Acceleration Bay LLC (“Acceleration”) filed a patent infringement suit against Activision Blizzard Inc. (“Activision”) alleging that versions of its popular video games, World of Warcraft, Call of Duty, and Destiny infringed certain of its patents. The trial in the action was postponed when it was not clear as to whether Acceleration had a viable, admissible damage theory.

After the district court permitted the plaintiff to submit a new damage report, the plaintiff submitted a new report from a new damage expert. Activision moved to exclude the new damage report on several grounds and Acceleration also moved to exclude Activision’s damage expert as well. In addition to excluding Acceleration’s damage expert report in several respects, the district court also excluded certain aspects of Activision’s damage expert.

With respect to Activision’s expert, the district court noted that “Ms. Lawton’s assumption of non-infringement of earlier versions of the accused products is baseless and must be excluded.” Activision argued that Ms. Lawton did not opine on non-infringing alternatives but instead assumed non-infringement based on Acceleration not pursuing infringement claims prior to 2012. The district court found this explanation unavailing.

The district court explained that it is “undisputed that none of its technical experts have opined that the earlier games are non-infringing.” Therefore, the only support for the conclusion that the earlier versions of the games are non-infringing alternative is Ms. Lawton’s assumption, which did not have any support from a technical expert. “A damages’ expert’s assumption is not sufficient to support a damages opinion based on a particular non-infringing alternative.”

Accordingly, the district court excluded Activision’s damage expert’s “assumption that earlier game versions are non-infringing alternatives and any damages conclusions stemming from that assumption.”

Acceleration Bay LLC v. Activision Blizzard Inc., Case No. 1:16-cv-00453-RGA (D. Del. Sept. 2019)