Case 5:20-cv-09341-EJD Document 143 Filed 03/28/22 Page 1 of 7
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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
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`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
`OPPOSITION TO DEMARAY LLC’S
`MOTION TO ENLARGE TIME TO
`RESPOND (DKT. 140)
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`Case 5:20-cv-09341-EJD Document 143 Filed 03/28/22 Page 2 of 7
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`I.
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`INTRODUCTION
`Applied opposes Demaray’s motion, Dkt. 140, which seeks an indefinite stay of claim
`construction under the guise of a motion to enlarge time under Local Rule 6-1(b). Demaray’s
`motion, which relies on its motion to amend to add infringement claims twenty months after suing
`Applied’s customers (Dkt. 133), is Demaray’s latest tactic to delay this case from proceeding and
`stall “the potential impact the resolution of this case could have on Demaray’s suits against
`Applied’s customers” from occurring. Dkt. 63 at 14:11-13. But this Court’s rules are clear, and
`the Court already ordered that Demaray “must comply with the Patent Local Rules.” Dkt. 101 at
`3:17. Likewise, the Court already rejected Demaray’s prior stay request, finding that because
`“Demaray’s stay request would allow its customer suits in Texas to proceed” “[t]he timing of
`Demaray’s stay motion [] reveals gamesmanship.” Id. at 2:25-27; see also id. at 2:19-20 (“[A] stay
`would unduly prejudice and present an overwhelming tactical disadvantage to Applied.”).
`Demaray’s claim of “substantial prejudice” does not comport with the realities of this case
`and Demaray’s customer suits in Texas. On the other hand, the Court has already recognized the
`prejudice to Applied in allowing further delay of this case from proceeding. Demaray’s non-
`administrative motion for an indefinite stay of claim construction should be denied and Demaray
`should timely file its responsive claim construction brief pursuant to Patent Local Rule 4-5(b).
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`II.
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`ARGUMENT
`A.
`Demaray’s Motion Would Unduly Prejudice Applied
`Demaray’s continued efforts to stall this case from proceeding has already unduly
`prejudiced Applied, as this motion is only the latest in a nearly two-year long effort by Demaray to
`halt this manufacturer case in favor of Demaray’s customer suits. Demaray began by challenging
`this Court’s jurisdiction over Applied’s claims of non-infringement and license on the false premise
`that Demaray was accusing Intel and Samsung’s post-installation configurations of Applied
`chambers, and thus was not accusing Applied’s products “standing alone of infringement.” Dkt.
`30. Meanwhile, Demaray pressed forward with allegations against Applied’s products in Texas,
`contradicting representations it made to this Court in challenging jurisdiction. This Court found
`jurisdiction, and rejected Demaray’s plea for a discretionary denial in favor of its customer suits,
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`APPLIED’S OPP. TO DEMARAY’S
`MOTION TO ENLARGE TIME
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`Case 5:20-cv-09341-EJD Document 143 Filed 03/28/22 Page 3 of 7
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`Dkt. 63 at 14:3-10, given “the potential impact the resolution of this case could have on Demaray’s
`suits against Applied’s customers.” Id. at 14:11-13. But through its challenge, Demaray succeeded
`in delaying Applied’s claims from moving forward for nearly a year.
`Demaray’s efforts to delay did not stop there. Rather, Demaray has continued its efforts to
`delay this case at every turn through self-help and non-compliance with the Patent and Local Rules.
`See Dkt. 142 at 4–8. Such delay is highly prejudicial to Applied considering it filed its complaint
`fifteen months ago in December 2020. For a patent case involving declaratory judgment claims
`where “the defendant serves an answer that does not assert a claim for patent infringement,” Patent
`Local Rule 4-1 applies 14 days after the Answer (i.e., like this case), and under a typical schedule
`following those rules, the parties would have expected to have their Markman last summer or fall.1
`But as a result of Demaray’s jurisdiction challenge, prior non-compliance with the Patent Local
`Rules, and undue delay in seeking amendment to add infringement claims, compliance with Patent
`Local Rule 4-5(a)—i.e., Applied filing its opening claim construction brief—did not occur until
`this month, sixteen months after Applied filed its declaratory judgment complaint in this case.
`Desperate to stop the potential impact that a Markman could have on Demaray’s allegations
`against Applied’s customers, Demaray now seeks to indefinitely halt claim construction from
`proceeding with its responsive brief due this Friday. Indeed, under the guise of “plain and ordinary
`meaning” (the Texas court’s construction of “narrow band rejection filter”), for some PVD
`chambers, Demaray continues to allege in Texas that this case dispositive claim term could
`effectively be anywhere or anything. Ou Decl. ¶ 2. Applied provided discovery on all of its PVD
`chambers potentially at issue in this case months ago. Id. For Cirrus, Applied’s disclosures date
`back further and have been relied upon by Demaray in multiple supplementations to its contentions
`in Texas, including the Comet component’s technical specification describing its use in the Cirrus
`chamber; the Cirrus PVD Chamber manual; and the deposition and declaration of Keith Miller, a
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`1 Assumes that Demaray would have filed its Answer in early 2021 and the time between claim
`construction deadlines provided by the Patent Local Rules followed in a case schedule.
`APPLIED’S OPP. TO DEMARAY’S
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`MOTION TO ENLARGE TIME
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`Case 5:20-cv-09341-EJD Document 143 Filed 03/28/22 Page 4 of 7
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`Director of Engineering at Applied and corporate representative.2 Mot. 142 at 8-9. While doing
`so, Demaray has represented to this Court that its own lack of Rule 11 basis excused its delay in
`seeking to bring infringement claims against Applied, even though it has been accusing Applied’s
`products in Texas for the last twenty months. Dkt. Nos. 130-2 at 7:12-8:2; 130-3 at 18:21-19:1.
`Under the proper construction of “narrow band rejection filter” Demaray has no basis to accuse
`Applied’s products of infringement, whether before this Court or in Texas against Applied’s
`customers. Demaray’s continued efforts to delay this Court’s adjudication of Applied’s declaratory
`judgment claim of non-infringement is thus unduly prejudicial to Applied.
`Finally, Demaray’s argument that Applied’s claim construction brief does not comport with
`the Patent Local Rules by briefing terms not designated “most significant” is both specious and
`irrelevant to its requested stay. Patent L.R. 4-3(c) requires parties to identify up to 10 terms whose
`construction “will be most significant to the resolution of the case. Parties shall also identify any
`term among the 10 whose construction will be case or claim dispositive.” P.L.R. 4-3(c). Applied
`identified six claim terms that are “significant to the resolution” of the case, and further identified
`the most significant term, as well as two further case or claim dispositive terms. See Dkt. 126 at 39.
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`B.
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`Demaray’s Claim of “Substantial Prejudice” is Not Credible and
`Contradicted By its Own Statements Made Before this Court
`On the other hand, Demaray’s motion claims “undue prejudice” by having to “take positions
`in claim construction without the disclosures called for under the Patent Local Rules.” Mot. at 3:9-
`11. But Demaray ignores its tactical decision to not file counterclaims of infringement that would
`have triggered those disclosures when it filed its answer six months ago. Under Patent L.R. 4-1, in
`such circumstances, claim construction disclosures begin no later than 14 days after. Demaray’s
`claim of substantial prejudice is of its own choosing.
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`2 Demaray’s claim that its delay to amend is due to Applied refusing to disclose the details of the
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`Cirrus chamber is not credible – Demaray has accused the same Cirrus chambers of infringement
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`in Texas, including through five supplementations of its infringement contentions relying on
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`disclosures regarding the Cirrus chambers that Applied provided over a year ago.
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`APPLIED’S OPP. TO DEMARAY’S
`MOTION TO ENLARGE TIME
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`Case 5:20-cv-09341-EJD Document 143 Filed 03/28/22 Page 5 of 7
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`Nor are Demaray’s claims credible. First, Demaray contends that “additional infringement
`issues are likely to be at issue in this case given the breadth of Applied’s declaratory judgment
`claims.” Mot. at 3:7-8. Demaray provides no explanation for how or why there will be “additional
`infringement issues”, in particular when it has repeatedly told this Court that it may not even have
`a Rule 11 basis to bring infringement claims in this Court, and in its recent motion to amend, limited
`those claims to one Applied product—the Cirrus chamber. But allegations against Cirrus are not
`new; Demaray accused the Cirrus chamber in July 2020 and has continued to through five rounds
`of supplemental contentions in Texas. Moreover, in response to Demaray’s subpoenas in Texas
`and requests in this case, Applied already produced details of all its PVD chambers that may fall
`under the “breadth of Applied’s declaratory judgment claims.” Ou Decl. at ¶ 3.
`Next, Demaray claims that “Applied’s invalidity contentions will likely diverge from those
`of its customers.” Mot. at 3:8-9. Yet three months ago, Demaray sung a different tune in its
`continued efforts to delay. In the joint CMC statement, Demaray proposed “coordinated discovery”
`between this case and in Texas, relying on the fact that “Applied’s counsel here is also handling
`Applied’s IPRs and is counsel for both defendants and Applied in the Texas cases”. Dkt. 106 at
`13:11-12. In responding to Applied’s Expedited Trial Procedure request, Demaray then argued:
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`“The most obvious and convenient trial procedure in this case is to allow the invalidity
`arguments Applied chose to file in the Patent Office to proceed while the far-earlier-filed
`cases in Texas, which are scheduled for trial on July 11, 2022, proceed without
`interference from this fifth-filed action. Applied was right in its earlier statements to the
`Court that “the parties and counsel [and the Texas court] are already well familiar with
`the claim construction issues and key technical disputes … through discovery and the
`proceedings to-date in the [Texas] suits.” See Dkt. 69 at 16-17.
`Id. at 15:23-16:5.
`Considering that Demaray has (1) supplemented its contentions five times in Texas; (2)
`received robust invalidity contentions in Texas; and (3) litigated two IPRs to near final written
`decision, it simply is not credible for Demaray to claim it lacks “disclosures called for under the
`Patent Local Rules.” Mot. at 3:4-5. Rather, as it agreed with in its recent statement to the Court,
`“the parties and counsel are already well familiar with the claim construction issues and key
`technical disputes.” Dkt. 106 at 13:2-4. Demaray’s prejudice claims should be taken for what they
`truly are: another instance of what this Court has recognized as gamesmanship. Dkt. 101, 2:25-27.
`APPLIED’S OPP. TO DEMARAY’S
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`MOTION TO ENLARGE TIME
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`Case 5:20-cv-09341-EJD Document 143 Filed 03/28/22 Page 6 of 7
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`C.
`Demaray’s Motion Fails to Comply with Local Rule 6-3
`As explained infra, Demaray’s motion to enlarge time is actually a poorly veiled motion to
`indefinitely stay case deadlines in favor of Demaray’s customer suits. Trying to fit a square peg in
`a round hole, Demaray’s motion fails to comply with the requirements set forth in Local Rule 6-3.
`First, Demaray does not propose any deadline to file a responsive claim construction brief,
`but rather asks to delay all claim construction deadlines until “the parties have completed the
`infringement and invalidity disclosures.” Mot. at 5:9–10. But, no such disclosures are required
`because Demaray chose not to file infringement claims with its answer six months ago, and the
`Court has not permitted Demaray to belatedly add them to the case now. Nor should it for the
`reasons set forth in Applied’s opposition to Demaray’s motion to amend. Dkt. 141.
`Second, Demaray’s proposed order only asks for a new hearing date (presumably for
`Markman)3 but does not propose any pre-Markman Patent L.R. deadlines. See Dkt. 140-2. Thus,
`it is impractical for the Court to even enter Demaray’s proposal. Demaray’s inability to propose
`an order that aligns with the relief it seeks highlights the impropriety of its motion.
`Finally, Demaray’s motion fails to “describe[] the effect of the requested time modification
`would have on the schedule for the case” as required by L.R. 6-3(a)(6). Instead Demaray avers that
`since there is “not yet a schedule in place… the requested relief will have no effects on the
`schedule.” Dkt. 140-1 at ¶ 5. The Court has already ordered Demaray to comply with the Patent
`Local Rules and that through its conduct “Demaray essentially has granted itself a further stay of
`the case even after Judge Davila ordered an end to the discovery stay.” Dkt. 101 at 3:7-21. In
`pleading for a schedule that stays and then resets claim construction deadlines to an undetermined
`time in the future, Demaray simply seeks another form of obfuscating the Court’s order by granting
`itself a further stay. Demaray cannot continue to delay this case from proceeding.
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`3 Following the Court’s order compelling compliance with the Patent Local Rules, Dkt. 101,
`Demaray proposed the Markman Hearing occur on “April 29, 2022… (reset to August 25, 2022…
`if affirmative infringement claims are allowed)”. Dkt. 116 at 3:17-23. The Court has not allowed
`such claims, and Demaray’s delay in seeking amendment should not cause further delay.
`APPLIED’S OPP. TO DEMARAY’S
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`MOTION TO ENLARGE TIME
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`Case 5:20-cv-09341-EJD Document 143 Filed 03/28/22 Page 7 of 7
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`DATED: March 28, 2022
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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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`PAUL HASTINGS LLP
`By: /s/ Yar R. Chaikovsky
`YAR R. CHAIKOVSKY
`Attorneys for Plaintiff
`APPLIED MATERIALS
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`APPLIED’S OPP. TO DEMARAY’S
`MOTION TO ENLARGE TIME
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