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`Case 5:20-cv-09341-EJD Document 111 Filed 01/03/22 Page 1 of 4
`
`IRELL & MANELLA LLP
`Morgan Chu (70446)
`MChu@irell.com
`Benjamin W. Hattenbach (186455)
`BHattenbach@irell.com
`C. Maclain Wells (221609)
`MWells@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`Telephone: (310) 277-1010
`Facsimile:
`(310) 203-7199
`
`Attorneys for Defendant
`DEMARAY LLC
`
`APPLIED MATERIALS, INC.,
`
`
`Plaintiff,
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
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`Case No. 5:20-cv-09341-EJD
`
`DEMARAY LLC’S REPLY RE: MOTION
`FOR A SUBSEQUENT CASE
`MANAGEMENT CONFERENCE
`
`Hearing Date: April 21, 2022
`Hearing Time: 9:00 a.m.
`
`
`
`DEMARAY’S REPLY RE:
`MOTION FOR SUBSEQUENT CMC
`(Case No. 5:20-cv-09341-EJD)
`
`
`
`
`DEMARAY LLC,
`
`
`vs.
`
`Defendant.
`
`
`
`11040565
`
`
`

`

`Case 5:20-cv-09341-EJD Document 111 Filed 01/03/22 Page 2 of 4
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`Both the parties and the Magistrate agree that the Court should schedule—at its earliest
`convenience—a further CMC to put a case schedule in place. At the December 15, 2021 discovery
`hearing, Magistrate Judge Cousins stated “I assume, yes, you will have a case management
`conference sometime soon with Judge Davila” (12/15/21 Transcript at 3:3-5) and ordered the
`parties to meet and confer and file an updated Joint CMC Statement “setting forth their case
`management plan(s)” (Dkt. 101 at 3), which they have now done (Dkt. 106). And, while Applied
`refused originally to join Demaray in making a stipulated request for a further CMC conference
`under Civil Local Rule 16-10(c) necessitating this Motion, Applied now “does not oppose the
`Court holding a further case management conference (‘CMC’)” (Resp. at 1) and has sought to
`expedite the hearing on Demaray’s CMC request (Dkt. 108). Demaray continues to believe that a
`CMC is necessary to enter a schedule reflecting the complexity of this case and respectfully
`requests that the Court schedule—at its earliest convenience—a further CMC to address the case
`schedule in light of the issues raised in the parties’ updated Joint CMC Statement.
`Applied spends most of its self-styled “response” casting unsupported and improper
`aspersions that Demaray is somehow delaying the case because of a lack of a case schedule. This
`is objectively false. The fact is that Demaray timely sought a further CMC conference to set a case
`schedule in the first place, not Applied. See Dkt. 92. Applied refused to join a stipulated request
`for a CMC that would have streamlined this process necessitating motion practice. Below,
`Demaray briefly responds to Applied’s mischaracterizations of the record.
`I.
`DEMARAY HAS FOLLOWED MAGISTRATE JUDGE COUSINS’ GUIDANCE
`In arguing that Demaray is somehow delaying in contravention of Magistrate Judge
`Cousins’ guidance, Applied mischaracterizes the record. On December 15, 2021, Magistrate Judge
`Cousins ordered:
`Both parties must comply with the Patent Local Rules. This requires
`communication and cooperation. The parties are ordered to confer
`and file an updated joint case management statement by December
`22, 2021, setting forth their case management plan(s) for Judge
`Davila. I do not adopt the unilateral case schedule proposed at ECF
`98 by Applied.
`Dkt. 101 at 3. Demaray has followed, and will continue to follow, this guidance.
`
`11040565
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`- 1 -
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`DEMARAY’S REPLY RE:
`MOTION FOR SUBSEQUENT CMC
`(Case No. 5:20-cv-009341-EJD)
`
`

`

`Case 5:20-cv-09341-EJD Document 111 Filed 01/03/22 Page 3 of 4
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`Demaray understands from Magistrate Judge Cousins’ order that the parties should follow
`the default disclosure requirements and timelines under the Patent Local Rules until otherwise
`directed by the Court. After Magistrate Judge Cousins issued his order, the parties promptly met
`and conferred on the case management issues, including the case schedule, as called for under this
`Court’s rules. As part of the parties’ December 22, 2021 updated Joint CMC Statement, Demaray
`proposed that it make claim construction disclosures under Patent L.R. 4-1 within just five days of
`filing the updated Joint CMC Statement and provide its constructions and intrinsic evidence at the
`end of the first week back after the holidays, on January 7, 2022. See Dkt. 106 at 21-22. This is
`well short of the January 17, 2022, date called for using the default timelines under Patent Local
`Rule 4-2. The remainder of Demaray’s proposed timeline for claim construction disclosures
`follows the default timelines under the Patent Local Rules, but notes that if after Applied provides
`the required targeted disclosures on its reactor configurations, Demaray brings affirmative
`infringement claims, the default timelines under the Patent Local Rules for cases involving
`affirmative infringement claims should then apply.
`On December 27, 2021, Demaray did not to propose any further claims under Patent Local
`Rule 4-1 for construction. The next morning, December 28, 2021, counsel for Demaray reached
`out to Applied to meet and confer pursuant to Patent Local Rule 4-1. The parties held that meet
`and confer the next day, December 29, 2021. This is not delay.
`Demaray intends to continue to work cooperatively with Applied as Magistrate Judge
`Cousins directed and will provide its Patent Local Rule 4-2 disclosures on January 7, 2022 (see
`Dkt. 106 at 21-22)—well short of the January 17, 2022 date called for using the default timelines
`under Patent Local Rule 4-2. Demaray will then follow the default timelines for claim construction
`disclosures under the Patent Local Rules until the Court order a different schedule. This also is not
`delay.
`Applied’s assertion that “Demaray continues to ignore the deadlines that th[e] rules
`mandate” (Resp. at 2) ignores these disclosures and appears to be predicted on the erroneous
`assumption that its proposed schedule (Dkt. 98) is somehow operative—but Magistrate Judge
`Cousins specifically rejected Applied’s proposed schedule: “I do not adopt the unilateral case
`
`11040565
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`DEMARAY’S REPLY RE:
`MOTION FOR SUBSEQUENT CMC
`(Case No. 5:20-cv-09341-EJD)
`
`

`

`Case 5:20-cv-09341-EJD Document 111 Filed 01/03/22 Page 4 of 4
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`schedule proposed at ECF 98 by Applied.” Dkt. 101 at 3 (emphasis added).
`Applied’s rejected schedule called for (1) Demaray to be limited to its claim construction
`positions for Patent Local Rules 4-1 through 4-2 from Texas and (2) an expedited (and
`unworkable) schedule for the rest of the claim construction disclosures under the Patent Local
`Rules asking that claim construction disclosures/briefing be shortened from five months as called
`for under Patent L.R. 4-1 through 4-5 to just over two months. Applied offers no reasonable basis
`for its proposed drastic cuts to the time allotted under the Patent Local Rules. And, as discussed in
`the updated Joint CMC Statement, Applied’s schedule is based upon its assumption that
`affirmative infringement claims will not be part of the case, but as Demaray has stated all along, it
`needs targeted discovery on Applied’s reactor configurations to make such determinations and it is
`unclear how Applied proposes the parties take claim construction positions before disclosures are
`made regarding affirmative claims for infringement or its own claims for invalidity—the order of
`disclosures under the Patent Local Rules.
`II.
`CONCLUSION
`Given the outstanding issues as outline in the parties’ Updated Joint CMC Statement, the
`most logical and efficient way for this case to proceed is for the Court to hold a further CMC as
`Demaray requests to address the various intertwined issues and the case schedule. For the
`foregoing reasons, the Court should grant Demaray’s motion for a subsequent CMC and thereby
`hold a case management conference to set a case schedule in this case at the Court’s earliest
`convenience.
`Dated: January 3, 2021
`
`
`
`Respectfully submitted,
`IRELL & MANELLA LLP
`
`By: /s/ C. Maclain Wells
`C. Maclain Wells
`Attorneys for Defendant DEMARAY LLC
`
`11040565
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`- 3 -
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`DEMARAY’S REPLY RE:
`MOTION FOR SUBSEQUENT CMC
`(Case No. 5:20-cv-09341-EJD)
`
`