Case 2:21-cv-00181-JRG Document 94 Filed 02/25/22 Page 1 of 17 PageID #: 17523
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`BILLJCO, LLC,
`
`Plaintiff,
`
`v.
`
`CISCO SYSTEMS, INC.,
`
`Defendant.
`
`BILLJCO, LLC,
`
`v.
`
`Plaintiff,
`
`HEWLETT PACKARD ENTERPRISE
`COMPANY, ARUBA NETWORKS, LLC
`
`Defendants.
`
`Case No. 2:21-cv-00181-JRG
`(Lead Case)
`
`Case No. 2:21-cv-00183-JRG
`(Member Case)
`
`DEFENDANTS CISCO SYSTEMS, INC.’S, HEWLETT PACKARD ENTERPRISE
`COMPANY’S, AND ARUBA NETWORKS, LLC’S
`MOTION FOR LEAVE TO AMEND INVALIDITY CONTENTIONS
`
`Petitioners' Ex. 1025, Page 1 of 17
`Hewlett Packard Enterprise Co. et al. v. BillJCo, LLC
`IPR2022-00426
`
`

`

`Case 2:21-cv-00181-JRG Document 94 Filed 02/25/22 Page 2 of 17 PageID #: 17524
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`III.
`
`IV.
`
`INTRODUCTION .............................................................................................................. 1
`
`BACKGROUND ................................................................................................................ 2
`
`LEGAL STANDARD ......................................................................................................... 4
`
`ARGUMENT ...................................................................................................................... 4
`
`A. Any Delay By Defendants Is Minimal, And There Is No Impact On The
`Proceedings ......................................................................................................................... 5
`
`B. Any Supposed Delay Was Excusable, and Defendants Were Diligent.......................... 5
`
`C. The Prior Art Systems Are Important to the Merits of these Cases ............................... 7
`
`D. BilLJCo Will Suffer No Prejudice from Defendants’ Amendment .............................. 8
`
`V.
`
`CONCLUSION ................................................................................................................... 9
`
`Petitioners' Ex. 1025, Page 2 of 17
`Hewlett Packard Enterprise Co. et al. v. BillJCo, LLC
`IPR2022-00426
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`

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`Case 2:21-cv-00181-JRG Document 94 Filed 02/25/22 Page 3 of 17 PageID #: 17525
`
`Exhibit 1
`
`Exhibit 2
`
`Exhibit 3
`
`Exhibit 4
`
`Exhibit 5
`
`Exhibit 6
`
`Exhibit 7
`
`Exhibit 8
`
`TABLE OF EXHIBITS
`
`BillJCo, LLC's Disclosure Of Asserted Claims And Infringement
`Contentions
`
`Defendants' Preliminary Invalidity Contentions Cover Pleading
`
`Plaintiff's Answers To Cisco Systems, Inc. First Set Of Interrogatories
`(Nos. 1-5)
`
`M.D. Pinkerton, Master’s Thesis: Ubiquitous Computing: Extending
`Access To Mobile Data (1997)
`
`February 21, 2022: Padmanabhan To Michalek Regarding Invalidity
`Contentions Amendment
`
`February 23, 2022: Lin To Michalek Regarding Invalidity Contentions
`Amendment
`
`Redline Showing Defendants’ Proposed Amendments To Invalidity
`Contentions
`
`Grand Overseas, Inc. v. CVS Pharmacy, Inc., No. 2:15-cv-1401, Dkt.
`No. 32 (E.D. Tex. Oct. 28, 2016)
`
`Petitioners' Ex. 1025, Page 3 of 17
`Hewlett Packard Enterprise Co. et al. v. BillJCo, LLC
`IPR2022-00426
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`Case 2:21-cv-00181-JRG Document 94 Filed 02/25/22 Page 4 of 17 PageID #: 17526
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Allure Energy, Inc. v. Nest Labs, Inc.,
`84 F. Supp. 3d 538 (E.D. Tex. 2015) .........................................................................................4
`
`Alt v. Medtronic, Inc.,
`2006 U.S. Dist. LEXIS 4435 (E.D. Tex. Feb. 1, 2006) .........................................................5, 6
`
`Alt v. Medtronic, Inc.,
`No. 2:04-CV-370, 2006 WL 278868 (E.D. Tex. 2006) .............................................................6
`
`Arbitron, Inc. v. Int’l Demographics Inc.,
`2008 WL 4755761 (E.D. Tex. Oct. 29, 2008) ...........................................................................8
`
`California Institute of Technology v. Broadcom Ltd,
`2022 WL 333669 (Fed. Cir. Feb. 4, 2022).............................................................................7, 8
`
`Comput. Acceleration Corp. v. Microsoft Corp.,
`481 F. Supp. 2d 620 (E.D. Tex. 2007) .......................................................................................4
`
`e-Watch, Inc. v. Apple, Inc.,
`No. 2:13-cv-1061-JRG-RSP, 2014 WL 12668405 (E.D. Tex. Dec. 5, 2014) ...........................4
`
`Grand Overseas, Inc. v. CVS Pharmacy, Inc.,
`No. 2:15-cv-1401, Dkt. No. 32 (E.D. Tex. Oct. 28, 2016) ........................................................6
`
`Keranos, LLC v. Silicon Storage Tech., Inc.,
`797 F.3d 1025 (Fed. Cir. 2015)..................................................................................................5
`
`Kroy IP Holdings, LLC v. Autozone, Inc., et al.,
`No. 2:13-cv-888-WCB, 2014 WL 7463099 (Bryson, J.) ...............................................4, 6, 7, 8
`
`Mortgage Grader, Inc. v. First Choice Loan Servs. Inc.,
`811 F.3d 1314 (Fed. Cir. 2016)..............................................................................................4, 8
`
`Motio, Inc. v. Avnet, Inc.,
`No. 4:12-CV-647, 2015 WL 5952530 (E.D. Tex. Oct. 13, 2015) .....................................5, 7, 9
`
`Paice LLC v. Toyota Motor Corp.,
`No. 2:07-CV-180 (DF), 2008 WL 11278039 (E.D. Tex. Nov. 17, 2008) .................................6
`
`Shaw Indus. Grp, Inc. v. Automated Creel Sys., Inc.,
`817 F.3d 1293 (Fed. Cir. 2016)..................................................................................................8
`
`Petitioners' Ex. 1025, Page 4 of 17
`Hewlett Packard Enterprise Co. et al. v. BillJCo, LLC
`IPR2022-00426
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`Case 2:21-cv-00181-JRG Document 94 Filed 02/25/22 Page 5 of 17 PageID #: 17527
`
`Thomas Swan & Co. v. Finisar Corp.,
`No. 13-cv-178, 2014 WL 12599218 (E.D. Tex. Apr. 29, 2014)................................................7
`
`Other Authorities
`
`Patent Rule 3-1 .............................................................................................................................1, 2
`
`Patent Rule 3-2 .............................................................................................................................1, 2
`
`Patent Rule 3-3 .................................................................................................................................2
`
`Patent Rule 3-4 .................................................................................................................................2
`
`Patent Rule 3-6(b) ....................................................................................................................1, 2, 4
`
`Petitioners' Ex. 1025, Page 5 of 17
`Hewlett Packard Enterprise Co. et al. v. BillJCo, LLC
`IPR2022-00426
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`Case 2:21-cv-00181-JRG Document 94 Filed 02/25/22 Page 6 of 17 PageID #: 17528
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`I.
`
`INTRODUCTION
`
`Defendants Cisco Systems, Inc., Hewlett Packard Enterprise Company, and Aruba
`
`Networks, LLC (collectively, “Defendants”) seek leave to amend their Invalidity Contentions to
`
`add two prior art system references pursuant to Patent Rule 3-6(b). Good cause exists because of
`
`Plaintiff’s recent and untimely disclosure of its conception date. Pursuant to Local Patent Rule 3-
`
`1 and 3-2, Plaintiff was required to disclose its earliest priority date with its Infringement
`
`Contentions, and to produce all documents evidencing the conception and reduction to practice of
`
`its invention on September 15, 2021. On that date, Plaintiff offered no conception date prior to
`
`the application dates on the face of the patent, and produced no documents regarding conception
`
`or reduction to practice.
`
`Ignoring its obligations, Plaintiff disclosed a new conception date thirteen weeks after it
`
`served its Infringement Contentions, and six weeks after Defendants served their Invalidity
`
`Contentions. Plaintiff’s new conception date threatens a prior art system (referred to as GSM), as
`
`well as two prior art patents (referred to as Wu and Sanchez), which Defendants diligently
`
`researched and identified in reliance of Plaintiff’s Rule 3-1 and 3-2 disclosures. It also threatens
`
`27 potential invalidity obviousness combinations related to GSM, Wu, and Sanchez. Defendants
`
`should be permitted to supplement their Invalidity Contentions to address any loss of prior art
`
`diligently located in reliance on Plaintiff’s newly stated priority date. Plaintiff’s untimely
`
`disclosure of its conception date is all the more troubling because it impacts a key prior art system
`
`(GSM)1 under 35 U.S.C. § 102(g). Prior art systems are of heightened importance to Defendants’
`
`1 While Defendants’ invalidity charts for GSM includes printed publications prior to the October
`1, 2007 date, Defendants were investigating products released around and after October 1, 2007,
`to further illustrate the invalidity of the Asserted Claims.
`
`Petitioners' Ex. 1025, Page 6 of 17
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`Case 2:21-cv-00181-JRG Document 94 Filed 02/25/22 Page 7 of 17 PageID #: 17529
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`case as a result of a very recent change in the law surrounding IPR estoppel issued by the Federal
`
`Circuit earlier this month. Plaintiff opposes this motion.
`
`II.
`
`BACKGROUND
`
`On September 15, 2021, Plaintiff served its infringement contentions and accompanying
`
`document productions pursuant to Patent Rules 3-1 and 3-2. Ex. 1; Dkt. 62 at 6. Plaintiff claimed
`
`that the Asserted Claims of U.S. Patent Nos. 8,761,804, 10,292,011, and 10,477,994 (collectively,
`
`the “Asserted Patents”) were entitled to a priority date of March 14, 2008. Ex. 1 at 3. Plaintiff
`
`conveniently attempted to reserve the right to “rely on pre-filing conception and/or reduction to
`
`practice.” Ex. 1 at 3. Plaintiff withheld all documents relating to conception and reduction to
`
`practice on the basis that they were supposedly all “covered by attorney-client privilege.” Id.
`
`On November 10, 2021, Defendants served their invalidity contentions and accompanying
`
`document productions pursuant to Patent Rules 3-3 and 3-4. Ex. 2. In searching for prior art,
`
`Defendants relied on Plaintiff’s 3-1 and 3-2 disclosures, which identified no pre-application
`
`conception date, and produced no conception documents.
`
`On December 20, 2021, Plaintiff reversed course and claimed an earlier conception date,
`
`without seeking leave of Court as required by the Patent Rule 3-6(b). Ex. 3. The table that Plaintiff
`
`provided in its interrogatory responses is provided below:
`
`Patent
`
`Priority Date
`
`Date of Conception Date of Reduction to Practice
`
`8,761,804
`
`March 14, 2008
`
`October 1, 2007
`
`March 14, 2008
`
`10,292,011
`
`October 3, 2008
`
`October 1, 2007
`
`October 3, 2008
`
`10,477,994 October 3, 2008
`
`October 1, 2007
`
`October 3, 2008
`
`Ex. 3 at 3.
`
`Petitioners' Ex. 1025, Page 7 of 17
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`After receiving these interrogatory responses, Defendants immediately revisited their
`
`Invalidity Contentions, Padmanabhan Declaration ¶ 9, and determined that Plaintiff’s tactics put
`
`at risk at least one prior art system and two prior art patents. It also puts at risk 27 proposed
`
`obviousness combinations. In order to address BillJCo’s new conception date, Defendants focused
`
`their efforts on the investigation of two prior art systems—Cyberguide and ParcTab—that
`
`unquestionably predate BillJCo’s new conception date. Padmanabhan Declaration ¶¶ 9-12.
`
`Defendants reached out to a number of the relevant prior artists, including the lead researcher of
`
`the Cyberguide system, Professor Gregory Abowd. Id. Defendant Cisco also served a third-party
`
`subpoena to Google, where, based on Cisco’s investigation, a number of ParcTab prior artists are
`
`currently employed. Id. ¶ 11. The holidays and Omicron surge slowed the responses of these third
`
`parties, and Defendants received important information regarding the Cyberguide systems just two
`
`weeks ago, and still awaits information regarding ParcTab. Id. Of primary importance was a
`
`Masters Thesis by Michael Pinkerton related to the Cyberguide system, which is no longer publicly
`
`available given that it is twenty-five years old, and was provided by Professor Abowd on February
`
`17, 2022. Ex. 5 at 1 (listing date of 1997); Padmanabhan Declaration ¶ 12.
`
`Just four days later, on February 21, 2022, Defendants notified BillJCo of their intent to
`
`amend their invalidity contentions to add the Cyberguide and ParcTab prior art systems. Ex. 5
`
`(Padmanabhan to Michalek Re Amended Invalidity Contentions). Defendants also provided a
`
`copy of their amended pleading and accompanying invalidity charts on February 23, 2022. Ex. 6
`
`(Lin to Michalek Re Amended Invalidity Contentions). The parties met and conferred on February
`
`25, 2022, and BillJCo stated that it opposed the amendment. BillJCo provided no explanation for
`
`its untimely disclosure of its conception date and failure to produce documents related to that
`
`conception date.
`
`Petitioners' Ex. 1025, Page 8 of 17
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`Fact discovery and opening expert reports are due March 21, 2022. Expert discovery closes
`
`on April 25, 2022. Dkt. 44 at 3. Dispositive motions are not due until May 2, 2022, and jury
`
`selection is set to commence on August 8, 2022. Id. at 1, 3.
`
`III.
`
`LEGAL STANDARD
`
`The Local Patent Rules “exist to further the goal of full, timely discovery and provide all
`
`parties with adequate notice and information with which to litigate their cases.” Computer
`
`Acceleration Corp. v. Microsoft Corp., 503 F. Supp.2d 819, 822 (E.D. Tex. 2007). Under the
`
`Local Rules of this Court, leave to amend invalidity contentions “may be made only by order of
`
`the court, which shall be entered only upon a showing of good cause.” P.R. 3-6(b). The Court
`
`weighs multiple factors in determining whether good cause exists for leave to amend invalidity
`
`contentions, including but not limited to: (1) the length of the delay and its potential impact on
`
`judicial proceedings; (2) the reason for the delay, including whether it was within the reasonable
`
`control of the movant; (3) whether the offending party was diligent in seeking an extension of
`
`time; (4) the importance of the particular matter; and (5) the danger of unfair prejudice to the
`
`nonmovant. Allure Energy, Inc. v. Nest Labs, Inc., 84 F. Supp. 3d 538, 540-41 (E.D. Tex. 2015).
`
`IV.
`
`ARGUMENT
`
`Courts in the Eastern District of Texas have granted leave to amend invalidity contentions
`
`where any prejudice to Plaintiff is self-inflicted, the defendants have acted diligently upon learning
`
`new information, where information is critical to Defendants’ case, or where a change in the law
`
`has necessitated the amendment. See, e.g. e-Watch, Inc. v. Apple, Inc., No. 2:13-cv-1061-JRG-
`
`RSP, 2014 WL 12668405 (E.D. Tex. Dec. 5, 2014); Kroy IP Holdings, LLC v. Autozone, Inc., et
`
`al., 2014 WL 7463099 (Bryson, J.); Mortgage Grader, Inc. v. First Choice Loan Servs. Inc., 811
`
`F.3d 1314 (Fed. Cir. 2016). As discussed below, each of these facts supporting amendment are
`
`present in this case, as discussed below.
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`Petitioners' Ex. 1025, Page 9 of 17
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`A. Any Delay By Defendants Is Minimal, And There Is No Impact On The
`Proceedings
`
`Defendants file this motion nine weeks after Plaintiff provided a new conception date on
`
`December 20, 2021, and before the close of fact discovery on March 21, 2022. This nine-week
`
`period, which included the year-end holidays, is shorter than other such motions this Court has
`
`granted. See Motio, Inc. v. Avnet, Inc., 2015 WL 5952530, at *3-4 (E.D. Tex. Oct. 13, 2015); Alt
`
`v. Medtronic, Inc., 2006 U.S. Dist. LEXIS 4435, at *8-11 (E.D. Tex. Feb. 1, 2006). During this
`
`time, Defendants worked to reach out to prior artists and obtain information that is no longer public
`
`regarding the two prior art systems it seeks to add. Padmanabhan Declaration ¶ 11.
`
`Defendants’ amendment also comes early in the parties’ exchange of discovery. Both
`
`BillJCo and Defendants are still engaging in the production of documents and written discovery.
`
`No depositions have taken place, other than those for venue discovery and claim construction.
`
`Plaintiff is left ample time to address Defendant’s limited supplement, and will have an opportunity
`
`to depose the fact witness that Defendants have identified with respect to the Cyberguide and
`
`ParcTab references, including Professor Abowd. And Defendants’ request will not impact the
`
`schedule in these matters, as Defendants do not request any extension or alteration of the Court
`
`ordered schedule.
`
`B. Any Supposed Delay Was Excusable, and Defendants Were Diligent
`
`This delay is a direct and unavoidable result of Plaintiff’s late disclosure of its conception
`
`date. During the parties’ meet and confer, counsel for BillJCo could provide no explanation for
`
`its late disclosure of its conception date or failure to produce conception documents. Infringement
`
`contentions “require parties to crystallize their theories of the case” to “prevent the shifting sands
`
`approach to claim construction.” Keranos, LLC v. Silicon Storage Tech., Inc., 797 F.3d 1025,
`
`1035 (Fed. Cir. 2015). Yet, Plaintiff concealed its conception date with an assertion of privilege,
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`Case 2:21-cv-00181-JRG Document 94 Filed 02/25/22 Page 11 of 17 PageID #: 17533
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`only to spring it on Defendants thirteen weeks after serving its Infringement Contentions. See Ex.
`
`2 at 4 (“BillJCo’s documents evidencing conception and reduction to practice are covered by
`
`attorney-client privilege.”). Defendants could not “reasonably meet” the deadlines laid out by this
`
`Court with any degree of diligence, because Defendants were not on notice of Plaintiff’s claimed
`
`conception date. Kroy IP Holdings, 2014 WL 7463099; Paice LLC v. Toyota Motor Corp., 2008
`
`WL 11278039 (E.D. Tex. Nov. 17, 2008). This alone supports providing Defendants’ leave to
`
`amend their invalidity contentions. Id.; see also Alt v. Medtronic, Inc., 2006 WL 278868, *5 (E.D.
`
`Tex. 2006).
`
`Moreover, the prior art systems that Defendants seek to add are twenty to thirty years old.
`
`Padmanabhan Declaration ¶ 10. As a result, individuals associated with those projects were
`
`difficult to contact, and key documentation related to those systems was preserved in a manner
`
`that is no longer public. Padmanabhan Declaration ¶¶ 10-12 . The age of these systems, and
`
`associated difficulty in obtaining relevant information further advocates for permitting
`
`Defendants’ amendment. See also Kroy IP Holdings, 2014 WL 7463099 (“[A]ge and difficulty in
`
`unearthing prior art is a factor to be considered in determining whether good cause has been shown
`
`to supplement invalidity contentions….”). Defendants diligently searched for the relevant prior
`
`artists and obtained non-public documentation, including a non-published thesis and academic
`
`archives of Georgia Tech University requiring special authorization to obtain. Padmanabhan
`
`Declaration ¶¶ 11-12. Where, like here, research for prior art is highly intensive, or requires the
`
`location of non-public sources, the length of a delay is not weighed heavily. Alt., 2006 U.S. Dist.
`
`LEXIS at *8-11 (finding diligence based on research efforts despite six-month delay in disclosing
`
`new prior art); Grand Overseas, Inc. v. CVS Pharmacy, Inc., No. 2:15-cv-1401, Dkt. No. 32 (E.D.
`
`Petitioners' Ex. 1025, Page 11 of 17
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`Tex. Oct. 28, 2016) (granting leave to supplement invalidity contentions where defendants later
`
`located non-public information from third-party) (attached as Exhibit 8).
`
`C. The Prior Art Systems Are Important to the Merits of these Cases
`
`Here, the proposed amendment is of paramount importance and therefore supports
`
`providing leave to amend. Motio, Inc. v. Avnet, Inc., 2015 WL 5952530, at *3-4 (E.D. Tex. Oct.
`
`13, 2015) (leave to amend is permitted “far after the deadline for the service of invalidity
`
`contentions [where the] reference appears to be exceedingly relevant and may very well be of
`
`paramount importance”); Kroy IP Holdings, 2014 WL 7463099 (permitting amendment where
`
`defendant “should have informed [plaintiff] at an earlier time of its intention” because “the
`
`proposed amendment relates to an important piece of evidence… it would be improper to bar
`
`[defendant] from raising that invalidity claim”). The Court need not “analyze the strength of
`
`[Defendants’] contentions at this stage,” Thomas Swan & Co. v. Finisar Corp., 2014 WL
`
`12599218, *2 (E.D. Tex. Apr. 29, 2014), but should consider Defendants’ “representations as to
`
`the nature of the [proposed] prior art.” Kroy IP Holdings, 2014 WL 7463099, *5.
`
`Defendants’ supplemental prior art systems prove that the concept of using beacons to
`
`create location-aware applications existed before Plaintiff’s late disclosed October 1, 2007
`
`conception date. Both Cyberguide and ParcTab disclosed the use of beaconing to mobile
`
`processing systems in order to communicate context-related data records and support location-
`
`based applications. Defendants contend that each of these prior art systems anticipates, or renders
`
`obvious, the claimed beaconing inventions of the Asserted Patents. Defendants intend to support
`
`these contentions with testimony from relevant prior artists, including Professor Abowd, as well
`
`as products and documents reflecting those prior artists’ work.
`
`Finally, a change in law occurred in early February that significantly increased the
`
`importance of prior art systems to Defendants’ case. In California Institute of Technology v.
`
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`Case 2:21-cv-00181-JRG Document 94 Filed 02/25/22 Page 13 of 17 PageID #: 17535
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`Broadcom Ltd, 2022 WL 333669 (Fed. Cir. Feb. 4, 2022), the Federal Circuit noted existing
`
`precedent that Defendants were only estopped from asserting prior art previously asserted at the
`
`Patent Trial and Appeal Board. Shaw Indus. Grp, Inc. v. Automated Creel Sys., Inc., 817 F.3d
`
`1293 (Fed. Cir. 2016). Broadcom overruled Shaw, holding instead that “estoppel applies not just
`
`to claims and grounds asserted in the petition and instituted for consideration by the Board, but to
`
`all claims and grounds not in the IPR but which reasonably could have been included in the
`
`petition.” 2022 WL 333669, *11. Defendants filed petitions for inter partes review with respect
`
`to each of the asserted patents in mid-January 2022.2 Broadcom, which issued just weeks after
`
`Defendants’ filed their inter partes review petitions, may impose broad estoppel if their inter
`
`partes reviews are instituted. As a result of this change in the law, the admittance of prior art
`
`systems, which cannot be brought in inter partes review petition, and similarly are not subject to
`
`estoppel, are increasingly critical to Defendants’ invalidity defense. This change in law further
`
`supports providing Defendants leave to amend their invalidity contentions to add the Cyberguide
`
`and ParcTab prior art systems. See Mortgage Grader, Inc. v. First Choice Loan Servs. Inc., 811
`
`F.3d 1314 (Fed. Cir. 2016) (finding good cause for amendment where a change in law had the
`
`potential to impact proceedings); see also Arbitron, Inc. v. Int’l Demographics Inc., 2008 WL
`
`4755761 (E.D. Tex. Oct. 29, 2008) (same).
`
`D. BilLJCo Will Suffer No Prejudice from Defendants’ Amendment
`
`The danger of unfair prejudice in this case is minimal, as any prejudice Plaintiff may suffer
`
`is a direct result of its own conduct. See Kroy IP Holdings, 2014 WL 7463099 (permitting
`
`amendment where plaintiff proposed new infringement theory after serving its contentions).
`
`BillJCo concealed its conception date until well after its obligations under the Local Rules, and
`
`2 Defendants filed petitions for inter partes review on the ’804 and ’011 patents on January 14,
`2022, and a petition for inter partes review for the ’994 patent on January 18, 2022.
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`Case 2:21-cv-00181-JRG Document 94 Filed 02/25/22 Page 14 of 17 PageID #: 17536
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`even after Defendants served Invalidity Contentions. Further, insertion of the Cyberguide and
`
`ParcTab systems result in a mere 10 additional invalidity combinations for BillJCo to analyze,
`
`which is far fewer than the 27 combinations put at risk by BillJCo’s late disclosed conception date.
`
`By contrast, Defendants would be prejudiced by the exclusion of evidence tending to demonstrate
`
`the Asserted Patents’ invalidity by BillJCo’s late disclosed conception date.
`
`V.
`
`CONCLUSION
`
`For the foregoing reasons, Defendants respectfully request that this Court grant
`
`Defendants’ Motion for Leave to Amend Invalidity Contentions.
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`Case 2:21-cv-00181-JRG Document 94 Filed 02/25/22 Page 15 of 17 PageID #: 17537
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`Dated: February 25, 2022
`
`Respectfully submitted,
`
`/s/ K. Padmanabhan
`K. Padmanabhan
`kpadmanabhan@winston.com
`Winston & Strawn LLP
`200 Park Ave.
`New York, NY 10166
`Tel: (212) 294-6700
`
`David P. Enzminger
`denzminger@winston.com
`David K. Lin
`dlin@winston.com
`Winston & Strawn LLP
`333 South Grand Avenue
`38th Floor
`Los Angeles, CA 90071
`Tel: (213) 615-1780
`
`Louis Campbell
`llcampbell@winston.com
`Winston & Strawn LLP
`255 Shoreline Drive
`Suite 520
`Redwood City, CA 94065
`Tel: (415) 810-6570
`
`Melissa R. Smith
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, TX 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
`Email: melissa@gillamsmithlaw.com
`
`ATTORNEYS FOR CISCO SYSTEMS INC.
`
`Petitioners' Ex. 1025, Page 15 of 17
`Hewlett Packard Enterprise Co. et al. v. BillJCo, LLC
`IPR2022-00426
`
`

`

`Case 2:21-cv-00181-JRG Document 94 Filed 02/25/22 Page 16 of 17 PageID #: 17538
`
`Dated: February 25, 2022
`
`Respectfully submitted,
`
`/s/ Rose Cordero Prey
`Rose Cordero Prey
`Elana B. Araj.
`GREENBERG TRAURIG, LLP
`One Vanderbilt Avenue
`New York, NY 10017
`Tel: (212) 801-9200
`Fax: (212) 801-6400
`Email: preyr@gtlaw.com
`Email: araje@gtlaw.com
`
`Melissa R. Smith
`GILLAM & SMITH, LLP
`303 South Washington Ave.
`Marshall, TX 75670
`Tel: (903) 934-8450
`Fax: (903) 934-9257
`Email: melissa@gillamsmithlaw.com
`
`ATTORNEYS FOR HEWLETT PACKARD
`ENTERPRISE COMPANY AND ARUBA
`NETWORKS, LLC
`
`Petitioners' Ex. 1025, Page 16 of 17
`Hewlett Packard Enterprise Co. et al. v. BillJCo, LLC
`IPR2022-00426
`
`

`

`Case 2:21-cv-00181-JRG Document 94 Filed 02/25/22 Page 17 of 17 PageID #: 17539
`
`CERTIFICATE OF SERVICE
`
`I certify that the foregoing document was filed electronically on February 25, 2022,
`
`pursuant to Local Rule CV-5, and has been served on all counsel whom have consented to
`
`electronic service. Any other counsel of record will be served by first class U.S. mail on this same
`
`date.
`
` /s/ Melissa R. Smith
` Melissa R. Smith
`
`CERTIFICATE OF CONFERENCE
`
`The undersigned hereby certifies that counsel for Defendants met and conferred with
`
`counsel for Plaintiff. Counsel for Plaintiff indicated that it is opposed to this motion.
`
` /s/ Melissa R. Smith
` Melissa R. Smith
`
`Petitioners' Ex. 1025, Page 17 of 17
`Hewlett Packard Enterprise Co. et al. v. BillJCo, LLC
`IPR2022-00426
`
`