Sage Electrochromics, Inc. v. View, Inc.

Filing 178

STIPULATION AND ORDER re 177 STIPULATION WITH PROPOSED ORDER RE: Request to Amend Infringement Contentions filed by View, Inc. Signed by Judge Jon S. Tigar on June 13, 2014. (wsn, COURT STAFF) (Filed on 6/13/2014)

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KEITH SLENKOVICH (SBN: 129793)
JOSEPH F. HAAG (SBN: 248749)
TOBY MOCK (SBN: 265004)
CRYSTAL ROBERTS (SBN: 284622)
WILMER CUTLER PICKERING HALE
AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Tel. [phone]
Fax. [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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WILLIAM F. LEE (pro hac vice)
WILMER CUTLER PICKERING HALE AND
DORR LLP
60 State Street
Boston, Massachusetts 02109
Tel. [phone]
Fax. [phone]
[e-mail]
Attorneys for Defendant-Counterclaimant
View, Inc.

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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950 Page Mill Road
Palo Alto, CA 94304

Wilmer Cutler Pickering Hale and Dorr LLP

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SAGE ELECTROCHROMICS, INC.,

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Plaintiff–Counterclaim Defendant,
vs.
VIEW, INC.,

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Defendant–Counterclaimant.

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LEYBOLD OPTICS, GMBH,

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Intervenor-Plaintiff,
vs.
VIEW, INC.,
Defendant.

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No. C-12-6441 (JST)
STIPULATION AND [PROPOSED]
ORDER GRANTING VIEW, INC.’S
REQUEST TO AMEND
INFRINGEMENT CONTENTIONS
PURSUANT TO PATENT L.R. 3-6

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12-6441-JST

STIPULATION RE: INFRINGEMENT CONTENTIONS

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Defendant-Counterclaimant View, Inc. (“View”), Plaintiff-Counterclaim Defendant

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SAGE Electrochromics, Inc. (“SAGE”), and Intervenor-Plaintiff Leybold Optics, GmbH

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(“Leybold”), through their undersigned counsel, hereby agree and stipulate as follows:

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WHEREAS, View served its Patent L.R. 3-1 Infringement Contentions on June 12, 2013
pursuant to the Court’s Scheduling Order (ECF No. 57);
WHEREAS, on June 6, 2014, View notified SAGE and Leybold of its intent to seek the
Court’s leave to amend its Infringement Contentions with respect to U.S. Pat. No. 5,831,851

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(“’851 patent”), asserted by View against SAGE in this litigation, and WHEREAS, concurrent

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with the foregoing notification, View provided SAGE and Leybold with copies of its proposed

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950 Page Mill Road
Palo Alto, CA 94304

Wilmer Cutler Pickering Hale and Dorr LLP

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Amended Infringement Contentions for the ’851 patent;
WHEREAS, SAGE and Leybold do not oppose View’s request to amend its Infringement
Contentions with respect to the ’851 patent in the manner represented in View’s June 6, 2014
correspondence;
WHEREAS, View respectfully submits that good cause exists to amend its Infringement
Contentions pursuant to Patent L.R. 3-6 because:
(a)

View’s amended contentions rely on information ascertained from Leybold’s

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proprietary documents and source code recently produced in this case pertaining to SAGE’s

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“High Volume Manufacturing” (HVM) facility;

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(b)

Specifically, the source code pertaining to the HVM facility is alleged by SAGE

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to be in the exclusive possession of Leybold, and was first made available to View for inspection

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in discovery responses served by Leybold in this litigation on March 3, 2014;

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(c)

View inspected the source code for the first time on May 6, 2014, one month prior

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to View’s June 6, 2014 correspondence to SAGE and Leybold attaching its proposed Amended

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Infringement Contentions; and

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(d)

View’s proposed amendment will not prejudice SAGE or Leybold. To the

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contrary, View’s amended contentions provide additional detail to SAGE and Leybold regarding

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View’s infringement theories for the ’851 patent, thereby furthering the notice objective of the

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patent local rules.

12-6441-JST

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STIPULATION RE: INFRINGEMENT CONTENTIONS

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WHEREAS, for the foregoing reasons, View further submits that it acted diligently in

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seeking this amendment since none of these above bases for amendment were previously

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available to View outside the confidential discovery and disclosure mechanisms of this case. See

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Patent L.R. 3-6(c) (providing as a basis for amendment the “[r]ecent discovery of nonpublic

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information about the Accused Instrumentality which was not discovered, despite diligent

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efforts, before the service of the Infringement Contentions”);

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WHEREAS, SAGE, Leybold and View have agreed that, to avoid burdening the Court,
and pursuant to the Court’s May 29, 2013 Order (ECF No. 54), the parties will stipulate to allow

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View to amend its Infringement Contentions for the ’851 patent, subject to the Court’s approval.

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IT IS HEREBY STIPULATED AND AGREED, by and between View, SAGE, and

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Leybold, subject to the Court’s approval, that View is hereby given leave to amend its Patent

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L.R. 3-1 Infringement Contentions for the ’851 patent.

950 Page Mill Road
Palo Alto, CA 94304

Wilmer Cutler Pickering Hale and Dorr LLP

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Respectfully submitted,

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DATED: June 12, 2014

By:

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Attorneys for View, Inc.

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/s/ Keith Slenkovich
Keith Slenkovich

DATED: June 12, 2014

By:

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/s/ Wendy J. Ray
Wendy J. Ray

Attorneys for SAGE Electrochromics, Inc.

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DATED: June 12, 2014

By:

/s/ Tawfik Goma
Tawfik Goma

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Attorneys for Leybold Optics, GmbH

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12-6441-JST

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STIPULATION RE: INFRINGEMENT CONTENTIONS

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SIGNATURE ATTESTATION
I hereby attest that concurrence in the filing of this document has been obtained from

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Plaintiff-Counterclaim Defendant SAGE Electrochromics, Inc. and Intervenor-Plaintiff Leybold

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Optics, GmbH, and I have on file records to support this concurrence for subsequent production

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for the Court if so ordered or for inspection upon request. I declare under penalty of perjury of

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the laws of the United States that the foregoing is true and correct.

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Executed this 12th day of June, 2014, at Palo Alto, California.

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/s/ Keith Slenkovich
Keith Slenkovich

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950 Page Mill Road
Palo Alto, CA 94304

Wilmer Cutler Pickering Hale and Dorr LLP

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12-6441-JST

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STIPULATION RE: INFRINGEMENT CONTENTIONS

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on counsel for SAGE and Leybold.

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Dated: June 13, 2014

DERED

O R
I Tigar O
ITS. S S
Judge Jon

UNITED STATES DISTRICT COURT

NO

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950 Page Mill Road
Palo Alto, CA 94304

Wilmer Cutler Pickering Hale and Dorr LLP

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UNIT
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GRANTED. View is hereby ordered to serve copies of its Amended Infringement Contentions

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. Ti ga r

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Counterclaimant View, Inc.’s request to amend its Patent L.R. 3-1 Infringement Contentions is

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Good cause having been shown, IT IS HEREBY ORDERED that Defendant-

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[PROPOSED] ORDER

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12-6441-JST

PROPOSED ORDER