Case 5:20-cv-09341-EJD Document 139 Filed 03/22/22 Page 1 of 3
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`March 22, 2022
`Honorable Magistrate Judge Nathaniel M. Cousins
`United States District Court Northern District of California
`San Jose Courthouse, Courtroom 7, 4th Floor
`280 South 1st Street, San Jose, CA 95113
`Re:
`Applied Materials, Inc. v. Demaray LLC, 20-cv-09341-EJD (NC) (N.D. Cal.)
`Dear Judge Cousins,
`Applied Materials, Inc. (“Applied”) objects to and opposes Demaray LLC’s (“Demaray”)
`procedurally improper letter brief submitted March 12, 2022, Dkt. No. 135, seeking yet another
`tactical attempt to delay this action from moving forward in favor of Demaray’s customer suits in
`the Western District of Texas. Last month, over Applied’s procedural objections, Demaray filed
`a letter brief to Your Honor seeking leave to amend its answer to add infringement claims—five
`months after Demaray chose not to assert infringement against Applied (despite its lawsuits against
`Applied’s customers) when it answered. Dkt. No. 127. Applied responded, Dkt. No. 128, and
`thereafter filed a motion to strike the letter brief as Demaray needed to file a noticed motion under
`Local Rule 7-1(a). Dkt. No. 130. Without a reasonable basis to oppose, Demaray withdrew its
`letter brief, Dkt. No. 134, and filed a noticed motion to amend its answer. Dkt. No. 133.
`Just days later, Demaray attempted yet again to bypass this Court’s procedures with another
`improper letter brief that asks Your Honor to either (1) “hold in abeyance the Patent Local Rule
`deadlines” or (2) enter a schedule assuming Demaray is permitted to add infringement claims.
`Demaray’s request is, again, neither a discovery dispute nor a motion that has been referred to your
`Honor by Judge Davila. Both requests are procedurally and substantively improper and directly
`contradict this Court’s prior rulings. See Dkt. No. 101. Whether on procedure, the merits, or both,
`Demaray’s requested relief should be denied.
`Demaray’s Request to Stay the Patent Local Rule Deadlines Should be Denied
`Demaray’s request to “hold in abeyance the Patent Local Rule deadlines” is nothing more than a
`poorly veiled attempt to obtain a stay of the case while its customer suits in Texas proceed. Indeed,
`in counsel’s e-mail to Applied regarding this issue, Demaray requested the parties “meet and
`confer regarding staying all deadlines under the Patent Local Rules.” Applied explained that
`however creatively Demaray framed the issue, it was a motion to stay that needed to be filed in
`compliance with Local Rule 7-1(a). Despite the fact that Demaray had just forced Applied to
`unnecessarily file a motion to strike its earlier letter brief, Demaray proceeded to file another one
`instead of a properly noticed motion.
`Demaray’s disregard for this Court’s rules cannot continue to be countenanced. As Your Honor
`knows, Demaray already delayed complying with the Patent Local Rules for months, forcing
`Applied to file a motion to compel. Dkt. No. 83. In ordering compliance, Your Honor found that
`“Demaray essentially has granted itself a further stay of the case even after Judge Davila ordered
`and end to the discovery stay”. Dkt. No. 101 at 2. Under Court order, Demaray had no choice but
`to provide its Patent L.R. 4-1 and 4-2 disclosures. To no surprise, after months of delay, Demaray
`(1) did not propose any additional claim terms for construction and (2) for Applied’s proposed
`terms (each of which were proposed in the Texas customer suits), proposed “plain and ordinary
`meaning” (for four terms) and the Texas Court’s constructions (for the other two). In other words,
`after months of delay, Demaray merely repeated its positions advanced in Texas. Demaray’s
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`Case 5:20-cv-09341-EJD Document 139 Filed 03/22/22 Page 2 of 3
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`argument in its letter that absent contentions, “it would be difficult for key aspects of the claim
`construction disclosure process to play out”—when Demaray has (1) supplemented its
`infringement contentions five times in Texas over the last sixteen months, (2) received robust
`invalidity contentions and supplemental invalidity contentions as recently as December 2021
`(when final contentions were originally due), and (3) litigated two IPRs to near final written
`decision—should be taken for what it truly is: yet another instance of what this Court has
`recognized as gamesmanship in seeking to delay this case while the customers suits in Texas
`proceed. Dkt. No. 101, 2:25-27 (“Demaray’s stay request would allow its customer suits in Texas
`to proceed. The timing of Demaray’s stay motion [] reveals gamesmanship.”).
`As aptly stated by this Court: “a stay would unduly prejudice and present an overwhelming tactical
`disadvantage to Applied.” Id. at 2:19-20. Accordingly, Demaray’s latest attempt to stay this case
`should be denied.
`Demaray’s Request to Enter a Schedule that Assumes the Court Will Permit Demaray to
`Add Infringement Claims Should be Denied
`Demaray’s alternative request, that this Court “adopt a schedule based upon Demaray’s proposed
`schedule setting forth deadlines that account for Demaray’s affirmative infringement claims,”
`likewise should be denied. Dkt. No. 135 at 1. This request asks Your Honor to adopt a case
`schedule that assumes Judge Davila has granted Demaray’s motion for leave to amend before
`Applied has even had an opportunity to substantively respond. This puts the cart before the horse.
`The motion for leave has not been granted (nor should it be), let alone been fully briefed.
`In pleading for a schedule that resets claim construction deadlines, Demaray simply seeks another
`form of delay. The parties filed their Joint Claim Construction and Prehearing Statement under
`Patent L.R. 4-3 over six weeks ago, Dkt. No. 126, and last Friday, Applied filed its Opening Claim
`Construction brief. Dkt. No. 138. Under the Patent Local Rules, Demaray’s Responsive Brief is
`due April 1, 2022. Demaray cannot continue to delay this case from proceeding, in particular
`where the Court has noted “the potential impact the resolution of this case could have on
`Demaray’s lawsuits against Applied’s customers.” Dkt. No. 63 at 14:11-13.
`Finally, Demaray’s insinuation that Applied “sought to introduce [delay] through the motion to
`strike” its improper letter brief is without merit. Demaray can only blame itself for its own delay
`and failure to follow the local rules.1
`Applied’s Proposal
`The Court should decline to address Demaray’s letter brief as procedurally improper and in
`noncompliance with the Court’s Local Rules. To the extent the Court addresses the letter as
`properly related to the entry of a case schedule (that is before Your Honor), Demaray’s requested
`relief (either a stay or further delay of claim construction deadlines) should be denied.
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`1 Nor can Demaray follow its own deadlines. In the parties’ competing case schedules, Demaray
`set its own deadline for leave to amend as February 14, 2022. Dkt. No. 116 at 1:16. But
`Demaray filed its motion on March 9, 2022 – three weeks after its own proposed deadline, and a
`week after Applied’s motion to strike. See Dkt. No. 133. Now Demaray seeks to rely on its own
`delay to delay the case even further. These tactics should not be rewarded.
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`Case 5:20-cv-09341-EJD Document 139 Filed 03/22/22 Page 3 of 3
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`Respectfully submitted,
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`/s/ Yar R. Chaikovsky
`Yar R. Chaikovsky
`of PAUL HASTINGS LLP
`Counsel for Plaintiff
`Applied Materials, Inc.
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