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Amgen Inc. v. Sandoz Inc.

United States District Court, N.D. California

April 18, 2017

AMGEN INC., ET AL., Plaintiffs,
v.
SANDOZ INC., et al., Defendants.

          DISCOVERY ORDER RE: DKT. NO. 224

          MARIA-ELENA JAMES United States Magistrate Judge

         INTRODUCTION

         Plaintiffs Amgen, Inc. and Amgen Manufacturing, Ltd. (collectively, “Amgen”) sue Defendants Sandoz Inc., Sandoz International GmbH, and Sandoz GmbH (collectively, “Sandoz”) for patent infringement. Pending before the Court is the parties' joint discovery letter brief regarding Amgen's amendment of its infringement contentions with respect to Patent No. 6, 162, 472 (the “'427 patent”). Jt. Ltr., Dkt. No. 224. Having considered the parties' positions, the relevant legal authority, and the record in this case, the Court issues the following order.

         BACKGROUND

         The '427 patent claims methods of using filgrastim in combination with a chemotherapeutic agent in patients undergoing stem cell transplantation. Jt. Ltr. at 1. On October 15, 2015, and pursuant to Patent Local Rule 3-6, Amgen served Sandoz with its first amended infringement contentions. Amgen asserts that Sandoz's filgrastim product infringes on claims of Amgen's '427 patent. Id. On August 4, 2016, the presiding judge in this matter, the Honorable Richard Seeborg, issued an Order construing the claims of the '427 patent. Order Construing Claims, Dkt. No. 205. On October 28, 2016, Judge Seeborg issued a Case Management Order, setting the deadline for fact discovery as May 10, 2017. Dkt. No. 220.

         On February 7, 2017, Amgen served Sandoz with its proposed second amended infringement contentions with redlines showing the anticipated changes. Jt. Ltr. at 1; see id., Ex. 1 (redlined version of proposed amendment). Sandoz opposes the amendment, and the parties filed the instant letter on April 12, 2017.[1]

         LEGAL STANDARD

         “The local patent rules in the Northern District of California . . . require[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.” O2 Micro Int'l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355, 1365-66 (Fed. Cir. 2006). To ensure this early notification, Patent Local Rule 3-1 requires “a party claiming patent infringement to serve on all parties a 'Disclosure of Asserted Claims and Infringement Contentions'” no later than fourteen days after the initial case management conference.

         Patent “Local Rule 3-6 serves to balance the parties' rights to develop new information in discovery along with the need for certainty in legal theories at the start of the case.” Slot Speaker Techs., Inc. v. Apple, Inc., 2017 WL 1278744, at *2 (N.D. Cal. Apr. 6, 2017) (internal quotation marks omitted). Nonetheless, “'[a]lthough federal courts are generally lenient in allowing parties to amend pleadings, such is not the case with amending preliminary infringement contentions.'” Karl Storz Endoscopy-Am., Inc. v. Stryker Corp. (“Karl Storz III”), 2016 WL 7386136, at *2 (N.D. Cal. Dec. 21, 2016) (quoting Berger v. Rossignol Ski Co., 2006 WL 1095914, at *2 (N.D. Cal. Apr. 25, 2006)).

         A party may amend its infringement contentions “only by order of the Court upon a timely showing of good cause.” Patent L.R. 3-6. “Good cause under the local rules is subject to a two-part inquiry, which considers whether: (i) the moving party has shown diligence in amending its contentions, and (ii) the non-moving party will not suffer undue prejudice.” Collaborative Agreements, LLC v. Adobe Sys. Inc., 2016 WL 1461487, at *4 (N.D. Cal. Apr. 14, 2016) (internal quotation marks, edits, and footnote omitted). “Diligence is 'the critical issue' in the good cause determination.” Karl Storz Endoscopy-Am., Inc. v. Stryker Corp. (“Karl Storz II”), 2016 WL 2855260, at *3 (N.D. Cal. May 13, 2016) (quoting Sunpower Corp. Sys. v. Sunlink Corp., 2009 WL 1657987, at *1 (N.D. Cal. June 12, 2009)). Absent undue prejudice, circumstances that support a finding of good cause may include, but are not limited to:

(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 ...

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