Case 5:20-cv-09341-EJD Document 107 Filed 12/27/21 Page 1 of 4
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`YAR R. CHAIKOVSKY (SB# 175421)
`yarchaikovsky@paulhastings.com
`PHILIP OU (SB# 259896)
`philipou@paulhastings.com
`JOSEPH J. RUMPLER, II (SB# 296941)
`josephrumpler@paulhastings.com
`DAVID OKANO (SB#278485)
`davidokano@paulhastings.com
`ANDY LEGOLVAN (SB# 292520)
`andylegolvan@paulhastings.com
`BORIS LUBARSKY (SB# 324896)
`borislubarsky@paulhastings.com
`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, California 94304-1106
`Telephone: 1(650) 320-1800
`Facsimile: 1(650) 320-1900
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`MATTHIAS KAMBER (SB#232147)
`matthiaskamber@paulhastings.com
`PAUL HASTINGS LLP
`101 California Street, 48th Floor
`San Francisco, California 94111
`Telephone: 1(415) 856-7000
`Facsimile: 1(415)856-7100
`Attorneys for Plaintiff
`APPLIED MATERIALS, INC.
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`APPLIED MATERIALS, INC.,
`Plaintiff,
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`vs.
`DEMARAY LLC,
`Defendant.
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`CASE NO. 5:20-cv-09341-EJD
`APPLIED MATERIALS, INC.’S
`RESPONSE TO DEMARAY LLC’S
`MOTION FOR A SUBSEQUENT CASE
`MANAGEMENT CONFERENCE
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`Hearing Date: April 21, 2022
`Hearing Time: 9:00 a.m.
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`APPLIED’S RESPONSE TO DEMARAY’S
`MOTION FOR SUBSEQUENT CMC
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`Case 5:20-cv-09341-EJD Document 107 Filed 12/27/21 Page 2 of 4
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`I.
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`ARGUMENT
`Applied does not oppose the Court holding a further case management conference
`(“CMC”) if the Court believes one is necessary, but objects to Demaray’s continued reliance on
`the fact that the Court has not yet set a further CMC as ‘justification’ for its ongoing efforts to
`delay this case from moving forward. Specifically, Demaray’s motion requests “the Court—at its
`earliest convenience—hold a further CMC to set the initial case schedule in this case and
`address the parties’ various issues raised in their updated Joint CMC Statement (Dkt. No.82),
`including their competing proposed schedules”, Dkt. No. 92 at 1:3-5, such that until that time,
`Demaray can continue to delay compliance with discovery and Patent Local Rule deadlines.
`Demaray should not be permitted to continue its self-help tactics.1
`Two weeks ago, Magistrate Judge Cousins addressed three motions in Applied’s favor, all
`centered around the same core dispute: whether Demaray could continue to delay this case from
`proceeding in view of “the potential impact the resolution this case could have on Demaray’s
`suits against Applied’s customers” Dkt. No. 63, 14:11-14. The Court denied Demaray’s motion
`to stay pending IPR, ordered the deposition of Demaray’s principal, Dr. Demaray, to occur by
`January 21, 2022, and made clear that Demaray must comply with the Patent Local Rules after
`Demaray had failed to do so for two months. Dkt. No. 101. Magistrate Judge Cousins concluded
`that “Demaray essentially has granted itself a further stay of the case even after Judge Davila
`ordered an end to the discovery stay on October 15, 2021” and Demaray “must comply with the
`Patent Local Rules.” Id. at 3:14-17. Magistrate Judge Cousins also ordered the parties “to confer
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`1 Demaray has repeatedly wielded the purported need for a further CMC to suit its litigation goal
`of delaying this case from proceeding in favor of its lawsuits against Applied’s customers. See,
`e.g., Dkt. No. 86 at 3-5 (arguing Magistrate Judge Cousins should not address the deposition of
`Dr. Demaray because “Judge Davila should address the issue of coordination of overlapping
`discovery as part of the pending CMC process”); Dkt. No. 90 at 1:1-5 (opposing motion for
`compliance with Patent Local Rules because “the Court has not yet entered a case schedule”).
`APPLIED’S RESPONSE TO DEMARAY’S
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`- 1 -
`MOTION FOR SUBSEQUENT CMC
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`Case 5:20-cv-09341-EJD Document 107 Filed 12/27/21 Page 3 of 4
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`and file an updated joint case management statement by December 22, 2021, setting forth their
`case management plan(s) for Judge Davila.” Id. at 3:18-20. The parties did so. Dkt. No. 106.
`Therein, despite the Court confirming that Demaray must comply with the Patent Local
`Rules, which “requires communication and cooperation”, Demaray continues to ignore the
`deadlines that those rules mandate. Demaray failed to comply with its Patent L.R. 4-1 disclosures
`on October 14, 2021 and Patent L.R. 4-2 disclosures on November 4, 2021, despite already
`exchanging the same information in its customer suits in Texas months ago for certain terms and
`actively exchanging the same disclosures around the same time for other terms. As a result, the
`November 30, 2021 deadline for filing a Joint Claim Construction Statement also passed without
`Demaray’s cooperation. Despite Magistrate Judge Cousins’ order, Demaray refused to propose
`claim terms for another twelve days2, does not propose filing the Joint Claim Construction
`Statement until February 1, 2022, or having a Markman hearing until late April 2022 or early
`August 2022 if it is allowed to make infringement claims. Dkt. No. 106 at 21-22 (Proposed
`Schedule). Unless the Court enters a case schedule, Demaray will undoubtedly continue its self-
`help tactics and make disclosures on its own terms and deadlines. In doing so to-date, Demaray
`has already delayed its disclosures required by the Patent Local Rules by two months.
`Accordingly, Applied respectfully requests that the Court enter a case schedule at its
`earliest convenience in view of the parties’ updated CMC statement. To the extent the Court
`believes a further CMC is necessary, Applied welcomes the opportunity to further address any of
`the issues raised in the updated CMC. However, Demaray should not be permitted to continue
`relying on the lack of CMC or entered case schedule to further delaying this case from moving
`forward and setting its own rules and deadlines as they fit its litigation goals.
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`II.
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`CONCLUSION
`Applied respectfully requests the Court enter a case schedule based on the parties’ updated
`CMC statement, Dkt. No. 106.
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`2 As of the filing of this response, Demaray had not yet served its Patent L.R. 4-1 disclosures
`despite agreeing to do so under its own proposed schedule. Dkt. No. 106 at 21.
`APPLIED’S RESPONSE TO DEMARAY’S
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`MOTION FOR SUBSEQUENT CMC
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`Case 5:20-cv-09341-EJD Document 107 Filed 12/27/21 Page 4 of 4
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`DATED: December 27, 2021
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`YAR R. CHAIKOVSKY
`MATTHIAS KAMBER
`PHILIP OU
`JOSEPH J. RUMPLER, II
`DAVID OKANO
`ANDY LEGOLVAN
`BORIS LUBARSKY
`PAUL HASTINGS LLP
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`By: /s/ Philip Ou
`PHILIP OU
`Attorneys for Plaintiff
`APPLIED MATERIALS
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`APPLIED’S RESPONSE TO DEMARAY’S
`MOTION FOR SUBSEQUENT CMC
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