Horus Vision, LLC v. APPLIED BALLISTICS, LLC et al

Filing 42

ORDER by Judge Howard R Lloyd granting 32 Motion to Amend/Correct ; finding as moot 41 Motion to Appear by Telephone (rmwlc2, COURT STAFF) (Filed on 6/23/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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HORUS VISION, LLC, a California limited
liability company,

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Plaintiff,

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v.

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APPLIED BALLISTICS, LLC, a Michigan
limited liability company, and APPLIED
BALLISTICS, INC., an Indiana corporation,

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Case No. 5:13-cv-05460-BLF-HRL
ORDER GRANTING MOTION FOR
LEAVE TO AMEND PLAINTIFF’S
INFRINGEMENT CONTENTIONS AND
DENYING AS MOOT MOTION TO
APPEAR BY TELEPHONE
[Re: Dkt. Nos. 32, 41]

Defendants.

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Plaintiff’s motion for leave to amend infringement contentions has been referred to the

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undersigned for disposition. 1 This patent infringement suit relates to a method of aiming a firearm

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with a scope using a computer program. Plaintiff Horus Vision, LLC (“Horus”) seeks leave to

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amend its infringement contentions to include an explicit list of reticles 2 that Horus believes

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infringes its patent when used with two of defendants’ software programs. Dkt. No. 32.

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Horus’s original infringement contentions, served April 2, 2014, accused two Applied
Ballistics software programs of infringement when used with “a target acquisition device such as a

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The court deems this motion suitable for a decision on the papers. Civ. L. R. 7-1(b).
Accordingly, Horus’s motion to appear at the hearing by telephone, Dkt. No. 41, is denied as
moot.
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Horus explains (colloquially, not for purposes of claim construction), that a reticle is a “series of
markings, like gridlines, in the eyepiece of a rifle scope that help the viewer reference the field of
view seen when looking through the rifle scope.” Dkt. No. 32 at 2.

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Horus Vision rifle scope.” Dkt. No. 32-2 at 3, 10. Horus’s proposed amended contentions, served

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April 22, 2014, list 88 possible reticles for use with Applied Ballistics’ accused programs. Dkt.

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No. 32-5 at 10.
Patent Local Rule 3-6 allows the parties to amend their infringement contentions only “by

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order of the Court upon a timely showing of good cause.”
Horus has good cause to amend its infringement contentions because the amendments do

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not change the theory of infringement and simplify issues for trial. As Horus repeatedly

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emphasizes in its brief, the Applied Ballistics software products being accused remain the same,

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and the use of different reticles or scopes with the Applied Ballistics software is likely to involve

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overlapping factual and legal issues.
Although it does appear that Horus could have listed all 88 reticles in its original

United States District Court
Northern District of California

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contentions, suggesting a lack of diligence, Applied Ballistics is not prejudiced by the amendment

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because it is early in the case and the amendments were proposed less than 3 weeks after service

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of the original preliminary infringement contentions. The amendment was also made in response

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to Applied Ballistics’ concerns about the original contentions, Dkt. No. 32 at 6, although that is

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not to say that Applied Ballistics invited or consented to Horus’s expanded list of reticles.
In the end, Applied Ballistics has suffered no prejudice from the 20-day difference in

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infringement contentions, and Horus’s amended infringement contentions contain the same theory

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of infringement, only laid out in more explicit detail, 3 than the original preliminary infringement

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contentions. Allowing Horus to amend its infringement contentions does not conflict with the

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central purpose of the Local Rule—to “require parties to crystallize their theories of the case early

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in litigation and to adhere to those theories once they have been disclosed.” O2 Micro Int’l Ltd. v.

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Monolithic Power Sys., Inc., 467 F.3d 1355, 1366 n. 12 (Fed. Cir. 2006). Accordingly, the court

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GRANTS the motion for leave to amend.

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The court expresses no opinion on the adequacy of the amended infringement contentions, which
Applied Ballistics suggests are lacking. See, e.g., Dkt. No. 36 at 13.
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SO ORDERED.
Dated: June 23, 2014
______________________________________
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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United States District Court
Northern District of California

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