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Gopro, Inc. v. 360Heros, Inc.

United States District Court, N.D. California

April 6, 2017

GOPRO, INC., Plaintiff,
v.
360HEROS, INC., Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR LEAVE TO AMEND INFRINGEMENT CONTENTIONS RE: DKT. NO. 42

          SUSAN ILLSTON United States District Judge

         Before the Court is defendant 360Heros, Inc.'s (“360Heros'”) motion for leave to amend its infringement contentions. Dkt No. 42. Pursuant to Civil Local Rule 7-1(b), the Court determines that this matter is appropriate for resolution without oral argument and VACATES the hearing scheduled for April 14, 2017. For the reasons set forth below, the Court DENIES defendant's motion.

         BACKGROUND

         Plaintiff GoPro, Inc. (“GoPro”) filed this action on April 13, 2016. In its complaint, GoPro accuses 360Heros of infringing its “HERO” and “ABYSS” trademarks, infringing copyrighted images, and engaging in unfair competition. See Compl. (Dkt. No. 1). GoPro's complaint also seeks a declaratory judgment of non-infringement of U.S. Patent No. 9, 152, 019 (the “'019 patent”). Id. ¶¶ 73-76. 360Heros, owner of the '019 patent, filed a counterclaim against GoPro for patent infringement. Countercl. (Dkt. No. 25).

         On October 21, 2016, 360Heros served its initial asserted claims and infringement contentions, accusing GoPro's Odyssey and Abyss devices of literal infringement of the '019 patent. See Lowe Decl., Ex. 202 (Dkt. No. 42-1) at 23-42.[1] 360Heros now seeks the Court's leave to amend its infringement contentions to accuse GoPro's Omni device. Mot. (Dkt. No. 42).

         LEGAL STANDARD

         Patent Local Rule 3-6 provides, Amendment of the Infringement Contentions or the Invalidity Contentions may be made only by order of the Court upon a timely showing of good cause. Non-exhaustive examples of circumstances that may, absent undue prejudice to the non-moving party, support a finding of good cause include:

(a) A claim construction by the Court different from that proposed by the party seeking amendment;
(b) Recent discovery of material, prior art despite earlier diligent search; and
(c) Recent discovery of nonpublic information about the Accused Instrumentality which was not discovered, despite diligent efforts, before the service of the Infringement Contentions.

N.D. Cal. 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 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 moving party bears the burden of establishing diligence. O2 Micro, 467 F.3d at 1355. Where the moving party is unable to show diligence, there is “no need to consider the question of prejudice, ” although a court in its discretion may elect to do so. See id. at 1368 (affirming district court's denial of leave to amend upon finding the moving party was not diligent, without considering the question of prejudice to the non-moving party).

         “If the court finds that the moving party has acted with diligence, it must then determine whether the nonmoving party would suffer prejudice if the motion to amend were granted.” Apple Inc. v. Samsung Elecs. Co. Ltd, No. 12-cv-0630-LHK (PSG), 2013 WL 3246094, at *1 (N.D. Cal. June 26, 2013) (internal quotation marks omitted). “Prejudice is typically found when amending contentions stand[s] to disrupt the case schedule or other court orders.” Karl Storz Endoscopy-Am. v. Stryker Corp., No. 14-0876-RS (JSC), 2016 U.S. Dist. LEXIS 176876, at *8 (N.D. Cal. Dec. 21, 2016). “Courts have allowed amendments when the movant made an honest mistake, ...


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