Case 1:16-cv-00454-RGA Document 545 Filed 03/27/19 Page 1 of 16 PageID #: 46171
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ACCELERATION BAY LLC,
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`Plaintiff,
`
`V.
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`ELECTRONIC ARTS INC.,
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`Defendant.
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`Civil Action No. 1: 16-cv-00454-RGA
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`MEMORANDUM OPINION
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`Philip A. Rovner, POTTER ANDERSON & CORROON, LLP, Wilmington, DE; Aaron M.
`Frankel (argued) and Marcus Colucci (argued), KRAMER LEVIN NAFTALIS & FRANKEL
`LLP, New York, NY.
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`Attorneys for Plaintiff.
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`Jack B. Blumenfeld, MORRIS NICHOLS ARSHT & TUNNELL LLP, Wilmington, DE; David
`P. Enzminger (argued) and Louis L. Campbell, WINSTON & STRAWN LLP, Menlo Park, CA;
`Michael A. Tomasulo (argued), WINSTON & STRAWN LLP, Los Angeles, CA.
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`Attorneys for Defendant.
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`March a.J., 2019
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`

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`Case 1:16-cv-00454-RGA Document 545 Filed 03/27/19 Page 2 of 16 PageID #: 46172
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`Presently before me are Defendant's Motion for Summary Judgment (D.I. 424) and
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`Plaintiffs Motion for Partial Summary Judgment (D.I. 435). The Parties have briefed the issues.
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`(D.I. 426, 437, 465, 467, 476, 478). I heard argument on February 28, 2019. (D.I. 525 ("Tr.")).
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`I ordered supplemental briefing on the issues addressed during the argument. (D.I. 526, 534,
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`535). For the reasons set out more fully below, I will partially grant Defendant's Motion for
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`Summary Judgment and deny Plaintiffs Motion for Partial Summary Judgment.
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`I.
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`BACKGROUND
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`Plaintiff brought this suit against Electronic Arts Inc. ("EA") on June 17, 2016, alleging
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`that certain multiplayer features of the FIFA, NHL, PGA Tour, 1 and Plants v. Zombies: Garden
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`Warfare ("PvZ") games infringe U.S. Patent Nos. 6,701 ,344 ("'344 Patent"), 6,714,966 ("'966
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`Patent"), 6,732,147 ("' 147 Patent"), 6,829,634 ("'634 Patent"), 6,910,069 ('" 069 Patent"), and
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`6,920,497 ("'497 Patent"). (D.I. 1). On the same date, Plaintiff filed suit against several other
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`entities, including Activision Blizzard Inc. ("Activision"). (C.A. 16-453 (the "Activision
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`Case")).
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`On August 8, 2018, after the Parties completed their initial briefing on the pending
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`motions, I granted summary judgment of invalidity of the asserted claims of the '634 Patent and
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`claims 11 , 15, and 16 of the ' 147 Patent. (D.I. 499 at 7-9, 20-23 , 500). I also granted Activision
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`summary judgment of noninfringement of the '344, '966, and '497 Patents as to certain accused
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`games in that case. (Id. at 10-20).
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`1 The current briefing makes no mention of the PGA Tour games.
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`2
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`Case 1:16-cv-00454-RGA Document 545 Filed 03/27/19 Page 3 of 16 PageID #: 46173
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`II.
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`LEGAL ST AND ARDS
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`A. Summary Judgment
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`"The court shall grant summary judgment if the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed.
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`R. Civ. P. 56(a). The moving party has the initial burden of proving the absence of a genuinely
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`disputed material fact relative to the claims in question. Celotex Corp. v. Catrett, 477 U.S. 317,
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`330 (1986). Material facts are those "that could affect the outcome" of the proceeding, and "a
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`dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
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`to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
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`2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986)). The burden on the
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`moving party may be discharged by pointing out to the district court that there is an absence of
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`evidence supporting the non-moving party's case. Celotex, 477 U.S. at 323.
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`The burden then shifts to the non-movant to demonstrate the existence of a genuine issue
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`for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986);
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`Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989). A non-moving
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`party asserting that a fact is genuinely disputed must support such an assertion by: "(A) citing to
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`particular parts of materials in the record, including depositions, documents, electronically stored
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`information, affidavits or declarations, stipulations ... , admissions, interrogatory answers, or
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`other materials; or (B) showing that the materials cited [by the opposing party] do not establish
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`the absence ... of a genuine dispute .... " Fed. R. Civ. P. 56(c)(l).
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`When determining whether a genuine issue of material fact exists, the court must view
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`the evidence in the light most favorable to the non-moving party and draw all reasonable
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`inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter,
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`476 F.3d 180, 184 (3d Cir. 2007). A dispute is "genuine" only if the evidence is such that a
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`3
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`Case 1:16-cv-00454-RGA Document 545 Filed 03/27/19 Page 4 of 16 PageID #: 46174
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`reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-49.
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`If the non-moving party fails to make a sufficient showing on an essential element of its case
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`with respect to which it has the burden of proof, the moving party is entitled to judgment as a
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`matter oflaw. See Celotex Corp. , 477 U.S. at 322.
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`B. Infringement
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`A patent is infringed when a person "without authority makes, uses, offers to sell, or sells
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`any patented invention, within the United States ... during the term of the patent ... . " 35
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`U.S.C. § 271(a). A two-step analysis is employed in making an infringement determination. See
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`Markman v. Westview Instruments, Inc. , 52 F.3d 967,976 (Fed. Cir. 1995) (en bane), aff'd, 517
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`U.S . 370 (1996). First, the court must construe the asserted claims to ascertain their meaning and
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`scope. See id. The trier of fact must then compare the properly construed claims with the
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`accused infringing product. See id. at 976. This second step is a question of fact. See Bai v. L &
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`L Wings, Inc., 160 F.3d 1350, 1353 (Fed. Cir. 1998).
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`"Literal infringement of a claim exists when every limitation recited in the claim is found
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`in the accused device." Kahn v. Gen. Motors Corp., 135 F.3d 1472, 1477 (Fed. Cir. 1998). "If
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`any claim limitation is absent from the accused device, there is no literal infringement as a matter
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`oflaw." Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed. Cir. 2000). If an
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`accused product does not infringe an independent claim, it also does not infringe any claim
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`depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc. , 870 F.2d 1546, 1553 (Fed. Cir.
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`1989). However, "[ o ]ne may infringe an independent claim and not infringe a claim dependent
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`on that claim." Monsanto Co. v. Syngenta Seeds, Inc., 503 F.3d 1352, 1359 (Fed. Cir. 2007)
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`(internal quotations omitted). A product that does not literally infringe a patent claim may still
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`infringe under the doctrine of equivalents if the differences between an individual limitation of
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`the claimed invention and an element of the accused product are insubstantial. See Warner-
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`4
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`Case 1:16-cv-00454-RGA Document 545 Filed 03/27/19 Page 5 of 16 PageID #: 46175
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`Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 24 (1997). The patent owner has the
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`burden of proving infringement and must meet its burden by a preponderance of the evidence.
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`See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed. Cir. 1988)
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`( citations omitted).
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`When an accused infringer moves for summary judgment of non-infringement, such
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`relief may be granted only if at least one limitation of the claim in question does not read on an
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`element of the accused product, either literally or under the doctrine of equivalents. See Chimie
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`v. PPG Indus., Inc. , 402 F.3d 1371 , 1376 (Fed. Cir. 2005); see also TechSearch, L.L.C. v. Intel
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`Corp., 286 F.3d 1360, 1369 (Fed. Cir. 2002) ("Summary judgment of noninfringement is .. .
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`appropriate where the patent owner's proof is deficient in meeting an essential part of the legal
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`standard for infringement, because such failure will render all other facts immaterial."). Thus,
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`summary judgment of non-infringement can only be granted if, after viewing the facts in the
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`light most favorable to the non-movant, there is no genuine issue as to whether the accused
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`product is covered by the claims (as construed by the court). See Pitney Bowes, Inc. v. Hewlett(cid:173)
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`Packard Co. , 182 F.3d 1298, 1304 (Fed. Cir. 1999).
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`Ill.
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`D ISCUSSION
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`The Parties raised numerous issues in their summary judgment briefing. Most were not
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`adequately briefed, and I do not consider them any further. I asked the Parties to specifically
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`address certain issues during oral argument and in 75 pages of additional briefing. (D.I. 524). I
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`will address those issues in detail and deny summary judgment on the rest.
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`A. Infringement of the Asserted Claims of the '344, '966, and '497 Patents
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`The Parties agree that, under my reasoning in the Activision Case, Defendant does not
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`make or sell the inventions claimed in the ' 344, '966, and ' 497 Patents. Plaintiff also agrees that
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`my opinion in the Activision Case limits its use argument to Defendant' s alleged use by testing
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`5
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`Case 1:16-cv-00454-RGA Document 545 Filed 03/27/19 Page 6 of 16 PageID #: 46176
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`the Accused Products. Plaintiff does not reargue most of those points in this case. (D.I. 511 at 2;
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`Tr. at 21 :1-5). Accordingly, I will grant Defendant's motion for summary judgment on the
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`conceded issues. Plaintiff does argue, however, that its use by testing position is distinct from its
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`argument in the Activision Case. It also requests that I reconsider my position on "making." I
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`will consider each of its arguments in turn.
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`1. Use
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`It is undisputed that Defendant tests the Accused Products. The problem for Plaintiff,
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`however, is establishing that Defendant tests the Accused Products in an infringing manner. To
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`establish infringement, Plaintiff must prove by a preponderance of the evidence that Defendant
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`tested the accused product, in an accused mode, on an accused platform, during the damages
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`period, and within the United States. Defendant argues that Plaintiff's evidence as to each
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`accused game is insufficient to meet this burden.
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`i. FIFA
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`In support of its argument that Defendant tests the accused FIFA games in a potentially
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`infringing manner, Plaintiff identifies FIFA testing protocols, EA organizational charts that
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`identify teams responsible for testing, and tracking spreadsheets that show the methodical way
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`EA tests every mode of every game. (D.1. 534 at 2-8). It also notes that the net impact of the
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`documents could reasonably support a conclusion that Plaintiff tested the games during the
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`damages period. (Id. at 8-9). Defendant argues that Plaintiffs cited evidence does not establish
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`infringement as it does not show testing with five or more players on an accused platform or
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`testing on an Xbox that is connected to the Blaze server. (D.I. 535 at 9). I do not find
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`Defendant's argument persuasive. Plaintiff does not have the burden of conclusively
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`establishing, with 100 percent certainty, that Defendant tested with the correct number of players
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`on the correct platform. Rather, Plaintiff must prove such testing by a preponderance of the
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`Case 1:16-cv-00454-RGA Document 545 Filed 03/27/19 Page 7 of 16 PageID #: 46177
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`evidence. And, at this stage, it must only show that a reasonable jury could conclude such testing
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`occurred. The many documents describing EA's testing practices provide ample circumstantial
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`evidence on which a jury might reasonably rely to conclude Defendant tested FIFA with five or
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`more players and on an Xbox.
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`Plaintiffs evidence of FIFA testing in the United States is, however, lacking. Plaintiff
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`has two theories of domestic testing activity.2 First, Plaintiff notes, "EA admitted during
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`discovery that it tests the Blaze/Dirty SDK software in the United States (as well as in India and
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`Canada)." (D.I. 534 at 9). The Blaze/Dirty SDK provides the accused infringing network
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`functionality and, Plaintiff argues, the Blaze/Dirty SDK software is integrated into the FIFA
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`games. (Id.). Second, Plaintiff points out, "EA works with early pre-release testers in the United
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`States to obtain feedback regarding the Accused Products, such as FIFA, as reflected in surveys."
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`(Id. at 10). Defendant responds, "Testing of Blaze/Dirty software does not show the accused
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`games were ever tested in the United States, in an accused mode, on an accused platform." (D.I.
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`535 at 10). It also notes that the evidence of domestic "pre-release testers" cited by Plaintiff is
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`marketing analysis of consumer feedback. (Id.).
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`I agree with Defendant. Plaintiff does not cite evidence which would allow a reasonable
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`jury to connect testing of the Blaze/Dirty SDK software to testing of the FIFA games. Evidence
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`of consumer feedback is similarly unhelpful as it does not indicate that Defendant engaged in
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`any potentially infringing activity. On balance, although a jury may reasonably conclude that
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`Defendant tested the games in an otherwise infringing manner, Plaintiff identifies no evidence
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`2 Plaintiff also says, "EA uses at least two data centers in the United States that house its game
`servers." (D.I. 534 at 10). As Defendant correctly notes, "Acceleration does not explain how
`'data centers' have any relevance to the asserted claims at all, much less whether the data centers
`relate to its testing allegations." (D.I. 535 at 9 n.3).
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`7
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`Case 1:16-cv-00454-RGA Document 545 Filed 03/27/19 Page 8 of 16 PageID #: 46178
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`which would allow a jury to conclude that Plaintiff tested the FIFA games in the United States.
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`Thus, as a matter of law, Plaintiff cannot establish infringement via use of the FIFA games. I
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`will grant summary judgment of no infringement of the ' 344, ' 966, and '497 Patents via use of
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`the FIFA games.
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`ii. NHL and PvZ
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`The Parties' arguments regarding use via testing of the NHL and PvZ games largely
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`mirror those made regarding the FIFA games. The arguments for and evidence of testing an
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`accused product, in an accused mode, on an accused platform and during the damages period are
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`identical. I again find that the many documents describing EA' s testing practices provide ample
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`circumstantial evidence on which a jury might reasonably rely to conclude Defendant tested
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`these accused games, in an infringing manner, with five or more players, and on an Xbox.
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`In addition to the evidence Plaintiff identified for the FIFA games, Plaintiff points to an
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`interrogatory response pertaining to NHL and PvZ, which states that "multiplayer" testing occurs
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`in the United States and Canada. (D.I. 534 at 9; see also D.I. 533-1 , Exh. 40 at Resp. to Interrog.
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`No. 6). Defendant argues that this interrogatory response is not sufficient, standing alone, to
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`establish infringement. (D.I. 535 at 9). It also argues that not all multiplayer modes are accused.
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`(Id.). I agree. I do not agree, however, that Plaintiffs evidence is insufficient when combined
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`with the rest of the relevant evidence. A reasonable jury, when presented with all of the cited
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`evidence and Defendant' s binding admission that it tests multiplayer modes in the United States,
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`could reasonably conclude that Defendant tested the NHL and PvZ games in an infringing
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`manner in the United States. I will deny Defendant' s motion for summary judgment of no use by
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`testing of the NHL and PvZ games.
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`8
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`Case 1:16-cv-00454-RGA Document 545 Filed 03/27/19 Page 9 of 16 PageID #: 46179
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`2. Making
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`i. System of the '344 and ' 966 Patents
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`Plaintiffs argument that Defendant makes the system of the '344 and '966 Patents is
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`indistinguishable from the argument it made in the Activision Case. (Compare D.I. 534 at 13-
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`15, with C.A. 16-453, D.I. 475 at 2-5). There I found Activision did not make the claimed
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`system because "action by multiple customers is required here for the claimed 'participants' to
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`be in place and to send data in the network." (D.I. 499 at 13). On that basis, I concluded that
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`Centillion Data Sys., LLC v. Qwest Commc 'ns Int '/ Inc., 631 F.3d 1279, 1288 (Fed. Cir. 2011 ),
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`was indistinguishable. Plaintiff does not address my previous ruling on this issue and does not
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`explain how my previous analysis was erroneous. (See D.I. 534 at 13-15). I do not
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`independently see a reason to depart from my earlier determination. Accordingly, I will grant
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`Defendant' s motion for summary judgment of no infringement of the systems of the ' 344 and
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`'966 Patents by making.
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`ii. Component of the ' 497 Patent
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`The asserted claims of the '497 Patent recite, "A component in a computer system for
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`locating a call-in port of a portal computer, comprising" four means-plus function elements,
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`including "means for selecting the call-in port of the identified portal computer using a port
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`ordering algorithm." (' 497 Patent, claim 9). In the Activision Case, Plaintiff alleged that the
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`"component" was the game console. I found that Activision did not make the component as it
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`did not make the game console. (D.I. 499 at 19-20). In this case, Plaintiff argues that the
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`accused "component" is the Blaze Redirector. 3 (D.I. 534 at 10-13).
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`3 On a user's request, the Blaze Redirector connects the game console to one of the Blaze
`Servers. (D.I. 426 at 8).
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`9
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`Case 1:16-cv-00454-RGA Document 545 Filed 03/27/19 Page 10 of 16 PageID #: 46180
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`Defendant argues that Plaintiff has failed to provide any evidence that the Blaze
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`Redirector meets the "means for selecting the call-in port of the identified portal computer using
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`a port ordering algorithm" limitation. (D.I. 535 at 10). It notes that Dr. Mitzenmacher only
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`identifies Microsoft' s Xbox consoles as the structure for this limitation. (Id.at 11 ; see D.I. 428-1 ,
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`Exh. A-2 at ,r,r 120, 123, 126; D.I. 429-1 , Exh. A-4 at ,r 80). Moreover, it argues, Plaintiffs only
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`evidence of a "port ordering algorithm" are Microsoft documents that are unconnected to
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`Defendant. (D.I. 535 at 11). Finally, it argues that Plaintiff has conceded that the Microsoft
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`algorithm itself does not meet the "port ordering algorithm" limitation by failing to respond to
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`that argument in the original briefing. (Id. at 11-12). Plaintiff responds by citing, without
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`explanation, large swaths of its expert's reports. (D.I. 534 at 11-12). It does not specifically
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`discuss the "means for selecting the call-in port of the identified portal computer using a port
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`ordering algorithm" limitation, much less support its contention that Dr. Mitzenmacher disclosed
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`the Blaze Redirector as the accused component.
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`Citation to reams of expert testimony, without explanation, does not carry Plaintiffs
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`burden of establishing aprimafacie case of patent infringement. See TechSearch, L.L.C. v. Intel
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`Corp., 286 F.3d 1360, 1371-72 (Fed. Cir. 2002); Johnson v. Gov 't Employees Ins. Co., 2014 WL
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`4648171 , at * 1 (D. Del. Sept. 12, 2014 ). As Defendant says, the cited portions of Dr.
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`Mitzenmacher's reports only mention the Xbox and only cite to what appear to be Microsoft
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`documents. There is nothing in the cited portions of the report that might support a finding that
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`the Blaze Redirector is the "means for selecting the call-in port of the identified portal computer
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`using a port ordering algorithm." I recognize that several of Plaintiffs cited paragraphs consist
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`entirely of unexplained citation to code. That is insufficient to create a factual question. Plaintiff
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`does not attempt to explain why the code is relevant or might augment Dr. Mitzenmacher' s
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`10
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`Case 1:16-cv-00454-RGA Document 545 Filed 03/27/19 Page 11 of 16 PageID #: 46181
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`analysis that refers only to the Xbox- and Microsoft-provided functionality. Accordingly, I will
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`grant Defendant's motion for summary judgment that it does not infringe by making the
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`component of the ' 497 Patent.
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`B. Infringement of the Asserted Method Claims of the '069 and '147 Patents
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`Defendant argues that it cannot infringe the method claims of the '069 and ' 14 7 Patents
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`because some of the steps, as Plaintiff alleges they happen, occur outside of the United States.
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`(D.I. 526 at 10-14). To infringe a method claim, every step, or stage, must be performed in the
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`United States. NTP, Inc. v. Research In Motion, Ltd. , 418 F.3d 1282, 1317-18 (Fed. Cir. 2005).
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`Specifically, Defendant argues that the Blaze Server, which is located in Ireland, is accused of
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`performing at least one step in each of the claims. (D.I. 535 at 12).
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`1.
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`'069 Patent
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`Plaintiff argues that claim 1 of the ' 069 Patent has just three active steps, each of which is
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`performed in the United States. (D.I. 534 at 17-18). Defendant argues that sending an "edge
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`connection request" is an additional step and that, for the claim to be infringed, it must also be
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`performed in the United States. (D.1. 526 at 10-12). Claim 1 recites:
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`A computer-based, non-routing table based, non-switch based method for adding
`a participant to a network of participants, each participant being connected to
`three or more other participants, the method comprising:
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`identifying a pair of participants of the network that are connected
`wherein a seeking participant contacts a fully connected portal computer,
`which in turn sends an edge connection request to a number of randomly
`selected neighboring participants to which the seeking participant is to
`connect;
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`disconnecting the participants of the identified pair from each other; and
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`connecting each participant of the identified pair of participants to the
`seeking participant.
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`11
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`Case 1:16-cv-00454-RGA Document 545 Filed 03/27/19 Page 12 of 16 PageID #: 46182
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`('069 Patent, claim 1 (Parties' agreed steps bolded; Defendant's proposed additional step
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`italicized)).
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`Plaintiffs distinction between steps and parts of steps is unsupportable. The Federal
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`Circuit is clear that a "patent for a method or process is not infringed unless all steps or stages of
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`the claimed process are utilized." NTP, 418 F.3d at 1317. The "fully connected portal computer
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`.. . send[ing] an edge connection request to a number of randomly selected neighboring
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`participants to which the seeking participant is to connect" is a stage of the claim. Accordingly,
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`the claim is not infringed unless this stage is completed and completed in the United States. No
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`one disputes that the Blaze Server sends the edge connection request or that the request is sent
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`from Ireland. Thus, this stage of the claim is completed outside the United States. I will grant
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`Defendant's motion for summary judgment of no infringement of the asserted method claims of
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`the '069 Patent on this basis.
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`2.
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`'147 Patent
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`The Parties dispute whether Plaintiff can establish infringement of claim 1 of the ' 14 7
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`Patent. The method claim reads:
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`A method of disconnecting a first computer from a second computer, the first
`computer and the second computer being connected to a broadcast channel, said
`broadcast channel forming an m-regular graph where mis at least 3, the method
`compnsmg:
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`when the first computer decides to disconnect from the second computer,
`the first computer sends a disconnect message to the second computer,
`said disconnect message including a list of neighbors of the first computer;
`and
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`when the second computer receives the disconnect message from the first
`computer, the second computer broadcasts a connection port search
`message on the broadcast channel to find a third computer to which it can
`connect in order to maintain an m-regular graph, said third computer being
`one of the neighbors on said list of neighbors.
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`(' 14 7 Patent, claim 1).
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`Case 1:16-cv-00454-RGA Document 545 Filed 03/27/19 Page 13 of 16 PageID #: 46183
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`Plaintiff cannot establish literal infringement. A review of the expert report gives no
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`indication that Plaintiff, in fact, intends to argue that the Accused Products literally infringe.
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`(D.I. 442-1 , Exh. 1 at ,i,i 483-515 (discussing the "disconnect message" limitation and opining
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`only that "[t]he Accused Products meet this claim element under the doctrine of equivalents").
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`Plaintiffs briefing on this subject is less clear. (D.I. 467 at 20-21 ; D.I. 534 at 16 (arguing,
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`without support, that the Accused Products send a literal disconnect message which includes a
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`list of neighbors)). It is undisputed, however, that the only accused list is sent, not by a "first
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`computer" as part of a disconnect message, but by the Blaze Server at the start of the game.
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`(D.I. 467 at 21). This does not literally meet the "first computer sends a disconnect message to
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`the second computer, said disconnect message including a list of neighbors" limitation. Thus, to
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`the extent Plaintiff alleges literal infringement, I will grant Defendant's motion for summary
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`judgment.
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`Defendant argues that Plaintiff cannot prove infringement of the claim under the doctrine
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`of equivalents because the only message Plaintiff identifies as a "list of neighbors" is sent by the
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`Blaze Server (in Ireland) at the beginning of a game. (D.I. 526 at 13-14). Plaintiff responds that
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`the relevant activity, the sending of the disconnect message from the first computer to the second
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`computer, is completed in the United States. (D.I. 534 at 17). It argues that the disconnect
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`message is equivalent to the claimed disconnect message because it triggers an already-known
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`list of participants that the Blaze Server provided at the start of the game. (D.I. 467 at 21). The
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`fact that the list originated in Ireland is of no moment because the dissemination of the list was
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`pre-method activity. (D.I. 534 at 17). I agree with Plaintiffs analysis. Under its doctrine of
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`equivalents theory, no step of the claim occurs extraterritorially. Thus, I will not grant
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`Defendant summary judgment on this issue.
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`Case 1:16-cv-00454-RGA Document 545 Filed 03/27/19 Page 14 of 16 PageID #: 46184
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`Defendant also argues that, if it is Plaintiffs position that the Blaze Server does not
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`complete any of the steps of the method, Defendant cannot be considered a direct infringer. (D.I.
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`526 at 14). "The only EA activity involved in Acceleration' s theory is exclusively the operation
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`of the Blaze Server." (Id.) . Plaintiff appears to concede that Defendant does not itself complete
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`allegedly infringing activity. (See D.I. 534 at 15-17; see also D.I. 465 at 4-6; D.I. 478 at 5-7).
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`Defendant cites a pre-Akamai case in support of its position that a defendant must perform at
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`least one step of the allegedly infringing method to be held liable as a direct infringer, Ericsson,
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`Inc. v. D-Link Sys., Inc., 773 F.3d 1201 , 1222 (Fed. Cir. 2014). The law post-Akamai is,
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`however, "that liability under§ 271(a) can also be found when an alleged infringer conditions
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`participation in an activity or receipt of a benefit upon performance of a step or steps of a
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`patented method and establishes the manner or timing of that performance." Akamai Techs., Inc.
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`v. Limelight Networks, Inc. , 797 F.3d 1020, 1023 (Fed. Cir. 2015) (en bane). Thus, Defendant
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`may be a direct infringer despite not actually performing any step of the method. I will deny
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`summary judgment of no direct infringement of the method claims of the '14 7 Patent.
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`C. Infringement of the Topology Limitations of the '344, '966, '069, and 'J 47 Patents
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`The claims of the '344, ' 966, '069, and '147 Patents each require that the claimed
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`network be configured in a certain way- with a particular "topology." The Parties continue to
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`disagree, however, about the most basic factual underpinnings of the accused network. (D.I. 526
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`at 15-29; D.I. 534 at 18-26; D.I. 535 at 1-8). Specifically, they do not agree on the appropriate
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`"layer" of the network at which to evaluate infringement. (See D.I. 534 at 19 ("[Defendant]
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`manufactures a purported non-infringement theory by ignoring the application layer and focusing
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`on the data link and network layers, as it has done since the beginning of the case."); D.I. 535 at
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`1 ("After nearly four years of litigating this case, [Plaintiff] still cannot coherently describe any
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`accused network, let alone provide a diagram the Court asked for at the hearing. Using the term
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`14
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`Case 1:16-cv-00454-RGA Document 545 Filed 03/27/19 Page 15 of 16 PageID #: 46185
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`'application overlay network' as a mantra does not answer those questions.")). This foundational
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`factual question, in addition to the hundreds of cited pages of expert reports and deposition
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`testimony, precludes summary judgment on the issue of infringement of the topology limitations
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`of the ' 344, '966, '069, and ' 147 Patents. I will deny Defendant's motion for summary judgment
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`on this issue.
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`D. Other Summary Judgment Issues
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`Defendant moves for summary judgment that the Accused Products do not infringe the
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`Asserted Patents on several additional grounds. (D.I. 426 at 11-32). Plaintiff separately moves
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`for summary judgment that the Accused Products infringe claims 9 and 16 of the ' 497 Patent and
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`that Defendant is a direct infringer. (D.I. 437). Both Parties raise so many issues that many of
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`them are only cursorily briefed.4 The Parties may have made some other valid arguments buried
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`in the briefing, but I do not see them. Thus, I will deny Plaintiffs Motion for Partial Summary
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`Judgment (D.I. 435) as to all summary judgment issues and I will deny Defendant's Motion for
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`Summary Judgment (D.I. 424) as to all issues other than those discussed previously.
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`IV.
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`CONCLUSION
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`I will grant Defendant summary judgment of no infringement of the asserted claims of
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`the ' 344, '966, and '497 Patents based on the FIFA games. I will grant Defendant summary
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`judgment of no infringement of the asserted claims of the ' 344, ' 966, and '497 Patents by
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`making, selling or use, other than testing, of the NHL and PvZ games. I will grant Defendant
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`summary judgment of no infringement of the asserted method claims of the ' 069 Patent. To the
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`extent Plaintiff alleges literal infringement of the ' 14 7 Patent, I will grant Defendant' s motion for
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`4 EA made at least fifteen summary judgment arguments in its twenty-one pages of summary
`judgment briefing. (D.I. 426).
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`15
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`Case 1:16-cv-00454-RGA Document 545 Filed 03/27/19 Page 16 of 16 PageID #: 46186
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`summary judgment. As to all other issues, I will deny the Parties' motions. A separate order
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`will be entered.
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`16
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