Fitbit, Inc. v. AliphCom et al

Filing 117

Order by Magistrate Judge Howard R. Lloyd granting Dkt. No. 111 Motion For Leave to Supplement Infringement Contentions. The court finds this matter suitable for determination without oral argument pursuant to Civil Local Rule 7-1(b). (hrllc3S, COURT STAFF) (Filed on 1/5/2017)

E-filed 1/5/2017

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

FITBIT, INC.,
Plaintiff,

8
9
10

United States District Court
Northern District of California

11
12

Case No.15-cv-04073-EJD (HRL)

v.
ALIPHCOM, et al.,
Defendants.

ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR LEAVE
TO SUPPLEMENT INFRINGEMENT
CONTENTIONS
Re: Dkt. No. 111

Pending before the court is plaintiff Fitbit, Inc.’s (“Fitbit”) motion for leave to supplement

13

its infringement contentions. Dkt. No. 111. The motion is unopposed, and the court deems this

14

matter suitable for determination without oral argument pursuant to Civil Local Rule 7-1(b). For

15

the reasons explained below, the court grants Fitbit’s motion for leave to supplement its

16

infringement contentions.

17
18

BACKGROUND
Fitbit asserts that it served its initial infringement contentions on defendant AliphCom

19

d/b/a Jawbone (“Jawbone”) in February. Dkt. No. 111. In addition to this action, the litigants are

20

engaged in various other proceedings, including investigations before the International Trade

21

Commission (“ITC”). Dkt. No. 111, Chung Decl., at ¶ 3. As part of the ITC proceedings, Fitbit

22

inspected sections of Jawbone’s source code that form the basis of Fitbit’s proposed supplements

23

to its infringement contentions here. Id. Fitbit, however, was bound by the protective order it

24

entered into as part of the ITC proceeding, and initially could not use the confidential information

25

discovered before that body in this case. Id. In August 2016, however, the parties entered into a

26

cross-use agreement that, among other things, allows them to use confidential information

27

discovered through the ITC proceeding here. Id.; id., at Ex. 19. Within one month after entering

28

into this agreement, Fitbit noticed inspection of Jawbone’s source code, id. at ¶ 5, and Fitbit

1

moved to supplement its infringement contentions in light of that review approximately two

2

months later. Fitbit asserts that Jawbone does not oppose the motion to supplement, id. at ¶ 2, and,

3

indeed, no opposition has been filed.
DISCUSSION

4
5

Patent Local Rule 3.6 governs the amendment of infringement contentions. It states that
amendments “may be made only by order of the Court upon a timely showing of good cause.”

7

Patent L.R. 3-6. Courts evaluating requests for leave to amend apply a two-step analysis to

8

determine if good cause exists: “first the court must determine whether the moving party was

9

diligent in amending its contentions; second[,] the court must determine whether the non-moving

10

party would suffer undue prejudice if the motion to amend were granted.” DCG Sys., 2012 WL

11
United States District Court
Northern District of California

6

1309161, at *3. In establishing good cause, the burden is on the moving party to show diligence.

12

Apple Inc. v. Samsung Elecs. Co., Ltd., No. CV 12-00630 LHK, 2012 WL 5632618, at *2 (N.D.

13

Cal., Nov. 15, 2012). Patent Local Rule 3-6(c) specifically provides that a finding of good cause

14

may be supported by the “[r]ecent discovery of nonpublic information about the Accused

15

Instrumentality which was not discovered, despite diligent efforts, before the service of the

16

Infringement Contentions.”

17

The court is persuaded that good cause exists to allow Fitbit to supplement its infringement

18

contentions. Though Fitbit discovered the relevant source code through the ITC investigations at

19

an earlier date, this information was effectively unavailable to Fitbit until August 8, 2016, when

20

the parties entered into a cross-use agreement. After the barrier to Fitbit’s use of Jawbone’s

21

source code was removed, Fitbit acted diligently to re-discover the non-public information and to

22

file this motion. Additionally, as Jawbone has not opposed Fitbit’s motion, the court is persuaded

23

that granting leave to supplement Fitbit’s infringement contentions would not cause the defendant

24

to suffer undue prejudice.
CONCLUSION

25
26
27
28

The court therefore grants Fitbit’s motion for leave to supplement its infringement
contentions.
IT IS SO ORDERED.
2

1

Dated: 1/5/2017

2
3
HOWARD R. LLOYD
United States Magistrate Judge

4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3