Ixi Mobile (R&D) Ltd. et al v. Apple, Inc.

Northern District of California, cand-4:2015-cv-03755

REPLY (re 157 MOTION Motion for Leave to Amend its Infringement Contentions and Asserted Claims) filed by IXI IP,LLC, IXI Mobile (R&D) Ltd.

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3 1 Jason D. Cassady (pro hac vice) jcassady@caldwellcc.com 2 Hamad M. Hamad (pro hac vice) hhamad@caldwellcc.com 3 Robert Seth Reich, Jr. (pro hac vice) 4 sreich@caldwellcc.com CALDWELL CASSADY & CURRY P.C. 5 2101 Cedar Springs Rd. Ste. 1000 Dallas, TX 75201 6 Telephone: (214) 888-4848 Facsimile: (214) 888-4849 7 8 Attorneys for Plaintiffs 9 IXI MOBILE (R&D) LTD. and IXI IP, LLC 10 Additional counsel in signature block 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 IXI MOBILE (R&D) LTD. et al., CASE NO. 4:15-CV-03752-HSG 14 Plaintiffs, PLAINTIFFS' REPLY IN SUPPORT OF 15 MOTION FOR LEAVE TO AMEND 16 v. INFRINGEMENT CONTENTIONS AND ASSERTED CLAIMS (DKT. NO. 166) 17 SAMSUNG ELECTRONICS CO., LTD., ET AL., Date: May 9, 2019 18 Defendants. Time: 2:00 p.m. Courtroom: 2, 4th Floor 19 Judge: Hon. Haywood S. Gilliam, Jr. 20 IXI MOBILE (R&D) LTD. et al., 21 CASE NO. 4:15-CV-03755-HSG (Related Case) Plaintiffs, 22 23 v. 24 APPLE INC., Defendant. 25 26 27 28 PLAINTIFF'S REPLY IN SUPPORT OF 30 MOTION TO AMEND 4:15-CV-03752-03755-HSG 3 1 TABLE OF CONTENTS 2 I. INTRODUCTION ............................................................................................................................ 1 3 II. ARGUMENT.................................................................................................................................... 1 4 1. Res Judicata Does Not Apply to Bar New Claims from the Reexamination of the 5 '033 Patent—Defendants' Reliance on Senju Is Misplaced. ......................................................... 1 2. IXI Is Not Trying to Assert Pending Claims—IXI Is Moving for Leave to Amend 6 Any Claims That May Issue from the Pending Claims in the Reexamination of the 7 '532 Patent. .................................................................................................................................... 6 3. IXI Has Demonstrated Good Cause and Diligence—IXI Should Not Be Punished 8 for Following Defendants' Requested or Agreed upon Schedule Deadlines. ............................... 6 9 III. CONCLUSION ................................................................................................................................ 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO AMEND i 4:15-CV-03752-03755-HSG 30 3 1 TABLE OF AUTHORITIES 2 Cases 3 Aspex Eyewear, Inc. v. Marchon Eyewear, Inc. 672 F.3d 1335 (Fed. Cir. 2012)........................................................................................................ 3, 5 4 Astoria Fed. Sav. & Loan Ass'n v. Solimino 5 501 U.S. 104 (1991) ............................................................................................................................. 4 6 Baker by Thomas v. Gen. Motors Corp. 7 522 U.S. 222 (1998) ............................................................................................................................. 4 8 Bojorquez v. Abercrombie & Fitch, Co. 9 193 F. Supp. 3d 1117 (C.D. Cal. 2016) ............................................................................................... 4 10 Brain Life, LLC v. Elekta Inc. 11 746 F.3d 1045 (Fed. Cir. 2014)........................................................................................................ 2, 5 12 Cal. Comput. Prods., Inc. v. Simplicity Pattern Co. 13 No. CV-69-1763, 1977 WL 22791 (C.D. Cal. May 23, 1977) ............................................................ 3 14 Foster v. Hallco Mfg. Co. 947 F.2d 469 (Fed. Cir. 1991).............................................................................................................. 2 15 16 In Re Koninklijke Philips Patent Litigation No. 18-CV-01885-HSG, 2019 WL 652868 (N.D. Cal. Feb. 15, 2019) ............................................... 8 17 Lawlor v. Nat'l Screen Serv. Corp. 18 349 U.S. 322, 75 S. Ct. 865, 99 L. Ed. 1122 (1955) ........................................................................ 1, 5 19 MaxLinear, Inc. v. CF CRESPE LLC 20 880 F.3d 1373 (Fed. Cir. 2018)........................................................................................................ 3, 4 21 Senju Pharm. Co. v. Apotex Inc. 22 746 F.3d 1344 (Fed. Cir. 2014).................................................................................................... 2, 4, 5 23 Target Training Int'l, Ltd. v. Extended Disc N. Am., Inc. 24 645 F. App'x 1018 (Fed. Cir. 2016) ................................................................................................ 1, 4 25 Young Eng'rs, Inc. v. U.S. Int'l Trade Comm'n 26 721 F.2d 1305 (Fed. Cir. 1983)............................................................................................................ 5 27 28 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO AMEND ii 4:15-CV-03752-03755-HSG 30 3 1 Statutes 2 35 U.S.C. § 102 ........................................................................................................................................ 2 3 35 U.S.C. § 103 ........................................................................................................................................ 2 4 35 U.S.C. § 311(b) ................................................................................................................................... 2 5 35 U.S.C. § 315(e) ................................................................................................................................... 2 6 Other Authorities 7 Restatement (Second) of Judgments § 26(c) ........................................................................................... 3 8 Restatement (Second) of Judgments § 83 ................................................................................................ 3 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO AMEND iii 4:15-CV-03752-03755-HSG 30 3 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 IXI's Motion for Leave should be granted. Defendants' opposition (Dkt. No. 173) to IXI's 4 motion argues three things: (1) that res judicata bars IXI from asserting the reexamined claims of the 5 '033 patent; (2) that IXI cannot assert draft claims not yet issued from the '532 patent's reexamination; 6 and (3) that IXI has not shown good cause. None of these provide a legitimate basis to deny leave. First, 7 res judicata does not bar IXI's assertions here; there has been no final judgment on the merits of IXI's 8 infringement claim; and Defendants' cited case law does not support the application of the doctrine in 9 this case. Second, IXI's request for advance leave to add subsequent reexamination claims is not a basis 10 to deny IXI's request here; IXI is not literally trying to assert pending patent claims but merely seeking to 11 short-circuit future briefing, if possible, by seeking guidance on whether future-issued reexamination 12 claims will be part of this case. Finally, IXI has shown good cause; IXI has in fact complied with an 13 agreed schedule governing infringement contentions, and Defendants' reasoning seeks to punish IXI for 14 complying with that agreed schedule. Accordingly, IXI respectfully requests that the Court grant its 15 Motion for Leave. 16 II. ARGUMENT 17 1. Res Judicata Does Not Apply to Bar New Claims from the Reexamination of the '033 18 Patent—Defendants' Reliance on Senju Is Misplaced. 19 For res judicata to apply, there must be (1) a final judgment on the merits in another suit 20 involving (2) the same parties or their privies; and (3) the pending suit must be based on the same "cause 21 of action" as the one resulting in the final judgment. See Lawlor v. Nat'l Screen Serv. Corp., 349 U.S. 22 322, 326, 75 S. Ct. 865, 99 L. Ed. 1122 (1955); Target Training Int'l, Ltd. v. Extended Disc N. Am., Inc., 23 645 F. App'x 1018, 1025 (Fed. Cir. 2016) (citations and quotations omitted). Here, there is no final 24 judgment on the merits involving the same "cause of action" pending in this case. There has been no 25 final judgment on IXI's infringement cause of action at all. 26 In defining the relevant "cause of action" in the patent infringement context, an "infringement 27 claim [i.e., cause of action], for purposes of claim preclusion[,] does not embrace more than the specific 28 30 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO AMEND 1 4:15-CV-03752-03755-HSG 31 3 1 devices before the court in the first suit." See Brain Life, LLC v. Elekta Inc., 746 F.3d 1045, 1053 (Fed. 2 Cir. 2014) (internal quotations and alterations omitted). Meanwhile, "[a]n assertion of invalidity of a 3 patent by an alleged infringer is not a 'claim' [i.e., cause of action] but a defense to the patent owner's 4 'claim' [i.e., cause of action]." See Foster v. Hallco Mfg. Co., 947 F.2d 469, 479 (Fed. Cir. 1991).1 5 Defendants' res judicata argument does not allege that there is any final judgment on IXI's 6 infringement claim. Instead, Defendants contend that the "final judgment" in the IPR proceedings can 7 work to extinguish IXI's infringement cause of action here. Defendants are wrong. 8 A "final judgment" in an IPR is not a final judgment on the same "cause of action" as an 9 infringement claim in a co-pending infringement lawsuit. The "cause of action" giving rise to an IPR 10 challenge has nothing to do with infringement by any "specific device" before the court but instead from 11 whether a particular patent claim is novel and non-obvious. See 35 U.S.C. § 311(b) (defining scope of an 12 IPR as to questions of validity under §§ 102 and 103). Logically extended, Defendants' argument would 13 have far-reaching anomalous results. If judgments from IPRs arose from the same "cause of action" as 14 co-pending infringement claims to give rise to a claim-preclusive effect, as Defendants contend, a patent 15 owner could win an IPR and still, according to Defendants' non-sensical argument, lose their co-pending 16 infringement claim—since there is a "final judgment," "on the merits," between the parties on the "same 17 cause of action." Obviously, nothing in the statutory framework or in any reported case anywhere would 18 support such an absurd result. 19 This argument is also inconsistent with the relevant statutory framework governing inter partes 20 review proceedings. If Congress intended for IPR judgments to give rise to res judicata to co-pending 21 infringement actions, there would be no need for a statutory estoppel provision to preclude defendants 22 from the continued assertion of prior art defenses. See 35 U.S.C. § 315(e). According to Defendants' 23 1 In the context of claim preclusion law, the word "claim" means "cause of action." See Senju Pharm. Co. 24 v. Apotex Inc., 746 F.3d 1344, 1349 (Fed. Cir. 2014) ("Use of the term 'claim' can cause confusion in a 25 patent case involving claim preclusion law. In patent law, a 'claim' is a substantive part of the patent document and plays a critically important role in infringement litigation. In civil procedure, and particularly 26 in discussions regarding preclusion law, 'claim' is equivalent to 'cause of action'—the name 'claim preclusion' means preclusion of a cause of action."). Other than direct quotations from cases, IXI will try 27 to use the full phrase "patent claim" to help avoid confusion. 28 30 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO AMEND 2 4:15-CV-03752-03755-HSG 31 3 1 argument, the IPR judgment, regardless of outcome, apparently extinguishes all co-pending infringement 2 and invalidity issues between the parties on the patent. For example, if the IPR resulted in some but not 3 all of the patent claims being invalidated, is the IPR still the same "cause of action" as the co-pending 4 infringement action. If yes, why and how? If not, why is there a difference in the application of res 5 judicata if all the patent claims are invalidated versus some subset of them being invalidated? The "cause 6 of action" at issue should be the same—it cannot be defined by an outcome. This makes no sense, and 7 the argument that the IPR judgment can give rise to preclusion of IXI's infringement claim should be 8 rejected. 9 Applying res judicata from the IPR judgment is also inconsistent with traditional res judicata 10 principles. Under the Restatement (Second) of Judgments, courts must consider the jurisdiction and 11 authority of the tribunal from which the allegedly preclusion-producing judgment came. When an 12 agency or tribunal cannot resolve a particular issue, preclusion from that judgment should not attach to 13 the issue that the agency was without authority to resolve. See Restatement (Second) of Judgments § 83, 14 cmt. g (explaining that causes of action in civil actions are generally broader than the issues within the 15 jurisdiction and authority of an administrative agency's review and that such limitations on its authority 16 should carry over to the scope of the cause of action for purposes of claim preclusion); Restatement 17 (Second) of Judgments § 26(c) (exception for applicability of scope of preclusion based on limitation of 18 subject matter or authority of prior tribunal). IPRs are limited to invalidity issues, and the PTAB is not 19 permitted to resolve infringement ones. The IPR judgment cannot preclude IXI's infringement cause of 20 action here.2 21 2 In any case, Defendants' cited authorities on this point do not compel a different conclusion. See Opp. 22 at 8-9, 9, n.4. Defendants cite MaxLinear, Inc. v. CF CRESPE LLC, 880 F.3d 1373, 1376 (Fed. Cir. 2018), for the proposition that IPRs support preclusion. But MaxLinear involved application of collateral estoppel 23 (not res judicata) based on one IPR decision against another IPR decision (not a co-pending infringement action). See 880 F.3d at 1374 (noting that this was an appeal from an IPR proceeding at the PTAB), 1375 24 (describing Federal Circuit's affirmance of prior IPR decision), 1378 (remand back to the PTAB). This 25 case just does not apply here. In Cal. Comput. Prods., Inc. v. Simplicity Pattern Co., No. CV-69-1763, 1977 WL 22791, at *1-*2 (C.D. Cal. May 23, 1977), the plaintiff filed an application for a broadening 26 reissue application, not a reexamination. Critically, reissues differ from reexaminations in that reissue proceedings involve the surrender of the original patent. See Aspex Eyewear, Inc. v. Marchon Eyewear, 27 Inc., 672 F.3d 1335, 1341-42 (Fed. Cir. 2012). There was no patent to be infringed because the patentee surrendered the original one and was not granted another—that is not the situation here. In Bojorquez v. 28 30 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO AMEND 3 4:15-CV-03752-03755-HSG 31 3 1 To argue otherwise, Defendants rely heavily on the Federal Circuit's opinion in Senju and 2 characterize the fact pattern as "very similar to this case." See Opp. at 1; see also id. at 5-8. Defendants 3 are wrong. In fact, as Defendants recognize (Opp. at 8), Senju involved a different fact pattern. Most 4 obviously, Senju involved a final judgment on the infringement cause of action in a prior district court 5 action, not merely an invalidity defense from a co-pending IPR. See 746 F.3d at 1347-48, 1354. It 6 simply does not apply here. 7 And while Defendants make much of Senju, the fact pattern in the later Target Training case is 8 significantly more on point.3 There, the patent owner's patent had been put through reexamination by a 9 third-party. See Target Training, 645 F. App'x at 1020-21. In that reexamination, all the then-asserted 10 patent claims were invalidated while numerous new reexamined patent claims were allowed. See id. 11 Because all of the asserted patent claims were found invalid, the district court dismissed the case as moot. 12 See id. at 1021-22. On appeal, the patent owner sought to reverse that dismissal for fear that it would 13 lose the right to assert its new, reexamined patent claims. See id. at 1025. However, the Federal Circuit 14 explained that the "mootness" dismissal would not impact the patent owner's ability to assert the new 15 Abercrombie & Fitch, Co., 193 F. Supp. 3d 1117 (C.D. Cal. 2016), there was not a difference in the scope 16 or the jurisdiction of the first action as compared to the second. In fact, the same claim that the plaintiff 17 was pursuing was asserted by the plaintiffs in a preceding class action of which she was a member, and moreover, the preceding class action offered potentially additional forms of recovery. See Bojorquez, F. 18 Supp. 3d at 1126-27. Next, in Baker by Thomas v. Gen. Motors Corp., 522 U.S. 222 (1998), the Supreme Court addressed the applicability of the Full Faith and Credit Clause between states and held consistently 19 with the established principles of res judicata regarding the scope of authority. See Baker by Thomas, 522 U.S. at 240-41 ("Recognition, under full faith and credit, is owed to dispositions Michigan has authority 20 to order. But a Michigan decree cannot command obedience elsewhere on a matter the Michigan court 21 lacks authority to resolve."). Similarly, in Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991), the Supreme Court considered whether collateral estoppel (not res judicata) applied to agency 22 determinations of age-discrimination claims and found that even though the Age Act did not have an "express delimitation" with respect to state agency findings, the statutory scheme made clear that collateral 23 estoppel did not apply. See Astoria, 501 U.S. at 111. 24 3 Defendants try to distinguish Target Training by arguing that the Federal Circuit in that case did not 25 consider preclusive effects from a reexamination and that reexaminations have long been held not to support preclusion anyways. See Opp. at 10, n.5. Defendants cite the MaxLinear case for support. But as 26 explained above (supra at n.2), MaxLinear involved application of collateral estoppel (not res judicata) based on one IPR decision against another IPR decision (not a co-pending infringement action). See 880 27 F.3d at 1374-75, 1378. 28 30 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO AMEND 4 4:15-CV-03752-03755-HSG 31 3 1 patent claims because "the district court. . . never reached a judgment on the merits" and, without such a 2 judgment, there could be no preclusion. See id. (emphasis added). Here, the district court has similarly 3 reached no judgment on the merits of IXI's infringement cause of action (and obviously, neither has the 4 PTAB), and preclusion should not apply. 5 In any event, res judicata does not apply to claims that accrue during a pending litigation. At 6 minimum, res judicata cannot apply as to infringements occurring after the alleged "prior" final 7 judgment—regardless of whether the products are the same products previously at issue, or different. 8 See Lawlor, 349 U.S. at 328 ("While the [prior judgment] precludes recovery on claims arising prior to 9 its entry, it cannot be given the effect of extinguishing claims which did not even then exist and which 10 could not possibly have been sued upon in the previous case."); Brain Life, 746 F.3d at 1054 ("We find 11 that Brain Life's second suit is not barred by claim preclusion—regardless of whether the same 12 transactional facts are present in both suits—to the extent Brain Life's current infringement allegations 13 are temporally limited to acts occurring after final judgment was entered in the first suit.").4 A judgment 14 simply cannot preclude assertion of rights that did not yet exist at the time the judgment was rendered. 15 Thus, IXI's request for leave to add these new claims cannot be considered "futile" where, even 16 assuming (incorrectly) that an IPR judgment can preclude any aspect of an infringement cause of action, 17 IXI can plainly still recover for any infringements occurring after the relevant "judgment." 18 Finally, it is worth noting that Judge O'Malley issued a strong dissent in Senju cautioning against 19 the majority's significant expansion of the doctrine of res judicata in that case. See Senju, 746 F.3d at 20 1354-58 (J. O'Malley dissenting). She lobbed these criticisms even in a more traditional res judicata 21 4 See also Young Eng'rs, Inc. v. U.S. Int'l Trade Comm'n, 721 F.2d 1305, 1316 (Fed. Cir. 1983) ("With 22 respect to patent litigation, we are unpersuaded that an 'infringement claim,' for purposes of claim preclusion, embraces more than the specific devices before the court in the first suit."); Aspex, 672 F.3d at 23 1342 ("We hold that res judicata does not bar Aspex's lawsuit with respect to accused products that were not in existence at the time of the California Actions for the simple reason that res judicata requires that in 24 order for a particular claim to be barred, it is necessary that the claim either was asserted, or could have 25 been asserted, in the prior action. If the claim did not exist at the time of the earlier action, it could not have been asserted in that action and is not barred by res judicata…. Although the parties debate whether the 26 design of those products is essentially the same as the design of the products that were the subjects of the California Actions, that does not matter with respect to products that were made or sold after the time of 27 the previous lawsuits."). 28 30 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO AMEND 5 4:15-CV-03752-03755-HSG 31 3 1 setting, where a prior Article III judgment was alleged to preclude a subsequent Article III proceeding. 2 Here, the fact pattern in the present case is even further removed from the specific fact pattern in Senju, 3 and, indeed, even far removed from the fact pattern in Target Training that the Federal Circuit reasoned 4 would not give rise to any preclusion. Nothing supports Defendants extreme extension of Senju to 5 capture a situation where the relevant infringement case has not yet reached judgment, the only allegedly 6 preclusive judgment is from an administrative body of limited jurisdiction, and, in any event, there are 7 infringements occurring after the allegedly preclusive IPR judgment. 8 2. IXI Is Not Trying to Assert Pending Claims—IXI Is Moving for Leave to Amend 9 Any Claims That May Issue from the Pending Claims in the Reexamination of the 10 '532 Patent. 11 To the extent it was not clear from its motion, IXI is not trying to literally assert the pending 12 patent claims in the '532 patent's reexamination. Rather, IXI is requesting leave to amend its contentions 13 to add any patent claims that might issue from that reexamination. And Defendants' casual references to 14 sanctions are a bombastic and outsized reaction to IXI's reference to the pending '532 patent claims. See 15 Opp. at 12. This is particularly the case where counsel for Apple requested clarification from IXI's 16 counsel, and IXI's counsel explained IXI's intention—that IXI was requesting leave to amend for any 17 patent claims that do issue and also that IXI would file an additional motion once those patent claims 18 issue if that were the Court's preference. See Cassady Decl. at ¶ 2. 19 Had IXI waited and not notified Defendants and the Court of its intention regarding the pending 20 claims in the '532 patent reexamination, Defendants would have complained that IXI was not sufficiently 21 forthcoming in its initial request to amend and should have mentioned the claims in the '532 patent's 22 reexamination. IXI included these patent claims in the current briefing so as to inform Defendants and 23 the Court of IXI's intention with respect to these patent claims now. Should the Court require a separate 24 motion for leave when claims issue from the '532 patent's reexamination, IXI will submit a motion at 25 that time. 26 3. IXI Has Demonstrated Good Cause and Diligence—IXI Should Not Be Punished for 27 Following Defendants' Requested or Agreed upon Schedule Deadlines. 28 30 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO AMEND 6 4:15-CV-03752-03755-HSG 31 3 1 Defendants also oppose leave based on IXI's supposed lack of diligence. But Defendants agreed 2 away their complaints. While Defendants make much about IXI's supposed failure to serve infringement 3 contentions, IXI had proposed a fixed date certain on which it would serve such contentions even before 4 the Court ruled on IXI's motion to amend. Defendants rejected the notion of a date certain and instead 5 insisted that any deadline for the service of amended infringement contentions be keyed off of the 6 Court's ruling on IXI's Motion to Amend. See Cassady Decl. at ¶ 3, Ex. 1 (Mar. 12, 2019 email from 7 Apple counsel H. Frahn to IXI counsel S. Reich) ("Separately, while it was clear at the hearing that the 8 Court agreed with the defendants' proposal on resolving any motion to amend the contentions before 9 setting a schedule because adding potentially scores of new '033 claims would inject additional 10 complexity into the case, should the Court grant your motion to amend, and reserving all rights to oppose 11 that motion, it would seem to make sense that any ultimate deadline for amended contentions should 12 be triggered by a ruling granting your motion – say, two weeks from any such ruling?") (emphasis 13 added). In other words, Defendants proposed exactly what they are now complaining about. IXI 14 accepted Defendants' proposal and drafted the stipulation to reflect that agreement, but without 15 explanation, Defendants then struck that agreement from the draft stipulation. See Cassady Decl. at ¶ 4, 16 Ex. 2 (Mar. 13, 2019 email from Apple counsel H. Frahn to IXI counsel S. Reich and attachment 17 thereto). IXI's counsel noted the deletion of the parties' agreement and that since the parties were 18 already in agreement, IXI would be agreeable to Defendants' revisions. See Cassady Decl. at ¶ 5, Ex. 3 19 (Mar. 13, 2019 email from IXI counsel S. Reich to Apple counsel H. Frahn and attachment thereto) ("We 20 noticed Defendants removed the parties' agreement on the revised deadline for IXI's contentions. 21 Since we accepted your proposal of IXI's contentions being due two weeks after the Court rules on IXI's 22 motion, I assume we are in agreement there and think we can leave that out of the stipulation if you 23 prefer. Please confirm if we are good to file the stipulation or otherwise let me know if Defendants have 24 any additional comments.") (emphasis added). At no point prior to filing the stipulation did Defendants 25 indicate there was any disagreement regarding the agreed-upon amended contentions disclosure deadline. 26 Defendants cannot, on the one hand, want to have the deadline keyed off of the ruling on the 27 Motion, and then, on the other hand, criticize IXI for following the schedule of deadlines that Defendants 28 30 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO AMEND 7 4:15-CV-03752-03755-HSG 31 3 1 insisted on having. This is particularly true given that Defendants rejected IXI's proposal for an earlier 2 date certain to serve amended contentions. Given that IXI has adhered to the stipulated briefing and 3 disclosure schedules and complied with the parties' agreements regarding the disclosure of amended 4 contentions, IXI has demonstrated good cause. See In Re Koninklijke Philips Patent Litigation, No. 18- 5 CV-01885-HSG, 2019 WL 652868, at *4 (N.D. Cal. Feb. 15, 2019) ("[D]ue to the transfer, Defendants' 6 request to pause proceedings, and Defendants' stipulation to the briefing schedule that Plaintiffs have 7 adhered to, the Court finds that Plaintiffs have demonstrated good cause to amend[.]"). The cases cited 8 by Defendants do not involve a situation where a court found no good cause even when a plaintiff agreed 9 to the briefing and disclosure schedule insisted upon by a defendant and then in good faith adhered to 10 that schedule. 11 III. CONCLUSION 12 Because good cause exists to allow IXI to amend its infringement contentions and no prejudice 13 will result to Defendants, IXI respectfully requests that its motion for leave to amend be granted. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO AMEND 8 4:15-CV-03752-03755-HSG 31 3 Dated: March 28, 2019 CALDWELL CASSADY & CURRY P.C. 1 2 By:/s/ Jason D. Cassady Jason D. Cassady (pro hac vice) 3 jcassady@caldwellcc.com Hamad M. Hamad (pro hac vice) 4 hhamad@caldwellcc.com Robert Seth Reich, Jr. (pro hac vice) 5 sreich@caldwellcc.com 6 CALDWELL CASSADY & CURRY P.C. 2101 Cedar Springs Rd. Ste. 1000 7 Dallas, TX 75201 Telephone: (214) 888-4848 8 John V. Picone III, Bar No. 187226 9 jpicone@hopkinscarley.com 10 Jennifer S. Coleman, Bar No. 213210 jcoleman@hopkinscarley.com 11 HOPKINS & CARLEY A Law Corporation 12 The Letitia Building 70 South First Street 13 San Jose, CA 95113-2406 14 mailing address: 15 P.O. Box 1469 San Jose, CA 95109-1469 16 Telephone: (408) 286-9800 17 Facsimile: (408) 998-4790 18 Thomas Biemer (pro hac vice) tbiemer@dilworthlaw.com 19 John J. Higson (pro hac vice) jhigson@dilworthlaw.com 20 Joshua Wolson (pro hac vice) jwolson@dilworthlaw.com 21 DILWORTH PAXSON LLP 22 1500 Market Street, Ste. 3500(E) Philadelphia, PA 19106 23 Attorneys for Plaintiffs 24 IXI MOBILE (R&D) LTD. and IXI IP, LLC 25 26 27 28 30 PLAINTIFF'S REPLY IN SUPPORT OF MOTION TO AMEND 4:15-CV-03752-03755-HSG 31