Case 1:23-cv-00369-DC-DTG Document 86 Filed 07/11/24 Page 1 of 16
`PUBLIC VERSION
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`
`
`GREENTHREAD, LLC
`
`Plaintiff,
`
`vs.
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`CIRRUS LOGIC, INC.
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`Defendant.
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`
`
`
`
`Civil Action No. 1:23-cv-00369-DC
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`
`
`JURY TRIAL DEMANDED
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`
`
`PLAINTIFF GREENTHREAD, LLC’S OPPOSED MOTION FOR LEAVE TO AMEND
`FINAL INFRINGEMENT CONTENTIONS AND COMPLAINT
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`
`
`
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`
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`Greenthread Ex. 2077, p. 1 of 16
`Cirrus Logic, et al. v. Greenthread
`IPR2024-00016
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`

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`Case 1:23-cv-00369-DC-DTG Document 86 Filed 07/11/24 Page 2 of 16
`PUBLIC VERSION
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`TABLE OF CONTENTS
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`Introduction ..........................................................................................................................1(cid:3)
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`Background ..........................................................................................................................2(cid:3)
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`Legal Standard .....................................................................................................................4(cid:3)
`
`A.(cid:3)
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`B.(cid:3)
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`Amending Infringement Contentions ......................................................................4(cid:3)
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`Leave to Amend Pleadings ......................................................................................5(cid:3)
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`
`
`.(cid:3)
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`(cid:3) I
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`II.(cid:3)
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`III.(cid:3)
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`IV.(cid:3)
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`Argument .............................................................................................................................6(cid:3)
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`A.(cid:3)
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`Good Cause Exists to Permit Greenthread to Amend its Final
`Infringement Contentions ........................................................................................6(cid:3)
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`1.(cid:3)
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`2.(cid:3)
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`3.(cid:3)
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`4.(cid:3)
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`Greenthread has been diligent, and has good cause
`for amending its contentions. .......................................................................6(cid:3)
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`Greenthread’s contention amendments are important
`and should be allowed. .................................................................................7(cid:3)
`
`There is no prejudice to Cirrus Logic, whereas denial
`would greatly prejudice Greenthread. ..........................................................7(cid:3)
`
`The availability of a continuance would cure any
`potential prejudice. .......................................................................................7(cid:3)
`
`B.(cid:3)
`
`Good Cause Exists to Permit Greenthread to Amend its
`Complaint to Add GlobalFoundries as a Defendant ................................................8(cid:3)
`
`1.(cid:3)
`
`2.(cid:3)
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`3.(cid:3)
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`4.(cid:3)
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`Greenthread can provide adequate explanation for
`not adding GlobalFoundries as a defendant before
`the deadline. .................................................................................................8(cid:3)
`
`Greenthread’s proposed amendment is particularly
`important and should be permitted. .............................................................9(cid:3)
`
`to Cirrus Logic or
`is no prejudice
`There
`GlobalFoundries, whereas denial would greatly
`prejudice Greenthread. .................................................................................9(cid:3)
`
`The availability of a continuance mitigates any
`potential prejudice that would result from permitting
`Greenthread to amend its complaint. .........................................................10(cid:3)
`
`
`
`i
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`Greenthread Ex. 2077, p. 2 of 16
`Cirrus Logic, et al. v. Greenthread
`IPR2024-00016
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`

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`Case 1:23-cv-00369-DC-DTG Document 86 Filed 07/11/24 Page 3 of 16
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`
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`5.(cid:3)
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`No substantial reason exists for the Court to deny
`Greenthread’s proposed amendment to its complaint.
`....................................................................................................................10(cid:3)
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`V.(cid:3)
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`Conclusion .........................................................................................................................10(cid:3)
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`ii
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`Greenthread Ex. 2077, p. 3 of 16
`Cirrus Logic, et al. v. Greenthread
`IPR2024-00016
`
`

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`Case 1:23-cv-00369-DC-DTG Document 86 Filed 07/11/24 Page 4 of 16
`PUBLIC VERSION
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`
`
`TABLE OF AUTHORITIES
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`
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`Page(s)
`
`Cases
`
`Cutting Edge Vision, LLC v. TCL Tech. Grp. Corp., No. W-22-CV-00285-ADA,
`2023 WL 4002539, at *1 (W.D. Tex. June 14, 2023) .......................................................2, 4, 5
`
`CyWee Grp. Ltd. v. Samsung Elecs. Co.,
`No. 217CV00140RWSRSP, 2018 WL 574871 (E.D. Tex. Jan. 26, 2018)................................5
`
`IGT v. Zynga Inc.,
`No. W-21-CV-00331-ADA, 2022 U.S. Dist. LEXIS 35393 (W.D. Tex. Mar.
`1, 2022) ..............................................................................................................................2, 3, 5
`
`Koss Corp. v. Apple Inc.,
`No. 6:20-cv-00665-ADA, Order, ECF No. 151 (W.D. Tex. Mar. 8, 2022) ..............................3
`
`WSOU Invs. LLC v. Oneplus Tech. Shenzhen Co.,
`No. 6:20-cv-00952-ADA, 2022 WL 174517 (W.D. Tex. Jan. 18, 2022) ......................3, 4, 5, 6
`
`
`
`iii
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`Greenthread Ex. 2077, p. 4 of 16
`Cirrus Logic, et al. v. Greenthread
`IPR2024-00016
`
`

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`
`
`I.
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`Case 1:23-cv-00369-DC-DTG Document 86 Filed 07/11/24 Page 5 of 16
`PUBLIC VERSION
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`INTRODUCTION
`Plaintiff Greenthread LLC (“Plaintiff” or “Greenthread”) seeks to amend its infringement
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`contentions and complaint to streamline the case.
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`Greenthread filed its complaint in June 2023 based on a reverse engineering report and
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`infringement analysis of Defendant Cirrus Logic Inc.’s (“CL”) CLI1793B1 chip. During a
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`deposition last month,
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`
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`
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` Until 9:30pm the night before the deposition, CL had not produced any
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`information about
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` or which manufacturing processes are used for which products. In the
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`same deposition, Greenthread also learned that approximately half of CL’s products are made by
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`the same manufacturer using the same process.
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`Greenthread seeks leave to amend its infringement contentions and complaint to 1) define
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`the accused products as those made with
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`, and 2) add GF as a party to the case.
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`Greenthread’s infringement theories are not changing in the slightest. CL just failed to produce
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`technical information regarding its manufacturing and the product that initiated this litigation until
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`last month.1
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`Further, in proceedings before the USPTO, GF has admitted that it is the “real party in
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`interest” to this litigation. GF is presumably funding CL’s defense and IPRs. Greenthread’s
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`amendments do no more than match the list of accused products to Greenthread’s original
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`infringement theory and change GF from a “real party in interest” to simply a “party.”
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`1 Separately, Greenthread seeks to drop any currently accused products that are not made with
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`
`1
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`Greenthread Ex. 2077, p. 5 of 16
`Cirrus Logic, et al. v. Greenthread
`IPR2024-00016
`
`

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`
`
`II.
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`Case 1:23-cv-00369-DC-DTG Document 86 Filed 07/11/24 Page 6 of 16
`PUBLIC VERSION
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`BACKGROUND
`On June 16, 2023, Greenthread filed its First Amended Complaint against CL, using CL
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`CLI1793B1 as an exemplar product for the infringement chart attached to the complaint. Dkt. 22-
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`8 at 1. Greenthread’s patents pertain to “dopants” in semiconductor devices. Dopants are
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`elements, like phosphorous and boron, introduced into pure silicon during manufacturing to
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`change its electrical properties and create the semiconductor device. Discovery opened on January
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`29, 2024, following the Markman hearing. That same day, Greenthread served requests for
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`production seeking “Documents Relating to the dopant concentrations in” the accused products
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`and an interrogatory asking CL to identify the manufacturing process (or “Recipe”) for each of its
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`products. Ex. 1 (Plaintiff’s First Set of Requests for the Production of Documents), at 8 (Request
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`No. 5); Ex. 2 (Plaintiff’s First Set of Interrogatories), at 10-11 (Interrogatory No. 8). On February
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`28, 2024, CL responded that it “has not located any documents responsive to” Greenthread’s
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`request for doping information and that it “does not maintain recipes” for its products. Ex. 3
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`(Defendant’s Objections and Responses to Plaintiff’s First Set of RFPs), at 15-16 (Response to
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`Request No. 5); Ex. 4 (Defendant’s Objections and Responses to Plaintiff’s First Set of
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`Interrogatories), at 21-22 (Response to Interrogatory No. 8).
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`Greenthread was shocked that CL could possibly lack information on the doping in its
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`products, because that information is essential to CL’s core business—designing semiconductors.
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`A semiconductor company would be expected to have doping information and Greenthread
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`pointed CL to numerous public documents indicating that CL specifically concerns itself with the
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`doping in its products. Ex. 5, at 5-6 (Email from Greenthread’s counsel on May 8 regarding CL
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`documents and production). For example, Greenthread pointed CL to one of CL’s own patent
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`applications, naming CL’s Vice President of Technology, Scott Warrick, as an inventor. The
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`application describes a semiconductor device where “[t]he dopant distribution in the channel
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`2
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`Greenthread Ex. 2077, p. 6 of 16
`Cirrus Logic, et al. v. Greenthread
`IPR2024-00016
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`

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`Case 1:23-cv-00369-DC-DTG Document 86 Filed 07/11/24 Page 7 of 16
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`region may be formed by lateral diffusion of dopants from the source side of the channel region
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`which forms a laterally graded channel region.” Ex. 6, U.S. Patent Pub. No. 2020/0006551
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`(emphasis added). Graded concentrations of dopants are elements of all of Greenthread’s patent
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`claims.
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`Nevertheless, CL emphatically stood by its claim not to have any doping information about
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`its products. CL said there was “no ‘equivocation’ … Cirrus does not have … any technical
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`documents relating to dopant concentrations.” Ex. 5, at 4-5 (Email from CL’s counsel on May 9)
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`(emphasis added). CL’s counsel represented “as officers of the court that Cirrus does not have”
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`any doping documents. Ex. 5, at 4 (Email from CL’s counsel on May 9) (emphasis added). CL
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`told Greenthread that it should take Mr. Warrick’s deposition to confirm that its counsel’s
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`representations were accurate. Ex. 5, at 1 (Email from CL’s counsel on May 13).
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`On May 15, 2024 Greenthread noticed Mr. Warrick’s deposition and on May 24, 2024
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`noticed a 30(b)(6) deposition of CL. Ex. 7; Ex. 8. CL designated Mr. Warrick as its corporate
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`representative on, among other topics, “technical and/or design documents relating to the dopant
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`concentrations in the Accused Products.” Ex. 8 (Rule 30(b)(6) Deposition Notice) at Topic 28;
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`Ex. 9 (Warrick Dep. Tr.), at 7:1-7.
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`At first, Mr. Warrick testified that he was
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`
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` Ex. 9 (Warrick Dep. Tr.), at 107:16-108:9. However, at 9:30 pm the night
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`before the deposition, CL had produced various technical documents which CL said “may pertain
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`to your 30(b)(6) deposition.” Ex. 10 (Email from CL’s counsel on June 6). One of those
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`documents was titled “
`
`.” Ex. 11. When
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`confronted with
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` and similar documents from the overnight production, Mr.
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`Warrick changed his testimony.
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`3
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`Greenthread Ex. 2077, p. 7 of 16
`Cirrus Logic, et al. v. Greenthread
`IPR2024-00016
`
`

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`Case 1:23-cv-00369-DC-DTG Document 86 Filed 07/11/24 Page 8 of 16
`PUBLIC VERSION
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`Greenthread Ex. 2077, p. 8 of 16
`Cirrus Logic, et al. v. Greenthread
`IPR2024-00016
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`

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`Case 1:23-cv-00369-DC-DTG Document 86 Filed 07/11/24 Page 9 of 16
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`“Courts consider ‘(1) the reason for the delay and whether the party has been diligent; (2)
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`the importance of what the court is excluding and the availability of lesser sanctions; (3) the danger
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`of unfair prejudice; and (4) the availability of a continuance and the potential impact of a delay on
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`judicial proceedings.’” Id. at *2.
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`B.
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`Leave to Amend Pleadings
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`Under Federal Rules of Civil Procedure, a party may only amend pleadings after a
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`scheduling order deadline has expired “upon a showing of good cause and by leave of the district
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`judge.” S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003);
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`Fed. R. Civ. P. 16(b)(4). The good cause standard requires the “party seeking relief to show that
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`the deadlines cannot reasonably be met despite the diligence of the party needing the extension.”
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`S&W Enters., 315 F.3d at 535. “In determining whether good cause is shown, the Court considers
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`‘(1) the explanation for the failure to timely move for leave to amend; (2) the importance of the
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`amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a
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`continuance to cure such prejudice.’” Bandy v. TRC Sols., Inc., No. 1:22-CV-00144-DAE, 2023
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`WL 8285219, at *2 (W.D. Tex. Nov. 30, 2023) (quoting Filgueira v. U.S. Bank Nat. Ass’n, 734
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`F.3d 420, 422 (5th Cir. 2013)). Upon demonstration of good cause, the more liberal standard of
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`Federal Rule of Civil Procedure 15(a) applies to the district court’s decision to grant or deny leave.
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`S&W Enterprises, 315 F.3d at 536. Rule 15(a) “requires the trial court to grant leave to amend
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`freely, and the language of this rule evinces a bias in favor of granting leave to amend.” Big Thirst,
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`Inc. v. Donoho, 657 F. Supp. 3d 914, 926-27 (W.D. Tex. 2023) (quoting Lyn-Lea Travel Corp. v.
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`Am. Airlines, 283 F.3d 282, 286 (5th Cir. 2002)). Absent a substantial reason, such as undue delay,
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`bad faith, dilatory motive, repeated failures to cure deficiencies, or undue prejudice to the opposing
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`party, “the discretion of the district court is not broad enough to permit denial.” Id. at 926-27.
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`5
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`Greenthread Ex. 2077, p. 9 of 16
`Cirrus Logic, et al. v. Greenthread
`IPR2024-00016
`
`

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`Case 1:23-cv-00369-DC-DTG Document 86 Filed 07/11/24 Page 10 of 16
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`
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`IV. ARGUMENT
`A.
`Good Cause Exists to Permit Greenthread to Amend its Final Infringement
`Contentions
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`There is good cause to permit Greenthread to amend its final infringement contentions.
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`Greenthread’s infringement theory is the same today as the day Greenthread filed its complaint.
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`All that has changed is that now, after months of delay, CL has finally identified the specific
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`process used to make the product Greenthread charted at the outset of the case and has started
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`producing relevant technical information. See Cutting Edge Vision, LLC, 2023 WL 4002539, at
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`*1-3. CL cannot show any prejudice from Greenthread’s proposed amendment. Id. CL is
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`responsible for delaying this case with its false claims not to have vital technical information and
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`failure to produce the
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` at the outset.
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`1.
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`Greenthread has been diligent, and has good cause for amending its
`contentions.
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`Before the Warrick deposition, Greenthread was unaware of the
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` and had
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`no reason to think it was relevant to the case. During the Warrick deposition, on Friday, June 7,
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`2024, Greenthread learned that CL uses
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`
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` Ex. 9 (Warrick Dep. Tr.), 97:4-12; 102:22-103:4. The next
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`business day, Monday, June 10, Greenthread asked CL to consent to this motion. Ex. 12 (Letter
`
`from Greenthread’s counsel), at 1. Between June 10 and the filing of this motion, Greenthread
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`sought CL’s consent to this motion, which CL confirmed it would not grant on July 1. Ex. 13
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`(Email from CL’s counsel on July 1), at 1. Greenthread’s diligence weighs in favor of permitting
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`the proposed supplement. See Koss Corp. v. Apple Inc., No. 6:20-cv-00665-ADA, Order, ECF
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`No. 151 (W.D. Tex. Mar. 8, 2022) (granting motion for leave to supplement final invalidity
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`contentions even after expert reports had been served).
`
`6
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`Greenthread Ex. 2077, p. 10 of 16
`Cirrus Logic, et al. v. Greenthread
`IPR2024-00016
`
`

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`Case 1:23-cv-00369-DC-DTG Document 86 Filed 07/11/24 Page 11 of 16
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`2.
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`Greenthread’s contention amendments are important and should be
`allowed.
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`Greenthread’s amendments are important for the case, because without adding the
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`additional
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` into the case, the largest part of the parties’ dispute will be
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`unresolved. “It would be highly wasteful to require the parties to file a second lawsuit on the
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`additional accused products.” Koss, No. 6:20-cv-00665-ADA, Order, ECF No. 151. Greenthread
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`has always been accusing products made with
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` and it would be inefficient for Greenthread
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`to have to file a second lawsuit regarding the same products.
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`3.
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`There is no prejudice to Cirrus Logic, whereas denial would greatly
`prejudice Greenthread.
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`The amendment would cause no prejudice to CL. The additional “accused devices are
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`highly similar, share nearly identical infringement reads, and should not be a surprise to
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`Defendant[].” Id. Any increase in the scope of discovery will be small. Further, CL clearly
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`understood Greenthread’s intent to accuse the CL CLI1793B1, and CL knew that this product is
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`made with the
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`, along with nearly half of its products. CL simply chose to
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`withhold that information from Greenthread. Moreover, Greenthread is also seeking to remove
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` from the case, which further demonstrates Greenthread’s desire to
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`streamline the case and focus its infringement contentions on product that employ the
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`
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`
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`4.
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`The availability of a continuance would cure any potential prejudice.
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`Greenthread’s proposed amendments will not delay or prejudice these proceedings in any
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`way. As detailed above, CL has long been on notice regarding the type of products Greenthread
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`accuses in this case and adding additional CL products to Greenthread’s infringement contentions
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`will not change its infringement theories. There is no reason CL would be unable to meet its
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`obligations by the close of discovery. Even if that were not the case, an extension of the discovery
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`7
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`Greenthread Ex. 2077, p. 11 of 16
`Cirrus Logic, et al. v. Greenthread
`IPR2024-00016
`
`

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`Case 1:23-cv-00369-DC-DTG Document 86 Filed 07/11/24 Page 12 of 16
`PUBLIC VERSION
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`Greenthread Ex. 2077, p. 12 of 16
`Cirrus Logic, et al. v. Greenthread
`IPR2024-00016
`
`

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`Case 1:23-cv-00369-DC-DTG Document 86 Filed 07/11/24 Page 13 of 16
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`2.
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`Greenthread’s proposed amendment is particularly important and
`should be permitted.
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`Greenthread’s proposed amendment is particularly important to its ability to obtain the
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`information necessary to prove its case. CL has obstructed Greenthread’s attempts to seek
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`information regarding the accused products and the GF
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`
`
` CL claims that GF has that information. Further, GF has
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`other customers besides CL. Adding GF as a party will afford Greenthread complete relief
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`regarding GF’s infringement on behalf of other parties, rather than saving for another day and
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`another suit the rest of GF’s infringement. Again, adding GF will conserve judicial resources
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`without prejudicing any party, because GF is already effectively part of the case.
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`3.
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`There is no prejudice to Cirrus Logic or GlobalFoundries, whereas
`denial would greatly prejudice Greenthread.
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`Neither CL nor GF will suffer any prejudice as a result of the Court granting Greenthread
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`leave to amend its complaint. Both CL and GF are well aware of GF’s involvement in
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`Greenthread’s claims. CL’s corporate designee, Mr. Warrick, stated that he
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`
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`to prepare for his deposition. Ex. 9 (Warrick Dep. Tr.), at 32:2-8; see also id.,
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`32:9-34:12. The same lawyers that represent CL here (presumably paid for by GF) are representing
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`GF regarding Greenthread’s subpoena. Therefore, GF “has little work remaining in this litigation,
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`as [GF]controls the entire operation” already. SB IP Holdings LLC v. Vivint Smart Home, Inc.,
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`No. 4:20-CV-00886, 2022 WL 3331254, at *3 (E.D. Tex. Aug. 11, 2022).
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`Since GF “is already apprised of the status of the suit, and has participated in discovery,”
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`“[i]t would not be unduly prejudicial to require [GF] to further defend the suit and participate in
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`this case,” regardless of whether it does so through CL or as a defendant itself. Bandy v. TRC
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`Sols., Inc., No. 1:22-CV-00144-DAE, 2023 WL 8285219, at *3 (W.D. Tex. Nov. 30, 2023). Factor
`
`9
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`Greenthread Ex. 2077, p. 13 of 16
`Cirrus Logic, et al. v. Greenthread
`IPR2024-00016
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`

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`Case 1:23-cv-00369-DC-DTG Document 86 Filed 07/11/24 Page 14 of 16
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`
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`three therefore weighs in favor of finding that good cause exists to permit Greenthread to amend
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`its complaint.
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`4.
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`The availability of a continuance mitigates any potential prejudice that
`would result from permitting Greenthread to amend its complaint.
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`Factor four also weighs in favor of finding that good cause exists to permit Greenthread to
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`amend its complaint. The Scheduling Order provides that fact discovery remains open until
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`August 22, 2024, giving ample time for CL and GF to finally comply with Greenthread’s discovery
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`requests. Although no prejudice will result from allowing Greenthread to amend its complaint,
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`any potential prejudice to either CL or GF could be cured with an extension of the discovery
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`schedule. CL and GF cannot reasonably claim otherwise, as CL filed a motion to stay this case in
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`favor of the IPR proceedings to which GF is a “real party in interest.”
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`5.
`
`No substantial reason exists for the Court to deny Greenthread’s
`proposed amendment to its complaint.
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`Having satisfied the good cause standard under Federal Rule of Civil Procedure 16(b)(4),
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`Greenthread can also satisfy the more liberal standard under Federal Rule of Civil Procedure 15(a).
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`No substantial reason exists for this Court to deny leave to amend under Federal Rule of Civil
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`Procedure 15(a). Greenthread expeditiously seeks to amend its complaint and does so in good
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`faith and without dilatory motives. CL’s delay tactics made it impossible for Greenthread to
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`uncover GF’s true role in this case without taking CL’s 30(b)(6) deposition. Now, newly equipped
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`with facts CL had previously withheld, Greenthread moves for leave to amend its complaint.
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`V.
`
`CONCLUSION
`For at least the reasons stated above, Greenthread respectfully requests that the Court grant
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`this motion for leave to (1) amend its final infringement contentions as set forth in Exhibits 16
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`(redline) and 17 (clean), and (2) amend its complaint to add GF as a defendant as set forth in
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`Exhibits 18 (redline) and 19 (clean).
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`10
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`Greenthread Ex. 2077, p. 14 of 16
`Cirrus Logic, et al. v. Greenthread
`IPR2024-00016
`
`

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`Case 1:23-cv-00369-DC-DTG Document 86 Filed 07/11/24 Page 15 of 16
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`
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`Dated: July 11, 2024
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`
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`MCKOOL SMITH, P.C.
`
`
`
`
`
`/s/ Alan L. Whitehurst
`Alan L. Whitehurst
`D.C. Bar No. 484873
`awhitehurst@mckoolsmith.com
`Nicholas T. Matich
`D.C. Bar No. 1024907
`nmatich@mckoolsmith.com
`Arvind Jairam
`D.C. Bar No. 1017133
`ajairam@mckoolsmith.com
`MCKOOL SMITH, P.C.
`1999 K Street NW
`Washington, DC 20006
`Telephone: 202-370-8300
`Telecopier: 202-370-8344
`
`
`Jennifer Truelove
`Texas Bar No. 24012906
`jtruelove@mckoolsmith.com
`MCKOOL SMITH, P.C.
`104 East Houston Street, Suite 300
`Marshall, TX 75670
`Telephone: 903-923-9000
`Telecopier: 903-923-9099
`
`John B. Campbell
`Texas Bar No. 24036314
`jcampbell@mckoolsmith.com
`MCKOOL SMITH, P.C.
`303 Colorado Street, Suite 2100
`Austin, Texas 78701
`Telephone: 512-692-8700
`Telecopier: 512-692-8744
`
`ATTORNEYS FOR PLAINTIFF
`GREENTHREAD, LLC
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`Greenthread Ex. 2077, p. 15 of 16
`Cirrus Logic, et al. v. Greenthread
`IPR2024-00016
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`Case 1:23-cv-00369-DC-DTG Document 86 Filed 07/11/24 Page 16 of 16
`PUBLIC VERSION
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`CERTIFICATE OF SERVICE
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`Pursuant to the Federal Rules of Civil Procedure, I hereby certify that, on July 11, 2024,
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`all counsel of record who have appeared in this case are being served with a copy of the foregoing
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`by electronic mail.
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` /s/ Alan L. Whitehurst
`Alan L. Whitehurst
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`CERTIFICATE OF CONFERENCE
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`Pursuant to Local Rule CV-7(h), I hereby certify that counsel for Plaintiff met and
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`conferred with counsel for Defendants concerning the subject of this motion at multiple times,
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`including on July 1, 2024, and Defendants indicated they oppose this motion.
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`/s/ Alan L. Whitehurst
`Alan L. Whitehurst
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`Greenthread Ex. 2077, p. 16 of 16
`Cirrus Logic, et al. v. Greenthread
`IPR2024-00016
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