Dynamic Applet Technologies, LLC v. MATTRESS FIRM, INC. et al

REPLY to Response to Motion re SEALED MOTION Plaintiff's Motion for Leave to Serve Amended Infringement Contentions

E.D. Tex.February 26, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION DYNAMIC APPLET TECHNOLOGIES, LLC, Plaintiff, v. MATTRESS FIRM, INC. and SLEEPY’S, LLC, Defendants. Civil Action No. 4:17-cv-860-ALM-KPJ (Lead) JURY TRIAL DEMANDED DYNAMIC APPLET TECHNOLOGIES, LLC, Plaintiff, v. PETSMART, INC., Defendant. Civil Action No. 4:17-cv-861-ALM-KPJ (Consolidated) JURY TRIAL DEMANDED DYNAMIC APPLET TECHNOLOGIES, LLC, Plaintiff, v. URBAN OUTFITTERS, INC., Defendant. Civil Action No. 4:17-cv-862-ALM-KPJ (Consolidated) JURY TRIAL DEMANDED DYNAMIC APPLET TECHNOLOGIES, LLC, Plaintiff, v. HOLLISTER CO., Defendant. Civil Action No. 4:17-cv-878-ALM-KPJ (Consolidated) JURY TRIAL DEMANDED Case 4:17-cv-00860-ALM-KPJ Document 108 Filed 02/26/19 Page 1 of 5 PageID #: 21021 1 PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR LEAVE TO AMEND ITS INFRINGEMENT CONTENTIONS Defendant’s1 response is overly dramatic and ignores that the parties have only reached this point because of Defendant’s own actions—or, perhaps more accurately, inaction. Defendant’s cases regarding the necessity of fulfilling the, the “good faith” standard of P.R. 3-6(a) are distinguishable from the present matter. It is not only the claim construction that brings Plaintiff to seek leave to amend, but also Defendant’s dilatory conduct. To date, Plaintiff still awaits a substantive reply to Plaintiff’s Infringement Contentions. Defendant’s reply, as noted in Plaintiff’s Motion, deferred, citing that information will be provided in expert discovery. Yet, repeatedly, Defendants have delayed producing witness to testify with respect to Plaintiff’s Rule 30(b)(6) notice served in September. Indeed, even when supplementing its discovery, Defendants continued to delay, refusing to provide a substantive update to their response to the interrogatory and violating its duty to provide a meaningful supplement to its responses. The Court must use the “good cause” standard of P.R. 3-6(b). Plaintiff demonstrates in its motion that it satisfies this “good cause standard.” Contrary to Defendant’s claims, Plaintiff supplies an excellent reason for its delay—Defendants repeated refusal to provide a substantive response to Plaintiff’s Infringement Contentions. Because Defendant refused to provide Plaintiff with a formal articulation of its disputes and questions regarding infringement prior to the Markman hearing, Plaintiff must now amend its Infringement Contentions to reflect the best examples of Defendant’s infringement based on the information presently available—which is the very purpose of infringement contentions. See, Motion Games, 1 As of time of filing, Defendants Mattress Firm, PetSmart, and Hollister Co. have seen fit to settle and resolve all claims regarding them in this consolidated action. Only Defendant Urban Outfitters, Inc. remains. Case 4:17-cv-00860-ALM-KPJ Document 108 Filed 02/26/19 Page 2 of 5 PageID #: 21022 2 LLC v. Nintendo Co., Ltd., No. 6:12-cv-878-RWS-JDL, 2015 WL 1774448, at *1 (Ed. Tex. Apr. 16 2015). Defendant is correct in stating that the information Plaintiff includes in its Amended Infringement Contentions is publically available, but this has no bearing on the matter—but for Defendant’s dilatory conduct, this information could have been formally presented at an earlier time. Defendant’s claims of prejudice are unfounded. The amended infringement contentions do not substantially alter Plaintiff’s infringement theory. The Amended Infringement Contentions provide updated and additional examples of infringement that better illustrate Defendant’s infringement in light of the claim construction and what theories that Defendant has informally articulated to Plaintiff’s counsel in the absence of a formal, substantive response to Plaintiff’s Infringement Contentions. Furthermore, as Defendant’s website is best understood by Plaintiff following continued investigation in the absence of Defendant’s cooperation in discovery, this information is reflected in the Amended Infringement Contentions. The addition of claim 19 offers minimal prejudice to defendants. Claim 19 is dependent on claim 17, and focuses on the ability of these applets to handle updateable as well as non- updateable information. If, as Defendant believes, claim 17 is not infringed, claim 19 is not infringed. Furthermore, Defendants have been in possession of the proposed Amended Infringement Contentions since January, and, as Defendant itself notes, has been having discussions with opposing counsel on these subjects for some time; the insinuation that Plaintiff is “trying [sic] change the theory of the case” mere “days away from the deadline for Defendants to disclose their expert report on invalidity” is thus demonstrably false, even if one puts aside the fact that this motion was filed weeks ago. Case 4:17-cv-00860-ALM-KPJ Document 108 Filed 02/26/19 Page 3 of 5 PageID #: 21023 3 Finally, Defendant’s baseless insinuation that Plaintiff seeks to amend its infringement contentions because of Defendant’s frivolous Rule 11 Motion is utterly inappropriate and tellingly alleged without evidentiary support for such a claim. Defendant’s obfuscations notwithstanding, Plaintiff should not be prejudiced for Defendant’s dilatory conduct in addressing the discovery Plaintiff sought and has thus far been denied regarding Defendant’s infringing conduct. Plaintiff respectfully requests that, for the foregoing reasons, its motion be granted. Dated: February 26, 2019 DEVLIN LAW FIRM LLC By: /James M. Lennon/ James M. Lennon jlennon@devlinlawfirm.com Timothy Devlin tdevlin@devlinlawfirm.com Robert Kiddie Texas Bar No. 24060092 rkiddie@devlinlawfirm.com 1306 N. Broom St., 1st Floor Wilmington, Delaware 19806 Telephone: (302) 449-9010 Facsimile: (302) 353-4251 Attorneys for Plaintiff Dynamic Applet Technologies, LLC Case 4:17-cv-00860-ALM-KPJ Document 108 Filed 02/26/19 Page 4 of 5 PageID #: 21024 4 CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via electronic filing on February 26, 2019. /James M. Lennon/ James M. Lennon Case 4:17-cv-00860-ALM-KPJ Document 108 Filed 02/26/19 Page 5 of 5 PageID #: 21025