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`Case 5:20-cv-09341-EJD Document 144 Filed 03/30/22 Page 1 of 11
`
`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
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`Case No. 5:20-cv-09341-EJD
`
`DEMARAY LLC'S REPLY
`MEMORANDUM IN SUPPORT OF
`MOTION TO AMEND ITS ANSWER TO
`ADD AFFIRMATIVE COUNTERCLAIMS
`FOR INFRINGEMENT
`
`Hearing Date: September 29, 2022
`Hearing Time: 9 a.m.
`
`APPLIED MATERIALS, INC.,
`
`
`Plaintiff,
`
`
`
`
`DEMARAY LLC,
`
`
`vs.
`
`Defendant.
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`
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`

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`Case 5:20-cv-09341-EJD Document 144 Filed 03/30/22 Page 2 of 11
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`
`
`I.
`
`PRELIMINARY STATEMENT
`
`The Court should grant Demaray leave to amend its Answer to add affirmative
`
`counterclaims for infringement of the '276 and '657 patents under Federal Rule of Civil Procedure
`
`15(a). Applied does not, and indeed cannot, contest that (1) the reactor configurations that are the
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`subject of Demaray's infringement claims are not publicly accessible, (2) Applied has been telling
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`Demaray throughout this matter that it does not use a narrow band rejection filter ("NBRF"), all the
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`while refusing to provide filter details necessary for Demaray to test such assertions, and (3) details
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`regarding the protective filters in certain of Applied's reactors just became available through
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`Demaray's diligent third-party discovery efforts (such details have not been disclosed for other
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`Applied reactor models). Under the applicable legal standard, these facts alone warrant amendment
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`to add infringement claims based upon this new information.
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`In its Opposition, Applied attempts to unfairly paint Demaray as having a dilatory purpose
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`in bringing such claims, but ignores its own conduct in making affirmative misleading statements
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`that its reactors do not contain a NBRF, while refusing to disclose details on the filters used for the
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`last fifteen months. Indeed, it required an inspection at a third-party filter supplier, Comet, for
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`Demaray to finally obtain this information. Applied's failures to disclose the information sought by
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`Demaray are not a proper basis for denying Demaray leave. Applied is likewise unable to show
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`delay or bad faith on Demaray's part in seeking to amend, especially given the fact that Demaray
`
`moved to add these claims immediately after receiving the filter disclosures.
`
`In addition, Applied is unable to show any substantial prejudice that it would face from
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`Demaray's proposed amendments given that fact discovery is just beginning, there is no governing
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`case schedule, and Applied has been on notice of the possibility of these affirmative infringement
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`claims since the inception of this case.
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`Demaray's request for leave to amend its Answer to add affirmative counterclaims for
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`infringement should thus be granted.
`
`11082207
`
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`
`
`- 1 -
`
`DEMARAY'S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND
`(Case No. 5:20-cv-009341-EJD)
`
`

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`Case 5:20-cv-09341-EJD Document 144 Filed 03/30/22 Page 3 of 11
`
`
`
`II.
`
`ARGUMENT
`
`It is undisputed that in the Ninth Circuit, Rule 15's policy of favoring amendments to
`
`pleadings should "be applied with extreme liberality." Eminence Cap. LLC v. Aspeon, Inc., 316
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`F.3d 1048, 1051 (9th Cir. 2003). Applied's stonewalling in providing discovery regarding its filter
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`configurations in its reactors is not a basis to ignore this standard.
`
`A.
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`Applied Ignores That It Has Repeatedly Failed To Provide Its Filter Details
`Both Here And In Texas
`
`Applied's repeated failures to disclose its filter configurations is not a basis for denying
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`Demaray leave. Both parties agree that the Demaray patent claims require, among other
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`limitations, a NBRF or an equivalent. See Opp. at 1. Applied acknowledges that, over a year ago,
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`in the parties' January 14, 2021, Joint CMC Statement, Demaray raised its need for "targeted
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`discovery…from Applied regarding matters such as the configurations of PVD reactors that
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`Applied manufactures and uses," including any RF filter details, in order to evaluate the propriety
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`of affirmative infringement claims and noted that "[i]f Demaray does assert such claims, the
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`parties can propose a case schedule based upon the Patent Local Rules." Id. at 3 (citing Dkt. 27 at
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`17). While Applied tries to discount this disclosure as a mere "narrative that [Demaray] would
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`carry forward up until the instant motion" (id.), it shows that Demaray has consistently informed
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`both Applied and the Court throughout this case of Demaray's need for the targeted discovery. See
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`also Dkts. 69 at 3-4 (same), 82 at 4-8 (same). This is further reflected in the parties' most recent
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`Joint CMC Statement: "[o]nce Applied provides the required details on its products and processes,
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`including details on the protective filters or alternative protective mechanisms used, Demaray will
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`timely make infringement determinations." Dkt. 106 at 6. Because Applied continues to refuse to
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`provide necessary configuration details on its Cirrus and other reactors voluntarily or in response
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`to Demaray's discovery demands in this case, Demaray has moved to compel before Judge
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`Cousins (the motion is still pending). Dkt. 118, 1-3. Any perceived delay is thus one of Applied's
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`own making.
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`In its Opposition, Applied also ignores its repeated false statements, both here and in the
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`co-pending Texas cases, that its reactors do not include a NBRF. In its first filing in this case,
`
`11082207
`
`
`- 2 -
`
`DEMARAY'S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND
`(Case No. 5:20-cv-09341-EJD)
`
`

`

`Case 5:20-cv-09341-EJD Document 144 Filed 03/30/22 Page 4 of 11
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`Applied asserted "Applied's Endura products do not infringe claim 1 of the '276 patent at least
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`because these products do not meet or embody a reactor comprising…'a narrow band-rejection
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`filter….'" Dkt. 1, ¶¶ 95, 100. And in the Texas cases, Applied repeatedly asserted that while its
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`Cirrus reactors do have a RF filter, "it doesn't have a narrow band rejection filter. It's got a low
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`band pass filter." See, e.g., Ex. 6, 8/17/2021 Tr. 44:15-16. Even after three successful motions to
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`compel in Texas, Applied still refused to provide its alleged support for these statements claiming
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`that it lacked any documents detailing its RF filter configurations. See, e.g., Ex. 5, 9/27/2021 Tr.
`
`48:1-13. As a result, despite Demaray's diligence in seeking these targeted disclosures, the first
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`disclosure of details on Applied's RF filter configurations sufficient to allow Demaray to evaluate
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`whether an NBRF is used was not made until January 19, 2022—and it did not come from
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`Applied. On that date, in response to a subpoena, Applied's third-party filter supplier, Comet,
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`provided schematics of the RF filter that Applied uses in its Cirrus reactors. And, only after
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`Demaray conducted an on-site inspection in early February did the full details of Applied's filter
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`finally come to light. See Dkt. 127 (details on Comet disclosures and inspection).
`
`B.
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`Applied Tries To Downplay The Importance Of The Comet Disclosures
`
`Faced with newly disclosed information on the RF filters used in its Cirrus reactors,
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`Applied improperly asks the Court to adopt its contention that the disclosed filter configuration
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`does not infringe. Opp. at 2 ("the alleged 'new' evidence relied upon by Demaray to support its
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`motion to amend is irrelevant to infringement"), 19-20 ("…the measurements further evidence that
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`Demaray has no basis to assert infringement."). This is not a proper basis for opposing
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`amendment. See Netbula, LLC v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal. 2003)
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`("Ordinarily, courts will defer consideration of challenges to the merits of a proposed amended
`
`pleading until after leave to amend is granted and the amended pleading is filed."). If Applied
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`wants to bring a motion for summary judgment, after appropriate discovery, it is entitled to do so
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`(though any such motion would be baseless). But there is no basis for the Court to make the
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`requested factual determinations in Applied's favor in addressing leave to amend. Of note, Applied
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`has not argued that Demaray's amendment would be futile, and thus has waived any such
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`11082207
`
`
`- 3 -
`
`DEMARAY'S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND
`(Case No. 5:20-cv-09341-EJD)
`
`

`

`Case 5:20-cv-09341-EJD Document 144 Filed 03/30/22 Page 5 of 11
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`argument. See, e.g., Bautista v. Valero Mktg. & Supply Co., No. 15-cv-05557-RS, 2016 WL
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`6822024, at *1 (N.D. Cal. Nov. 18, 2016).
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`C.
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`Demaray Has Not Unduly Delayed In Seeking Amendment
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`Applied's delay arguments are premised upon its mischaracterizations of the factual record
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`and improper discounting of the recent Comet disclosures. Applied admits that the delay "inquiry
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`focuses on whether the plaintiff knew of the facts or legal bases for the amendments at the time
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`the operative pleading was filed and nevertheless failed to act promptly to add them to the
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`pleadings." Opp. at 9-10 (citing Johnson v. Serenity Transp., Inc., No. 15-cv-02004-JSC, 2015
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`U.S. Dist. LEXIS 108227, at *13 (N.D. Cal. Aug. 17, 2015)). As discussed above in Section II.A,
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`Demaray did not have detailed filter configuration details until the recent Comet disclosures. Since
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`the first disclosure by Comet of a circuit-level schematic for Applied's Cirrus RF filter on January
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`19, 2022, Demaray has: (1) confirmed the relevant configuration through visual inspection and
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`testing at Comet's facility on February 4, 2022 (see Dkt. 127 at 2), (2) the very next business day,
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`on February 7, 2022, filed a letter brief before Judge Cousins requesting leave to amend to add its
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`infringement counterclaims (id.); and, (3) after Applied disputed having Judge Cousins hear the
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`motion, filed the present motion to amend with the Court (Dkt. 133). Applied's delay arguments
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`are premised on improperly ignoring the new Comet disclosures and Demaray's diligent follow-
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`18
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`up.
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`Demaray also lacks any dilatory motive or bad faith in seeking to amend. In accusing
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`Demaray of an "aggressive campaign to delay this case" (Opp. at 10) Applied ignores its
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`stonewalling of Demaray's efforts to discern the RF filter configurations in Applied reactors;
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`Demaray's repeated successful motions to obtain this information in Texas; Demaray's timely
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`efforts to obtain such information from Applied's third-party filter supplier, Comet; and,
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`Demaray's timely efforts to seek associated relief from this Court. Applied cannot show undue
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`delay where the delay was caused by Applied's own affirmative representations and failure to
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`provide requested disclosures, and where Demaray diligently sought leave shortly after
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`discovering new information.
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`11082207
`
`
`- 4 -
`
`DEMARAY'S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND
`(Case No. 5:20-cv-09341-EJD)
`
`

`

`Case 5:20-cv-09341-EJD Document 144 Filed 03/30/22 Page 6 of 11
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`Applied's arguments that its prior disclosures in Texas should have been sufficient for
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`Demaray to make an infringement determination (Opp. at 8) should be rejected. Applied cites to
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`two earlier-produced documents from the Texas cases discussing a "DC filter." Id. (citing Exs. D-
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`E). Neither document discloses actual configuration details of the disclosed DC filter, let alone the
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`level of detail from the Comet inspection. Applied also relies on the characterizations of Keith
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`Miller, its Director of Engineering, but again no filter configuration details were disclosed by Mr.
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`Miller. Id. (citing Ex. F). The fact is that these materials and testimony were insufficient to confirm
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`whether the DC filter was a low pass filter as Applied asserted or an NBRF as Demaray believed
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`(and which Demaray subsequently confirmed through the Comet inspection).
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`In its Opposition, Applied also tries to draw inapt parallels between this case and
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`Demaray's infringement contentions in the Texas cases. Opp. at 10. But, as Demaray has
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`explained on numerous occasions, its suits against Applied's customers were supported in part by
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`Demaray's confidential reverse engineering of the customers' silicon wafer products. See, e.g.,
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`Dkt. 27 at 7. Applied knows that it does not produce silicon wafer products that can be acquired
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`and reverse engineered in this case. In addition, at the time of the Texas complaints, Applied had
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`not made affirmative representations (since proven false) that its reactors lack a NBRF.1 It should
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`be unsurprising that Demaray wanted to test the veracity of Applied's assertions before bringing
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`new claims—especially given that Applied has been threatening seeking Rule 11 sanctions in the
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`Texas matters for months. See, e.g., Dkt. 69 at 6 ("…calls into serious question what Rule 11 basis
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`it has to continue with its prosecution of claims against Applied's customers based on their use of
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`those products in WDTX."). Given Applied's filter characterizations and Rule 11 saber-rattling, it
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`was entirely reasonable for Demaray to be extra-sensitive to its Rule 11 obligations and it told the
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`Court exactly that: "And so we're being very cognizant of our Rule 11 obligations here. And they
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`have raised issues in the Texas cases where they said, hey we question your Rule 11…[w]e're
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`being cognizant, respectful of it, and once we get filter details, we can make an affirmative
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`1 Demaray was under no obligation to withdraw its Texas complaints based upon Applied's
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`self-serving (and ultimately false) characterizations, especially given Applied's stonewalling of
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`disclosures regarding the configuration of the Applied-supplied reactors in Texas.
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`11082207
`
`
`- 5 -
`
`DEMARAY'S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND
`(Case No. 5:20-cv-09341-EJD)
`
`

`

`Case 5:20-cv-09341-EJD Document 144 Filed 03/30/22 Page 7 of 11
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`determination, are there [] going to be affirmative infringement claims against Applied, standing
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`alone, its reactors that it's supplying or not." Dkt. 130-2, Tr. 7:12-8:2. Indeed, Demaray offered
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`before Judge Cousins before the recent Comet disclosures that if Applied would "admit that
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`[Demaray's] contentions in Texas are sufficient to cover a Rule 11 basis for them, we will submit
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`those to your Court - - to your Honor tomorrow…." Dkt. No. 130-S3, Tr. 18:21-19:1. Not
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`surprisingly, Applied refused this offer. Courts in this district have recognized that Demaray's
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`diligence and care do not amount to delay. Pac. Sci. Energetic Materials Co. (Arizona) LLC v.
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`Ensign-Bickford Aerospace & Def. Co., 281 F.R.D. 358, 363 (D. Ariz. 2012) ("Erring on the side
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`of avoiding Rule 11 sanctions at the risk of waiving its counterclaim, the defendant diligently
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`sought discovery of technical documentation to support its claim of infringement but has been
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`unable to obtain it because of the regulations that subject disclosure of this information to approval
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`by third parties….I FIND good cause to amend the scheduling order to allow the defendant to
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`amend its answer and file a counterclaim.").
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`Applied also attempts to equate the scope of its reactors at issue here with those that are at
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`issue in the Intel/Samsung WDTX cases. See Opp. at 2 (claiming that Demaray's supplemental
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`contentions in Texas directed at the '276 patent for Intel and Samsung with regard to the Cirrus
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`chambers negates potential infringement of the '657 patent by other Applied Cirrus chambers). But,
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`the cases are not co-extensive—Applied has sought a declaration that all of its reactors, including
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`reactors not sold to Intel and Samsung, do not infringe the Demaray patents. Dkt. 1, ¶¶ 94-95, 99-
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`100. Just because Intel and Samsung have stated in discovery that they do not use Applied Cirrus
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`chambers for reactive sputtering, does not mean that Applied does not supply such chambers to
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`other customers for use in these processes—indeed, Applied admits it supplies Cirrus TiN chambers
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`to others. Ex. 2, ¶ 66.
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`In support of its arguments, Applied also repeatedly mischaracterizes this Court's order
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`partially granting Demaray's motion to dismiss as an affirmative determination that a Rule 11
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`basis for affirmative infringement claims was present here. See Opp. at 4, 8, 10. In its order, the
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`Court concluded that "[t]here is a 'reasonable' potential of such a suit, and therefore there is subject
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`matter jurisdiction." Dkt. 63 at 13-14. The Court did not determine that Demaray had sufficient
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`11082207
`
`
`- 6 -
`
`DEMARAY'S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND
`(Case No. 5:20-cv-09341-EJD)
`
`

`

`Case 5:20-cv-09341-EJD Document 144 Filed 03/30/22 Page 8 of 11
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`evidence against Applied at that time to satisfy the requirements of Rule 11 here, nor did it rule
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`that Demaray had compulsory counterclaims available to it at that time.
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`Applied also argues that Demaray's proposed contingent schedule recognizing the
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`possibility of affirmative infringement claims was somehow improper. Opp. at 6. Demaray merely
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`noted in its proposed case schedule that "reset[ting]" of deadlines under the Patent Local Rules
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`would be required if Demaray's affirmative infringement claims were allowed (which they should
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`be). Dkt. 116 at 2-3. Judge Cousins specifically told Demaray to include such contingent dates at
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`the January 12, 2022 hearing. See Ex. 7, 1/12/2022 Tr. at 24:12-15. Demaray is simply suggesting
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`that the disclosure sequencing under the Patent Local Rules be applied to any added affirmative
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`infringement claims. See Patent L.R. 3-1 to 4-4. It is unclear how the Court's instruction or
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`Demaray's suggestion that the Patent Local Rules should apply can be equated to a dilatory
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`motive.
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`Applied also suggests that Demaray did not discover new information in its inspection
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`because Demaray "forecasted" its findings in a draft discovery letter, and that this is evidence of
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`bad faith. Opp. at 18. To the contrary, Demaray expected its inspection to confirm the Comet
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`disclosures and this is merely evidence that Demaray was diligently prepared to seek leave to
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`amend as quickly as possible. Applied goes on to undercut its own argument by asserting that
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`Demaray changed its position in its final letter brief seeking leave to amend before Judge Cousins,
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`speculating that Demaray discovered information that contradicted its "forecast." Id. at 19.
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`Contrary to Applied's assertion, Demaray produced the test results on which it bases its motion.
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`Other test results are protected work product and Applied's accusation that refusing to waive work
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`product privilege implies bad faith is baseless.
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`Applied's attempt to portray Demaray as somehow timing its motion with its supplemental
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`infringement disclosures in the Texas cases for tactical advantage is similarly misguided. Demaray
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`discovered new information during its February 4, 2022 inspection, and both timely supplemented
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`its infringement contentions in the Texas cases and sought leave to amend in this case accordingly.
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`In fact, Applied's counsel agreed to the timing of Demaray's supplemental infringement
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`contentions in WDTX.
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`11082207
`
`
`- 7 -
`
`DEMARAY'S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND
`(Case No. 5:20-cv-09341-EJD)
`
`

`

`Case 5:20-cv-09341-EJD Document 144 Filed 03/30/22 Page 9 of 11
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`The cases Applied cites for dilatory motive and delay do not lead to a different conclusion.
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`In Texaco, Inc. v. Ponsoldt, 939 F.2d 794 (9th Cir. 1991), the trial court denied leave to amend
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`where it had already awarded summary judgment against the movant on certain claims, discovery
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`had already concluded before the movant sought leave, and the trial date was a mere four and a
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`half months away. In Jackson v. Bank of Hawaii, 902 F.2d 1385 (9th Cir. 1990), the movant did
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`not cite any new information that justified its request for leave to amend. And in
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`AmerisourceBergen Corp. v. Dialyst West, Inc., 465 F.3d 946 (9th Cir. 2006), the movant had
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`made statements to the Court prior to amendment directly contradicting its new theories, despite
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`already having the information underlying its motion to amend. In contrast, fact discovery is just
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`beginning in this case, Demaray is in possession of newly discovered information recently
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`obtained through its third-party discovery efforts, and Demaray has made Applied aware of the
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`possibility of Demaray bringing affirmative counterclaims for infringement since early in the case.
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`D.
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`Applied Will Suffer No Prejudice From The Amendment
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`Applied has also not met its burden to show prejudice. See Genentech, Inc. v. Abbot
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`Lab'ys, 127 F.R.D. 529, 530-31 (N.D. Cal. 1989) ("[S]ince Rule 15 favors a liberal policy towards
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`amendment, the nonmoving party bears the burden of demonstrating why leave to amend should
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`not be granted."). To "overcome Rule 15(a)'s liberal policy with respect to the amendment of
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`pleadings," Applied's "showing of prejudice must be substantial." Gen. Star Indem. Co. v. First
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`Am. Title Ins. Co. of Napa, No. 20-cv-03210-TSH, 2021 WL 1299044, at *4 (N.D. Cal. April 7,
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`2021) (quoting Stearns v. Select Comfort Retail Corp., 763 F. Supp. 2d 1128, 1158 (N.D. Cal.
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`2010)). "[N]either delay resulting from the proposed amendment nor the prospect of additional
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`discovery needed by the non-moving party in itself constitutes a sufficient showing of prejudice."
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`Mendia v. Garcia, 165 F. Supp. 3d 861, 874 (N.D. Cal. 2016) (quoting Tyco Thermal Controls
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`LLC v. Redwood Indus., No. C 06–07164 JF (RS), 2009 WL 4907512, at *3 (N.D. Cal. Dec. 14,
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`2009)). Applied also cannot claim prejudice where Applied itself is culpable for the resulting
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`delay. Cmty. Voice Line, LLC v. Great Lakes Commc'n Corp., 295 F.R.D. 313, 320 (N.D. Iowa
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`2013), aff'd sub nom. Cmty. Voice Line, L.L.C. v. Great Lakes Commc'n Corp., No. C 12-4048-
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`MWB, 2014 WL 272646 (N.D. Iowa Jan. 23, 2014) ("GLCC has not demonstrated…how it would
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`11082207
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`- 8 -
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`DEMARAY'S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND
`(Case No. 5:20-cv-09341-EJD)
`
`

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`Case 5:20-cv-09341-EJD Document 144 Filed 03/30/22 Page 10 of 11
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`be unduly prejudiced by CVL's timely amendment, especially given its role in delaying discovery,
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`which consequentially delayed CVL's motion. I find that CVL's motion should not be denied on
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`the ground of undue prejudice.").
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`Any perceived prejudice resulting from Demaray's proposed amendment is of Applied's
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`own making. Despite Demaray's ongoing efforts to obtain circuit-level details regarding Applied's
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`protective filters, Applied has stonewalled Demaray's attempts to obtain this information at every
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`turn. In its Opposition, as discussed above in Section II.C, Applied cites to various information
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`from the Source Match Specification, the Cirrus chamber product manual, and the deposition of
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`Keith Miller that it alleges provided Demaray with sufficient information to bring affirmative
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`infringement counterclaims months ago. Opp. at 16-17. But these references provide, at best, an
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`incomplete picture and lack the necessary details in the Comet schematics produced on January
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`19, 2022 and resulting from Demaray's February 4, 2022 inspection. Moreover, Applied went
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`further by falsely asserting that its Cirrus reactors use a low-pass filter and not a narrow band-
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`rejection filter, all the while withholding the information necessary to test the assertion. In its
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`Opposition, Applied does not dispute it made such assertions, but instead argues that it was
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`justified in doing so. While the parties may disagree on whether the Comet materials show a
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`NBRF, Applied should have disclosed this filter configuration information, e.g., from the filters in
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`its possession, months ago. Applied thus has not shown that it will suffer any prejudice not of its
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`own making, let alone substantial prejudice, if Demaray is granted leave to amend (which it
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`Moreover, Applied does not dispute that a case schedule has not yet been entered, and
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`discovery is still ongoing and would not be substantially altered by Demaray's affirmative
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`infringement claims—Applied must still produce discovery to support its declaratory judgment
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`claims for non-infringement. Applied generally points to the claim construction process (Opp. at
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`12-13) as evidence of prejudice, but Demaray has not requested a stay of claim construction.
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`Demaray has simply requested that the regular claim construction process for its affirmative
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`infringement claims occurs while the rest of the case proceeds, as explained in that motion. Dkt.
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`28
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`140.
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`11082207
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`
`- 9 -
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`DEMARAY'S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND
`(Case No. 5:20-cv-09341-EJD)
`
`

`

`Case 5:20-cv-09341-EJD Document 144 Filed 03/30/22 Page 11 of 11
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`Applied also claims that Demaray's motion "will expand the issues in the case," but does
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`not explain how. See Opp. at 14-15. It is unclear how Demaray's affirmative infringement claims
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`present expanded issues given that Applied has already sought a declaratory judgment that all of
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`"Applied's products do not infringe." See Opp. at 14. Demaray's affirmative infringement claims
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`concern the exact same issue as Applied's DJ claim: whether or not Applied's reactors infringe the
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`Demaray Patents. As such, the only "additional" burden that Applied will incur is the obligation to
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`provide the discovery that it already owes to Demaray. See Oracle Am., Inc. v. Hewlett Packaward
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`Enter. Co., No. 16-cv-01393-JST, 2017 WL 3149297, at *3 (N.D. Cal. July 25, 2017) ("[T]he
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`'only additional burden that HPE will incur is the obligation to provide Oracle with the discovery
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`Applied does not seem bothered by delays when it suits Applied's tactics. For example,
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`Applied moved to strike Demaray's letter brief to Judge Cousins seeking leave to amend as
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`procedurally improper, prompting Demaray to file this motion. Dkt. 130. Nor has Applied been
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`concerned with the delays to Demaray's affirmative infringement claims both in this case, due to
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`Applied's refusal to produce meaningful discovery, or in the Texas cases, in which the Court has
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`granted multiple motions to compel ordering Applied to produce documents or permit inspections.
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`Applied should not be able to claim prejudice from delay while simultaneously seeking to obstruct
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`Demaray's affirmative infringement case.
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`III. CONCLUSION
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`For the foregoing reasons, consistent with Fed. R. Civ. Proc. 15(a)(2) and the Ninth
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`Circuit's liberal approach to amendment of pleadings, the Court should grant Demaray's motion to
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`amend.
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`Dated: March 30, 2022
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`Respectfully submitted,
`IRELL & MANELLA LLP
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`11082207
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`By: /s/ Samuel K. Lu
`Samuel K. Lu
`Attorneys for Defendant DEMARAY LLC
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`- 10 -
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`DEMARAY'S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND
`(Case No. 5:20-cv-09341-EJD)
`
`