Realtime Data LLC v. Rackspace US, Inc. et al

Filing 156

MEMORANDUM OPINION AND ORDER. #117 NetApp's Motion to Strike Plaintiff Realtime Data LLC's Infringement Contentions and to Compel Compliance is GRANTED-IN-PART. Realtime is ORDERED to serve Supplemental Infringement Contentions consistent with P.R. 3-1 within 14 days of this Order. Signed by Magistrate Judge John D. Love on 5/10/2017. (rlf)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
REALTIME DATA, LLC,

Plaintiff,

v.
RACKSPACE US, INC., NETAPP, INC.,
and SOLIDFIRE, INC.,
Defendants.

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CIVIL ACTION NO. 6:16-CV-00961
RWS-JDL

LEAD CASE

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant NetApp, Inc. and SolidFire, LLC’s (collectively,
“NetApp”) Motion to Strike Plaintiff Realtime Data, LLC’s (“Realtime”) Infringement
Contentions and to Compel Compliance Under P.R. 3-1. (Doc. No. 117.) Realtime has filed a
Sealed Response (Doc. No. 146), NetApp has filed a Reply (Doc. No. 149), and Realtime has
filed a Sur-Reply (Doc. No. 152).
NetApp argues that Realtime’s second amended infringement contentions are deficient
under P.R. 3-1 because they “parrot[] claim language and paste[] screenshots and block quotes of
NetApp’s web pages with no explanation of how the accused products satisfy the claim
limitations.”

(Doc. No. 117, at 1.)

NetApp notes that after complaining of deficiencies

regarding Realtime’s first amended infringement contentions in an eleven-page letter on
February 14, 2017, Realtime provided its second amended infringement contentions with
changes to the claim charts for just one of the four accused products, ONTAP. (Id.; see also
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Doc. No. 131, Ex. 18.) NetApp argues that even with respect to ONTAP, the second amended
contentions “continue to gloss over and confuse what aspect of the accused products satisfies key
claim terms.” (Doc. No. 117, at 2.) NetApp requests that the Court order Realtime to amend its
contentions with respect to ONTAP and strike Realtime’s contentions with respect to the other
three accused products. (Id. at 14-15.) NetApp also requests that the Court order Realtime to
pay NetApp’s costs and fees associated with this Motion. (Id. at 15.)
Realtime argues that even its original infringement contentions satisfied P.R. 3-1. (Doc.
No. 146, at 1.)

Realtime argues that NetApp’s complaints about the specificity of the

contentions are “undermined by the fact that 93% of NetApp’s documents produced thus far . . .
were produced just a couple weeks ago, after Realtime had already supplemented the contentions
for the second time.” (Id.) Realtime argues that striking its contentions and ordering fees is
unwarranted in light of its previous efforts to provide sufficient contentions. (Id. at 13-14.)
Upon review of Realtime’s second amended infringement contentions, the Court finds
that they are deficient, particularly with respect to the AltaVault, SolidFire, and Mars OS
products. Realtime’s contentions remain deficient with respect to ONTAP as well. However,
NetApp’s requested relief—striking Realtime’s AltaVault, SolidFire, and Mars OS contentions
with no leave to amend—is inappropriate at this time. Likewise, although NetApp took the
proper step in bringing its dispute to the Court soon after it arose, the Court will not award fees
and costs associated with NetApp’s Motion. Discovery is ongoing in this matter and the Court
has not yet issued its claim construction order (after which Realtime will have another 30 days
under P.R. 3-2 to amend its contentions consistent with the Court’s constructions).

It is

appropriate at this stage to permit Realtime an opportunity to amend its contentions. However,

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now that NetApp has raised its concerns with the Court, if Realtime fails to properly amend its
contentions, it may face more serious consequences as the case progresses.
In amending its contentions, Realtime must specifically address NetApp’s complaints in
its Motion with respect to ONTAP. Namely, Realtime must be clear as to what aspect of the
accused products satisfies each key claim term. This includes at least (1) identifying to the best
of its ability the portion of the accused product that satisfies the “compressed data block” portion
of Claim 9 of the ’728 Patent and (2) identifying to the best of its ability what constitutes the
claimed “data types” for claims 48 and 49 of the ’992 Patent. (See Doc. No. 117, at 12-13; see
also Doc. No. 146, at 12-13.) Realtime cannot fill in the gaps with screen shots and parroted
claim language with respect to these limitations or any other limitations.
With respect to the remaining three accused products, the Court agrees that “Realtime’s
second amended contentions for ONTAP make clear that Realtime is capable of providing
specific contentions.” (Doc. No. 149, at 5.) Although NetApp’s February 14 letter (see Doc.
No. 131, Ex. 18) specifically addresses ONTAP, Realtime can easily extrapolate to the other
accused products to provide the same level of specificity. That is, Realtime must similarly
provide explanation in its contentions for these accused products beyond simply screen shots of
NetApp documents and parroted language from the claims.
Assuming that Realtime properly identifies what aspect of the accused products satisfy
each key claim term, Realtime’s doctrine of equivalents contentions as currently written are
sufficient under P.R. 3-1. Despite this, the Court encourages Realtime to likewise amend its
doctrine of equivalents contentions in order to provide additional clarity in light of ongoing
discovery.

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Accordingly, NetApp’s Motion is GRANTED-IN-PART. Realtime is ORDERED to
serve Supplemental Infringement Contentions consistent with P.R. 3-1 within 14 days of this
Order.

So ORDERED and SIGNED this 10th day of May, 2017.

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