Case 1:17-cv-01692-CFC-SRF Document 52 Filed 06/26/19 Page 1 of 14 PageID #: 1545
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`REALTIME ADAPTIVE STREAMING
`LLC,
`
`
`
`
`
`NETFLIX, INC. AND NETFLIX
`STREAMING SERVICES, INC.,
`
`
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`Defendants.
`
`
`C.A. No. 17-1692-CFC-SRF
`
`
`PLAINTIFF REALTIME ADAPTIVE STREAMING LLC’S OPENING BRIEF IN
`SUPPORT OF ITS MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
`
`
`
`
`
`
`
`BAYARD, P.A.
`
`Stephen B. Brauerman (No. 4952)
`600 N. King Street, Suite 400
`Wilmington, DE 19801
`(302) 655-5000
`sbrauerman@bayardlaw.com
`
`Attorneys for Plaintiff Realtime Adaptive
`Streaming LLC
`
`June 26, 2019
`
`OF COUNSEL:
`
`Marc A. Fenster
`Brian D. Ledahl
`Reza Mirzaie
`C. Jay Chung
`RUSS, AUGUST & KABAT
`12424 Wilshire Boulevard, 12th Floor
`(310) 826-7474
`Los Angeles, CA 90025-1031
`mfenster@raklaw.com
`bledahl@raklaw.com
`rmirzaie@raklaw.com
`jchung@raklaw.com
`
`
`
`
`
`
` i
`
`

`

`Case 1:17-cv-01692-CFC-SRF Document 52 Filed 06/26/19 Page 2 of 14 PageID #: 1546
`
`
`
`I.
`
`II.
`
`TABLE OF CONTENTS
`
`Page(s)
`
`NATURE AND STAGE OF THE PROCEEDINGS ............................................................ 1
`
`SUMMARY OF ARGUMENT ............................................................................................. 1
`
`III. STATEMENT OF FACTS .................................................................................................... 2
`
`IV. ARGUMENT ......................................................................................................................... 3
`
`A. Realtime’s Amendments Relating to § 101 Are Not Futile as a Matter of Law: They
`Include Detailed Allegations Based On Record Evidence That Contradicts Key
`Conclusions In the Report and Recommendation. ....................................................... 5
`
`B. There Are No Other Reason for Denial of Leave to Amend. ....................................... 9
`
`V. CONCLUSION .................................................................................................................... 11
`
`
`
`ii
`
`

`

`Case 1:17-cv-01692-CFC-SRF Document 52 Filed 06/26/19 Page 3 of 14 PageID #: 1547
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`
`Cases
`
`Aatrix Software, Inc. v. Green Shades Software, Inc.,
`882 F.3d 1121 (Fed. Cir. 2018)....................................................................................... 1, 2, 4, 7
`
`Alice Corp. Pty. Ltd. v. CLS Bank Int’l,
`134 S. Ct. 2347 (2014) ................................................................................................................ 6
`
`Berkheimer v. HP Inc.,
`890 F.3d 1369 (Fed. Cir. 2018)............................................................................................... 1, 8
`
`Butamax Advanced Biofuels LLC v. Gevo, Inc.,
`C.A. No. 11-54-SLR, 2012 WL 2365905 (D. Del. June 21, 2012) .......................................... 10
`
`Cornell & Co., Inc. v. Occupational Safety and Health Review Commission,
`573 F.2d 820 (3d Cir. 1978)...................................................................................................... 10
`
`Coventry v. U.S. Steel Corp.,
`856 F.2d 514 (3d Cir. 1988)...................................................................................................... 10
`
`Invensas Corp. v. Renesas Elecs. Corp.,
`C.A. No. 11-448-GMS, 2013 WL 1776112 (D. Del. Apr. 24, 2013). ........................................ 3
`
`Realtime Adaptive Streaming LLC v. Google LLC,
`C.A. No. 2:18-cv-03629-GW-JC (C.D. Cal. Oct. 25, 2018) ...................................................... 9
`
`RingCentral, Inc. v. Dialpad, Inc.,
`C.A. No. 18-cv-05242-JST (N.D. Cal. March 8, 2019). ............................................................. 1
`
`
`
`
`
` ii
`
`

`

`Case 1:17-cv-01692-CFC-SRF Document 52 Filed 06/26/19 Page 4 of 14 PageID #: 1548
`
`I.
`
`NATURE AND STAGE OF THE PROCEEDINGS
`
`This case is at the pleading stage. Magistrate Judge Fallon issued a Report and
`
`Recommendation (“R&R”), granting in part and denying in part Defendants’ motion to dismiss.
`
`(D.I. 48.) Realtime has objected to the R&R with respect to issues relating to 35 U.S.C. § 101.
`
`(D.I. 49.) The Court has yet to rule on the objection.
`
`II.
`
`SUMMARY OF ARGUMENT
`
`Realtime hereby moves this Court for leave to file a First Amended Complaint (“FAC,”
`
`attached as Ex. 1). The FAC addresses the R&R, and provides detailed factual allegations
`
`regarding the patent eligibility of the asserted Fallon patents (the ‘535, ‘477, ‘907, and ‘046
`
`patents) under 35 U.S.C. § 101. Leave to file the FAC should be granted. For instance, the
`
`Federal Circuit in Aatrix Software, Inc. v. Green Shades Software, Inc. held that it was reversible
`
`error to deny a proposed second amendment of the plaintiff’s complaint. Instead, the court
`
`reversed and—in line with other Rule 12(b)(6) challenges based on defenses that had factual
`
`predicates—held that it was only appropriate to afford the plaintiff a third opportunity to submit
`
`a complaint that survives Rule 12(b)(6) challenges. 882 F.3d 1121, 1126-28 (Fed. Cir. 2018).
`
`Since then, the Federal Circuit has confirmed it “cannot adopt a result-oriented approach to end
`
`patent litigation at the Rule 12(b)(6) stage that would fail to accept as true the complaint’s factual
`
`allegations and construe them in the light most favorable to the plaintiff, as settled law requires.”
`
`Berkheimer v. HP Inc., 890 F.3d 1369, 1372-73 (Fed. Cir. 2018) (per curiam).
`
`Here, Realtime’s FAC is anything but futile. To the contrary, it includes detailed, piece-
`
`by-piece factual allegations that are closely tied to—and, indeed, quote—the patents’ intrinsic
`
`record. The FAC also quotes and is based on other relevant evidence—such as later-filed patents
`
`from technology companies like Western Digital and Altera, which demonstrate that after
`
`
`
` 1
`
`

`

`Case 1:17-cv-01692-CFC-SRF Document 52 Filed 06/26/19 Page 5 of 14 PageID #: 1549
`
`Realtime’s patents were first filed, various technologists were still struggling to solve the
`
`computer-specific problem of storing and/or transferring digital data more efficiently. The
`
`detailed allegations in the FAC squarely contradict each of the necessary premises and
`
`conclusions in the R&R, both under Alice Step 1 and Step 2, which were drawn without the
`
`benefit of the FAC. Accepting any of these well-supported and detailed allegations as true, the
`
`FAC confirms that any Rule 12(b)(6) challenge to Realtime’s claims would fail under Alice Step
`
`1 and Step 2. And beyond “futility,” district courts in this Circuit have recognized only a handful
`
`of other legally cognizable reasons to deny an amendment—and none of them apply to this case.
`
`While the FAC shows that Realtime’s asserted Fallon patent claims cannot be judged to
`
`be patent-ineligible under Alice—at least not at the pleading stage—Realtime is not asking this
`
`Court to immediately change the conclusions in the R&R. Instead, it is only asking for an
`
`opportunity to file the FAC and have this Court decide any follow-on challenge to that FAC,
`
`with a more develop factual record. Under Federal Circuit law, this would be the correct result.
`
`And respectfully, it would be error not to. See Aatrix Software, 882 F.3d at 1126-28.
`
`For these and other reasons, respectfully, this Court should grant leave to First Amended
`
`Complaint.1
`
`III.
`
`STATEMENT OF FACTS
`
`
`1 The FAC also substitutes Count II’s allegations from allegations of infringement of U.S. Patent
`No. 8,634,462 (“the ‘462 patent”) to that of U.S. Patent No. RE46,777 (“the ‘777 patent”). The
`‘777 patent is a reissue of the ‘462 patent. See 35 U.S.C. § 252 (“The surrender of the original
`patent shall take effect upon the issue of the reissued patent, and every reissued patent shall have
`the same effect and operation in law, on the trial of actions for causes thereafter arising, as if the
`same had been originally granted in such amended form, but in so far as the claims of the
`original and reissued patents are substantially identical, such surrender shall not affect any
`action then pending nor abate any cause of action then existing, and the reissued patent, to the
`extent that its claims are substantially identical with the original patent, shall constitute a
`continuation thereof and have effect continuously from the date of the original patent.”)
`(emphasis added).
`
`
`
`2
`
`

`

`Case 1:17-cv-01692-CFC-SRF Document 52 Filed 06/26/19 Page 6 of 14 PageID #: 1550
`
`This case is still in its early stage, with pleadings yet to close. Defendants Netflix, Inc.
`
`and Netflix Streaming Services, Inc. (collectively, “Netflix” or “Defendants”) filed a motion to
`
`dismiss, arguing that the Fallon patents (the ‘535, ‘477, ‘907, and ‘046 patents) are patent
`
`ineligible under 35 U.S.C. § 101. D.I. 11. Magistrate Judge Fallon issued a Report and
`
`Recommendation (“R&R”) granting in part and denying in part Defendants’ motion to dismiss.
`
`D.I. 48.
`
`The R&R stated that “Realtime does not provide examples of additions to the complaint
`
`that could change the recommended outcome.” (D.I. 48 at 20.) Realtime hereby provides such
`
`examples, in the proposed First Amended Complaint (“FAC”), attached as Exhibit 1 herewith.2
`
`As explained more fully below, the amendment provides factual allegations relating to § 101 that
`
`show that the Fallon patents are patent eligible.
`
`The proposed First Amended Complaint also substitutes the ‘462 patent with its reissue,
`
`U.S. Pat. No. RE46,777 patent (“the ’777 patent”). The Patent and Trademark Office (“PTO”)
`
`issued the ‘777 patent after the original complaint.
`
`IV. ARGUMENT
`
`Federal Rule of Civil Procedure 15(a)(2) provides that “a party may amend its pleading
`
`only with the opposing party's written consent or the court’s leave,” and that “[t]he court should
`
`freely give leave when justice so requires.” FED. R. CIV. P. 15(a)(2).
`
`“In line with the requirements of the rule, the Third Circuit has adopted a liberal approach
`
`in allowing amendments under Rule 15.” Invensas Corp. v. Renesas Elecs. Corp., C.A. No. 11-
`
`448-GMS, 2013 WL 1776112, at *1 (D. Del. Apr. 24, 2013).
`
`
`2 A redline showing differences between the FAC and the original complaint is attached as
`Exhibit 2.
`
`
`
`3
`
`

`

`Case 1:17-cv-01692-CFC-SRF Document 52 Filed 06/26/19 Page 7 of 14 PageID #: 1551
`
`The factors to consider in a motion for leave to amend are: (1) whether the amendment is
`
`futile; (2) whether the amendment has been unduly delayed; (3) whether the amendment would
`
`unfairly prejudice the non-moving party; and (4) whether the amendment is brought for some
`
`improper purpose. Butamax Advanced Biofuels LLC v. Gevo, Inc., C.A. No. 11-54-SLR, 2012
`
`WL 2365905, at *2 (D. Del. June 21, 2012) (citing Foman v. Davis, 371 U.S 178, 182 (1962)).
`
`“According to the Federal Circuit, a ‘trial court should grant leave to file absent a substantial
`
`reason for denial....’” Id. (quoting Pressure Products Med. Supplies, Inc. v. Greatbatch Ltd., 599
`
`F.3d 1308, 1319 (Fed. Cir. 2010)).
`
`Moreover, recent Federal Circuit precedent confirms the liberal standards to pleadings
`
`amendments apply to motions to dismiss based on patent-ineligibility. In Aatrix Software, Inc. v.
`
`Green Shades Software, Inc., on appeal of a dismissal with prejudice, the court held that it was
`
`reversible error to deny a proposed second amendment of the plaintiff’s complaint, even under
`
`the less-generous Eleventh-Circuit standards for granting leave to amend. Aatrix Software, Inc.,
`
`882 F.3d at 1126-28. The court held that the additional allegations made in the second
`
`amendment “at a minimum raise factual disputes underlying the §101 analysis, such as, for
`
`instance, whether the claim term ‘data file’ constitutes an inventive concept, alone or in
`
`combination with other elements.” Id. Indeed, in light of its allegations, the patent owner was
`
`“entitled” to file its proposed second amended complaint; and that the arguments on appeal
`
`further showed a need for the construction of at least one claim term before resolving the issue.
`
`Id. Since Aatrix Software, in an order denying en banc petition for rehearing, a panel of seven
`
`Federal Circuit judges confirmed its holdings—and further confirmed the potentially fact-
`
`intensive and claim-construction dependent nature of §101 challenges. On these questions, the
`
`court made clear it “cannot adopt a result-oriented approach to end patent litigation at the Rule
`
`
`
`4
`
`

`

`Case 1:17-cv-01692-CFC-SRF Document 52 Filed 06/26/19 Page 8 of 14 PageID #: 1552
`
`12(b)(6) stage that would fail to accept as true the complaint’s factual allegations and construe
`
`them in the light most favorable to the plaintiff, as settled law requires.” Berkheimer, 890 F.3d at
`
`1372-73 (per curiam).
`
`A.
`
`Realtime’s Amendments Relating to § 101 Are Not Futile as a Matter of
`Law: They Include Detailed Allegations Based On Record Evidence That
`Contradicts Key Conclusions In the Report and Recommendation.
`
`Realtime’s First Amended Complaint (“FAC,” submitted as Exhibit 1) includes detailed,
`
`piece-by-piece factual allegations that are closely tied to—and indeed, quote—the patents’
`
`intrinsic record. (E.g., FAC at ¶¶ 15-18, 20-33, 59-72, 96-109, 133-146.) That is not all. The
`
`FAC also quotes and is based on other relevant evidence—such as later-filed patents from
`
`technology companies like Western Digital and Altera, which demonstrate that after Realtime’s
`
`patents were first filed, various technologists were still struggling to solve the computer-specific
`
`problem of storing and/or transferring digital data more efficiently. (FAC at ¶¶ 34-37, 73-76,
`
`110-113, 147-150.) The detailed allegations in the FAC squarely contradict each of the premises
`
`and conclusions in the Report and Recommendation (D.I. 48), both under Alice Step 1 and Step
`
`2, which Magistrate Judge Fallon drew when she did not have the benefit of the FAC.
`
`All in all, accepting any of these well-supported and detailed allegations as true, the FAC
`
`confirms that any Rule 12(b)(6) challenge to Realtime’s claims would fail under Alice Step 1 and
`
`Step 2. Indeed, there are five different additional categories of allegations that require
`
`consideration.
`
`First, the FAC confirms, through detailed facts, that the Fallon patent claims improve
`
`computer functionality because they solve a computer-specific problem. (FAC at ¶¶ 20-26, 59-
`
`65, 96-102, 133-139.) Notably, these allegations quote sworn statements to the patent office,
`
`from technology companies like Western Digital and Altera, which confirm that there was still a
`
`need for more efficient compression system, even after Realtime’s priority dates. For example:
`
`
`
`5
`
`

`

`Case 1:17-cv-01692-CFC-SRF Document 52 Filed 06/26/19 Page 9 of 14 PageID #: 1553
`
`
`
`In a patent filed by Altera in 2012, it admitted that there was still a technical problem
`associated with computer capacity and a need for a more efficient compression
`system: “In order to better meet the requirements of higher speed data transfer,
`reduced memory utilization and minimal computation
`in many computing
`applications, a need exists for computationally efficient compression and
`decompression.” U.S. Pat. No. 9,026,568 at 2:43-47.
`
` Similarly, in a 2013 patent filed by Western Digital, it also admitted that there was
`still a technical problem associated with computer capacity and a need for a more
`efficient compression system: “It is desirable to provide mechanisms and
`architectures for increasing capacity, reliability, and performance of data storage
`systems.” U.S. Pat. No. 9,448,738 at 1:33-35.
`
`(FAC at ¶¶ 34-37, 73-76, 110-113, 147-150.) In fact, the Fallon patents were cited over 100
`
`times
`
`by
`
`later-filed
`
`patents
`
`and
`
`patent
`
`applications.
`
`See
`
`https://patents.google.com/patent/US7386046?oq=%E2%80%A27%2c386%2c046#citedBy
`
`(“Cited By”). These facts confirm the Fallon patent claims are patent-eligible. Alice Corp. Pty.
`
`Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2358 (2014) (claims that “improve[] an existing
`
`technological process” or “solve a technological problem in ‘conventional industry practice’” are
`
`patent-eligible as a matter of law). At the very least, these allegations and evidence also confirm
`
`that the claims are not directed to other ideas “identified by the courts as abstract ideas,” that
`
`recently have been synthesized into three groups: “(a) mathematical concepts”; “(b) methods of
`
`organizing human activity”; or “(c) mental processes.” 84 Fed. Reg. 50 (Jan. 7, 2019) (2019 PTO
`
`§101 Guidance, citing and surveying post-Alice decisions).
`
`Second, Realtime’s FAC includes intrinsic record and fact-based claim construction that
`
`confirm its claimed solutions do not just cover any form of digital data compression, but instead
`
`are more focused—and covers a technical sub-species of digital data compression and not others.
`
`
`
`6
`
`

`

`Case 1:17-cv-01692-CFC-SRF Document 52 Filed 06/26/19 Page 10 of 14 PageID #: 1554
`
`These constructions include the following ones, which make these points about the key aspects
`
`of the claims in the Fallon patents clear:3
`
` “access profile”: “information that enables the controller to select a suitable
`compression algorithm that provides a desired balance between execution speed (rate
`compression) and efficiency (compression ratio)”
`
` “data profile”: “information associating data with a compression algorithm”
`
` “asymmetric” compression: “a compression algorithm in which the execution times
`for compression and decompression differ significantly”
`
` “data block”: “a single unit of data, which may range in size from individual bits
`through complete files or collection of multiple files”
`
` “compressing” / “compressed” / “compression”: “[representing / represented /
`representation] of data with fewer bits”
`
`(FAC at ¶ 15.) And significantly, these constructions further demonstrate that denying the instant
`
`request would lead to reversible error under Federal Circuit patent-eligibility law. For example,
`
`under very similar circumstances in Aatrix Software, the court held that the district court erred in
`
`denying a request for leave to file a second amended complaint as a matter of law. 882 F.3d
`
`1121, 1126-28 (Fed. Cir. 2018) (“We conclude that Aatrix is entitled to file its proposed second
`
`amended complaint.”) Also relevant here, the court further ruled that there was a “need for claim
`
`construction, to be conducted on remand” before the district court determines whether the claims
`
`survive the §101 inquiry, even at the pleadings stage. Id.
`
`Third, regarding Alice Step 2, the FAC make clear that the claims, in ordered
`
`combinations, are not conventional, routine, or generic. This includes, to name a few, the
`
`claimed combinations involving e.g., “asymmetric compressors,” “plurality of compressors,”
`
`“compression routing … depend[] on the throughput,” and/or “access profile.” And the
`
`dependent claims include similar questions. Citing some of the same intrinsic record as before,
`
`3 Realtime reserves the right to modify these constructions as case progresses, consistent with the
`practice of meeting and conferring that are typically in any claim construction proceedings.
`
`
`
`7
`
`

`

`Case 1:17-cv-01692-CFC-SRF Document 52 Filed 06/26/19 Page 11 of 14 PageID #: 1555
`
`but also quoting additional evidence, the FAC makes clear that the patentee, the USPTO, and
`
`third-party technologists in the same technical field all agreed on this point, in various respects.
`
`(E.g., FAC at ¶¶ 27-30, 34-37, 66-69, 73-76, 103-106, 110-113, 140-143, 147-150.) This is
`
`critical to correctly analyzing a Rule 12(b)(6) challenge because, under Federal Circuit law, they
`
`are fact-intensive. Indeed, the key question of whether a “‘combination of elements would have
`
`been well-understood, routine, and conventional’ to a skilled artisan [] at a particular point in
`
`time may require ‘weighing evidence,’ ‘making credibility judgments,’ and addressing ‘narrow
`
`facts that utterly resist generalizations.” Berkheimer v. HP, Inc. 890 F.3d 1369, 1370-71 (Fed.
`
`Cir. 2018). (emphasis added). And that is another reason why it is reversible error to deny a
`
`motion to amend a complaint to address these questions—and also error to decide them without
`
`an adequate factual record. Id.
`
`Fourth, respectfully, the FAC proves wrong another premise in the Report and
`
`Recommendation, namely that certain claims are “representative” of other claims among distinct
`
`patents across numerous claims. (FAC at ¶¶ 31-33, 70-72, 107-109, 144-146.) For example, the
`
`FAC points out that claim 2 of the ‘477 patent recites additional unconventional and novel
`
`limitations, including “wherein at least one of the plurality of different asymmetric data
`
`compression encoders is configured to utilize an arithmetic algorithm.” (E.g., FAC at ¶ 144.)
`
`Using such specific compression routines are unconventional, as specific selection of
`
`compression scheme allows “a desired balance between execution speed (rate of compression)
`
`and efficiency (compression ratio).” (‘535 patent at 8:4-13.) Other claims raise other issues, as
`
`alleged in the FAC. (E.g., FAC at ¶¶ 31-33, 70-72, 107-109, 144-146.)
`
`Fifth, the FAC incorporates by reference the findings of a § 101 ruling in the related case
`
`of Realtime Adaptive Streaming LLC v. Google LLC, C.A. No. 2:18-cv-03629-GW-JC, D.I. 36
`
`
`
`8
`
`

`

`Case 1:17-cv-01692-CFC-SRF Document 52 Filed 06/26/19 Page 12 of 14 PageID #: 1556
`
`(C.D. Cal. Oct. 25, 2018), where the court in California “conclude[d] for purposes of a
`
`determination at the motion to dismiss stage that Claim 40 of the ‘046 Patent and Claim 1 of the
`
`‘477 Patent are drawn to a technological improvement under Alice/Mayo step one.” Realtime
`
`Adaptive Streaming LLC v. Google LLC, Case No. 2:18-cv-03629-GW-JC, D.I. 36 (C.D. Cal.
`
`Oct. 25, 2018).4 The ‘046 and ‘477 patents are asserted in this case. The court also found:
`
`
`“[P]articularly when considering the record in the light most favorable to
`Realtime as required at the motion to dismiss stage, there is evidence to suggest that the
`claimed steps for Claim 40 of the '046 Patent and Claim 1 of the '477 Patent are tied to
`specific computer systems that ‘improve[ ] computer functionality in some way’ rather
`than being drawn to purely abstract concepts.” (Id. at 6)
`
`
`“As an initial matter, these claims are related to compression / decompression
`systems, an area firmly rooted in computer technology. But the Fallon Patent claims
`further purport
`to relate
`to
`improvements
`to such compression/decompression
`technology. Claim 40 of the '046 Patent itself, for instance, recites on its face that ‘the
`controller commands the data compression engine to use one of the plurality of
`compression routines to provide a faster rate of compression so as to increase the
`throughput.’ '046 Patent, Claim 40. In other words, the claim itself states that it is
`directed to improving compression rates, i.e., improving the functioning and operation of
`a computer. Claim 1 of the '477 Patent, similarly, states that at least one of the claimed
`asymmetric data compression encoders ‘is configured to compress data blocks containing
`video or image data at a higher data compression rate than a second asymmetric data
`compression encoder.’ '477 Patent, Claim 1.” (Id.)
`
`(FAC at ¶¶ 16-18.) These factual findings demonstrate that the Fallon patents are eligible under
`
`§ 101. At the very least, this Court deserves a more developed record to properly analyze these
`
`issues. Aatrix Software. 882 F.3d at 1126-28.
`
`B.
`
`There Are No Other Reason for Denial of Leave to Amend.
`
`There is no undue delay, unfair prejudice, or improper purpose regarding Realtime’s
`
`amendment. For instance, the case is in early stages. Indeed, the case is still in the pleadings
`
`stage, and there is not even a case schedule. No discovery has been taken. This Court generally
`
`
`4 While the California court also reached a different conclusion as to the ‘535 patent claims 15-
`30, those claims are not at issue in this case, as Realtime voluntarily disclaimed those claims
`(i.e., ‘535 patent claims 15-30) before the PTO on January 18, 2019.
`
`
`
`9
`
`

`

`Case 1:17-cv-01692-CFC-SRF Document 52 Filed 06/26/19 Page 13 of 14 PageID #: 1557
`
`sets a deadline
`
`for
`
`the amendment of pleadings
`
`in
`
`its scheduling order. See
`
`https://www.ded.uscourts.gov/sites/ded/files/chambers/PATENT_CASE_FORM_4.pdf. Because
`
`the Court has yet to set any deadline, Realtime here proposes to amend well before any such
`
`deadline would be set in the future. Accordingly, there can be no undue delay here. And in any
`
`event, “delay alone ... is an insufficient ground to deny an amendment, unless the delay unduly
`
`prejudices the non-moving party.” Coventry v. U.S. Steel Corp., 856 F.2d 514, 520 (3d Cir.
`
`1988) (quoting Cornell & Co., Inc. v. Occupational Safety and Health Review Commission, 573
`
`F.2d 820, 823 (3d Cir. 1978)).
`
`There is no unfair prejudice to Defendants, as this case is in its early stages, as noted
`
`above. Indeed, this Court repeatedly finds that “there can be no unfair prejudice to defendant” if
`
`the motion to amend is filed before the deadline set in the scheduling order. E.g., Butamax
`
`Advanced Biofuels LLC v. Gevo, Inc., C.A. No. 11-54-SLR, 2012 WL 2365905, at *2 (D. Del.
`
`June 21, 2012) (finding that motion to amend filed on day of deadline for amended pleadings as
`
`set out in scheduling order was “filed timely and, therefore, there can be no unfair prejudice to
`
`defendant”). As explained above, the case is still in the pleadings stage and the Court has not set
`
`any schedule yet, and accordingly, any deadline to be set in the future for amending the pleading
`
`has not yet passed. Accordingly, “there can be no unfair prejudice” to Defendants here. Id.
`
`Moreover, Realtime has no improper purpose in its amendments. Realtime’s amendments
`
`provide additional factual allegations regarding the patentability and § 101 eligibility of the
`
`Fallon patents, which would in the least provide a more complete factual record relating to any
`
`rulings regarding § 101.
`
`
`
`10
`
`

`

`Case 1:17-cv-01692-CFC-SRF Document 52 Filed 06/26/19 Page 14 of 14 PageID #: 1558
`
`
`
`V.
`
`CONCLUSION
`
`For the foregoing reasons, Realtime respectfully requests that the Court grant leave for
`
`Realtime to file First Amended Complaint, set forth in Exhibit 1.
`
`
`
`June 26, 2019
`
`OF COUNSEL:
`
`Marc A. Fenster
`Brian D. Ledahl
`Reza Mirzaie
`C. Jay Chung
`RUSS, AUGUST & KABAT
`12424 Wilshire Boulevard, 12th Floor
`(310) 826-7474
`Los Angeles, CA 90025-1031
`mfenster@raklaw.com
`bledahl@raklaw.com
`rmirzaie@raklaw.com
`jchung@raklaw.com
`
`
`BAYARD, P.A.
`
` /s/ Stephen B. Brauerman
`Stephen B. Brauerman (No. 4952)
`600 N. King Street, Suite 400
`Wilmington, DE 19801
`(302) 655-5000
`sbrauerman@bayardlaw.com
`
`Attorneys for Plaintiff Realtime Adaptive
`Streaming LLC
`
`
`
`
`
`
`
`
`
`11
`
`