United States District Court, D. Nevada
ORDER [DEFENDANTS' MOTIONS TO STRIKE, ECF NOS.
73, 75] [DEFENDANTS' MOTION FOR EXTENSION OF TIME, ECF
FERENBACH, UNITED STATES MAGISTRATE JUDGE.
the Court is Defendants 888 Holdings; Bwin.Party Digital
Entertainment, Bwin.Party (USA), and Bwin.Party Entertainment
(NJ)'s motions to strike Plaintiffs CG Technology
Development, Interactive Games Limited, and Interactive Games
LLC's amended infringement contentions (ECF Nos. 73, 75),
Plaintiffs' response (ECF No. 76), and Defendants'
reply (ECF No. 77). Before the Court is also Defendants'
second motion for extension of time (ECF No. 92),
Plaintiffs' response (ECF No. 98), and Defendants'
reply (ECF No. 100). For the reasons stated below,
Defendants' motions to strike and motion for extension of
time are granted.
case arises from Plaintiffs' allegations that Defendants
have infringed on Plaintiffs' patents used in gaming.
Plaintiffs filed their initial disclosure of asserted claims
and infringement contentions on January 5, 2017. (ECF No. 73
at 2). Defendants subsequently filed their initial disclosure
of non-infringement, invalidity, and unenforceability
contentions. (ECF No. 76 at 1). In response to
Defendants' contentions, Plaintiffs filed an amended set
of contentions. (Id.). In a letter to Defendants,
Plaintiffs stated, “Based on Defendants'
noninfringement contentions, it became clear that
Defendants' misinterpreted Plaintiffs'
theories…. Plaintiffs responded by clarifying and
amplifying their positions, as to avoid further confusion,
particularly as these cases enter the scheduled claim
construction proceedings.” (ECF No. 73, Ex. 1 at 2).
briefings in this case highlight several changes made in
Plaintiffs' amended contentions. Plaintiffs added claims
26, 30, and 33 regarding the 818 patent. (ECF No. 73 at 1).
These claims are similar to Plaintiffs' original claims,
merely changing certain terms such as “portable
communication device” to “controller” and
“allowing play” to “either allowing
participation in the game…or adjusting the
game.” (Id. at 5). Plaintiffs also added
claims 1 and 6-9 regarding the 058 patent. (ECF No. 75 at 2).
These claims are similar to original claims, changing
“computer system” to “method” and
adding details about the display screen. (Id. at 3).
In addition, Plaintiffs changed terms used in its original
claims regarding the 818 and 952 patents, such as changing
“control switch” to “multiple capacitor
sensors” and changing the definition of
“selectable betting parameter.” (Id. at
filed two motions to strike the amended contentions on June
30, 2017. (ECF No. 73, 75). Defendants argue Plaintiffs lack
good cause to amend their contentions because the claims
should have been asserted in Plaintiffs' original
contentions. (ECF No. 73 at 5, ECF No. 75 at 4). Defendants
assert Plaintiffs are impermissibly setting a moving target
for Defendants to chase. (ECF No. 75 at 6-7). In response,
Plaintiffs argue amending their contentions was a
procedurally proper way to respond to Defendants'
misapprehension of Plaintiffs' claims. (ECF No. 76 at
the motions to strike were pending, the parties exchanged
their proposed terms for construction on August 10, 2017.
(ECF No. 91 at 2-3). Defendants proposed terms included
several terms added to, removed from, or altered in
Plaintiffs' amended contentions, such as “portable
communication device, ” “control switches,
” “allowing play, ” and “selectable
betting parameter.” (Id., Ex. 2 at 1-4).
however, asserted that “Plaintiffs do not believe that
any terms of [the patents] requires construction by the Court
at this time.” (Id., Ex. 1 at 1).
parties were originally scheduled to exchange their
preliminary claim constructions on September 8, 2017. (ECF
No. 91 at 2). Defendants filed a motion to extend this
deadline on August 28, 2107. (Id. at 1). Plaintiffs
argue addition time is needed to define the terms and prepare
evidence in support of the proposed definitions.
(Id. at 3-4). In response, Plaintiffs argue the
current discovery schedule is adequate to meet the
parties' discovery needs. (ECF No. 98 at 2-3).
support of their request for an extension of time to define
terms in this case, Defendants argue that the new or altered
claims at issue in their motions to strike present a moving
target until the motions to strike are resolved. (ECF No. 91
at 2, 7). As these motions are related, the Court will begin
by resolving Defendants' motions to strike
Plaintiffs' amended contentions.
Motion to Strike
argue there was no good cause for Plaintiffs to amend their
contentions because (1) the amended claims are similar to the
original claims, (2) the amended claims are based on the same
evidence as the original claims, and (3) Defendants will be
prejudiced by the amendments. (ECF No. 73 at 4-7; ECF No. 75
at 2-8). Plaintiffs argue there was good cause for the
amendment because (1) the rules of procedure allow amendments
as a form of responding to Defendants' contentions, (2)
the amendments were necessary to correct Defendants'
misapprehension of Plaintiffs' claims and add in
information provided in Defendants' contentions, and (3)
Defendants will not be prejudiced by the amendments. (ECF No.
76 at 2-10). Plaintiffs assert they did not change their
theory in the case but merely clarified their position.
(Id. at 10-12). For example, “Plaintiffs were
forced to clarify through their supplemental contentions that
a touch screen is a ‘control switch' based on its
functionality.” (Id. at 11).
Court does not agree that amending initial contentions should
be allowed as a response to initial noninfringement,
invalidity, and unenforceability contentions under LPR 1-10.
The process of serving a response and amending initial
contentions are controlled by separate rules. Plaintiffs'
arguments regarding ...