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52398769_2
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
WORLDS, INC.,
Plaintiff,
v.
ACTIVISION BLIZZARD, INC.,
BLIZZARD ENTERTAINMENT, INC. and
ACTIVISION PUBLISHING, INC.,
Defendants.
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Civil Action No. 1:12-cv-10576-DJC
JURY TRIAL DEMANDED
ACTIVISION BLIZZARD, INC., BLIZZARD ENTERTAINMENT, INC.
AND ACTIVISION PUBLISHING, INC.’S SEVENTH SUPPLEMENTAL
PRELIMINARY NON-INFRINGEMENT CONTENTIONS
Pursuant to the August 6, 2012, Joint Scheduling Statement (D.I. 27), the Court’s
August 13, 2012, September 25, 2012, and November 26, 2012 Orders (D.I. 29, D.I. 35, and D.I.
40, respectively) modifying the Joint Scheduling Statement, and Plaintiff’s July 27, 2015 Sixth
Supplemental Disclosure of the Claims Infringed (D.I. 160), Defendants Activision Blizzard,
Inc., Blizzard Entertainment, Inc. and Activision Publishing, Inc. (collectively “Activision”),
provide the following Seventh Supplemental Preliminary Non-Infringement Contentions.
Activision submits that none of the asserted claims are infringed by Activision. Activision notes
that the parties are currently engaged in discovery, these contentions are preliminary in nature,
and the Court’s order concerning the Joint Scheduling Statement provides for the possibility of
further amending and supplementing these Non-infringement Contentions. Accordingly,
Activision might further supplement, amend, and/or modify these contentions as this action
proceeds.
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I. THE ASSERTED CLAIMS
Worlds, Inc. (“Worlds”) alleges that Activision’s accused products infringe the
following claims of United States Patents Nos. 7,181,690 (“the ’690 patent”), 7,493,558 (“the
’558 patent”), 7,945,856 (“the ’856 patent”), 8,082,501 (“the ’501 patent”), and 8,145,998 (“the
’998 patent”) (collectively the “patents-in-suit”):
• ’690 patent claims 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, and 19;
• ’558 patent claims 4, 5, 6, 7, 8, and 9;
• ’856 patent claim 1;
• ’501 patent claims 1, 2, 3, 4, 5, 6, 7 (World of Warcraft only), 8, 10, 12, 14, 15, and
16 (World of Warcraft only); and
• ’998 patent claims 1, 18, and 20.1
Activision’s Seventh Supplemental Preliminary Non-Infringement Contentions do
not address any claims not asserted in Worlds’ Infringement Contentions. To the extent that the
Court permits Worlds to supplement, amend, and/or modify its contentions or to assert additional
claims against Activision in the future, Activision might seek to supplement, amend, and/or
modify its responses to Worlds’ contentions.
1 Worlds’ Infringement Contentions originally alleged that Activision’s accused products
also infringed ’558 patent claims 1-3 and ’998 patent claim 21. D.I. 34 at 3-4, D.I. 58 at 3-4. On
April 17, 2013, counsel for Worlds notified counsel for Activision that Worlds was no longer
asserting infringement of these claims against Activision. On May 24, 2013, Worlds dropped
these claims against Activision in its Second Supplemental Infringement Contentions. D.I. 77 at
3-4. On July 27, 2015, in its Sixth Supplemental Infringement Contentions, Worlds further
withdrew assertion of ‘690 patent claims 9, 18, and 20 and ‘998 patent claims 2, 3, 7, 8, 11–17
and 19, all of which were found by the Court to contain an indefinite limitation. (D.I. 160 at 4).
Although ‘998 patent claim 21 is still listed in Exhibits I and J provided with Worlds’ Sixth
Supplemental Disclosure of the Claims Infringed, this appears to be in error, in view of the April
17, 2013 statement above and the absence of claim 21 from Worlds’ statement of asserted
claims. Id.
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II. THE ACCUSED PRODUCTS
Worlds has alleged that Activision has infringed, either directly or indirectly, and
either literally or under the doctrine of equivalents, the patents-in-suit by Activision’s
manufacture, sale, offer for sale, and use of their Call of Duty and World of Warcraft products
(“the Accused Products”) in the United States. Activision’s Call of Duty and World of Warcraft
products include numerous titles, versions, and other variations of the games across many
different platforms.
In Worlds’ Sixth Supplemental Disclosure of the Claims Infringed, Worlds
specifically alleges infringement against, “across all platforms: World of Warcraft; World of
Warcraft: Burning Crusade (expansion set); World of Warcraft: Wrath of the Litch King (expansion
set); World of Warcraft: Cataclysm (expansion set); World of Warcraft: Mists of Pandaria (expansion
set); World of Warcraft: Warlords of Draenor (expansion set).” Worlds also alleges infringement
against “the Call of Duty franchise includ[ing] the following games and all versions thereof,
across all non-mobile platforms (including PC, Mac, PlayStation 2, PlayStation 3, PlayStation 4,
Xbox, Xbox 360, Xbox One, Wii, and Wii-U)2
: Call of Duty; Call of Duty: United Offensive
(expansion pack); Call of Duty 2; Call of Duty 2: Big Red One; Call of Duty 3; Call of Duty 4:
Modern Warfare; Call of Duty 4: Modern Warfare “Reflex Edition”; Call of Duty: World at
War; Call of Duty; Modern Warfare 2; Call of Duty: Black Ops: Call of Duty: Modern Warfare
3; Call of Duty: Ghosts; and Call of Duty: Advanced Warfare.” (Worlds’ Sixth Supplemental
Disclosure of the Claims Infringed, p. 2).
On June 21, 2013, counsel for Worlds notified counsel for Activision that Worlds
was no longer asserting infringement against Call of Duty: Finest Hour (Gamecube), Call of
Duty 2: Big Red One (Gamecube), Call of Duty 3 (Wii), and Call of Duty World at War: Final
Fronts and “any of the mobile versions (for Playstation Vita or iPhone OS) of Call of Duty.”
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Worlds’ Sixth Supplemental Disclosure of the Claims Infringed (p. 2, n.2) also states that
“Worlds does not allege that any mobile versions of Call of Duty or World of Warcraft are
infringing products” and further do not allege infringement against Call of Duty: Finest Hour
(Playstation 2, Xbox). Activision thus understands that Worlds is no longer asserting
infringement against at least the following products:
Call of Duty Title Platform
Call of Duty: Finest Hour Playstation 2
Xbox
Gamecube
Call of Duty 2: Big Red One Gamecube
Call of Duty 3 Wii
Call of Duty: Roads to Victory Playstation Portable
Call of Duty 4: Modern Warfare Nintendo DS
Mobile
Call of Duty: World at War Nintendo DS
Mobile
Call of Duty: World at War: Final Fronts Playstation 2
Call of Duty: Modern Warfare 2 Force Recon Mobile
Call of Duty: Modern Warfare: Mobilized Nintendo DS
Call of Duty: World at War Zombies I iPhone OS
Call of Duty: World at War Zombies II iPhone OS
Call of Duty: Black Ops Nintendo DS
Mobile
Call of Duty: Modern Warfare 3 Defiance Nintendo DS
Call of Duty: Black Ops Zombies iPhone OS/ Mobile
Call of Duty: Black Ops Declassified Playstation Vita
In addition, despite Activision making available for inspection source code for
Call of Duty 4: Modern Warfare “Reflex Edition” (Wii) and Call of Duty: Modern Warfare 3
(Wii), Worlds has not provided any supplemental contentions containing source code citations
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related to these products. The functionality of the accused products at issue here directly
involves source code, and Activision is entitled to know exactly which products are alleged to
infringe each asserted claim and specifically how each asserted claim limitation is allegedly met
by each accused product. Thus, to the extent Worlds alleges infringement against these products,
Worlds’ Infringement Contentions are deficient and do not provide any bases to support its
allegations. Moreover, Activision is unable to respond to Worlds’ infringement allegations
against these products. To the extent that Worlds is permitted to supplement its Infringement
Contentions to provide charts with citations to source code for these products, Activision might
supplement, amend, and/or modify these contentions.
Likewise, to the extent that Worlds generally asserts infringement against all titles
and/or versions across all platforms of the Call of Duty accused products, Worlds is required to
set forth its infringement theories regarding each title, version, and/or variation for each platform
on a product-by-product basis. Accordingly, Activision is unable to respond to Worlds’
infringement allegations against the Accused Products for which Worlds has not provided any
bases (including citations to source code and/or other material) to support an assertion of
infringement. Notwithstanding the foregoing, Activision submits that none of the asserted
claims are infringed by any title, version, or variation of the Accused Products for any platform.
Should Worlds be permitted to supplement its Infringement Contentions to provide charts with
citations to source code and/or other material for additional titles, versions, or variations of the
Accused Products, Activision might supplement, amend, and/or modify these contentions.
In addition, to the best of Activision’s current knowledge, the features and
functions of World of Warcraft that Worlds has accused of infringement operate similarly across
the accused titles and/or versions of World of Warcraft. Should Worlds seek to supplement its
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Infringement Disclosures in a manner that implicates features and functions that are not similar
for different titles, versions, or variations of World of Warcraft, Activision might supplement,
amend, and/or modify these contentions.
In addition, to the extent that Worlds seeks to assert infringement of the patentsin-suit
against any products other than Activision’s Call of Duty and World of Warcraft
products, Activision objects to the inclusion of such products in this suit as improper.
III. ACTIVISION’S RESPONSE TO WORLDS’ INFRINGEMENT CONTENTIONS
Notwithstanding the deficiencies of Worlds’ Infringement Contentions raised
herein and to the extent that Activision understands Worlds’ Infringement Contentions,
Activision provides herewith an explanation in its Seventh Supplemental Exhibits 1, 3, 5, 7, and
9 for why it believes that World of Warcraft does not infringe any of the asserted claims, and an
explanation in its Seventh Supplemental Exhibits 2, 4, 6, 8, and 10 explaining why it believes
that the Call of Duty products referenced in Worlds’ Infringement Contention charts do not
infringe any of the asserted claims. Activision states that the bases for non-infringement set forth
in these Seventh Supplemental Exhibits 1-10 apply to the products accused of infringement in
Worlds’ Sixth Supplemental Disclosure of the Claims Infringed.
In addition, Activision contends that its Call of Duty products do not infringe the
asserted claims requiring a “server,” or a “client process” insofar as the Court’s construction of
that term requires a “server,” and further that none of its products infringe the asserted claims
requiring a “client process” insofar as the Court’s construction of that term requires a “user’s
computer.”
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In addition, the following Call of Duty products do not infringe the asserted
claims because these products utilize a peer-to-peer system in which each client broadcasts
information to other clients:
Call of Duty Title Platform
Call of Duty 2: Big Red One Playstation 2
Xbox
Call of Duty 3 Playstation 2
Playstation 3
Xbox
Xbox 360
Activision further contends that any acts by or on behalf of Activision with
respect to any of the accused products prior to September 24, 2013 cannot constitute
infringement of any asserted claim of the patents-in-suit because, pursuant to the Court’s March
13, 2014 Order, the patents-in-suit were invalid prior to September 24, 2013.
A. INFRINGEMENT UNDER THE DOCTRINE OF EQUIVALENTS
Worlds states in its contentions that “if there are any differences between the
claim elements in the aforementioned claims and the accused systems or methods, the
differences are insubstantial and infringement would exist under the doctrine of equivalents.”
(Worlds’ Sixth Supplemental Disclosure of the Claims Infringed, p. 4). Worlds does not provide
any specificity as to how or why the Accused Products would infringe the asserted claims under
the doctrine of equivalents.
Should Worlds amend its contentions to add any specific allegations of
infringement under the doctrine of equivalents, Activision might supplement, amend, and/or
modify its contentions. Notwithstanding the foregoing, Activision believes it does not infringe,
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either literally or under the doctrine of equivalents, any of the asserted claims of the patents-insuit.
B. DIRECT AND INDIRECT INFRINGEMENT
Worlds’ Infringement Contentions also lack sufficient information concerning
Worlds’ grounds for alleging direct and indirect infringement. Worlds makes only a general
allegation in its Infringement Contentions “that each element of each asserted claim is directly
infringed by Defendants” and that “f for any reason the Accused Products are not found to
directly meet each element of an asserted claim, Worlds alleges that Defendants are contributing
to the infringement of such claim or inducing its infringement by others because the accused
functionalities have no substantial non-infringing use, and because Defendants are aware that
they are inducing the direct infringement by its users and customers of the Accused Products.”
(Worlds’ Sixth Supplemental Disclosure of the Claims Infringed, p. 3). Worlds does not provide
any specificity beyond these allegations as to why or how Activision “directly” and/or
“indirectly” infringes the patents-in-suit. Moreover, Worlds does not specify on a claim-byclaim
basis which claims it asserts that Activision infringes under a theory of direct
infringement, joint infringement, induced infringement, and/or contributory infringement.
Notwithstanding the foregoing, Activision believes it does not infringe, either
directly or indirectly, any of the asserted claims of the patents-in-suit. Should Worlds amend its
contentions regarding its theories of direct and indirect infringement, Activision might
supplement, amend, and/or modify its contentions.
IV. DOCUMENT PRODUCTION
Pursuant to the Joint Scheduling Statement ¶ 4.B (D.I. 27), as of December 3,
2012, Activision has made and will continue to make available for inspection source code
relating to the Accused Products that is sufficient to show the operation of the accused product(s)
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or method(s) that Worlds identified in its preliminary infringement disclosure. The source code
is available for inspection at the following locations in accordance with the terms of the
Stipulated Protective Order (D.I. 39):
Source Code relating to World of Warcraft:
Blizzard Entertainment, Inc.
16215 Alton Parkway
Irvine, California 92618
Source Code relating to Call of Duty:
Activision Blizzard, Inc.
3100 Ocean Park Blvd.
Santa Monica, California 90405
V. ONGOING DISCOVERY AND DISCLOSURES
The parties are currently engaged in discovery and Activision’s investigation is
ongoing. Activision might seek to supplement, amend, and/or modify the positions taken and
information disclosed in these charts including, without limitation, the grounds of noninfringement
set forth herein, to take into account information or defenses that may come to light
as a result of these continuing efforts.
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Respectfully Submitted,
Dated: August 26, 2015 By: /s/ Matthew J. Moffa
Jesse J. Jenner (pro hac vice)
Gene W. Lee (pro hac vice)
Brian P. Biddinger (pro hac vice)
Matthew J. Moffa (pro hac vice)
ROPES & GRAY LLP
1211 Avenue of the Americas
New York, New York 10036-8704
T: (212) 596-9000
F: (212) 596-9050
Kathryn N. Hong (pro hac vice)
ROPES & GRAY LLP
1900 University Avenue, 6th Floor
East Palo Alto, CA 94303
T: (650) 617-4000
F: (650) 617-4090
Samuel Brenner (BBO# 677812)
ROPES & GRAY LLP
Prudential Tower
800 Boylston Street
Boston, MA 02199-3600
T: (617) 951-7000
F: (617) 951-7050
ATTORNEYS FOR DEFENDANTS,
ACTIVISION BLIZZARD, INC.,
BLIZZARD ENTERTAINMENT, INC.
AND ACTIVISION PUBLISHING, INC.
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CERTIFICATE OF SERVICE
I hereby certify that this document and all attachments filed through the ECF
system will be sent electronically to the registered participants as identified on the Notice of
Electronic Filing (NEF) and that paper copies will be sent to those non-registered participants (if
any) on August 26, 2015.
/s/ Matthew J. Moffa
Matthew J. Moffa
Case 1:12-cv-10576-DJC Document 170 Filed 08/26/15 Page 11 of 11
