Case 5:20-cv-05676-EJD Document 39-7 Filed 11/23/20 Page 1 of 9
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`Exhibit 6
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`Case 6:20-cv-00636-ADA Document 24 Filed 10/15/20 Page 1 of 8Case 5:20-cv-05676-EJD Document 39-7 Filed 11/23/20 Page 2 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Case No. 6:20-cv-00634-ADA
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`JURY TRIAL DEMANDED
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`Case No. 6:20-cv-00636-ADA
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`JURY TRIAL DEMANDED
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`DEMARAY LLC,
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`Plaintiff,
`v.
`INTEL CORPORATION,
`Defendant.
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`DEMARAY LLC,
`Plaintiff,
`v.
`SAMSUNG ELECTRONICS CO., LTD (A
`KOREAN COMPANY), SAMSUNG
`ELECTRONICS AMERICA, INC.,
`SAMSUNG SEMICONDUCTOR, INC., and
`SAMSUNG AUSTIN SEMICONDUCTOR,
`LLC,
`Defendants.
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`JOINT CASE READINESS STATUS REPORT
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`Plaintiff Demaray LLC (“Demaray”) and Defendants Intel Corporation (“Intel”) and
`Samsung Electronics Co., LTD (a Korean company), Samsung Electronics America, Inc., Samsung
`Semiconductor, Inc., and Samsung Austin Semiconductor LLC (collectively, “the Samsung
`Defendants”) hereby provide the following status report in advance of the initial Case Management
`Conference (“CMC”).
`Defendants believe the following disputes are ripe for discussion at the Case Management
`Conference:
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`10878706.1
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`CASE READINESS STATUS REPORT
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`Case 6:20-cv-00636-ADA Document 24 Filed 10/15/20 Page 2 of 8Case 5:20-cv-05676-EJD Document 39-7 Filed 11/23/20 Page 3 of 9
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`ISSUE 1: ENTRY OF A SCHEDULE
`PLAINTIFF’S POSITION: The Court should follow the normal procedure of entering a case
`schedule. There are no conflicts on either side with the Court’s proposed March 26, 2021
`Markman hearing or December 27, 2021 trial date.
`DEFENDANT’S POSITION: Given the litigation in the Northern District of California
`described below, Defendants respectfully submit that it is premature to enter a scheduling
`Order at this time. If a scheduling order is ultimately entered, Defendants believe this case
`requires the default “one year Markman to trial” schedule to be prepared for trial properly.
`ISSUE 2: CONFIDENTIALITY OF PLATINTIFF’S PRELIMINARY INFRINGEMENT
`CONTENTIONS
`PLAINTIFF’S POSITION: Demaray’s Preliminary Infringement Contentions (“PICs”) are
`properly designated under the Court’s October 5, 2020, interim protective order.
`DEFENDANT’S POSITION: Demaray has designated its Preliminary Infringement
`Contentions “outside counsel of record only” in their entirety. Defendants challenge this
`designation.
`The parties do not anticipate having other pre-Markman issues to raise at the CMC at this time.
`FILING AND EXTENSIONS
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`Demaray’s Complaints against Intel and the Samsung Defendants were filed on July 14,
`2020. There has been one extension for a total of 47 days for Intel to file its Answer. There has
`been one extension for a total of 56 days for the Samsung Defendants to file their Answer.
`RESPONSE TO THE COMPLAINT
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`Intel filed its Answer to the Complaint on September 21, 2020, and filed an Amended
`Answer on October 13, 2020. No counterclaims were filed.
`The Samsung Defendants filed their Answer to the Complaint on September 29, 2020. No
`counterclaims were filed.
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`PENDING MOTIONS
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`There are no pending motions.
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`RELATED CASES IN THIS JUDICIAL DISTRICT
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`The two above captioned cases filed in this District involves the same plaintiff and the
`same asserted patents: Demaray LLC v. Intel Corporation, 6:20-CV-00634-ADA and Demaray
`LLC v. Samsung Electronics Co., LTD, Samsung Electronics America, Inc., Samsung
`Semiconductor, Inc., and Samsung Austin Semiconductor LLC, 6:20-CV-00636-ADA.
`IPR, CBM, AND OTHER PGR FILINGS
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`A non-party to this action, Applied Materials, Inc. (“Applied”) has indicated that it may
`file one or more IPR petitions relating to the patents-in-suit.
`NUMBER OF ASSERTED PATENTS AND CLAIMS
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`Plaintiff has asserted two patents and the claims therein as described in Plaintiff’s
`Preliminary Infringement Contentions.
`APPOINTMENT OF TECHNICAL ADVISER
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`The parties do not request a technical adviser to be appointed to the case to assist the Court
`with claim construction or other technical issues.
`MEET AND CONFER STATUS
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`On October 6, 2020, Plaintiff and Defendants conducted a meet & confer conference. In
`advance of the October 16, 2020 case management conference, the parties met and conferred again
`on October 13, 2020. The parties continue to confer regarding the issues below.
`ADDITIONAL DETAILS REGARDING THE ISSUES LISTED ABOVE
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`(1) ISSUE 1: ENTRY OF A SCHEDULE
`DEFENDANT’S POSITION: Defendants respectfully submit that it is premature to enter
`a scheduling order. The Complaint alleges infringement based on Defendants’ use of equipment
`supplied by Applied. Applied filed an action for declaratory judgment in the U.S. District Court
`for the Northern District of California, Applied Materials, Inc. v. Demaray LLC, Case No. 5:20-
`cv-05676-EJD (N.D. Cal.), and moved for a preliminary injunction, seeking to enjoin Plaintiff
`from moving forward with this action against its customer based on the recognized “customer-
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`suit” exception. The motion for preliminary injunction has been fully briefed and will be heard on
`November 12, 2020. In support of Applied’s motion, Defendants have agreed to be bound by the
`result of Applied’s declaratory judgment causes of action, which include declaratory judgment of
`non-infringement of the asserted patents on the merits and non-infringement based on license and
`assignment defenses. Defendants have also agreed to be bound by the results of the specific
`invalidity grounds adjudicated in Applied’s declaratory judgment action that Applied anticipates
`bringing in its declaratory judgment action after it files one of more IPR petitions (noted above).
`Defendants respectfully submit that entry of the scheduling order here should be deferred
`in light of those proceedings.
`PLAINTIFF’S POSITION: Plaintiff requests that the schedule attached to this response be
`entered. However, the Court indicated that it would like to try the case starting December 27,
`2021. Plaintiff is agreeable to that timing and, if adopted, would work with Defendants to adjust
`the schedule accordingly.
`Defendants improperly request that the Court stay this case indefinitely in light of a third-
`filed litigation brought by a third-party (Applied Materials) in California, a district in which patent
`cases commonly take many more years to reach trial than they do in this Court. It appears that the
`later-filed California case was brought to create a pretext for seeking transfer of the present cases
`to California and to otherwise attempt to interfere with the earlier-filed cases properly before this
`Court.
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`Instead of addressing the issue before this Court, home of the first-filed and second-filed
`suits, Applied is instead seeking the extraordinary remedy of asking a judge in California to enjoin
`this Court from proceeding with these cases. Demaray respectfully submits that this Court is fully
`capable to decide and should decide how s cases proceed.
`Applied’s request to have the California court enjoin this Court has no legitimate basis.
`Applied fails to even argue, let alone show, that it is likely to be successful on the defenses
`underlying its preliminary injunction request. Applied’s principal argument to the California court
`is that an employment contract with one of the inventors prevents Demaray’s claims. Applied
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`sought a preliminary injunction based on that argument without even mentioning to the California
`court that another judge from the same court already definitively ruled that the very provisions
`underlying Applied’s argument are “unlawful non-compete provisions” that are void as a matter of
`public policy. That ruling did not address language that was merely similar – the pertinent
`language was identical, and Applied plainly knew of the decision because it was the party against
`which the decision was rendered. See Applied Materials, Inc. v. Advanced Micro-Fabrication
`Equip., Inc., 630 F. Supp. 2d 1084, 1090 (N.D. Cal. May 20, 2009).
`Applied’s “customer suit exception” argument in the California court fares no better.
`These are not cases in which Intel and Samsung are mere resellers of Applied’s products.
`Whether Intel and Samsung resell Applied products is expected to be nearly or entirely irrelevant
`to the issues here. The principal subject in the cases before this Court is expected to be the
`particular uses by Intel and Samsung of physical vapor deposition reactors – in specific
`configurations selected by Intel and Samsung – in the production of Intel and Samsung
`semiconductor chips. The defendants here, not Applied, make those chips. Indeed, Applied
`contends that it does not supply key elements of the claimed manufacturing methods and reactor
`configurations to either Samsung or Intel. Consequently, the California case would not resolve
`most of the issues here, e.g., Intel’s and Samsung’s use of the infringing methods, Intel’s and
`Samsung’s configuration of their reactors as claimed in the patents-in-suit, Intel’s and Samsung’s
`use of reactors other than those provided by Applied, damages issues (which here are expected to
`depend heavily on the chips that Intel and Samsung make), and many others. In addition, none of
`the invalidity or unenforceability issues that Intel and Samsung have raised here have been raised
`by Applied in the California case. In sum, virtually every one of the prerequisites for application
`of the “customer suit exception” is absent. Although the defendants may prefer to have the claims
`against them adjudicated in a later-filed case in a far slower California court, not here in the
`earlier-filed cases, the “customer suit exception” simply does not permit such a result.
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`PRELIMINARY
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`PLATINTIFF’S
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`(2) ISSUE
`CONFIDENTIALITY OF
`2:
`INFRINGEMENT CONTENTIONS
`DEFENDANT’S POSITION: Consistent with its view that entry of a scheduling order
`should be deferred, Defendants offered to defer the service of Plaintiff’s preliminary infringement
`contentions by agreement. Plaintiff declined.
`Plaintiff subsequently served its preliminary infringement contentions on October 9, 2020,
`but designated the contentions “confidential, counsel of record only.” As a result, Defendants
`have been deprived of proper notice of Plaintiff’s infringement allegations and thus are unable to
`properly evaluate discovery obligations, invalidity theories and indemnity issues, among others.
`Following a meet and confer, Plaintiff has agreed to permit “in-house personnel” at Defendants
`and their suppliers to access the contentions but has continued to place undue limitations on access
`to Demaray’s infringement contentions, without identifying any specific information (other than a
`single document designated confidential) that is confidential to Demaray. But Demaray’s
`compromised designation would, for example, prevent the parties to the Northern District of
`California action from advising the presiding judge in that action, Judge Davila, about basic facts
`as to the scope of these cases which is likely relevant to Applied’s preliminary injunction motion.
`PLAINTIFF’S POSITION: Demaray’s preliminary infringement contentions are based in
`significant part on internal confidential work product as well as materials obtained under non-
`disclosure obligations to a third party reverse engineering company – a company whose business
`depends heavily on its ability to maintain the confidentiality of its work product. Demaray
`understandably (and correctly) perceives these materials as confidential. See, e.g., Uniloc USA,
`Inc. v. Med. Info. Tech., Inc., case no. 6:16-CV-00463-RWS, 2017 U.S. Dist. LEXIS 215190 at
`*4-5 (E.D. Tex. Jan 26, 2017) (“infringement contentions may represent a plaintiff's confidential
`information”). The Court’s October 5, 2020, interim protective order provides that where a party
`perceives materials as confidential, they may be designated accordingly. Demaray followed that
`order.
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`The Defendants are not entitled to an exception to the order. Defendants will surely insist
`that Demaray’s counsel never share Defendants’ own confidential information with in-house
`persons at Demaray or with Demaray’s suppliers. Parties litigate cases all the time, through
`knowledgeable outside counsel and experts, without the need to share their confidential
`information with in-house personnel. There is nothing at all unusual about that.
`Nonetheless, in the interests of compromise, Demaray offered to allow Defendants to share
`the contentions with necessary in-house personnel and suppliers, so long as they only used the
`contentions for this case. The Defendants agreed to that arrangement during the meet and confer,
`and specifically represented that they would not use any of the information from the contentions in
`other cases. However, when Demaray asked for memorialization of that agreement, the
`Defendants reneged and are now plainly seeking to use Demaray’s confidential materials not only
`in this case but in other cases – including at least the California case and seemingly also in IPRs.
`Demaray cannot possibly agree to Defendants’ latest position, and is concerned by Defendants’
`various changes in position as this matter has been discussed. Against that background, the terms
`of the interim protective order – which Demaray relied on in disclosing the confidential
`information at issue – should not be altered after the fact. The California court has its own patent
`disclosure rules that will address infringement disclosures in that case.
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`Dated: October 15, 2020
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`Respectfully submitted,
`IRELL & MANELLA LLP
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`10878706.1
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`By: /s/ C. Maclain Wells
`C. Maclain Wells
`Attorneys for Defendant DEMARAY LLC
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that on October 15, 2020 all counsel of record who are deemed
`to have consented to electronic service are being served with a copy of this document via the
`Court’s CM/ECF system.
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`By: /s/ C. Maclain Wells
`C. Maclain Wells
`Attorneys for Defendant DEMARAY LLC
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