Karl Storz Endoscopy-America, Inc. v. Stryker, Inc. et al

Filing 331

ORDER DENYING MOTION FOR LEAVE TO AMEND INFRINGEMENT CONTENTIONS by Judge Alsup denying 323 Motion to Amend/Correct ; (whalc1, COURT STAFF) (Filed on 11/16/2011)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 KARL STORZ ENDOSCOPY-AMERICA, INC., 11 For the Northern District of California United States District Court 10 12 13 14 15 16 No. C 09-00355 WHA Plaintiff, v. ORDER DENYING MOTION FOR LEAVE TO AMEND INFRINGEMENT CONTENTIONS STRYKER CORPORATION and STRYKER COMMUNICATIONS, INC., Defendants. / AND RELATED COUNTERCLAIMS / 17 18 19 20 INTRODUCTION In this patent-infringement action involving surgical equipment management, plaintiff 21 moves for leave to supplement its infringement contentions. For the following reasons, the 22 motion is DENIED. 23 24 STATEMENT Karl Storz Endoscopy America, Inc. filed this action in the Western District of Tennessee 25 four years ago in November 2007, accusing Stryker Corporation and Stryker 26 Communications, Inc. of infringing three patents. The action was transferred to this district in 27 January 2009; the present case number was assigned at that time. Pursuant to Patent Local 28 1 Rules 3-1 and 3-2, plaintiff KSEA served its patent-infringement contentions in September 2009. 2 The action was reassigned to the undersigned judge in January 2011. Non-expert discovery has 3 now ended and the parties have exchanged expert reports under FRCP 26(a)(2). Defendants’ 4 motion for summary judgment is set to be heard next month (Dkt. No. 320). At this late hour, 5 KSEA seeks leave to supplement its infringement contentions with potentially new products and 6 theories of infringement (Opp. 1). 7 KSEA has not submitted its proposed amendments for consideration. KSEA only 8 provides a vague description that its supplemental infringement contentions “will include the 9 model numbers of the Stryker devices as well as technical details which were not available to KSEA until the recent discovery” (Br. 3). 11 For the Northern District of California United States District Court 10 ANALYSIS 12 Amendment of infringement contentions “may be made only by order of the Court upon a 13 timely showing of good cause.” Pat. Loc. R. 3-6. “Good cause requires a showing of diligence,” 14 and “[t]he burden is on the movant to establish diligence rather than on the opposing party to 15 establish a lack of diligence.” O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355, 16 1366 (Fed. Cir. 2006). 17 1. 18 KSEA did not exercise diligence in seeking to amend its infringement contentions. This LACK OF DILIGENCE. 19 action has been pending for four years. KSEA did not seek to depose any of defendants’ 20 technical witnesses until it served a Rule 30(b)(6) notice on September 15, 2011, nearly four 21 years into the case and six months after the claim-construction order issued. 22 KSEA asserts that it delayed because “Stryker has been slow to produce documents in this 23 case, and produced highly relevant documents on a rolling basis as the deadline for fact discovery 24 approached” (Br. 3). Stryker replies that it has “fully complied with discovery obligations” and 25 that “KSEA sat on its rights” by not diligently seeking discovery in the four years this case has 26 been pending (Opp. 3–4). This order agrees with Stryker. KSEA has not pointed to any 27 indication that Stryker actually stonewalled against discovery relating to infringement. KSEA 28 had ample opportunity to request discovery relief on this issue if Stryker was not forthcoming in 2 1 discovery; but never did so. KSEA’s decision to wait until after document discovery was 2 substantially complete before taking depositions is not good cause for delaying to amend its 3 infringement contentions. 4 2. FAILURE TO SUBMIT PROPOSED AMENDMENTS. 5 Moreover, KSEA has not submitted any proposed supplemental infringement contentions. 6 Thus, it is impossible to evaluate how the new contentions differ from the initial contentions, 7 what evidence supports the new contentions, when that evidence was discovered, and whether the 8 changes would prejudice Stryker. KSEA has not met its burden of showing good cause for 9 amendment at this eleventh hour. 11 For the Northern District of California United States District Court 10 12 CONCLUSION For the foregoing reasons, the motion by KSEA for leave to supplement its infringement contentions is DENIED. 13 14 IT IS SO ORDERED. 15 16 Dated: November 16, 2011. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3

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