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Micro, 467 F.3d at 1366). “However, even if the movant was arguably not diligent, the court retains
discretion to grant leave to amend.” Linex Techs., Inc. v. Hewlett–Packard Co., 2013 WL 5955548,
at *1 (N.D. Cal. Nov. 6, 2013); see also Apple Inc. v. Samsung Electronics Co., 2012 WL 5632618,
at *2 (N.D. Cal. Nov. 15, 2012) (granting leave to amend infringement contentions, even though
court found plaintiff failed to establish diligence, because of lack of prejudice to the defendants).
The good cause standard of Patent L.R. 3-6 “serves to balance the parties’ rights to develop
new information in discovery along with the need for certainty in legal theories at the start of the
case.” Apple, 2012 WL 5632618, at *2.
IV. ARGUMENT
Aquatic has been diligent in seeking amendment of its infringement contentions. In
cooperation with defendants’ expressed intent to bring an expedited motion for summary judgment,
Aquatic timely pursued written discovery, exchanged preliminary claim constructions on an
expedited basis, collected and analyzed samples of the Wired Remotes that otherwise were not
publicly available, took the deposition of Magnadyne’s corporate representative, and consulted with
and obtained infringement opinions from its technical expert. These activities have all occurred
over the past 60 days, culminating in an expert declaration that the Wired Remotes (in addition to
the previously accused Wireless Remotes) infringe the asserted claims of the ‘756 patent. Aquatic
timely brings its request to amend its infringement disclosures close upon the heels of the discovery
and technical analysis supporting the new infringement contentions.
Magnadyne is not prejudiced by the amendments. It has had prior notice that its Wired
Remotes are accused instrumentalities in this case based on Aquatic having identified the Wired
Remotes in its infringement charts for the ‘081 patent. The current amendments to Aquatic’s
infringement contentions therefore do not add new accused products or new asserted claims but
instead identify the Wired Remotes as also infringing the asserted claims of the ‘756 patent. In
addition, there are still six months remaining before the fact discovery cut-off and over eight months
until the expert discovery cut-off – providing more than ample time for any discovery on these
accused products.
-4-
AQUATIC’S NOT. OF MOT. AND MOT. FOR LEAVE TO AMEND INFRINGEMENT CONTENTIONS
Case No. 3:14-cv-01931-WHA
Case3:14-cv-01931-WHA Document87 Filed02/03/15 Page5 of 7
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