ¶¶ 138-173; id., Ex. A-6
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`(Mitzenmacher Reply) at ¶¶ 67-89, 134-142; id., Ex. A-5 (Medvidović Reply) at ¶¶ 55-75, 167-
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`181.
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`Take Two claims without citation that “Acceleration [Bay]’s expert candidly admitted
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`that the accused [NBA 2K] client-server network was not infringing.” Motion at 1. This is
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`plainly incorrect. Dr. Mitzenmacher and Dr. Medvidović both opined that NBA 2K infringed the
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`asserted claims and satisfied all elements, including the m-regular requirement. If Take Two is
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`referring to Dr. Mitzenmacher’s statement during his deposition that NBA 2K uses an m-regular
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`network, at least under the doctrine of equivalents, that is still an opinion that NBA 2K infringes
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`under the doctrine of equivalents. Frankel Decl., Ex. 1 (Mitzenmacher Tr.) at 167:8-13 (“that
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`particular configuration is discussed as a DOE equivalent.”). Neither expert ever “admitted” that
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`NBA 2K “was not infringing,” as Take Two claims.
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`The Court ultimately disagreed with Acceleration Bay as to GTA and NBA 2K being m-
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`regular, but that does not make the case exceptional, i.e., “one that stands out from others with
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`respect to the substantive strength of a party’s litigating position (considering both the governing
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`law and the facts of the case) or the unreasonable manner in which the case was litigated.”
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`Octane Fitness, 572 U.S. at 554. Given the complex nature of the accused products, the bona
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`fide disputes between the parties’ technical experts, and the substantial evidence that
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`Acceleration Bay’s experts relied upon, the merits of Acceleration Bay’s infringement case were
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`reasonable, and certainly not exceptional, and there is no basis to award fees. Indivior Inc. v. Dr.
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`Reddy’s Labs. S.A., No. 14-cv-1451-RGA, 2020 WL 1955433, at *3 (D. Del. Apr. 23, 2020)
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`(denying motion for fees where “the evidence to which Defendants point does not show that
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`Plaintiffs’ litigating position was one of exceptional weakness [or] . . . brought in bad faith.”).
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`C.
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`Acceleration Bay’s Positions Were Reasonable
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`Take Two’s further grounds fail to establish that Acceleration Bay’s positions throughout
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`the case were unreasonable, let alone “exceptionally weak.”
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`Take Two argues that the invalidation of a handful of Acceleration Bay’s claims makes
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`this case exceptional, but the validity case confirms the strength and reasonableness of
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`Acceleration Bay’s case. Take Two challenged the validity of every asserted claim on myriad
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`grounds, including a challenge to patent eligibility under 35 U.S.C. § 101, at least twenty
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`challenges to definiteness, written description, and enablement, as well as claims of anticipation
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`and obviousness based on over a dozen alleged prior art references. Almost all of these
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`challenges were unsuccessful.
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`For example, the Court rejected Take Two’s challenge to patent eligibility under 35
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`U.S.C. §101. See D.I. 245 at 5-9. In doing do, the Court found that the challenged claims “are
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`directed to an innovative network structure for the distribution of data as the number of
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`participants in a computer network is scaled.” Id. at 6.
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`Take Two (along with defendants and a related third party from the related cases) filed
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`twenty petitions for IPR against Acceleration Bay’s patents. The USPTO denied institution or
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`found all claims patentable in thirteen of the IPRs, a remarkable result, given the PTAB’s high
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`rate of invalidation, and confirmed the validity of all of the claims in Acceleration Bay’s final
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`election of asserted claims. See D.I. 363. Acceleration Bay’s success in defending the validity
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`of its claims in IPRs further underscores that its positions in this case, including on validity, were
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`reasonable.
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`Presumably recognizing that its anticipation and obviousness arguments were no longer
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`tenable following the IPRs, Activision, which jointly presented invalidity with Take Two,
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`decided to not even put on a prior art-based invalidity defense at trial and limited its invalidity
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`case to an alleged lack of written description.3 Activision, D.I. 590 (Joint Pretrial Order) at ¶ 3
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`(D. Del. Oct. 16, 2018). The Court also rejected Take Two’s definiteness challenges to Claims
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`1, 13, 14, 16, and 18 of the ‘344 Patent, Claims 1 and 13 of the ‘966 Patent, and Claim 1 of the
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`‘069 Patent. See, e.g., D.I. 256, D.I. 379, D.I. 370, D.I. 244.
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`3 The trial in Activision was ultimately postponed for the Court to further consider damages
`issues in the case. See Activision, D.I. 619 (Case Management Order) at 2-3 (D. Del. Oct. 30,
`2018).
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`In view of Acceleration Bay’s overwhelming success in defending the validity of its
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`claims, the Court’s finding that two claims were invalid because they contain the phrase
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`“computer readable media,” hardly renders the case exceptional. The issue impacted only a few
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`of the asserted claims, and represented a small portion of the at least 40 total terms addressed
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`during the claim construction process.
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`Finally, the exclusion of portions of Acceleration Bay’s damages case does not render the
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`case exceptional. Early in the refiled case, the Court granted Take Two’s motion to dismiss for
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`lack of standing as to games on the Sony platform. See D.I. 237. The decision turned on an
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`implication of Sony’s ability to grant sublicenses, and the Court noted Acceleration Bay’s
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`argument in