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

RESPONSE to Motion re Opposed MOTION to Strike Portions of Zaydoon Jawadi's Expert Report regarding Infringement of U.S. Patent No. 6,446,111

E.D. Tex.March 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. URBAN OUTFITTERS, INC., Defendant. Civil Action No. 4:17-cv-862-ALM-KPJ (Consolidated) JURY TRIAL DEMANDED PLAINTIFF’S RESPONSE TO URBAN OUTFITTERS’ OPPOSED MOTION TO STRIKE PORTIONS OF ZAYDOON JAWADI’S EXPERT REPORT REGARDING INFRINGEMENT OF U.S. PATENT NO. 6,446,111 Timothy Devlin tdevlin@devlinlawfirm.com Robert Kiddie Texas Bar No. 24060092 rkiddie@devlinlawfirm.com James M. Lennon jlennon@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 Dated: March 26, 2019 Case 4:17-cv-00860-ALM-KPJ Document 122 Filed 03/26/19 Page 1 of 6 PageID #: 24498 1 I. INTRODUCTION Defendant Urban Outfitters (“Urban Outfitters”) claims that Plaintiff Dynamic Applet Technologies, LLC (“Dynamic”) has “concealed” alternative infringement theories until after discovery (D.I. 113) by serving it with amended infringement contentions within thirty days of claim construction, in January. Claim 19 is a dependent claim that requires no additional claim construction to interpret and, while being distinct from the other claims of the ‘111 patent, is relatively simple to grasp in concept. Any prejudice to Urban Outfitters’ ability to defend itself was brought on itself, particularly if it has not discussed the matter with its expert for the past two months. Furthermore, as Dynamic laid out in its motion for leave to amend its infringement contentions, Urban Outfitters did contribute to the need to amend these infringement contentions. (D.I. 95 at 2-3). Regardless, Dynamic does not oppose Urban Outfitter’s request to amend its expert reports, as it would resolve any potential issue and allow the case to proceed on its full merits. II. ARGUMENT A. Dynamic Provided Timely Notice, in Accordance with Local Rules Insofar as Urban Outfitters claims that allowing Dynamic to amend its infringement contentions would be contrary to the spirit or purpose of the rules of this jurisdiction, it is mistaken. “Proper infringement contentions provide a defendant with notice of a plaintiff’s infringement theories.” Fenner Invs., Ltd. v. Hewlet-Packard Co., 2010 U.S. Dist. LEXIS 17536 at *6 (E.D. Tex. February 26, 2010) (citing Linex Techs., Inc. v. Belkin Int’l, Inc., 628 F. Supp. 2d 703, 706 (E.D. Tex. Sept. 19, 2008). Indeed, the very purpose of the rule is to “further the goal of full, timely discovery and provide all parties with adequate notice of and information with which to litigate their cases.” Id. at *5-6 (quoting Computer Acceleration Corp. v. Microsoft Case 4:17-cv-00860-ALM-KPJ Document 122 Filed 03/26/19 Page 2 of 6 PageID #: 24499 2 Corp., 503 F. Supp. 2d 819, 822 (E.D. Tex. Aug. 24, 2007) (internal quotations omitted) (emphasis added)). At the risk of restating part of its argument already briefed in its pending motion to for leave to amend its infringement contentions, Dynamic recalls that it provided notice of its assertion of claim 19 within thirty days of claim construction, approximately 8 months prior to trial, and with well over a month prior to the expert discovery deadline—a deadline that Dynamic has twice moved to push back, the latest effort of which was opposed by Urban Outfitters despite its current claims of prejudice-by-calendar. (D.I. 85, 98, 106). Any prejudice suffered by Urban Outfitters has been from its willful blindness to an assertion of a dependent claim, the core element of which has been previously constructed by this court (see below), and of which Urban Outfitters has known of since well within a permissible timeframe in January. Indeed, Urban Outfitters contributed to the necessity of the amended infringement contentions through its deferral of substantive interrogatory responses. (See, D.I. 95 at 2-3). The burden of notice placed upon a plaintiff by the local patent rules is “intended to be a shield for defendants, not a sword.” Fenner, 2010 U.S. Dist. LEXIS 17536 at *12-13 (quoting Orion IP LLC v. Staples, Inc., 407 F. Supp. 2d 815, 818 (E.D. Tex. Jan 9, 2006). B. Urban Outfitters Provides No Basis for the Court to Strike the Cited Portions of Mr. Jawadi’s Report Urban Outfitters unsuccessfully attempts to recast Mr. Jawadi’s examples of infringement as new theories in order to justify striking them. However, Urban Outfitters does have one correct insight: leave to amend its expert reports is warranted as a matter of equity, and if allowed, would resolve the matter. Dynamic has no objection to such leave. i. Urban Outfitters Cannot Seek to Strike Mr. Jawadi’s Supporting Opinions and Examples of Infringement. “[T]he scope of an expert’s report and the scope of a plaintiff’s infringement contentions are Case 4:17-cv-00860-ALM-KPJ Document 122 Filed 03/26/19 Page 3 of 6 PageID #: 24500 3 not the same.” L.C. Eldridge Sales Co v. Azen Mfg. Pte, 2013 U.S. Dist. LEXIS 186309 at *23 (E.D. Tex. October 11, 2013) (citing Fenner, 2010 U.S. Dist. 2010 WL 786605 at *2). Infringement contentions do not require the same level of detail; expert reports “must include a complete statement of the expert’s opinions, the basis and reasons for them, and any data or other information considered when forming them.” Id. at *23 (quoting Fenner at *2). Urban Outfitters mislabels a new example of its infringement under a previously asserted theory as a “new infringement theory.” It has been Dynamic’s position since the filing of its complaint that Urban Outfitter’s website features code that is “configured to provide a plurality of operations” on preloaded values. (See, i.e., D.I. 1 at 12). In the cited portion of Mr. Jawadi’s report, he provides merely another example of one of the plurality of operations that can be executed by the code—namely, that of assigning status indication, which may trigger conditional functions. (See, D.I. 113-2 at 3-4). Mr. Jawadi has the duty to include the basis and reasons for his opinions, and Defendants cannot seek to strike those bases by claiming that it asserts a new theory of infringement. ii. Dynamic Agrees that Urban Outfitters Should Be Allowed to Amend Its Expert Reports Despite the Lack of Prejudice Caused by the Inclusion of Claim 19 As discussed above, Urban Outfitters has been aware the assertion of claim 19 (which is dependent upon the previously articulated independent claim that has been the focus of this litigation—claim 17) since January, and has had months to consult with its expert. This court has made clear that the purpose of infringement contentions is to put a defendant on notice of the expected claims against it. Fenner, 2010 U.S. Dist. LEXIS 17536 at *6 (citing Linex Techs., 628 F. Supp. 2d at 706); Computer Acceleration Corp. v. Microsfot Corp., 503 F. Supp 2d. 819, 822 (E.D. Tex. Aug. 24, 2007). Furthermore, it has been demonstrated that claim 19 would not complicate this case in any Case 4:17-cv-00860-ALM-KPJ Document 122 Filed 03/26/19 Page 4 of 6 PageID #: 24501 4 significant fashion. (See, D.I. 108 at 2). Contrary to Urban Outfitters’ claims, the court has, implicitly, given construction to the term “updateable.” The court construed the term “non- updateable” as “cannot be updated with information acquired over the communications link after the [applet] has been generated and transferred to.” (D.I. 79 at 27). The implicit construction, therefore, is that updateable is construed to mean “can be updated with information acquired over the communications link after the [applet] has been generated and transferred to.” (See, id. at 27). Despite Urban Outfitters’ continued strategy of burying its head in the sand, Dynamic has no objection to allowing Urban Outfitters to supplement its expert reports in this matter. It has never been Dynamic’s aim to conduct “infringement-by-ambush.” Dynamic endeavored to put Urban Outfitters on notice as soon as amended infringement contentions became warranted, and did so within thirty days of the claim construction. In essence, Dynamic agrees that Urban Outfitters should be allowed to supplement its expert reports to address claim 19 as a matter of equity and further agrees that this would resolve the issue. III. CONCLUSION For the foregoing reasons, Dynamic respectfully requests that the Court deny Urban Outfitter’s Motion, and give Urban Outfitters leave to supplement its expert reports to address claim 19. Case 4:17-cv-00860-ALM-KPJ Document 122 Filed 03/26/19 Page 5 of 6 PageID #: 24502 5 Dated: March 26, 2019 /s/ James M. Lennon Timothy Devlin tdevlin@devlinlawfirm.com Robert Kiddie Texas Bar No. 24060092 rkiddie@devlinlawfirm.com James M. Lennon jlennon@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 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 March 26, 2019. /s/ James M. Lennon James M. Lennon Case 4:17-cv-00860-ALM-KPJ Document 122 Filed 03/26/19 Page 6 of 6 PageID #: 24503