Case 2:17-cv-00932-JLR Document 76 Filed 04/13/18 Page 1 of 8
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`THE HONORABLE JAMES L. ROBART
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON
`SEATTLE DIVISION
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` CASE NO. 2:17-cv-00932-JLR
`
`JURY TRIAL DEMANDED
`
`MOTION TO PRECLUDE
`CONSIDERATION OF BELATED
`CLAIMS CONSTRUCTION POSITIONS
`
`NOTE ON MOTION CALENDAR:
`MAY 4, 2018
`
`CYWEE GROUP LTD.,
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` Plaintiff,
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`HTC CORPORATION
`and
`HTC AMERICA, INC.,
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` Defendants.
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`CYWEE MOTION GROUP, LTD.’S MOTION TO
`PRECLUDE
`CASE NO. 2:17-CV-932-JLR– 1
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`
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

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`Case 2:17-cv-00932-JLR Document 76 Filed 04/13/18 Page 2 of 8
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`In their initial invalidity contentions, Defendants (collectively “HTC”) alleged that only a
`single term was indefinite. More than two months later, HTC alleged that three additional claim
`terms are also indefinite. HTC made these allegations less than a month before the parties’ Joint
`Claim Chart and Prehearing Statement deadline. HTC never sought leave to amend its invalidity
`contentions. Rather, HTC unilaterally alleged that three additional terms were indefinite in its
`Disclosure of Preliminary Claim Constructions and Evidence (the “Disclosure”). CyWee’s
`expert witness report on claim construction, which CyWee timely served more than a month and
`a half ago, did not address the indefiniteness of any terms beyond the sole term that HTC
`identified in its invalidity contentions. Hence, HTC’s belated and unwarranted assertion that
`three additional terms are indefinite substantially prejudices CyWee by preventing its expert
`from rendering an opinion applicable to this case. The Court should refuse to consider such late
`assertions in claims construction.
`
`I. FACTUAL BACKGROUND
`On December 14, 2017, this Court issued its minute order setting trial and related dates. Dkt.
`42. The order commands the parties to comply with the Court’s Standing Order (“Standing
`Order”). Id. at 2. The Standing Order, in turn, requires HTC to include “any grounds for
`invalidity based on indefiniteness, enablement, or written description under 35 U.S.C. §112” in
`its preliminary invalidity contentions. Standing Order at 2-3.
`On January 19, 2018, HTC served its invalidity contentions, an excerpt of which is attached
`hereto as Exhibit A. In its invalidity contentions, HTC identified only the term “the spatial
`reference frame” as indefinite. Based in part on those contentions, and pursuant to the Court’s
`scheduling order, on February 16, 2018, CyWee served its expert report regarding Markman
`issues, addressing indefiniteness only as to the term “the spatial reference frame.” Dkt. 42 at 1.
`Thereafter, HTC served its initial proposed claim terms on February 20, 2018 and its Disclosure,
`attached hereto as Exhibit B, on March 30, 2018.
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`CYWEE MOTION GROUP, LTD.’S MOTION TO
`PRECLUDE
`CASE NO. 2:17-CV-932-JLR– 2
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`
`
`

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`Case 2:17-cv-00932-JLR Document 76 Filed 04/13/18 Page 3 of 8
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`In its Disclosure, HTC alleged for the first time that the following three claim terms were
`indefinite:
` utilizing a comparison to compare the first signal set with the second signal set;
` comparing the second quaternion in relation to the measured angular velocities ωx, ωy,
`ωz of the current state at current time T with the measured axial accelerations Ax, Ay, Az
`and the predicted axial accelerations Ax', Ay', Az' also at current time T; and
` generating the orientation output based on the first signal set, the second signal set and
`the rotation output or based on the first signal set and the second signal set.
`See Ex. B at 4. HTC had not alleged that any of these terms were indefinite in its invalidity
`contentions. See Ex. A. CyWee immediately objected to HTC’s belated allegations of
`indefiniteness. The parties met and conferred on April 5, 2018; however, HTC refused to drop
`the additional claim terms referenced above, nor did it seek leave of Court to add them.1
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`II. ARGUMENT
`Rather than trying to narrow the issues in preparation for the Joint Claim Chart and
`Prehearing Statement, HTC now insists on expanding them and muddling the claim construction
`process. CyWee will be severely prejudiced by HTC’s belated allegations of indefiniteness. See
`Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989) (A party shows prejudice when it has been
`“unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it
`would have offered had the . . . amendments been timely.”). Had HTC complied with the
`Standing Order and timely identified all its assertions of indefiniteness, CyWee would have
`included the three additional claim terms in its expert report. Because HTC’s belated allegations
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`1 HTC later agreed to drop its allegations of indefiniteness for a fourth term, which it identified
`as a term to be construed for the first time in its Disclosure.
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`CYWEE MOTION GROUP, LTD.’S MOTION TO
`PRECLUDE
`CASE NO. 2:17-CV-932-JLR– 3
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`
`
`

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`Case 2:17-cv-00932-JLR Document 76 Filed 04/13/18 Page 4 of 8
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`of indefiniteness have deprived CyWee of the opportunity to address the three terms in its expert
`report, these additional claim terms should not be considered in claims construction. See id.
`Such prejudice to CyWee cannot be ameliorated by delaying claim construction to allow
`CyWee to supplement its expert report, because delaying claim construction would still prejudice
`CyWee. In patent cases, claim construction is the most critical pre-trial event. See e.g.
`Retractable Techs., Inc. v. Becton, Dickinson & Co., 659 F.3d 1369, 1370 (Fed. Cir. 2011)
`(Moore, J., dissenting) (joined by Rader, J.) (“Claim construction is the single most important
`event in the course of a patent litigation. It defines the scope of the property right being enforced
`and is often the difference between infringement and non-infringement, or validity and
`invalidity.”) Therefore, once a claim construction order issues, the case is more likely to settle
`because the parties would be able to evaluate their positions based on how the claims are
`construed. Here, any delay only compounds the harm CyWee suffers since CyWee’s patents are
`being infringed. Rather, the appropriate remedy to the prejudice caused by HTC’s belated
`indefiniteness assertions is for the Court to simply exclude those assertions from consideration.2
`Furthermore, the Northern District of California has held that “[a]ny invalidity theories not
`disclosed pursuant to Local Rule 3–3 are barred, accordingly, from presentation at trial (whether
`through expert opinion testimony or otherwise).” See Karl Storz Endoscopy-Am., Inc. v. Stryker
`Corp., No. 14-CV-00876-RS(JSC), 2017 WL 5257001, at *4 (N.D. Cal. Nov. 13, 2017) (citing
`MediaTek Inc. v. Freescale Semiconductor, Inc., No. 11-CV-5341-YGR, 2014 WL 690161, at *1
`(N.D. Cal. Feb. 21,2014) (emphasis added). In Karl Storz Endoscopy-Am., Inc., the defendant’s
`35 § 101 theories, not disclosed in its Invalidity Contentions, were stricken. Id. This District’s
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`2 CyWee’s prejudice cannot be mitigated, solely, through the use of extrinsic evidence from a
`different case, in a different district, and used in a different context. HTC cannot obstruct
`CyWee’s ability to defend against all theories of invalidity in this case simply by asserting new
`allegations of indefiniteness in the eleventh hour.
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`CYWEE MOTION GROUP, LTD.’S MOTION TO
`PRECLUDE
`CASE NO. 2:17-CV-932-JLR– 4
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`
`
`

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`Case 2:17-cv-00932-JLR Document 76 Filed 04/13/18 Page 5 of 8
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`Local Patent Rules are very similar to those of the Northern District of California. In fact, this
`Court has used those rules to interpret this District’s rules on various occasions. See e.g. Pac.
`Bioscience Labs., Inc. v. Nutra Luxe MD, LLC, No. C10-0230JLR, 2012 WL 12845608, at *2
`(W.D. Wash. July 9, 2012) (using the Northern District of California rules to evaluate Local
`Patent Rule 124). Consequently, this Court should bar HTC from attempting to use new theories
`it has failed to include in its Invalidity Contentions.
`HTC’s untimely indefiniteness assertions cannot be excused by amending its invalidity
`contentions. Local Patent Rule 124 allows for amendments of infringement contentions “only by
`order of the Court upon a timely showing of good cause.” L.P.R. 124. Setting aside arguendo the
`fact that it has not sought leave of Court to amend its invalidity contentions, HTC cannot show
`the necessary good cause for amendment. This District’s Local Patent Rules require the parties to
`provide early notice of their infringement contentions, and to proceed with diligence in amending
`those contentions. REC Software USA, Inc. v. Bamboo Solutions Corp., No. C11–0554JLR, 2012
`WL 3527891, at *2 (W.D. Wash. Aug. 15, 2012) (quoting O2 Micro Int’l Ltd. v. Monolithic
`Power Sys., Inc., 467 F.3d 1355, 1365-66 (Fed. Cir. 2006)). “In contrast to the more liberal
`policy for amending pleadings, ‘the philosophy behind amending claim charts is decidedly
`conservative and designed to prevent the ‘shifting sands’ approach to claim construction.’” Id.
`(emphasis added) (quoting LG Elecs., Inc. v. Q-Lily Computer, Inc., 211 F.R.D. 360, 367
`(N.D.Cal. 2002)). In determining whether there is good cause for amendment, this District
`follows a two-part test: (1) examining the diligence of the moving party; and (2) upon a finding
`of diligence, examining the prejudice to the non-moving party. Id. at *2-3.
`Here, HTC has not acted diligently, and an amendment would result in undue prejudice to
`CyWee. When HTC served its invalidity contention more than two months ago, there was
`nothing preventing HTC from asserting that the additional terms identified in the Disclosure are
`indefinite. HTC has made no effort to explain why it failed to allege the three claim terms as
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`CYWEE MOTION GROUP, LTD.’S MOTION TO
`PRECLUDE
`CASE NO. 2:17-CV-932-JLR– 5
`
`
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`
`
`

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`Case 2:17-cv-00932-JLR Document 76 Filed 04/13/18 Page 6 of 8
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`indefinite in the first place and did not timely seek to amend its contentions. HTC’s present
`attempt to add new indefiniteness assertions, less than a month before the parties’ Joint Claim
`Chart and Prehearing Statement and well after CyWee served its expert report, is precisely the
`kind of “shifting sand” approach to claim construction that the Local Patent Rules are designed
`to prevent. See id. at 2. The Local Patent Rules require parties “to crystallize their theories of the
`case early in the litigation and to adhere to those theories once they have been disclosed.” O2
`Micro Int’l Ltd., 467 F.3d at 1366 n.12 (emphasis added). This Court is not “forgiving of a
`party’s failure to move to amend its contentions to include a significant prior art reference or new
`infringement or invalidity theory,” and HTC’s conduct in this case presents no exception. REC
`Software USA, Inc., 2012 WL 3527891, at *5.
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`III. CONCLUSION
`HTC’s failure or refusal to abide by the Standing Order and timely disclose all its assertions
`of indefiniteness threatens to cause substantial prejudice to CyWee by (1) preventing CyWee
`from presenting expert opinions on such assertions; and/or (2) unnecessarily delaying the claims
`construction proceeding. To avoid such prejudice to CyWee, this Court should preclude HTC’s
`belated allegations of indefiniteness and the associated three claim terms from consideration.
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`Dated this 13th day of April, 2018.
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`Respectfully submitted,
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`/s/Carmen E. Bremer
`Carmen E. Bremer, WSBA 47,565
`carmen.bremer@bremerlawgroup.com
`BREMER LAW GROUP PLLC
`1700 Seventh Avenue, Suite 2100
`Seattle, WA 98101
`T: (206) 357-8442
`F: (206) 858-9730
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`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`
`CYWEE MOTION GROUP, LTD.’S MOTION TO
`PRECLUDE
`CASE NO. 2:17-CV-932-JLR– 6
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`Case 2:17-cv-00932-JLR Document 76 Filed 04/13/18 Page 7 of 8
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`Michael W. Shore* (mshore@shorechan.com)
`Alfonso G. Chan* (achan@shorechan.com)
`Christopher Evans* (cevans@shorechan.com)
`Ari B. Rafilson* (arafilson@shorechan.com)
`William D. Ellerman (wellerman@shorechan.com)
`Paul T. Beeler* (pbeeler@shorechan.com)
`SHORE CHAN DEPUMPO LLP
`901 Main Street, Suite 3300
`Dallas, Texas 75202
`T: (214) 593-9110
`F: (214) 593-9111
` Admitted pro hac vice
`
` *
`
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`Attorneys for Plaintiff CyWee Group Ltd.
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`CYWEE MOTION GROUP, LTD.’S MOTION TO
`PRECLUDE
`CASE NO. 2:17-CV-932-JLR– 7
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
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`Case 2:17-cv-00932-JLR Document 76 Filed 04/13/18 Page 8 of 8
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`CERTIFICATE OF SERVICE
`I hereby certify that on April 13, 2018, I presented this MOTION TO PRECLUDE to the
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`Clerk of the Court for filing and uploading to the CM/ECF system, which will send notification
`of such filing to all counsel of record.
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`Dated: April 13, 2018
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`/s/ Carmen E. Bremer
`Carmen E. Bremer
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`CYWEE MOTION GROUP, LTD.’S MOTION TO
`PRECLUDE
`CASE NO. 2:17-CV-932-JLR– 8
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`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`