Worlds Inc (WDDD)

[Tinkerer]

Pacer #108 came out last night:


THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
WORLDS, INC.,
Plaintiff,
v.
ACTIVISION BLIZZARD, INC., BLIZZARD ENTERTAINMENT, INC. and ACTIVISION PUBLISHING, INC.,
Defendants.

Civil Action No. 1:12-CV-10576 (DJC)
DEFENDANTS’ RESPONSE TO PLAINTIFF’S NOTICE OF SUPPLEMENTAL AUTHORITY IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Defendants Activision Blizzard, Inc., Blizzard Entertainment, Inc., and Activision Publishing, Inc. (collectively “Activision”) submit this response to Worlds, Inc.’s (“Worlds’”) Notice of Supplemental Authority in Opposition to Defendants’ Motion for Summary Judgment (“Notice”) (D.I. 107).

Worlds’ Notice refers to the USPTO’s recent issuance of certificates of correction for U.S. Patent Nos. 6,219,045 and 7,181,690 (“Certificates of Correction”). That was an expected event that has no effect on Activision’s summary judgment motion. Activision expressly addressed that contingency in its reply brief in support of its Motion for Summary Judgment (“Reply”):
However, any certificates of correction that Worlds may obtain in the future will have no effect on Worlds’ [infringement] claims in this case. The very case cited by Worlds in support of its assertion that the PTO can correct errors holds that “certificate of corrections issued after the commencement of [the] litigation do not have retroactive effect.” Adrain, 2001 WL 740542 at *5. This is because the statutory provisions for certificates of correction state that they apply only to “the trial of actions for causes thereafter arising.” See 35 U.S.C. §§ 254, 255. Thus, the Federal Circuit has concluded that a certificate of correction issued after the filing of a lawsuit “is not to be given effect in [a] pre-certificate lawsuit.” Southwest Software, Inc. v. Harlequin, Inc., 226 F.3d 1280, 1294 (Fed. Cir. 2000); Novo Indus., 350 F.3d at 1357. This rule has been reiterated by numerous district courts. See, e.g., Radar Indus., Inc. v. Cleveland Die & Mfg. Co., 632 F. Supp. 2d 686, 693 (E.D. Mich. 2009); STmicroelectronics, Inc. v. Motorola, Inc., 327 F. Supp. 2d 687, 700-01 (E.D. Tex. 2004); Intel Corp. v. Altima Commc’ns Inc., 275 F. Supp. 2d 1236, 1255 (E.D. Cal. 2003); Karol v. The Burton Corp., 234 F. Supp. 2d 450, 452 (D. Vt. 2002); SDS USA, Inc. v. Ken Specialties, Inc., No. 99-cv-133, 2002 WL 31055997 at *23-24 (D.N.J. Aug. 28, 2002).
D.I. 91 at 13 (emphasis added); see also generally id. at Section II.D. (pp. 13-15).

Beyond submitting the Certificates of Correction, Worlds’ Notice merely rehashes the arguments regarding the impact of their issuance that Worlds made in opposition to Activision’s Motion for Summary Judgment and to Activision’s Motion to Continue the Markman Hearing, all of which were before the Court prior to its decision to continue the Markman hearing. Compare D.I. 107 at 1-2 with D.I. 89 at 20 and D.I. 97 at 3. Indeed, the two cases cited by Worlds in its Notice were addressed in Worlds’ Opposition to Activision’s Motion for Summary Judgment, and distinguished in Activision’s Reply:

In DuPont, the patentee sought a certificate of correction before filing the lawsuit, not after. See DuPont, 525 F.3d at 1355. In Inland Paperboard, the Court never considered the question of whether a certificate of correction has retroactive effect. Inland Paperboard & Packaging, Inc. v. Sihl GmbH, No. 1:02-cv-1623, 2005 WL 1528240 (S.D. Ind. June 21, 2005). Indeed, the defendant in that case failed to raise this point. Hong Ex. 38.
D.I. 91 at 14 (emphasis in original).
At the end of Worlds’ Notice, Worlds also rehashes its request that the Court combine the Markman hearing with the October 17 hearing for Activision’s summary judgment motion. That request was already considered and rejected by the Court, with the Court acknowledging the parties’ differing views on whether Activision’s summary judgment motion can dispose of this action:

Although the Court recognizes that Worlds disagrees that a ruling in the Defendants’ favor will be dispositive of this case, D. 97 at 3, the Defendants’ position is that it would be and, therefore, addressing the pending motion first would be a more efficient use of judicial resources. D. 96 at 7. In light of the arguments raised in Defendants’ motion for summary judgment, the Court GRANTS the motion to defer any claim construction hearing until after the resolution of the pending motion, D. 83.
D.I. 99 (emphasis added). The issuance of the Certificates of Correction did not change anything. Activision maintains that a grant of its summary judgment motion will completely dispose of this action, and Worlds continues to argue that a summary judgment in Activision’s favor will not be case dispositive. Because the circumstances underlying the Court’s decision to continue the Markman hearing remain as they were before, the Court should (1) deny Worlds’ request to combine the Markman hearing with the October 17 summary judgment hearing and (2) revisit the scheduling of the Markman hearing, if necessary, after resolution of Activision’s summary judgment motion. See id.
Dated: October 1, 2013
Respectfully submitted,
By: /s/ Blake B. Greene
Blake B. Greene (BBO #681781)
ROPES & GRAY LLP
Prudential Tower
800 Boylston Street Boston, Massachusetts 02199-3600 [phone]
[e-mail]
Case 1:12-cv-10576-DJC Document 108 Filed 10/01/13 Page 3 of 5
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Jesse J. Jenner (pro hac vice)
[e-mail]
Gene W. Lee (pro hac vice)
[e-mail]
Brian P. Biddinger (pro hac vice)
[e-mail]
Kathryn N. Hong (pro hac vice)
[e-mail]
ROPES & GRAY LLP
1211 Avenue of the Americas New York, New York 10036-8704 T: [phone]
F: [phone]
ATTORNEYS FOR DEFENDANTS, ACTIVISION BLIZZARD, INC., BLIZZARD ENTERTAINMENT, INC. AND ACTIVISION PUBLISHING, INC.
Case 1:12-cv-10576-DJC Document 108 Filed 10/01/13 Page 4 of 5
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CERTIFICATE OF SERVICE
I hereby certify that the foregoing document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) this 1st day of October, 2013.
By: /s/ Blake B. Greene
Blake B. Greene
Case 1:12-cv-10576-DJC Document 108 Filed 10/01/13 Page 5 of 5