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Symantec Corporation v. Veeam Corporation

United States District Court, Ninth Circuit

July 11, 2013



SUSAN ILLSTON, District Judge.

Currently before the Court is defendant Veeam's motion for leave to amend its invalidity contentions, to add two Symantec products as prior art. Pursuant to Civil Local Rule 7-1(b), the Court finds the matter appropriate for disposition without oral argument and therefore VACATES the hearing scheduled for July 19, 2013. For the reasons set forth below, the Court hereby GRANTS defendant's motion to amend its invalidity contentions.


Symantec is a software provider which has developed and owns patents in backup and recovery software, including NetBackup and Backup Exec, used in virtual data protection and storage. Compl. ¶¶ 17, 19 (Dkt. 20).[1] Veeam produces a Backup & Replication software suite, which "provides image-based backup tools, " that competes with Symantec's products in the market. Id. ¶ 28. Symantec asserts that Veeam has infringed its patents directly, contributorily, and through inducement.

Symantec initially acquired the early versions of its backup and recovery software in 2005, when it merged another software company. Id. ¶¶ 11, 13. After additional research and development, Symantec obtained the patents in suit. The patent at issue in this motion, the '682 patent, teaches a "snapshot" method to "selectively back-up desired files." Id. ¶¶ 25, 26.

In June 2012, Veeam served a document production request on Symantec, asking for, inter alia, documents relating to versions of two precursor backup and recovery products, the V2i Protector and Drive Image products. Decl. of Byron L. Pickard in Supp. of Deft.'s Mot. ("Pickard Decl."), Ex. 1. These two products are mentioned in the specification of the '682 patent. See Compl., Ex. D. In July 2012, Veeam served its invalidity contentions, but it did not include the V2i Protector or Drive Image. Pickard Decl., Ex. 3. In an email to Symantec in August 2012, Veeam explained that it did not include these two products in its invalidity contentions because it had not yet received any discovery:

The only reason these products were not included in the invalidity contentions is Symantec's failure to provide responsive documents. That is, without the requested documents we are not able to determine the particular features of those products and the dates on which those products were first used, sold, offered for sale, etc.

Id., Ex. 4.

Throughout March and April 2013, Symantec produced 189, 00 pages and 13, 000 files in response to discovery requests. Included in these productions were documents and files relating to the V2i Protector and Drive Image products. After reviewing these documents, Veeam requested to inspect the source code for the V2i Protector and Drive Image. The parties currently dispute whether Symantec must produce the source code.

On May 31, 2013, fact discovery closed. Four days later, Veeam filed its motion to amend its invalidity contentions, to include the V2i Protector and Drive Image products. See Proposed Amended Invalidity Contentions, Docket No. 133 (claiming that the V2i Protector and Drive Image, "as evidenced by the transcript of the Val A. Arbon deposition[, ] the V2I Protector 2.0 Server Edition User's Manual... [and] the Drive Image 7.0 User's Guide, anticipates each of the asserted claims of the '682 patent"). The expert discovery cutoff date is September 13, 2013, dispositive motions must be filed by October 11, 2013, and the jury trial is scheduled to begin February 3, 2014.


The Patent Local Rules provide, in relevant part: "Amendment or modification of the... Preliminary or Final Invalidity Contentions... may be made only by order of the Court, which shall be entered only upon a showing of good cause." Patent L.R. 3-6. "The local patent rules in the Northern District of California... requir[e] both the plaintiff and the defendant in patent cases to provide early notice of their infringement and invalidity contentions, and to proceed with diligence in amending those contentions when new information comes to light in the course of discovery. The rules thus seek to balance the right to develop new information in discovery with the need for certainty as to the legal theories." O2 Micro Int'l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355, 1365-66 (Fed. Cir. 2006). In determining whether a motion for leave to amend invalidity contentions should be granted, this Court has examined such factors as the relevance of newly-discovered prior art, whether the request to amend is motivated by gamesmanship, and whether the opposing party will be prejudiced by the amendment. See Yodlee, Inc. v. Cashedge, Inc., 2007 WL 1454259, *2-3 (N.D. Cal. May 17, 2007).

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." LG Elecs. Inc. v. Q-Lity Computer Inc., 211 F.R.D. 360, 367 (N.D. Cal. 2002) (citation omitted). The patent local rules were "designed to 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, ...

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