Order on Motion to Strike
Defendant Academy, Ltd. (“Academy”) moves to strike Plaintiff CXT Systems, Inc.’s (“CXT”) amended infringement contentions as untimely pursuant to Local P.R. 3-1 and Section 3(a)(i) of this Court’s Discovery Order.
On January 9, 2019, Academy notified CXT that it was making source code available for inspection. The parties then scheduled a code review for January 30, 2019. That same day, CXT’s reviewer inspected Academy’s source code and requested printouts of relevant sections. Academy mailed the source code printouts on February 4, 2019. CXT served its amended infringement contentions on February 21, 2019.
According to Academy, CXT should have served its amended infringement contentions on February 8, 2019. CXT relies on Section 3(a)(i) of the Discovery Order, which notes that “[i]f a party claiming patent infringement asserts that a claim element is a software limitation, the party need not comply with P.R. 3-1 for those claim elements until 30 days after source code for each Accused Instrumentality is produced by the opposing party.” Academy argues that the source “code was realistically available for inspection the following business day,” and therefore CXT had 30 days from January 9th to serve the amended infringement contentions.
This argument is unavailing, given that Academy does not argue that CXT was dilatory in scheduling a source code inspection. Indeed, once CXT’s source code reviewer was cleared pursuant to the Court’s Protective Order, CXT’s counsel contacted Academy’s counsel to schedule a source code inspection. It was Academy’s counsel who then scheduled source code review for January 30, 2019. There is no evidence that there was any unreasonable delay on CXT’s part in scheduling the source code inspection.
Without evidence of CXT’s unreasonable delay in scheduling the source code review, CXT is entitled to serve its amended infringement contentions 30 days after the source code inspection. Here, the inspection took place on January 30, 2019 and CXT served its amended infringement contentions on February 22, 2019, within the 30-day window provided by the Local Patent Rules and the Court’s Discovery Order. Accordingly, Academy’s motion to strike is DENIED.
Case No. 2:18-CV-00171 (LEAD)
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