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`Case 5:20-cv-09341-EJD Document 140 Filed 03/23/22 Page 1 of 6
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`IRELL & MANELLA LLP
`Morgan Chu (70446)
`MChu@irell.com
`Benjamin W. Hattenbach (186455)
`BHattenbach@irell.com
`Samuel K. Lu (171969)
`SLu@irell.com
`Olivia L. Weber (319918)
`OWeber@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`Telephone: (310) 277-1010
`Facsimile:
`(310) 203-7199
`
`FOLIO LAW GROUP PLLC
`C. Maclain Wells (221609)
`Maclain@foliolaw.com
`2376 Pacific Ave.
`San Francisco, CA 94115
`(415) 562-8632
`
`Attorneys for Defendant
`DEMARAY LLC
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`APPLIED MATERIALS, INC.,
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`Plaintiff,
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`DEMARAY LLC,
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`vs.
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`Defendant.
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`11078020
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`Case No. 5:20-cv-09341-EJD
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`DEMARAY LLC'S MOTION TO
`ENLARGE TIME TO RESPOND
`
`Hearing Date: N/A
`Hearing Time: N/A
`
`DEMARAY'S MOTION TO ENLARGE TIME
`(Case No. 5:20-cv-09341-EJD)
`
`

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`Case 5:20-cv-09341-EJD Document 140 Filed 03/23/22 Page 2 of 6
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`I.
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`INTRODUCTION
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`Pursuant to Civil Local Rules 6-1(b) and 6-3, defendant Demaray LLC (“Demaray”)
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`hereby requests an order of this Court to enlarge time for its response to plaintiff Applied
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`Material’s Inc.’s (“Applied”) Opening Claim Construction Brief. Demaray requests that the Court
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`enlarge the time for response to allow the parties to complete their infringement and invalidity
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`disclosures under the Court’s Patent Local Rules relating to Demaray’s affirmative infringement
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`claims. The parties have met and conferred but were unable to come to an agreement on this
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`issue.
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`II. BACKGROUND
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`Applied filed this case seeking declaratory judgment that none of its reactors infringe upon
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`U.S. Patent Nos. 7,544,276 and 7,381,657 (the "Demaray Patents"), both of which require, among
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`other limitations, a “narrow band rejection filter” (“NBRF”). Dkt. 1. As detailed in Demaray’s
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`motion to amend and the most recent Joint CMC Statement, Demaray has consistently sought
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`targeted discovery sufficient in detail to determine whether to bring compulsory counterclaims for
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`infringement of the Demaray Patents. Dkt. 133 at 2-2; Dkt. 106 at 11-13. Applied has repeatedly
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`refused to provide the necessary discovery, prompting Demaray to file a motion to compel and to
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`expend significant resources on third-party discovery in co-pending cases in Texas. Dkt. 118;
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`Dkt. 133 at 3.
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`On February 4, 2022, Demaray confirmed through visual inspection and testing at a third-
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`party facility that, despite Applied’s assertions to the contrary, a NBRF is present in certain of
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`Applied’s Cirrus reactors. Demaray quickly filed a Motion to Amend to add affirmative
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`counterclaims for infringement and requested the earliest available hearing date of September 29,
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`2022. Dkt. 133. Demaray also filed a motion requesting an earlier hearing date for the motion.
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`Dkt. 136.
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`Because the outcome of Demaray’s motion to amend could potentially trigger various
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`disclosure requirements under the Patent Local Rules, Demaray also requested that Judge Cousins
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`hold the Patent Local Rules deadlines in abeyance pending resolution of its motion, or in the
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`alternative, adopt a schedule setting forth deadlines that account for Demaray’s affirmative
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`11078020
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`DEMARAY'S MOTION TO ENLARGE TIME
`(Case No. 5:20-cv-009341-EJD)
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`

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`Case 5:20-cv-09341-EJD Document 140 Filed 03/23/22 Page 3 of 6
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`infringement claims. Dkt. 135. Demaray explained in its letter brief to Judge Cousins that if the
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`Court grants Demaray’s motion, Demaray will be required to provide its infringement contentions
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`and Applied will be requirement to provide its invalidity contentions under Patent Local Rules 3-1
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`through 3-4. Without adjusting the claim construction schedule, the process would take place
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`without the parties being aware of the specific infringement and invalidity issues arising from
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`Demaray’s affirmative infringement claims. Applied has opposed Demaray’s request. Dkt. 139.
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`Moreover, at Judge Cousins’ request, on January 14, 2022, the parties filed competing
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`proposed schedules. Dkt. 116. In Demaray’s proposal, it noted that if affirmative infringement
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`claims are brought, claim construction dates would need to be adjusted accordingly. Id. Given
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`that the Patent Local Rules are unclear on the claim construction briefing order in cases having
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`neither affirmative infringement or invalidity claims (the current case status here until Demaray’s
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`motion to amend is addressed), the parties also agreed to a briefing order in which Applied would
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`file an opening brief, Demaray would respond, Applied would reply and Demaray would receive a
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`sur-reply. Id., n. 5. The Court has not yet entered a schedule or addressed the ordering of claim
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`construction briefing, though Applied has agreed to stipulate to a Demaray sur-reply as stated in
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`the proposed schedules.
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`On March 18, 2022, Applied filed an Opening Claim Construction brief. Dkt. 138. Per
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`Patent Local Rule 4-5(b), if the brief is deemed proper despite the fact that Applied has not
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`brought invalidity claims, Demaray’s response would be due on April 1, 2022.
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`III. LEGAL STANDARD
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`A motion to enlarge or shorten time must identify “the substantial harm or prejudice that
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`would occur if the Court did not change the time.” L.R. 6-3(a)(3). “Once a particularized
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`showing is made, ‘requests for extensions of time made before the applicable deadline has passed
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`should normally...be granted in the absence of bad faith or prejudice to the adverse party.” Lilit
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`Games (Shanghai) Co. Ltd. v. uCool, Inc., No. 15-cv-1267, 2015 WL 3523405, at *2 (N.D. Cal.
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`June 4, 2015) (citing Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010)).
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`IV. ARGUMENT
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`A. Extending Demaray’s Time to Respond Is Necessary to Prevent Substantial
`Prejudice to Demaray
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`11078020
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`DEMARAY'S MOTION TO ENLARGE TIME
`(Case No. 5:20-cv-09341-EJD)
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`Case 5:20-cv-09341-EJD Document 140 Filed 03/23/22 Page 4 of 6
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`If the Court grants Demaray’s motion to amend, the parties will be required to exchange
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`infringement and invalidity contentions under Patent Local Rules 3-1 through 3-4—disclosures
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`that typically occur prior to claim construction. If the time for Demaray to respond to Applied’s
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`Opening Claim Construction Brief is not extended, Demaray will have to brief its claim
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`construction positions without the benefit of the disclosures called for under the Patent Local
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`Rules. And while Applied has the benefit of Demaray’s detailed infringement contentions against
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`Applied’s customers in the co-pending Texas actions, additional infringement issues are likely to
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`be at issue in this case given the breadth of Applied’s declaratory judgment claims. For the same
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`reasons, Applied’s invalidity contentions will likely diverge from those of its customers. As such,
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`Applied is attempting to force Demaray to take positions in claim construction without the
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`disclosures called for under the Patent Local Rules.
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`Moreover, it is not clear Applied should have even filed an opening claim construction
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`brief at this juncture. On January 14, 2022, the parties filed a joint proposed scheduling order that
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`included a schedule for claim construction briefing. Dkt. 116. That proposed scheduling order
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`included the following footnote:
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`Patent L.R. 4-5 states that “… the party claiming patent infringement, or the party
`asserting invalidity if there is no infringement issue present in the case, shall serve
`and file an opening brief and any evidence supporting its claim construction.” As
`neither circumstance applies to the current posture of the case, the parties met
`and conferred and propose, subject to Court approval, equal briefing with
`Applied filing an opening brief, Demaray filing a response, Applied filing a reply
`and Demaray filing a sur-reply. If the Court does not approve of this proposal, the
`parties have a dispute regarding the ordering of the briefing.
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`Dkt. 116 at 3, n.5 (emphasis added). A case schedule, including a briefing schedule for claim
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`construction, has not been approved by the Court and it is unclear what briefing sequencing should
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`apply.
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`Additionally, the Court’s Standing Orders provide that “the Court will construe only those
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`terms designated by the parties as ‘most significant’ pursuant to Patent L.R. 4-3(c). The claim
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`construction briefs shall address each of those terms and only those terms.” Standing Order for
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`Patent Cases (emphasis added). In the parties’ Joint Claim Construction Chart, Applied only
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`identified the term “narrow band rejection filter” as being the “most significant.” Dkt. 126 at 39.
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`11078020
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`DEMARAY'S MOTION TO ENLARGE TIME
`(Case No. 5:20-cv-09341-EJD)
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`

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`Case 5:20-cv-09341-EJD Document 140 Filed 03/23/22 Page 5 of 6
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`Applied identified the term “pulsed DC power” as “significant as case dispositive with respect to
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`all of its products that use a DC (not pulsed DC) power supply….” Id. Applied merely stated that
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`the remaining terms were “significant” as to certain claims. Id. Given that the claim terms raised
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`have all already been construed by Judge Albright in the co-pending Texas cases, Demaray did not
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`designate any terms as “most significant.” Id. Yet Applied has chosen to brief all of its proposed
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`terms in its opening brief, even those not designated as “most significant.”
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`Rather than resolve these inconsistencies and ongoing questions with the case schedule,
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`Patent Local Rules and the Court’s Standing Orders, Applied has chosen to seek an advantage
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`over Demaray. Demaray’s time to respond should be extended to avoid the substantial prejudice
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`that would result from Applied’s tactics.
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`B. There Is No Prejudice to Applied In Enlarging the Time for Response
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`Applied would not suffer any prejudice if time for Demaray’s response was extended until
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`after the exchange of infringement contentions and invalidity contentions under the Patent Local
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`Rules.
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`First, as set forth above, this is the normal disclosure sequence under the Patent Local
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`Rules for cases involving affirmative infringement claims. That Applied sought to gain an
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`advantage by filing its Opening Claim Construction Brief before the Court has had a chance to
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`resolve the motion to amend does not prejudice Applied.
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`Second, Applied itself is responsible for the delay in Demaray’s request to add
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`infringement claims. Demaray filed a motion to compel discovery necessary to make affirmative
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`counterclaims for infringement before claim construction briefing began. Dkt. 118. Applied has
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`repeatedly refused to produce meaningful discovery about its reactor configurations or the
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`schematics of filters within those reactors. Id. at 5. Demaray moved to amend shortly after
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`confirming the existence of the claimed NBRF in a subset of Applied’s reactors through
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`Demaray’s own third party discovery efforts in the Texas cases (Demaray still lacks required
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`information regarding Applied’s non-Cirrus reactors as described in its motion to compel). Dkt.
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`133. Applied cannot obstruct Demaray’s efforts to gain basic discovery regarding potential
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`infringement claims and simultaneously complain that the resulting delay is prejudicial.
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`11078020
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`DEMARAY'S MOTION TO ENLARGE TIME
`(Case No. 5:20-cv-09341-EJD)
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`

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`Case 5:20-cv-09341-EJD Document 140 Filed 03/23/22 Page 6 of 6
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`Applied is attempting to delay and obstruct Demaray’s affirmative infringement cases here
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`and in Texas while moving its own claims for declaratory relief along. Applied seeks to take
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`advantage of the current scheduling uncertainty, which cannot be resolved until the Court resolves
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`Demaray’s motion to amend, to achieve an imbalanced schedule to Applied’s benefit. As such,
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`any claim that Applied would suffer prejudice from enlarging the time for Demaray to respond to
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`the Opening Claim Construction Brief is not genuine.
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`V. CONCLUSION
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`For the reasons set forth above, Demaray respectfully requests that the Court enlarge the
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`time for response until the parties have completed the infringement and invalidity disclosures
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`outlined in Patent Local Rules 3-1 through 3-4 with regard to Demaray’s affirmative infringement
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`claims and any invalidity claims that Applied chooses to bring.
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`Dated: March 23, 2022
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`/s/ Samuel K. Lu
` By: Samuel K. Lu
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`Morgan Chu (pro hac vice)
`Benjamin W. Hattenbach (pro hac vice)
`Annita Zhong (pro hac vice)
`IRELL & MANELLA LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067
`Telephone: (310) 277-1010
`Facsimile: (310) 203-7199
`mchu@irell.com
`bhattenbach@irell.com
`azhong@irell.com
`
`Olivia Weber (pro hac vice)
`IRELL & MANELLA LLP
`840 Newport Center Drive, Suite 400
`Newport Beach, CA 92660
`Telephone: (949) 760-0991
`Facsimile: (949) 760-5200
`oweber@irell.com
`
`C. Maclain Wells (221609)
`FOLIO LAW GROUP PLLC
`C. Maclain Wells (221609)
`2376 Pacific Ave.
`San Francisco, CA 94115
`(415) 562-8632
`Maclain@foliolaw.com
`
`Attorneys for Demaray LLC
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`DEMARAY'S MOTION TO ENLARGE TIME
`(Case No. 5:20-cv-09341-EJD)
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