Case 1:12-cv-00574-LPS Document 74 Filed 09/25/14 Page 1 of 3 PageID #: 1342
`1313 North Market Street
`P.O. Box 951
`Wilmington, DE 19899-0951
`302 984 6000
`www.potteranderson.com
`
`David E. Moore
`Attorney at Law
`dmoore@potteranderson.com
`302 984-6147 Direct Phone
`302 658-1192 Fax
`
`September 25, 2014
`
`VIA ELECTRONIC-FILING
`
`The Honorable Leonard P. Stark
`The United States District Court for the District of Delaware
`J. Caleb Boggs Federal Building
`844 N. King Street
`Wilmington, DE 19801-3568
`
`Re:
`
`Robert Bosch LLC v. Alberee Products, Inc., et al.
`C.A. Nos. 12-574-LPS, 14-142-LPS
`
`Dear Chief Judge Stark:
`
`We represent the plaintiff in the above-captioned matter and write to request leave to file
`an amended complaint. The proposed amendment will add one additional defendant, Costco
`Wholesale Corporation (“Costco Wholesale”), and assert three additional patents, U.S. Patent
`Nos. 6,668,419 (“the ’419 patent”), 7,941,891 (“the ’891 patent”), and 8,544,136 (“the ’136
`patent”) against all of the defendants. Bosch contacted counsel for defendants on September 24,
`2014 requesting consent to file an amended complaint, but defendants did not respond to Bosch’s
`request by the agreed-upon deadline. We have enclosed a copy of the proposed amended
`complaint as Exhibit 1 to this letter, and have enclosed a black-lined comparison to the current
`complaints as Exhibit 2 (we combined the complaints in the consolidated cases to create this
`exhibit).
`
`I.
`
`Factual and Procedural Background
`
`The original complaint in this case was filed on May 4, 2012, alleging infringement of
`twelve Bosch patents directed to automotive wiper blades. (D.I. 1 in C.A. No. 12-574-LPS.) On
`January 18, 2013, Bosch added an additional defendant and asserted a thirteenth patent. (D.I. 38
`in C.A. No. 12-574-LPS.) On February 5, 2014, Bosch added a fourteenth patent to the now-
`consolidated case. (D.I. 1 in C.A. 14-142-LPS; D.I. 67 in C.A. No. 12-574-LPS). Because
`defendants filed motions to dismiss in each case, there was no substantial activity in either case
`since the original complaint was filed. Per the Court’s recently issued Scheduling Order (D.I.
`67), the defendants answered the complaints on September 2, 2014 (D.I. 60, 61, 62 in C.A. No.
`12-574-LPS), and on August 29, 2014 (D.I. 32, 33, 34 in C.A. 14-142-LPS). The cases were
`formally consolidated under the C.A. No. 12-574-LPS caption (D.I. 67). A protective order (D.I.
`65) was entered on September 9, 2014. In accordance with the Scheduling Order, the parties
`made their initial Rule 26(a)(1) disclosures on August 29, 2014, and Bosch identified the accused
`products, asserted patents, and the damages model on September 19, 2014. Bosch has also
`served the first set of discovery requests on September 17, 2014. There has been no other
`
`

`
`Case 1:12-cv-00574-LPS Document 74 Filed 09/25/14 Page 2 of 3 PageID #: 1343
`The Honorable Leonard P. Stark
`September 25, 2014
`Page 2
`
`substantive activity in this case. The deadline for joining other parties and amending pleadings is
`March 20, 2015.
`
`Bosch owns a portfolio of patents in the field of beam-type wiper blades, and over the
`last several years has successfully asserted these patents against various infringers. Saver makes
`and/or sells in the United States infringing wiper blades under, e.g., the Goodyear Assurance
`brand, which are assembled by Alberee and Saver using components supplied by API. (Ex. 1, ¶¶
`10–12.) Saver has sold the Goodyear Assurance blades to Costco Wholesale, which resells them
`throughout the United States to end users for use on vehicles. (Ex. 1, ¶¶ 15–17.) Bosch first
`notified Costco Wholesale of its infringement of the twelve patents originally asserted in this
`case on May 30, 2012. (Ex. 1, ¶¶ 38, 60, 76, 99, 128, 157, 186, 215, 244, 273, 302, 331.) Since
`then, Bosch has attempted to resolve its dispute with Costco without litigation. These efforts
`have failed, and Bosch now seeks to add Costco Wholesale to the present action. Bosch also
`seeks to add three related patents to this case. The ’891 and ’136 patents are from the same
`families as several of the currently asserted patents. The ’419 patent was recently assigned to
`Bosch.
`
`II.
`
`Argument
`
`Leave to amend the complaint should be granted here because Bosch brought this request
`without undue delay, Bosch’s proposed amendments are not prejudicial, and there is no bad
`faith, dilatory motive, or repeated failures to cure deficiencies to indicate futility of the
`amendment.
`
`A.
`
`Bosch’s Request Is Timely
`
`Bosch brought this request within the time period for amendments to pleadings, which is
`open until March 20, 2015 (D.I. 67). Leave to amend is normally granted when the request is
`made before the deadline for motions to amend. Greatbatch Ltd. v. AVX Corp., C.A. No. 13-
`723-LPS, 2014 WL 491683, at *1 (D. Del. Feb. 4, 2014) (plaintiff was granted leave to amend
`the complaint to add five additional patents to the suit, when the request was made before the
`scheduling deadline); Softview LLC v. Apple Inc., C.A. No. 10-389-LPS, 2011 WL 4571793, at
`*1 (D. Del. Sept. 30, 2011) (plaintiff’s motion for leave to amend to add additional “allegations
`of infringement of the same patents in-suit against additional defendants” was granted in part
`because the motion was “timely under the Scheduling Order.”).
`
`B.
`
`None of the Defendants Will Be Prejudiced by the Proposed Amendments
`
`The proposed amendments are not prejudicial to any of the defendants. The accused
`products are the same as in the existing complaint, and the new patents are closely related to the
`patents already in this case. Discovery in this case has just begun. The parties have made their
`initial Rule 26(a)(1) disclosures, and Bosch served initial infringement disclosures less than a
`month ago. There has been no other substantive activity in this case. Neither party has answered
`any discovery requests, and over ten months remain before the date for the close of fact
`discovery. The current case schedule does not need to be changed to accommodate this
`amendment. Under such circumstances, the existing defendants will not be prejudiced by adding
`patents or related defendants to the suit. Greatbatch, 2014 WL 491683, at *1; Softview, 2011
`
`

`
`Case 1:12-cv-00574-LPS Document 74 Filed 09/25/14 Page 3 of 3 PageID #: 1344
`The Honorable Leonard P. Stark
`September 25, 2014
`Page 3
`
`WL 4571793, at *1. Nor, given the early stage of the case, will the new defendant be prejudiced
`if it is named by amendment rather than in a separate complaint with a new docket number.
`
`C.
`
`Bosch Has Not Acted in Bad Faith or with Dilatory Motive, and the
`Amendment Is Not Futile
`
`Bosch does not seek to delay the existing case schedule, and as noted above the proposed
`amendment does not require any such change. Nor is there any reason the amendment would be
`futile.
`
`III.
`
`Conclusion
`
`Because Bosch’s request is timely, made in good faith, not prejudicial to the defendants,
`and not futile, Bosch respectfully requests that the Court grant its motion for leave to amend the
`complaint to add Costco Wholesale and the three related patents to this case.
`
`Respectfully,
`
`/s/ David E. Moore
`
`David E. Moore
`
`DEM:nmt
`1167151/39026
`
`Enclosures
`cc:
`Clerk of the Court (via hand delivery)(w/enc.)
`Counsel of Record (via electronic mail)(w/enc.)