Case 2:16-cv-00693-JRG-RSP Document 109 Filed 01/13/17 Page 1 of 17 PageID #: 3008
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`ALACRITECH, INC., A California corporation,
`
`
`Plaintiff,
`
`2:16-cv-00693-JRG (LEAD CASE)
`
`2:16-cv-00692-JRG
`
`2:16-cv-00695-RWS
`
`JURY TRIAL DEMANDED
`
`))))))))))))
`
`
`
`v.
`
`
`TIER 3, ET AL., WISTRON CORPORATION
`ET AL., DELL INC., A Delaware corporation,
`
`
`Defendants.
`
`
`
`
`
`
`
`
`CAVIUM, INC.’S MOTION TO INTERVENE
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`
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`EX. 2009.001
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`

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`Case 2:16-cv-00693-JRG-RSP Document 109 Filed 01/13/17 Page 2 of 17 PageID #: 3009
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`TABLE OF CONTENTS
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`
`
`I.
`
`II.
`
`INTRODUCTION ...............................................................................................................1
`
`FACTUAL BACKGROUND ..............................................................................................2
`
`A.
`
`B.
`
`C.
`
`D.
`
`Alacritech’s Actions Have Caused Cavium To Become A Participant .................. 2
`
`This Case Is At An Early Stage .............................................................................. 3
`
`This Action Implicates QLogic Products Sold To Dell And Other QLogic
`Customers ............................................................................................................... 4
`
`Cavium Has Agreed to Partially Indemnify Dell Against Claims That Its
`QLogic-Based Products Infringe Alacritech’s Patents ........................................... 5
`
`III.
`
`ARGUMENT .......................................................................................................................5
`
`A.
`
`Cavium Is Entitled To Intervene As A Matter Of Right ......................................... 5
`
`1.
`
`2.
`
`3.
`
`4.
`
`Cavium’s Motion To Intervene Is Timely .................................................. 6
`
`Cavium Has A Compelling Interest In The Litigation................................ 7
`
`The Disposition Of This Action May Impair Cavium’s Ability To Protect
`Its Interests .................................................................................................. 9
`
`Cavium’s Interests Cannot Be Adequately Represented By Its Customer 10
`
`B.
`
`The Court Should Exercise Its Discretion To Permit Cavium To Intervene,
`If Cavium Is Not Entitled To Intervene As A Matter Of Right ............................ 11
`
`IV.
`
`CONCLUSION ..................................................................................................................12
`
`
`
`
`
`
`
`
`i
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`EX. 2009.002
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`

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`Case 2:16-cv-00693-JRG-RSP Document 109 Filed 01/13/17 Page 3 of 17 PageID #: 3010
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`TABLE OF AUTHORITIES
`
`Cases
`
`
`Alabama v. U.S. Army Corps of Eng’rs, 229 F.R.D. 669, 672 (N.D. Ala. 2005) ......................... 10
`
`Chandler & Price Co. v. Brandtjen & Kluge, Inc., 296 U.S. 53 (1935) ....................................... 12
`
`Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989) ................................................................. 13
`
`Codex Corp. v. Milgo Elec. Corp., 553 F.2d 735 (1st Cir. 1977) ................................................. 13
`
`Dayton Indep. Sch. Dist. v. U.S. Mineral Prods. Co.,
`Civ. A. Nos. B-87-00507-.CA, B-88-00429-CA, 1989 WL 237732, at *4
`(E.D. Tex. Feb. 14, 1989) ......................................................................................................... 15
`
`
`Diaz v. S. Drilling Corp., 427 F.2d 1118 (5th Cir. 1970) ............................................................. 10
`
`Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996) ............................................................ 14
`
`Fisherman’s Harvest, Inc. v. U.S., 74 Fed. Cl. 681 (2006) .......................................................... 12
`
`Honeywell Int’l, Inc. v. Audiovox Commc’ns Corp.,
`No. Civ. A. 04-1337-KAJ et al., 2005 U.S. Dist. LEXIS 22933,
`at *9-10 (D. Del. May 18, 2005) ................................................................................... 10, 13, 14
`
`
`IBM Corp. v. Conner Peripherals, Inc.,
`No. C-93-20117, 1994 WL 706208, at *5 (N.D. Cal. Dec. 13, 1994) ...................................... 12
`
`
`Intellectual Ventures I LLC v. AT&T Mobility LLC,
`2014 WL 4445953, at *2 (D. Del. Sept. 8, 2014) (Stark, J.) .................................................... 12
`
`
`Katz v. Lear Siegler, Inc., 909 F.2d 1459 (Fed. Cir. 1990) .......................................................... 13
`
`LG Elecs. Inc. v. Q-Lity Computer, Inc., 211 F.R.D. 360 (N.D. Cal. 2002)........................... 12, 13
`
`N.Y. Pub. Interest Research Group, Inc. v. Regents of Univ. of State of N.Y.,
`516 F.2d 350 (2d Cir. 1975) ..................................................................................................... 15
`
`
`Reid v. Gen. Motors Corp., 240 F.R.D. 257 (E.D. Tex. 2006) ..................................................... 15
`
`Ross v. Marshall, 426 F.3d 745 (5th Cir. 2005) ............................................................... 10, 11, 14
`
`Salem Eng’g Co. v. Nat’l Supply Co., 75 F. Supp. 993 (W.D. Pa. 1948) ..................................... 16
`
`Sec. & Exch. Comm’n v. U.S. Realty & Imp. Co., 310 U.S. 434 (1940) ...................................... 15
`
`
`
`ii
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`EX. 2009.003
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`Case 2:16-cv-00693-JRG-RSP Document 109 Filed 01/13/17 Page 4 of 17 PageID #: 3011
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`Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1977) .................................................... 10, 11
`
`State of Texas v. American Tobacco Co.,
`No. 5-98CV-270, 1999 WL 1022129, at *2 (E.D. Tex. Nov. 5, 1999) .............................. 11, 16
`
`
`Stauffer v. Brooks Bros., Inc., 619 F.3d 1321 (Fed. Cir. 2010) ...................................................... 9
`
`Tegic Commc’ns Corp. v. Board Of Regents of the Univ. of Tex. Sys.,
`458 F.3d 1335 (Fed. Cir. 2006) ................................................................................................ 12
`
`
`Texas v. United States, 805 F.3d 653 (5th Cir. 2015) ................................................................... 10
`
`U.S. Ethernet Innovations, LLC v. Acer, Inc.,
`No. 6:09-cv-448, Dkt. No. 224 at 4 (E.D. Tex. May 10, 2010) ................................................ 13
`
`
`
`
`Fed. R. Civ. P. 24 .......................................................................................................................... 14
`
`Rules
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`Fed. R. Civ. P. 24(a)(2) ................................................................................................................... 9
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`Fed. R. Civ. P. 24(b)(l)(B) ............................................................................................................ 15
`
`
`
`
`
`
`
`iii
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`EX. 2009.004
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`Case 2:16-cv-00693-JRG-RSP Document 109 Filed 01/13/17 Page 5 of 17 PageID #: 3012
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`I.
`
`INTRODUCTION
`
`Pursuant to Rule 24 of the Federal Rules of Civil Procedure, Cavium, Inc. (“Cavium”)
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`hereby moves to intervene in this action as of right, or, alternatively, with permission of the
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`Court. Cavium seeks to intervene in this patent infringement action filed by Alacritech, Inc.
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`(“Alacritech”) to protect its interests and the interests of its customer, Dell Inc. (“Dell”), a
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`defendant in this action. Cavium’s interest in this litigation is based on the involvement of its
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`wholly-owned subsidiary, QLogic Corporation (“QLogic”). Cavium seeks to intervene because
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`some of Alacritech’s infringement allegations in the Complaint in this action specifically accuse
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`some Dell products of infringement based in part on their use of QLogic network adapters,
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`including, among others, QLogic 57840S-k quad port 10GbE blade KR NDC. Further, Cavium
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`has agreed to defend and partially indemnify Dell as to Alacritech’s allegations of infringement
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`against QLogic components that are incorporated into the accused Dell products. As such,
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`Cavium has a substantial, direct financial interest in the outcome of this litigation. This Court
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`has recently permitted Intel to intervene for similar reasons.
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`Cavium can offer technical knowledge and expertise that its customer lacks, as the
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`designer and manufacturer of the QLogic technology targeted by Alacritech’s infringement
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`allegations. Moreover, issues litigated in this action may affect other Cavium customers in the
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`event that they are sued by Alacritech or its successors. Accordingly, Cavium should participate
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`in litigating key issues such as claim interpretation and infringement based on its own
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`components.
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`As this case is still at a very early stage, Cavium’s intervention would not prejudice any
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`of the parties. Cavium, however, will suffer significant prejudice if it is not permitted to
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`intervene to litigate the claims against its own products, as it could be subjected to indemnity
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`liability and uncertainty regarding numerous QLogic products without its participation.
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`
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`1
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`EX. 2009.005
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`Case 2:16-cv-00693-JRG-RSP Document 109 Filed 01/13/17 Page 6 of 17 PageID #: 3013
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`Accordingly, Cavium respectfully requests leave to intervene as of right in this action under Rule
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`24(a)(2), or, in the alternative, seeks the Court’s permission to intervene pursuant to Rule
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`24(b)(l)(B). In accordance with Rule 24(c), a copy of Cavium’s proposed Complaint in
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`Intervention is attached hereto as Exhibit A.
`
`II.
`
`FACTUAL BACKGROUND
`
`A.
`
`Alacritech’s Actions Have Caused Cavium To Become A Participant
`
`Plaintiff Alacritech chose to involve Cavium in this action by specifically accusing Dell
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`of infringement based on its use of a number of QLogic products named in the Complaint,
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`including QLogic 57840S-k quad port 10GbE blade KR NDC, 57840S quad port 10G FP+ rack
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`NDC, 57810S dual-port 10GbE SFP+ converged network adapter, 57810S dual-port 10GbE KR
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`blade converged mezzanine card, 57810S dual-port 10GbE blade converged NDC, 57810S Dual-
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`port 10GbE BASE-T converged network adapter, 57800S quad-port SFP+/ BASET (2x10GbE +
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`2x1GbE) rack converged NDC, and 57800S quad-port BASE-T (2x10GbE + 2x1GbE) rack
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`converged NDC. [Dkt. 1 at ¶¶ 34, 48, 61, 74, 100, 113 and 126] Alacritech alleged that Dell’s
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`use of multiple, specific QLogic network adapter products infringed Alacritech’s patents in
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`seven of its eight total counts of patent infringement. Id.
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`Cavium’s wholly-owned subsidiary, QLogic, received a request from its customer, Dell,
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`to defend and indemnify Dell in this action based on the accusations concerning QLogic products
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`and the agreements between Dell and QLogic. [Declaration of Jonathan D. Belli (“Belli Decl.”),
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`¶ 2] Based on the circumstances of this action and the allegations by Alacritech, Cavium
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`subsequently determined that it would defend and partially indemnify Dell as to the accusations
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`concerning QLogic products. [Belli Decl., ¶ 3]
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`Alacritech further involved Cavium in this action by issuing a subpoena to Cavium on
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`December 2, 2016, with a response date of January 3, 2017. [Declaration of Karineh
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`
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`2
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`EX. 2009.006
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`Case 2:16-cv-00693-JRG-RSP Document 109 Filed 01/13/17 Page 7 of 17 PageID #: 3014
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`Khachatourian (“KK Decl.”) ¶ 2] Cavium contacted Alacritech in early December in an attempt
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`to secure an extension of time from Alacritech for Cavium’s responses, based on Cavium’s
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`unavailability during the holidays. [KK Decl. ¶ 3] In the course of communications with
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`Alacritech between December 5 and December 19, 2016, Cavium’s potential intervention in the
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`action has been discussed with Alacritech’s counsel, but the parties were unable to reach
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`agreement concerning either an extension for Cavium’s subpoena response or non-opposition to
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`Cavium’s proposed intervention. [KK Decl. ¶¶ 3-4]
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`Cavium attempted to avoid contested motion practice by seeking Alacritech’s non-
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`opposition to the instant motion, particularly given that another supplier, Intel, recently was
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`granted leave to intervene based on very similar facts. [KK Decl. ¶ 4] In meet and confer
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`discussions, Alacritech was made aware that Cavium, like Intel, has agreed to defend and
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`partially indemnify Dell as to the claims against Dell products incorporating QLogic’s
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`technology. [KK Decl. ¶ 4] Cavium proposed as an alternative that the parties could avoid
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`motion practice by Alacritech dismissing the claims against Dell as to the QLogic products and
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`then filing a new complaint to assert those claims directly against QLogic. [KK Decl. ¶ 5]
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`Alacritech declined to dismiss any claims against Dell and invited Cavium to “feel free to move
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`to intervene” in the action. [KK Decl. ¶ 5]
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`Cavium now has been drawn into the action and has a substantial financial stake in the
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`outcome, yet it is precluded from discovering and accessing relevant evidence and directly
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`defending its own products from infringement claims.
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`B.
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`This Case Is At An Early Stage
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`The Court’s docket control order set jury selection in this action for December 4, 2017
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`[Dkt. 43], and Alacritech has added new accused products to this action as recently as December
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`13, 2016. [Dkt. 94] Alacritech’s Complaint against Dell was filed on June 30, 2016, alleging
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`
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`3
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`EX. 2009.007
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`Case 2:16-cv-00693-JRG-RSP Document 109 Filed 01/13/17 Page 8 of 17 PageID #: 3015
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`infringement of eight patents that relate to networking technology. [Dkt. 1] Alacritech also filed
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`two complaints against other defendants on the same day, CenturyLink, Inc. and Wistron
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`Corporation. All three cases have been consolidated for pretrial matters except for venue. [Dkt.
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`8] Dell answered the Complaint on August 25, 2016. [Dkt. 27].
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`Intel moved to intervene in this action on October 31, 2016, on the basis that its products
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`are implicated in the infringement allegations against its customer, Dell. [Dkt. 71] Intel’s
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`motion to intervene was granted on November 21, 2016, and its Complaint was filed on
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`November 22, 2016. [Dkt. 84, 85] Alacritech subsequently answered Intel’s complaint and
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`counterclaimed against Intel on December 13, 2016, enlarging its allegations of infringement to
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`include additional Intel products that were not previously accused in the action. [Dkt. 94]
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`Cavium’s counsel repeatedly requested access to an Alacritech license agreement that
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`may provide a complete defense as to QLogic products, but was initially denied access by
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`Alacritech on the basis that Cavium is not a party and the license is marked as “Highly
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`Confidential” under the Protective Order. Additionally, non-parties (including implicated
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`suppliers) were not able to review Alacritech’s infringement contentions until November, as
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`Alacritech initially designated them as “Confidential” and declined to provide them to non-
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`parties on that basis. As set forth above, Alacritech’s own recent actions may serve to delay the
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`defendants’ ability to prepare their case. However, Cavium’s proposed intervention, which is
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`directed to the very issues and products Alacritech chose to include in the scope of this case at
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`the outset, will cause no delay or prejudice to any party in this proceeding.
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`C.
`
`This Action Implicates QLogic Products Sold To Dell And Other QLogic
`Customers
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`Alacritech’s complaint specifically identified multiple QLogic products in its allegations
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`against Dell as to seven of the eight asserted patents. [Dkt. 1 at ¶¶ 34, 48, 61, 74, 100, 113 and
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`4
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`EX. 2009.008
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`Case 2:16-cv-00693-JRG-RSP Document 109 Filed 01/13/17 Page 9 of 17 PageID #: 3016
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`126] Accordingly, the outcome of this action may have an impact on QLogic, its parent
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`Cavium, and their customers who purchase and rely on QLogic products.
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`D.
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`Cavium Has Agreed to Partially Indemnify Dell Against Claims That Its
`QLogic-Based Products Infringe Alacritech’s Patents
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`Pursuant to agreements between Dell and QLogic, Cavium’s wholly-owned subsidiary,
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`Cavium has agreed to defend and partially indemnify Dell against Alacritech’s allegations
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`against Dell concerning network adapters provided by QLogic as identified in the Complaint.
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`[Belli Decl., ¶¶ 2, 3] Accordingly, Cavium has a direct and substantial financial interest in the
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`outcome of this action and, indeed, already has been made a participant by Alacritech through its
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`allegations concerning QLogic products and Alacritech’s December subpoena to Cavium.
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`III. ARGUMENT
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`Cavium is entitled to intervene in this action as a matter of right pursuant to Rule
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`24(a)(2). Alternatively, the Court should permit Cavium to intervene under Rule 24(b)(1)(B).
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`A.
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`Cavium Is Entitled To Intervene As A Matter Of Right
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`Federal Rule of Civil Procedure Rule 24(a)(2) permits intervention on timely motion by
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`anyone who:
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`claims an interest relating to the property or transaction that is the
`subject of the action, and is so situated that disposing of the action
`may as a practical matter impair or impede the movant’s ability to
`protect its interest, unless existing parties adequately represent that
`interest.
`
`Fed. R. Civ. P. 24(a)(2). In considering the right to intervene in a patent action, regional circuit
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`law is applied. See Stauffer v. Brooks Bros., Inc., 619 F.3d 1321, 1328 (Fed. Cir. 2010). In the
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`Fifth Circuit, four factors are to be assessed in considering the right to intervene: first, the
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`timeliness of the request; second, the potential intervenor’s interest relating to the property or
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`5
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`EX. 2009.009
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`Case 2:16-cv-00693-JRG-RSP Document 109 Filed 01/13/17 Page 10 of 17 PageID #: 3017
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`transaction that is the subject of the action1; third, the possibility of impairment to the potential
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`intervenor’s ability to protect its interest absent intervention; and, finally, the adequacy of the
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`representation of the potential intervenor’s interest by the existing parties. See Texas v. United
`
`States, 805 F.3d 653, 657 (5th Cir. 2015).
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`In the Fifth Circuit, intervention should be permitted where “no one would be hurt and
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`the greater justice could be attained.” Id. In considering the right to intervene, the Fifth Circuit
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`has noted that the Court’s inquiry “must be measured by a practical rather than technical
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`yardstick.” Ross v. Marshall, 426 F.3d 745, 753 (5th Cir. 2005). Where, as here, the prejudice
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`to the potential intervenor outweighs the potential prejudice to the remaining parties, particularly
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`where there have been no legally significant proceedings other than discovery, intervention
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`should be allowed. See Diaz v. S. Drilling Corp., 427 F.2d 1118, 1125-56 (5th Cir. 1970); Ross,
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`426 F.3d at 753. As explained below, Cavium is entitled to intervene in this action.
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`1.
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`Cavium’s Motion To Intervene Is Timely
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`The Fifth Circuit considers four factors to evaluate timeliness, including: (1) the length
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`of time from notice of the intervenor’s interest to the filing of the motion to intervene, (2) the
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`extent of prejudice to existing parties as a result of the timing of the motion, (3) the extent of
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`prejudice to the intervenor if leave is denied, and (4) the existence of other special circumstances
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`(if any). See Ross, 426 F.3d at 754 (citing Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir.
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`1977)).2 Fifth Circuit precedent addressing intervention has favored a finding of timeliness
`
`
`1 In the instant action, Cavium’s interest as a supplier seeking to intervene in a case against its
`customer is substantial and should be afforded greater weight. See, e.g., Honeywell Int’l, Inc. v.
`Audiovox Commc’ns Corp., No. Civ. A. 04-1337-KAJ et al., 2005 U.S. Dist. LEXIS 22933, at
`*9-10 (D. Del. May 18, 2005).
`
`2 Intervention within six months of the start of the action and before any proceedings on the
`merits has been found timely. See, e.g., Alabama v. U.S. Army Corps of Eng’rs, 229 F.R.D. 669,
`672 (N.D. Ala. 2005) (motion to intervene timely when court had not yet conducted proceedings
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`
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`6
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`EX. 2009.010
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`

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`Case 2:16-cv-00693-JRG-RSP Document 109 Filed 01/13/17 Page 11 of 17 PageID #: 3018
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`absent articulation of substantial, specific prejudice to existing parties that they would not have
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`suffered had the intervention occurred earlier in the action. See, e.g., Ross, 426 F.3d at 756
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`(finding party opposing intervention must point to specific “but-for” result due to later, rather
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`than earlier, intervention by insurer); and Stallworth, 558 F.2d at 265 (holding “to take any
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`prejudice that the existing parties may incur if intervention is allowed into account under the
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`rubric of timeliness would be to rewrite Rule 24 by creating an additional prerequisite to
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`intervention as of right.”). In this action, in which Alacritech has added new accused products as
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`recently as December 13 and trial is nearly a year away, no prejudice can be demonstrated.
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`Here, Cavium moved promptly to intervene, Cavium’s intervention will cause no prejudice to the
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`existing parties, and Cavium will suffer significant prejudice if leave to intervene is denied.
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`2.
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`Cavium Has A Compelling Interest In The Litigation
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`Cavium’s compelling interest in these proceedings is clear based on Alacritech’s own
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`allegations. Moreover, Cavium’s undertaking to defend and partially indemnify its customer
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`cements its strong interest in the litigation. “A party has an interest relating to the subject matter
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`of an action when it has a ‘direct, substantial, legally protectable interest in the proceedings.’”
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`State of Texas v. American Tobacco Co., No. 5-98CV-270, 1999 WL 1022129, at *2 (E.D. Tex.
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`Nov. 5, 1999). “[T]he interest ‘test’ is primarily a practical guide to disposing of lawsuits by
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`involving as many apparently concerned persons as is compatible with efficiency and due
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`process.” Ross, 426 F.3d at 757 (citations omitted).
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`Cavium’s intervention in this action is necessary to protect its strong financial interest
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`based on both its indemnity obligations and the potential impact on its other customers. The
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`on merits and intervention would not delay proceedings); Travelsource Corp. v. Old Republic
`Int’l Corp., No. 85 C 8116, 1986 WL 3848, at *2 (N.D. Ill. Mar. 14, 1986) (motion to intervene
`timely where suit was six months old and no pleadings had been filed other than Complaint and
`Answer).
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`
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`7
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`EX. 2009.011
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`

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`Case 2:16-cv-00693-JRG-RSP Document 109 Filed 01/13/17 Page 12 of 17 PageID #: 3019
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`right of a manufacturer to intervene in an action accusing its products has been long recognized.
`
`See Chandler & Price Co. v. Brandtjen & Kluge, Inc., 296 U.S. 53, 55 (1935) (manufacturer’s
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`intervention in patent infringement action against its customers was “necessary for the protection
`
`of its interest”); Tegic Commc’ns Corp. v. Board Of Regents of the Univ. of Tex. Sys., 458 F.3d
`
`1335, 1344 (Fed. Cir. 2006) (“[T]o the extent that [the interest of a manufacturer of allegedly
`
`infringing products] may be impaired by the Texas litigation, [the manufacturer] may seek to
`
`intervene in that litigation.”). LG Elecs. Inc. v. Q-Lity Computer, Inc., 211 F.R.D. 360, 365
`
`(N.D. Cal. 2002) (“[An intervening manufacturer] has more than a speculative economic interest,
`
`as the products that it sells will be at the heart of the litigation”); IBM Corp. v. Conner
`
`Peripherals, Inc., No. C-93-20117, 1994 WL 706208, at *5 (N.D. Cal. Dec. 13, 1994)
`
`(intervening manufacturer “played an important role in manufacturing and designing the
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`controllers that allegedly infringed” and “should be able to present facts relevant to whether the
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`controllers actually did infringe”).
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`Cavium has a clear, direct and substantial interest in defending its technology accused of
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`infringement by Alacritech. See Intellectual Ventures I LLC v. AT&T Mobility LLC, 2014 WL
`
`4445953, at *2 (D. Del. Sept. 8, 2014) (Stark, J.) (“[I]ntervention is necessary to enable
`
`Intervenors to protect their interest in products which Intervenors manufacture for Defendants,
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`an interest put at risk by the litigation as Plaintiffs accuse these products of infringement.”). As
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`an indemnitor of defendant Dell, Cavium also has a compelling financial interest in this action.
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`See Fisherman’s Harvest, Inc. v. U.S., 74 Fed. Cl. 681, 685 (2006) (“An indemnitor may be
`
`allowed to intervene in a lawsuit brought against an indemnitee in order to protect its interest
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`under an indemnity agreement.”) (internal citations omitted) Conner Peripherals, 1994 WL
`
`706208 at *5 (patent infringement claims against indemnitee are in effect claims against
`
`
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`8
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`EX. 2009.012
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`

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`Case 2:16-cv-00693-JRG-RSP Document 109 Filed 01/13/17 Page 13 of 17 PageID #: 3020
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`indemnitor). As many courts have found in similar circumstances, a supplier like Cavium “has
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`more than a speculative economic interest, as the products that it sells will be at the heart of the
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`litigation[.]” LG Elecs., 211 F.R.D. at 365.
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`3.
`
`The Disposition Of This Action May Impair Cavium’s Ability To
`Protect Its Interests
`
`The nature of Cavium’s interest in this matter as the manufacturer of accused products
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`identified in the Complaint against its customer, and the effect that the outcome of this action
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`will have on Cavium’s ability to protect that interest, are closely-related factors the court must
`
`consider in deciding the instant motion. See Chiles v. Thornburgh, 865 F.2d 1197, 1214 (11th
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`Cir. 1989). A manufacturer has a strong interest in being heard in a patent infringement action
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`where the accused products incorporate its components. See Honeywell Int’l., 2005 U.S. Dist.
`
`LEXIS 22933, at *12-13 (in a patent infringement action, a manufacturer’s interests “will be
`
`impaired or affected, as a practical matter, by the disposition of the action, unless it is involved in
`
`the case directly and able to make its positions known”).
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`An adverse ruling could cause harm to Cavium’s reputation, its relationships with its
`
`other customers, and its future customer base. See U.S. Ethernet Innovations, LLC v. Acer, Inc.,
`
`No. 6:09-cv-448, Dkt. No. 224 at 4 (E.D. Tex. May 10, 2010) (explaining that “a manufacturer”
`
`could face injury such as “the loss of its customer base and reputation as a result of patent
`
`infringement allegations.”); Katz v. Lear Siegler, Inc., 909 F.2d 1459, 1464 (Fed. Cir. 1990) (“it
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`is a simple fact of life that a manufacturer must protect its customers, either as a matter of
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`contract, or good business, or in order to avoid the damaging impact of an adverse ruling against
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`its products”) (citing Codex Corp. v. Milgo Elec. Corp., 553 F.2d 735 (1st Cir. 1977)).
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`In addition, Cavium has a financial stake in this action because it has agreed to partially
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`indemnify Dell. Given all of Cavium’s substantial interests (both monetary and non-monetary)
`
`
`
`9
`
`EX. 2009.013
`
`

`

`Case 2:16-cv-00693-JRG-RSP Document 109 Filed 01/13/17 Page 14 of 17 PageID #: 3021
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`in the outcome of this action, Cavium should be a party to the litigation to ensure that its interests
`
`are protected. As a general rule, “[i]f an absentee would be substantially affected in a practical
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`sense by the determination made in an action, he should... be entitled to intervene.” Fed. R. Civ.
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`P. 24, Fed. R. Civ. P. 24, Advisory Committee Notes, 1966 Amendments. Accordingly,
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`Cavium’s motion to intervene should be granted.
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`4.
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`Cavium’s Interests Cannot Be Adequately Represented By Its
`Customer
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`Cavium is in a better position to defend its interests than its customer, Dell, based on its
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`greater knowledge of its own products Dell purchased and its substantial financial interest as an
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`indemnitor. Under Fifth Circuit law, the intervenor’s burden to show inadequate representation
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`by a named party is very low, and is met by a mere showing that “representation by the existing
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`parties may be inadequate.” Ross, 426 F.3d at 761 (emphasis added). See also Edwards v. City
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`of Houston, 78 F.3d 983, 1005 (5th Cir. 1996).
`
`Cavium naturally has a greater interest than its customers in defending allegations of
`
`patent infringement focused on its QLogic products. Cavium also is uniquely situated to
`
`understand and defend its own products, which Cavium’s subsidiary designed and manufactured,
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`and which Dell merely purchased. Allowing direct participation by Cavium as a party in this
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`action is both the fairest and most efficient outcome. See Honeywell, 2005 U.S. Dist. LEXIS
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`22933, at *4, *11, *13.
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`Dell may not have as great an interest as Cavium in fully litigating the case to obtain
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`findings on the merits, and may have differing interests in considering potential settlement of the
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`claims impacting Cavium. Cavium has a compelling interest in fully addressing the merits of
`
`Alacritech’s claims and may present a “more vigorous presentation” of its interests than would
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`Dell. N.Y. Pub. Interest Research Group, Inc. v. Regents of Univ. of State of N.Y., 516 F.2d 350,
`
`
`
`10
`
`EX. 2009.014
`
`

`

`Case 2:16-cv-00693-JRG-RSP Document 109 Filed 01/13/17 Page 15 of 17 PageID #: 3022
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`352 (2d Cir. 1975). For each of the reasons set forth above, Cavium is entitled to intervene in the
`
`instant action as a matter of right.
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`B.
`
`The Court Should Exercise Its Discretion To Permit Cavium To Intervene, If
`Cavium Is Not Entitled To Intervene As A Matter Of Right
`
`Cavium moves in the alternative for leave to intervene with permission of the Court, in
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`the event that the Court does not find Cavium is entitled to intervene as a matter of right. The
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`Court may permit intervention where the proposed intervenor “has a claim or defense that shares
`
`with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(l)(B). See
`
`Dayton Indep. Sch. Dist. v. U.S. Mineral Prods. Co., Civ. A. Nos. B-87-00507-.CA, B-88-
`
`00429-CA, 1989 WL 237732, at *4 (E.D. Tex. Feb. 14, 1989). While Cavium has demonstrated
`
`a substantial direct interest in the outcome of this action, such interest is not required for
`
`permissive intervention. Sec. & Exch. Comm’n v. U.S. Realty & Imp. Co., 310 U.S. 434, 459
`
`(1940).
`
`The common questions of law and fact shared by the action against Dell and Cavium’s
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`proposed Complaint in Intervention are evident from Alacritech’s own allegations against Dell.
`
`In its Complaint against Dell, Alacritech specifically identifies numerous QLogic network
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`adapters in its allegations that Dell products incorporating the QLogic adapters infringe its
`
`patents. [Dkt. 1] Alacritech’s claims against Dell are based on its use of QLogic network
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`adapters, as well as its use of networking technology from other suppliers (including Intel).
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`Cavium’s proposed Complaint in Intervention seeks judgment as to whether QLogic network
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`adapters incorporated into Dell’s products infringe the Alacritech patents at issue in this action,
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`questions which directly overlap with Dell’s defenses of non-infringement of the same seven
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`Alacritech patents. See Reid v. Gen. Motors Corp., 240 F.R.D. 257, 260 (E.D. Tex. 2006)
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`(granting manufacturer permissive intervention in patent infringement action due to common
`
`
`
`11
`
`EX. 2009.015
`
`

`

`Case 2:16-cv-00693-JRG-RSP Document 109 Filed 01/13/17 Page 16 of 17 PageID #: 3023
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`questions of law and fact); Salem Eng’g Co. v. Nat’l Supply Co., 75 F. Supp. 993, 996 (W.D. Pa.
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`1948) (granting permissive intervention to manufacturer in patent infringement action because
`
`“‘it is plain the applicant’s defense and the main action have a question of law and fact in
`
`common.”).
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`Intervention by Cavium in this action will not unduly delay or prejudice the adjudication
`
`of rights of the original parties, given the early stage of the proceedings. See American Tobacco,
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`1999 WL 1022129, at * 1. As set forth above, Cavium’s intervention will facilitate discovery
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`and ensure the most fair and efficient adjudication of Alacritech’s claims.
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`IV. CONCLUSION
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`For all of the foregoing reasons, Cavium respectfully requests that the Court grant its
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`Motion to Intervene in this action.
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`
`
`Dated: January 13, 2017
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`Respectfully submitted,
`
`
`
`/s/ Karineh Khachatourian
`Karineh Khachatourian (CA Bar No. 202634)
`Duane Morris LLP
`2475 Hanover Street
`Palo Alto, CA 94304-1194
`Telephone: 650.847.4150
`Fax: 650.847.4151
`
`Melissa Richards Smith
`TX State Bar No. 24001351
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
`melissa@gillamsmith