Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 839

RESPONSE in Opposition re 815 Opposed MOTION for Leave to File Supplement to its PR 3-1 Infringement Contentions with Respect to Google Music and Google+Opposed MOTION for Leave to File Supplement to its PR 3-1 Infringement Contentions with Respect to Google Music and Google+ [Corrected] filed by Google Inc.. (Attachments: # 1 Declaration of Han Xu, # 2 Exhibit A - Music Beta, # 3 Exhibit B - Google +, # 4 Exhibit C - Davis-Lynch, # 5 Exhibit D - Power-One, # 6 Exhibit E - Eon Corp, # 7 Text of Proposed Order)(Jones, Michael)

Exhibit D

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Only the Westlaw citation is currently available.
United States District Court,
E.D. Texas,
Marshall Division.
POWER-ONE, INC.
v.
ARTESYN TECHNOLOGIES, INC.
Civil Action No. 2:05-CV-463.
Oct. 11, 2007.
Alan D. Smith, Christopher D. Agnew, Matthew J.
Leary, Michael H. Bunis, Steven R. Katz, Whitney A.
Fellberg, Fish & Richardson PC, Boston, MA, Earl
Glenn Thames, Jr., James Matthew Rowan, Michael
Edwin Jones, Potter Minton PC, Tyler, TX, for Power-One, Inc.
Jeffrey A. Andrews, Nathaniel Cochran Dunn, Robert
James McAughan, Jr., Locke Lord Bissell & Liddell
LLP, Houston, TX, Jennifer Parker Ainsworth, Wilson Sheehy Knowles Robertson & Cornelius PC,
Tyler, TX, Joseph M. Lafata, Roland A. Fuller, III,
Harness Dickey & Pierce, Troy, MI, Timothy G.
O'Neill, Snell & Wilmer, Denver, CO, Warren Earl
Platt, Snell & Wilmer, Phoenix, AZ, for Artesyn
Technologies, Inc.
MEMORANDUM OPINION & ORDER
JOHN D. LOVE, United States Magistrate Judge.
*1 Before the Court are Plaintiff Power-One,
Inc.'s Motion to Conform the Pleadings to the Evidence (Doc. No. 256); Plaintiff Power-One Inc.'s
Renewed Motion for Sanctions or in the Alternative to
Bifurcate Case Into Jury Trial and Bench Trial (Doc.
No. 293); Defendant Artesyn's Combined Opposition
to Plaintiff's Motion to Conform the Pleadings to the
Evidence and Plaintiff's Renewed Motion for Sanctions or in the Alternative to Bifurcate the Case Into
Jury Trial and Bench Trial (Doc. No. 278); Power-One's Motion For Additional Discovery on “Atlas”
and “Venus” POL Products (Doc. No. 313); Plaintiff
Power-One, Inc.'s Motion for Expedited Consideration of its Motion for Additional Discovery on “Atlas”

and “Venus” POL Products (Doc. No. 314); Power-One's Motion for Leave to Supplement its Infringement Contentions (Doc. No. 298); Power-One's
Reply in Support of its Motion to Amend Infringement Contentions and Identification of Additional
Discovery (Doc. No. 309); Defendant Artesyn's
Sur-Reply in Opposition to Power-One's Motion for
Leave to Supplement its Infringement Contentions;
and Defendant Artesyn's Opposition to Power-One's
Motion for Additional Discovery (Doc. No. 315). For
the reasons that follow, Plaintiff Power-One, Inc.'s
(hereinafter “Power-One”) motions are DENIED.
BACKGROUND
On September 30, 2005, Power-One brought the
present lawsuit against Defendant Artesyn Technologies, Inc. (hereinafter “Artesyn”), alleging that a feature set incorporated in certain Artesyn products infringed multiple Power-One patents, including Patent
No. 6,936,999, Patent No. 6,949,916, Patent No.
7,000,125, and Patent No. 7,049,798 (collectively
“Power-One's patents”). FN1 After two years of litigation, Power-One and Artesyn are now scheduled to go
to trial on the DPL20C on November 6, 2007.FN2
Despite the looming trial date, Power-One has brought
the present motions seeking to add more products and
parties to the litigation.
FN1. Patent Nos. 6,949,916 and 7,049,798
were later dropped. The upcoming trial deals
only with Patent Nos. 6,936,999 and
7,000,125.
FN2. At the time the first of the present motions were filed, the trial was set for August
6, 2007.
When it originally brought suit, Power-One made
only a general allegation of infringement. Power-One
sought to target any products “that used a serial bus for
control and monitoring, and specifically a control and
monitoring bus called the ‘PMBus.™’ “ (Pl.'s Renew.
Mot. Sanc. 2). In addition to the general allegation of
infringement, Power-One specifically targeted Artesyn's DPL20C digital point-of-load converter. According to Power-One, the DPL20C was the only
named product because it is Artesyn's “only publicly-announced” digital power management compliant

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device that also uses the PMBus™. (Pl.'s Renew. Mot.
Sanc. 2). From the beginning, Power-One's infringement case was somewhat unique in that there have not
been significant sales in the marketplace of the
DPL20C or other related products. As a result, very
little public information exists on the extent of Artesyn's use and marketing of the products, and this
lack of information led to an especially contentious
discovery process.
*2 By accusing one product and a general feature
set, Power-One hoped to uncover any information on
other potentially-infringing Artesyn products. However, as discovery progressed, Power-One felt increasingly dissatisfied with the extent of Artesyn's production. During the course of discovery, Power-One
learned that Emerson Electric Co. (hereinafter
“Emerson”) purchased Artesyn in April 2006, and
thereafter transferred most of Artesyn's assets and
employees to Astec America, Inc. (hereinafter “Astec”), another subsidiary of Emerson. (Pl.'s Mot.
Conform Pleads. Evid. 3). Power-One claims they
were initially unable to gather significant information
from Astec or Artesyn regarding the entities' relationship and any potentially-infringing Artesyn
products associated with the companies. In an effort to
gather this information from all relevant sources,
Power-One turned to means outside the discovery
process, including hiring a private investigator to track
down former Artesyn employees. (Pl.'s Mot. Renew.
Sanc. 2-3). Through discussions with former Artesyn
employees, Power-One uncovered information on a
number of other Artesyn products similar to the
DPL20C, including the Atlas, Venus, Sun Batoka and
DPL15E (hereinafter “related products”). (Pl.'s Mot.
Renew. Sanc. 2). After learning of these products,
Power-One requested specific information regarding
the products from Artesyn and Astec, yet it again felt
that Artesyn was not cooperating with their discovery
requests, and therefore Power-One filed a second
motion to compel discovery on May 7, 2007 on these
related products. FN3
FN3. Power-One previously brought a motion to compel on February 20, 2007 (Doc.
No. 135), and the Court held a hearing on this
first motion to compel on March 22, 2007
(Doc. No. 157), and granted in part and denied in part Power-One's motion to compel in
an order issued March 23, 2007 (Doc. No.
156).

By the time Power-One filed their second motion
to compel, the parties were already deep in the litigation process. The deadline to join additional parties
and to disclose asserted claims and preliminary infringement contentions without leave of Court was
February 28, 2006. The parties were already
post-Markman hearing FN4 when they moved the Court
to amend the Docket Control Order on February 8,
2007 (Doc. No. 131), which the Court granted (Doc.
No. 133). The amended docket control order set the
deadline for expert witness reports and the designation
of expert witnesses on April 20, 2007. (Doc. No. 133).
The discovery deadline and dispositive motion deadline were both on May 25, 2007.FN5 Pleadings were to
be amended by June 8, 2007. All of these deadlines
were set with the original trial date in mind, which was
August 6, 2007. (Doc. No. 133). With these deadlines
looming or already passed, the Court held a hearing on
Power-One's motion to compel on June 25, 2007.
FN4. The Court held the Markman hearing
on January 16, 2007, and the Markman opinion was issued on March 22, 2007.
FN5. The Court held a hearing on the dispositive motions on July 11, 2007.
At the hearing, the Court granted Power-One's
requests for extended discovery on the related products. Artesyn and Astec (which was subpoenaed) were
both ordered to comply with discovery on the related
products. Despite the extended discovery, Power-One
remained convinced that both Artesyn and Astec were
withholding information on the DPL20C and related
products. (Pl.'s Renew. Mot. Sanc. 2-3). On July 24,
2007, two weeks before the scheduled trial date,
Power-One filed the first of the present motions
seeking to add Astec and Emerson as parties to the
litigation. After the trial date was moved to November
2007, Power-One moved the Court to add the four
new products to the litigation as a discovery sanction
for the first time in a motion on August 13, 2007.
Despite extended discovery and the motions seeking
to add the other products as a sanction, Power-One
continues to note they know very little about the
products and whether they infringe, and they are still
trying to determine if they can even create an infringement case on these products. (Pl.'s Renew. Mot.
Sanc. 15).

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*3 Nonetheless, Power-One bases their request
for sanctions on what they allege to be extensive discovery abuse by Artesyn and Astec. First, Power-One
claims that Artesyn produced information on the related products only after Power-One first uncovered
the evidence of these new products' features and history, and that even when Artesyn did produce the
information, it ultimately did so largely after the close
of discovery. (Pl.'s Renew. Mot. Sanc. 3). In addition,
Power-One has offered a number of specific examples
of Artesyn's discovery abuses. Regarding one of the
new products Power-One uncovered and now seeks to
add to the litigation, the DPL15E, Power-One offers
the following example:
“In response to Power-One's discovery requests,
Artesyn specifically mentioned development work
for a DPL15E product, but stated that it was never
built and was abandoned before the Power-One
patents issued. After moving to compel and after
tracking down former Artesyn employees using a
private investigator ..., Power-One learned that the
DPL15E project continued and that DPL15Es were
in fact built and tested. Power-One to this day has
not received complete discovery concerning the
DPL15E devices and related activities. Artesyn
represented in its Interrogatory Responses that the
DPL15E project ended before the patents issued in
August.”
(Pl.'s Renew. Mot. Sanc. 2-3). In addition to the
allegations of multiple discovery violations, Power-One also claims that Artesyn and Astec continue to
engage in a “shell game,” whereby the two entities are
trying to hide information on the potentially-infringing related products. As Power-One learned
more about Artesyn's business relationships with Astec and Emerson, it felt that Artesyn and Astec were
actually one indistinguishable entity masquerading as
two entities, and that ultimately, Emerson and Astec
are the actual parties in suit. Artesyn responded that
after Emerson bought the company, Artseyn remained
independent, and was organized for marketing purpose under the “Emerson Network Products” brand of
companies and products. (Sung Decl. ¶ 7). The
Emerson Network Power website continued to list
Artesyn and Astec as separate and independent companies under the sub-brand “Embedded Power.”
(Kubly Decl. ¶ 12). Artesyn continues to assert that it
remains a legally separate Florida corporation, and
that there is no direct legal relationship between Ar-

tesyn and Astec. (Kubly Decl. ¶ 7). Finally, Artesyn
claims that Astec and Artesyn have separate officers,
and that Artesyn remains a valid and legal entity that
“maintains possession of its intangible assets.” (Sung
Decl. ¶¶ 13-15).
Despite Artesyn's assertions, Power-One remains
unconvinced. As evidence of the alleged indistinguishable union of the two entities, Power-One provides the following:
“Artesyn Technologies, Inc. was originally an independent public corporation headquartered in
Florida. In 2006, Artesyn was acquired by Emerson
and became a wholly owned subsidiary of Emerson.
Over the past year, Artesyn became less and less
independent to the point now where Artesyn-as a
stand alone entity-has ceased to exist. Although
there is still a corporate entity registered in the state
of Florida called “Artesyn Technologies, Inc.,” it is
no longer headquartered in Florida. Records from
the Department of Corporations for the State of
Florida reveal that as of May, 2007 the headquarters
of “Artesyn Technologies, Inc.” is 5810 Van Allen
Way, Carlsbad, CA 92008. This address is the
headquarters for Astec. Power-One suspects that the
Florida corporation “Artesyn Technologies, Inc.”
has no employees and that all engineering, manufacturing, and sales is handled through Astec or the
new division of Emerson Network Power called
“Astec/Artesyn.”
*4 (Pl.'s Renew. Mot. Sanc. 6). Power-One also
claims that employees being used as witnesses have
been instructed to say they work for “Astec/Artesyn,”
that Artesyn and Astec's in-house counsel are the same
person, and that the documents produced by Astec and
Artesyn came from the same source. (Pl.'s Renew.
Mot. Sanc. 6). Power-One brings the present motions
seeking to amend the pleadings to reflect its belief that
they are actually litigating against not only Artesyn,
but Emerson and Astec as well.
As a complicating factor to the determination of
the entities' relationship and the disposition of the
present motions, on July 27, 2007, Astec filed suit in
the Central District of California seeking a declaration
of invalidity and non-infringement of the same patents-in-suit at issue in the present litigation. As of
October 4, 2007, Astec's case, Astec America, Inc. v.
Power-One Inc., No. 6:07-cv-464, has been trans-

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ferred to the Eastern District of Texas “for the convenience of the parties.” Power-One claims that Astec
and Artesyn's “shell game” has forced Power-One to
subpoena Astec for information on other potentially-infringing Artesyn products and litigate on multiple
fronts, while Artesyn hid behind its relationship with
Astec throughout discovery, all the while failing to
produce the information sought by Power-One. Power-One offers the following example as part of the
Artesyn and Astec “shell game” and discovery abuses:
“The Court Ordered Astec (or ordered Artesyn to
ensure Astec compliance, however one wishes to
slice it) to produce responsive documents by July
10. Artesyn's attorneys produced the Astec production on July 10 and it contained 200 pages of documents. Two days ago, on July 25 (15 days after the
Court Ordered deadline), Power-One received a CD
from Artesyn's attorneys containing 9,441 pages of
additional “Astec” materials. Artesyn's counsel
provided no warning that more documents were
coming and Power-One still doesn't know if the
production is complete.”
(Pl.'s Renew. Mot. Sanc. 5). Now, with trial
looming on November 6, 2007, Power-One wants to
amend the pleadings to include Astec and Emerson as
parties to the suit, and also add the Atlas, Venus,
DPL15E, and Sun Batoka as accused products to the
litigation despite the lack of information regarding
whether Power-One can make a viable infringement
case for the products. In response, Artesyn retorts that
throughout Power-One's numerous amended complaints and assertion of its infringement contentions,
Power-One only alleged that the Artesyn DPL20C
converter infringed the asserted patents, not the other
products. Artesyn claims Power-One had more than
sufficient information to seek to amend its pleadings
and infringement contentions to include Astec and/or
Emerson and the new devices well before the June 8,
2007 deadline to amend, and that Power-One is using
the present motions as an abusive end-run around the
Federal Rules of Civil Procedure and the other parties
due process rights. As an example of the extent of
Power-One's knowledge of the existence of the related
products, Artesyn claims that Power-One knew of the
DPL15E's existence on August 3, 2006, and that Artesyn produced 68 documents concerning the product
prior to April 8, 2007. In addition to the DPL15E,
Artesyn alleges that Power-One was on notice of the
existence on the Atlas and Venus devices in August of

2006, and had documents on each product by April
2007, and yet they did not seek to amend their infringement contentions, and waited until August 13,
2007 to file a motion with the Court requesting that
these products be added to the case.
ANALYSIS
*5 Power-One has filed multiple motions in various forms seeking to add the two additional parties
and four additional products to the ongoing litigation.
The Court will address two of the more substantive
motions in depth, as the disposition of these motions
largely renders the remaining motions moot. The first
motion, titled “Motion to Conform the Pleadings to
the Evidence,” seeks to add Emerson and Astec pursuant to Rule 15(b) of the Federal Rules of Civil
Procedure. Power-One's second motion seeks to add
four new products to the litigation as a discovery
sanction. Both motions are addressed individually
below.
Motion to Conform the Pleadings to the Evidence
In its first motion, Power-One seeks to amend its
pleadings to bring Astec and Emerson into the suit
pursuant to Rule 15(b) of the Federal Rules of Civil
Procedure. By utilizing Rule 15(b), Power-One is
operating under the assumption that Artesyn and Astec are in fact one in the same, not two separate entities. However, Artesyn claims that while it may be a
wholly owned subsidiary of Emerson, it remains a
separate legal entity from Astec and Emerson, and that
each company controls its own assets. Given all of the
information before the Court, the Court finds that
utilizing Rule 15(b) to add Astec and Emerson to the
suit is improper for a number of reasons, as discussed
below.
The Federal Rules of Civil Procedure allow parties to amend pleadings to conform with the evidence,
even after judgment, in certain circumstances. Rule
15(b) provides that, “when issues not raised by the
pleadings are tried by express or implied consent of
the parties, they shall be treated in all respects as if
they had been raised in the pleadings.” FED. R. CIV.
P. 15(b). While Rule 15(b) does permit amendment of
the pleadings to bring them in line with the evidence
adduced at trial, by the reading of the Rule's language,
the pleadings may not be amended without the express
or implied consent of the parties. Int'l Harvester Credit Corp. v. East Coast Truck and R.V. Sales, Inc., 547
F.2d 888, 890 (5th Cir.1977) (emphasis added).

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Whether an issue has been tried with the implied
consent of the parties “depends upon whether the
parties recognized that the issue entered the case at
trial, whether the evidence supporting the issue was
introduced at trial without objection, and whether a
finding of trial by consent would prejudice the opposing party.” Smith v. EMC Corp., 393 F.3d 590, 596
(5th Cir.2004). See also Coppedge v. K.B.I., Inc., 2007
WL 1791717 at *5 (E.D.Tex.2007) (“In determining
implied consent, the Court should consider whether
the party has had a fair opportunity to defend against
the claim and would be prejudiced in presenting its
own case”).
The principal purpose of Rule 15(b) is judicial
economy. Deere & Co. v. Johnson, 271 F.3d 613, 621
(5th Cir.2001). When the necessary elements of the
Rule are present, amending the pleadings saves judicial resources and avoids the necessity of a new trial.
Johnson, 271 F.3d at 621-22 n. 7 (citing 6A
CHARLES ALAN WRIGHT, ARTHUR R. MILLER,
& MARY KAY KANE, FEDERAL PRACTICE
AND PROCEDURE § 1491 (2d ed.1990)). However,
“saving resources usually takes a back seat to procedural due process.” Johnson, 271 F.3d at 622. Therefore, in the absence of express consent, “trial of unpled
issues by implied consent is not lightly to be inferred
under Rule 15(b), and such inferences are to be
viewed on a case-by-case basis and in the light of the
notice demands of procedural due process.” Id.; Triad
Elec. & Controls, Inc. v. Power Sys. Eng'g, Inc., 117
F.3d 180, 193-94 (5th Cir.1997). Each party is entitled
to know what is being tried, or at least have the means
to find out. Jimenez v. Tuna Vessel Granada, 652 F.2d
415, 420 (5th Cir.1981) (noting that notice is a critical
element of procedural due process, and denial of
procedural due process is tantamount to “trial by
ambush”). Therefore, while it is true that amendments
should be freely granted, the party charged should still
be given an opportunity to fully respond to defend
against the theories presented, and courts must be ever
aware of the due process rights of the parties. Morgan
and Culpepper, Inc. v. Occupational Safety and
Health Review Comm'n, 676 F.2d 1065, 1068 (5th
Cir.1982) (noting that it is improper to prejudge
possible defenses which a party may assert, and that
parties should have a full opportunity to present any
and all possible defenses). In civil cases, due process
requires proper notice, service of process, and a court
of competent jurisdiction. Callon Petroleum Co. v.
Frontier Ins. Co., 351 F.3d 204, 210 (5th Cir.2003).

*6 As a preliminary matter, the Court cannot accept the assertion that Artesyn is an indistinguishable
entity from Astec and Emerson. Despite Power-One's
assertions to the contrary, the Court finds that Artesyn
has presented ample evidence that it remains a legally
separate entity, and would be fully subject to any
judgment that might be rendered. With the finding that
the entities all remain distinct and separate, the Court
cannot grant Power-One's Rule 15(b) motion.
Applying Rule 15(b) in the manner in which
Power-One asks the Court to apply it would violate
Astec and Emerson's procedural due process right to
service of process. At the time Power-One brought the
present motion, Power-One and Artesyn were set to go
to trial in approximately a month. While the trial has
since been moved, even adding Astec and Emerson
now would add new defendants in a litigation process
that has closed discovery and is set to proceed to trial
in November 2007. Adding Astec and Emerson would
mean either denying both entities their opportunities
to be served proper process, answer the complaint,
raise defenses, file motions, and participate in discovery, or the Court would have to start the entire
process over again to guarantee the parties' due
process rights. While judicial economy might be
served by avoiding a separate trial involving Astec and
Emerson and the products they are involved with,
Rule 15(b) is not meant to be applied in the manner
which Power-One seeks to use it. A plain reading of
Rule 15(b), in conjunction with review of the case law
interpreting the Rule, indicates that the Rule is meant
to be limited to amending pleadings only when “issues
not raised by the pleadings are tried by express or
implied consent of the parties.” Adding Emerson and
Astec means adding parties, not issues. On top of
violating Astec and Emerson's due process right to
service of process, adding both entities before trial
would be procedurally improper under Rule 15(b)
since the Court would not be amending the pleadings
to reflect issues that had been tried. Finally, there is no
indication that Astec or Emerson gave any sort of
implied consent to participate in these proceedings.
While it is true that Astec filed a separate lawsuit that
has been transferred to this Court, neither Astec nor
Emerson had previously filed any pleadings or documents with the Court in the present litigation, and
neither has made an appearance such that it would
imply they are somehow consenting to participation in
the present litigation.FN6

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FN6. If Power-One ultimately obtains a
judgment against Artesyn, the question becomes a scope of injunction issue regarding
whether or not Astec or Emerson would also
be bound by a judgment against Artesyn, and
the scope of injunctive relief can be determined if necessary should the jury return of a
verdict of infringement.
In support of its proposed application of Rule
15(b), Power-One cites a case issued this year from
another division within the Eastern District of Texas.
In that case, the Court noted that “pleadings may be
amended to add parties in very late stages of the litigation, even after trial, but only when there is no
denial of due process by doing.” Coppedge v. K.B.I.,
Inc., 2007 WL 1791717 at *4 (E.D.Tex.2007) (unpublished). Power-One bases virtually their entire
Rule 15(b) argument upon one cropped section of the
Coppedge opinion:
*7 “[U]nder Rule 15(b), late amendment is proper
when the court determines that, even though a party
was not formally named in the pleadings, the claims
asserted by or against it were known to all parties,
including the absent party, and actually litigated. [ ...
] This is because in such a situation, the unnamed
party is put on full notice of the claims against it and
its due process rights are protected, having been
given meaningful opportunity to dispute that claim.
[ ... ] The Court may, therefore, infer the party's
implied consent to the amendment of the claims
against the party.”
Id. at *5. While the language of the cropped quote
in conjunction with Power-One's assertion that Astec
and Artesyn are actually one conjoined entity within
Emerson would seem to favor application of Rule
15(b) in the manner in which Power-One seeks to
apply it, the quote above does not paint a complete
picture of either the Coppedge court's analysis or Rule
15(b) jurisprudence.
In Coppedge, the entity which was ultimately
added late pursuant to Rule 15(b) (the company was
named “Sabatti”) was not named in the original complaint. The plaintiff timely moved to amend the complaint and add Sabatti as a named defendant. The
Court granted leave to amend, but the plaintiff never
actually filed the amended complaint reflecting Sa-

batti's addition as a defendant. Sabatti thereafter appeared before the court and filed a motion to dismiss
for lack of jurisdiction, which the court dismissed.
Almost one year later, Sabatti filed another motion to
dismiss claiming it had not been named as a defendant
in the complaint that was actually filed and active
before the court, and therefore was not a proper defendant in the case. The Court noted that while the live
complaint did not reflect Sabatti's addition as a defendant, Sabatti was actually added as a party by the
Clerk of Court after the judge's ruling granting the
amendment to add Sabatti as a defendant.. Sabatti
thereafter received notice of all entries in the case, had
been properly served process, and the court therefore
found that Sabatti was put on notice of the claims
against it. Based on that notice and the active participation in the litigation, the Coppedge court found no
due process violation, and ultimately ruled that Sabatti
was a party to the case by implied consent. The Coppedge court also noted that the entire basis for Sabatti's
filing was nothing more than an inadvertent filing
error, and the “interests of justice” demanded that
Sabatti not be excused on such an inadvertent error.
Power-One's reliance on Coppedge is misplaced,
and the case is distinguishable from the present circumstances. The Coppedge court noted that its application of Rule 15(b) would not be proper if it violated the due process rights of the parties to be added.
Hence, Coppedge does not apply, since adding Astec
and Emerson to the litigation now would either violate
their procedural due process right to service of
process, or defeat the “judicial economy” purpose of
the rule by forcing the Court to move the scheduled
trial date, allow for service of process, and reopen the
entire litigation process.
*8 In addition to the seeming inapplicability of
Rule 15(b), the Court also notes that Power-One may
have unduly delayed bringing the present motions, and
even if it did not unduly delay, granting Power-One's
motion would result in undue prejudice to Artesyn,
Astec, and Emerson. Undue prejudice and undue delay are two of the five considerations Fifth Circuit
courts examine in determining whether to grant a party
leave to amend. Smith v. EMC Corp., 393 F.3d 590,
595 (5th Cir.2004) (applying undue prejudice and
delay factors as weight toward denying Rule 15(b)
motion). Leave to amend should be freely given only
in the absence of these factors. Id. Artesyn has presented at least some evidence that Power-One knew of

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the existence and nature of these additional products
as early as August 2006, months in advance of the
expert witness, dispositive motion, and discovery
deadlines. Power-One ultimately could have sought to
amend their infringement contentions to add these
products much sooner than it did, which was when it
filed the present motions. Conforming the pleadings to
add Astec and Emerson without giving them an opportunity to be served process, present defenses, and
participate in discovery would result in undue prejudice to both of them, especially given the advanced
stage of the litigation. While not dispositive in themselves, the presence of these factors is yet another
consideration that weighs against granting Power-One's motions.
In summary, the Court finds that judicial economy would not be served by granting Power-One's
motion to conform the pleadings to the evidence.
Granting the motion would force the Court to either
violate the due process rights of the entities sought to
be added through amendment of the pleadings under
Rule 15(b), or reopen the case from the beginning to
accommodate the rights of the new parties one month
before trial. Power-One's chief case supporting their
proposed application of Rule 15(b) is entirely distinguishable when read in its proper context, and the
Court cannot find any other relevant precedent that
would support Power-One's proposed application of
Rule 15(b) to amend the pleadings to add parties before a trial who have not consented or participated in
any way. While Astec's declaratory judgment case
against Power-One has been transferred to the Eastern
District of Texas, that proceeding is still in its infancy.
The Court understands Power-One's concerns about
holding multiple trials involving these same patents,
yet ultimately it is too late in the present proceeding to
efficiently annex Astec's separate litigation and tackle
all of these issues in one trial currently scheduled one
month away. The Court sees no reason why these
related products cannot be addressed in the Astec
litigation now pending before this Court. Given all of
the legal and practical barriers, Power-One's motion to
conform the pleadings to the evidence (Doc. No. 256)
is DENIED.
Motion for Sanctions
*9 Power-One also asks the Court sanction Artesyn for failing to comply with discovery orders.
Through the requested sanctions, Power-One requests
that four new products associated with Artesyn, Astec

and Emerson be added to the present litigation, and
that these products “stand or fall” with the DPL20C,
the product at issue in the upcoming trial. In other
words, Power-One is seeking a finding of the Court
that these four new products are substantially similar
to the DPL20C, and thus if the jury finds infringement
of the DPL20C, then the DPL15E, Atlas, Venus and
Sun Batoka should be held to have infringed Power-One's patents as well. The Court does not find such
egregious misconduct on Artesyn's part to support
such a request.
Federal Rule of Civil Procedure 37 authorizes
sanctions for a party's failure to comply with discovery orders. Juniper Networks, Inc. v. Toshiba America,
Inc., 2007 WL 2021776 at *2 (E.D.Tex.2007). Rule 37
sanctions must be applied diligently both “to penalize
those whose conduct may be deemed to warrant such a
sanction, and to deter those who might be tempted to
such conduct in the absence of such a deterrent.” Id. at
*3 (citing Roadway Express, Inc. v. Piper, 447 U.S.
752, 763, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980)).
However, any sanction issued under Rule 37(b)(2)
must be both just and related to the particular claim
which was at issue in the order to provide discovery.
Id. (citing Compaq Computer Corp. v. Ergonome Inc.,
387 F.3d 403, 413 (5th Cir.2004)). “A severe sanction
under Rule 37 is only to be employed where a lesser
sanction would not substantially achieve the desired
deterrent effect.” Id. Severe sanctions should be reserved for only the most egregious instances of bad
faith or willful abuse of the judicial process. Gonzalez v. Trinity Marine Group, Inc., 117 F.3d 894, 898
(5th Cir.1997).
While it does appear from the evidence presented
that Artesyn lagged in their production of documents
throughout discovery, the Court does not find that
Artesyn's actions rise to a level requiring such a harsh
sanction as Power-One requests. Issuing a sanction
whereby four products are judicially ordered to “stand
or fall” with the Court's determination as to whether an
entirely separate product infringes Power-One's patents would be a draconian measure reserved for only
the most intentional and egregious of discovery violations, especially when even Power-One has asserted they know very little about these new products
and whether they might infringe. See (Pl.'s Mot. Renew. Sanc. 15). Furthermore, the Court is not ready to
grant Power-One's alternative requested relief: a
bench trial on the four new products to take place

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Page 8
Not Reported in F.Supp.2d, 2007 WL 2986671 (E.D.Tex.)
(Cite as: 2007 WL 2986671 (E.D.Tex.))
immediately after the jury trial on the DPL20C. As
stated, the Court is not ready to impose harsh sanctions on Artesyn for the alleged discovery abuses.
Even were the Court willing to do so, granting Power-One's alternative request would likely require the
Court to add Astec as a defendant, as these products
are primarily associated with these defendants, and
would require a reopening of the discovery process. In
the interests of economy, fairness, and utility, the
Court finds the best course of action is to proceed to
trial on the DPL20C with Artesyn as the sole defendant.FN7 Therefore, the Court DENIES Power-One's
renewed motion for sanctions (Doc. No. 293).
FN7. As noted, Astec originally brought suit
in the Central District of California seeking
declaratory relief, and that case has now been
transferred to this Court. See Astec America,
Inc. v. Power-One, Inc., No. 6:07-cv-464.
Again, the Court sees no reason that these
products cannot be addressed in the Astec
litigation; Power-One will get the chance to
present its case against Astec in that proceeding.

256); Renewed Motion for Sanctions or in the Alternative to Bifurcate Case Into Jury Trial and Bench
Trial (Doc. No. 293); Motion For Additional Discovery on “Atlas” and “Venus” POL Products (Doc. No.
313); Motion for Expedited Consideration of its Motion for Additional Discovery on “Atlas” and “Venus”
POL Products (Doc. No. 314); and Power-One's Motion for Leave to Supplement its Infringement Contentions (Doc. No. 298) are DENIED.
So ORDERED.
E.D.Tex.,2007.
Power-One, Inc. v. Artesyn Technologies, Inc.
Not Reported in F.Supp.2d, 2007 WL 2986671
(E.D.Tex.)
END OF DOCUMENT

Motions for Expedited Consideration, Additional
Discovery, and Leave to Supplement Infringement
Contentions
*10 Power-One seeks leave to amend its infringement contentions to add the Atlas and Venus
products, and Power-One also has moved for expedited consideration of its motion for additional discovery on the Atlas and Venus devices. Power-One
has not accused these products in its infringement
contentions, and ultimately, Power-One has not presented enough compelling evidence that these products are infringing and should be included in the
present litigation. Power-One does not need evidence
beyond all doubt of infringement, but there should be
at least some solid justification for allowing new
products into the litigation this close to trial. In light of
the Court's denial of Power-One's other motions, the
Court also DENIES Power-One's motion for leave to
supplement its infringement contentions (Doc. No.
298), and DENIES Power-One's motions for additional discovery (Doc. No. 313) and motion for expedited consideration (Doc. No. 314) as moot.
CONCLUSION
For the foregoing reasons, Power-One's Motion to
Conform the Pleadings to the Evidence (Doc. No.

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2007_WL_2986671_8-8-11_1944