Case 6:20-cv-01216-ADA Document 22 Filed 04/16/21 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`OCEAN SEMICONDUCTOR LLC,
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`Plaintiff,
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`v.
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`WESTERN DIGITAL
`TECHNOLOGIES, INC.,
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`Defendant.
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`Case No. 6:20-cv-01216-ADA
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`ORAL ARGUMENT REQUESTED
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`WESTERN DIGITAL TECHNOLOGIES, INC.’S OPPOSITION TO OCEAN
`SEMICONDUCTOR LLC’S MOTION FOR LEAVE TO FILE SUR-REPLY
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`Defendant Western Digital Technologies, Inc. (“WDT”) respectfully opposes Ocean
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`Semiconductor LLC’s (“Ocean”) Motion for Leave to File a Sur-Reply (D.I. 21).
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`Under the local rules, a party may not file a sur-reply unless it obtains leave of court. W.D.
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`Tex. Loc. R. CV-7(f) (“Absent leave of court, no further submissions [beyond reply] on the motion
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`are allowed.”). In fact, sur-replies “are highly disfavored and permitted only in extraordinary
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`circumstances, such as when necessary to respond to new issues, theories, or arguments raised for
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`the first time in a reply brief.” Davis v. United Health Servs., No. 1:18-CV-1093-RP, 2020 WL
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`33597, at *3 (W.D. Tex. Jan. 2, 2020) (internal quotation marks and citations omitted); see also,
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`e.g., Manchester Tex. Fin. Grp., LLC v. Badame, No. A-19-CV-000009-LY, 2019 WL 4228370,
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`at *1 n.1 (W.D. Tex. Sept. 4, 2019).
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`1
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`Case 6:20-cv-01216-ADA Document 22 Filed 04/16/21 Page 2 of 5
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`Ocean’s Motion for Leave (D.I. 21) broadly identifies two bases for its proposed sur-reply:
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`that WDT allegedly “asserts new arguments” and “cites new legal authority” related to direct and
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`indirect infringement.1 Mot. for Leave (D.I. 21) at 2. Neither basis warrants a sur-reply.
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`As for Ocean’s allegation that WDT’s reply asserts new arguments, Ocean’s Motion failed
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`to inform the Court exactly what those new arguments are; indeed, because there are none.2 See
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`generally Mot. for Leave (D.I. 21). In reply, WDT directly responded to arguments that Ocean
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`raised in its opposition. No sur-reply is warranted. Ocean’s sur-reply is, therefore, an improper
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`attempt to continue the argument; and Ocean’s leave application should be denied. See, e.g.,
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`Racetrac Petroleum, Inc. v. J.J.’s Fast Stop, Inc., No. Civ.A 3:01-CV-1397, 2003 WL 251318, at
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`*18 (N.D. Tex. Feb. 3, 2003).
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`As to Ocean’s allegation that WDT “cited new legal authority,” only one such “new legal
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`authority” is identified in Ocean’s proposed sur-reply—Bayer Healthcare LLC v. Baxalta Inc.,
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`989 F.3d 964 (Fed. Cir. 2021).3 See Proposed Sur-reply (D.I. 21, Ex. A) at 10. But, WDT cited
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`this case in direct response to Ocean’s assertion in its opposition that pleading egregiousness is not
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`1 Ocean’s motion seeks leave only to address direct and indirect infringement, (see Mot. for Leave
`(D.I. 21) at 2), yet its proposed sur-reply also addresses willfulness, (see Proposed Sur-reply (D.I.
`21, Ex. A) at 9–10).
`2 Tellingly, Ocean’s proposed sur-reply addresses essentially every argument that WDT raised in
`both its opening and reply briefs. See generally Proposed Sur-reply (D.I. 21, Ex. A).
`3 Ocean’s proposed sur-reply purports to identify other “newfound” cases in WDT’s reply. But,
`as Ocean concedes, these are not “newfound” cases. In fact, WDT raised these cases in its opening
`brief and Ocean chose not to address them in its opposition. See e.g. Reply Brief (D.I. 20) at 1
`(noting that “Ocean’s Opposition does not address the Federal Circuit Momenta and Phillips M.
`Adams decisions (or the Sharafabadi district court decision, cited approvingly in Momenta) that
`WDT raised in its Motion.”); Proposed Sur-reply (D.I. 21, Ex. A) at 1–3 (conceding those cases
`were discussed in WDT’s Opening Brief and seeking to address these allegedly “newfound” cases
`for the first time in the proposed sur-reply). A failure to respond to issues raised in WDT’s opening
`brief does not justify a sur-reply.
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`2
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`Case 6:20-cv-01216-ADA Document 22 Filed 04/16/21 Page 3 of 5
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`required. See Reply (D.I. 20) at 10 (addressing Opp. (D.I. 19) at 19–20). Moreover, Ocean’s
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`proposed sur-reply on this point simply notes that this decision was an appeal of a judgment as a
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`matter of law (see Proposed Sur-reply (D.I. 21, Ex. A) at 10)—a fact that WDT already stated in
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`its reply brief. See Reply (D.I. 20) at 10. Again, no sur-reply is warranted.
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`In summary, Ocean has failed to identify any legitimate basis for sur-reply. Accordingly,
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`Ocean’s request for leave to file a sur-reply should be denied.
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`Dated: April 16, 2021
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`Respectfully submitted,
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` /s/ L. Kieran Kieckhefer
`David P. Whittlesey
`Shearman & Sterling LLP
`111 Congress Avenue, Suite 1700
`Austin, TX 78701
`Telephone: 512.647.1907
`Facsimile: 512.857.6602
`David.Whittlesey@Shearman.com
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`L. Kieran Kieckhefer (pro hac vice)
`Shearman & Sterling LLP
`535 Mission Street, 25th Floor
`San Francisco, CA 94105
`Telephone: 415.616.1124
`Facsimile: 415.616.1199
`Kieran.Kieckhefer@Shearman.com
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`Matthew G. Berkowitz (pro hac vice)
`Patrick R. Colsher* (pro hac vice)
`Joy (Yue) Wang (pro hac vice)
`Shearman & Sterling LLP
`1460 El Camino Real, 2nd Floor
`Menlo Park, CA 94025
`Telephone: 650.838.3737
`Facsimile: 650.838.5141
`Matt.Berkowitz@Shearman.com
`Patrick.Colsher@Shearman.com
`Joy.Wang@Shearman.com
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`*Admitted only in NY and NJ
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`3
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`Case 6:20-cv-01216-ADA Document 22 Filed 04/16/21 Page 4 of 5
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`Ahmed E. ElDessouki (pro hac vice)
`Shearman & Sterling LLP
`599 Lexington Ave.
`New York, NY 10022
`Telephone: 212.848.4908
`Facsimile: 646.848.4908
`Ahmed.ElDessouki@Shearman.com
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`Counsel for Defendant Western Digital Techs., Inc.
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`Case 6:20-cv-01216-ADA Document 22 Filed 04/16/21 Page 5 of 5
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certified that a true and correct copy of the above and foregoing
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`document has been served on April 16, 2021, to all counsel of record who are deemed to have
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`consented to electronic service via the Court’s CM/ECF.
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` /s/ L. Kieran Kieckhefer
`David P. Whittlesey
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