1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S MARCH 29, 2006 ORDER—No. C-05-01668

RMW 

JAH

E-FILED on 5/8/06

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

COMPUTER CACHE COHERENCY

CORPORATION,

Plaintiff,

v.

VIA TECHNOLOGIES, INC. and VIA

TECHNOLOGIES, INC (USA),

Defendants.

No. C-05-01668 RMW

ORDER OVERRULING PLAINTIFF'S

OBJECTIONS TO THE MAGISTRATE

JUDGE'S MARCH 29, 2006 ORDER

[Re Docket Nos. 73, 85]

Plaintiff Computer Cache Coherence Corporation ("CCCC") objects to the March 29, 2006

order ("MJO") of the magistrate judge assigned to this case. For the reasons given below, the court

overrules CCCC's objections to the order as the court does find the magistrate judge's order clearly

erroneous or contrary to law.

I. BACKGROUND

Some time after serving its preliminary infringement contentions as required by Patent L.R.

3-1, CCCC, without leave of court, filed supplemental infringement contentions that (1) defendants

Case 5:05-cv-01668-RMW Document 90 Filed 05/08/06 Page 1 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

 It is not entirely clear from the record exactly which sixteen—if sixteen is indeed the correct

number—of Via's products were newly added by CCCC's supplemental infringement contentions.

ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S MARCH 29, 2006 ORDER—No. C-05-01668

RMW 

JAH 2

Via Technologies, Inc. and Via Technologies, Inc. (USA) (collectively "Via") infringed two

additional claims of CCCC's patent-in-suit, and (2) that Via made sixteen1 additional products that

infringed CCCC's patent-in-suit. CCCC objects that the magistrate judge incorrectly granted Via's

motion to strike CCCC's supplemental infringement contentions for noncompliance with the Patent

Local Rules. 

II. ANALYSIS

CCCC raises several objections to the magistrate judge's order; the court will address each in

turn.

A. Amendment under Patent L.R. 3-6(a)

CCCC claims its supplemental infringement contentions should have been allowed under

Patent L.R. 3-6(a). That rule provides

3-6. Final Contentions.

Each party’s "Preliminary Infringement Contentions" and "Preliminary Invalidity

Contentions" shall be deemed to be that party’s final contentions, except as set forth

below.

(a) If a party claiming patent infringement believes in good faith that (1) the

Court’s Claim Construction Ruling or (2) the documents produced pursuant to

Patent L.R. 3-4 so requires, not later than 30 days after service by the Court of its

Claim Construction Ruling, that party may serve "Final Infringement

Contentions" without leave of court that amend its "Preliminary Infringement

Contentions" with respect to the information required by Patent L.R. 3-1(c) and

(d).

(b) Not later than 50 days after service by the Court of its Claim Construction

Ruling, each party opposing a claim of patent infringement may serve "Final

Invalidity Contentions" without leave of court that amend its "Preliminary

Invalidity Contentions" with respect to the information required by Patent L.R. 3-

3 if:

(1) a party claiming patent infringement has served "Final Infringement

Contentions" pursuant to Patent L.R. 3-6(a), or

(2) the party opposing a claim of patent infringement believes in good

faith that the Court’s Claim Construction Ruling so requires.

The magistrate judge was correct that this rule is inapplicable to the situation under consideration. 

This rule only applies in two sets of circumstances: (1) the court's Claim Construction Ruling

Case 5:05-cv-01668-RMW Document 90 Filed 05/08/06 Page 2 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

 CCCC's contention that the magistrate judge's order was contrary to Integrated Circuit Systems,

Inc. v. Realtek Semiconductor Co., 308 F. Supp. 2d 1106 (N.D. Cal. 2004) (additional products may

be alleged to infringe via Patent L.R. 3-6), is therefore irrelevant.

ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S MARCH 29, 2006 ORDER—No. C-05-01668

RMW 

JAH 3

requires amending the Preliminary Infringement Contentions, or (2) documents produced pursuant to

Patent L.R. 3-4 require amending the Preliminary Infringement Contentions. There has been no

claim construction hearing in this action, much less a ruling. Patent L.R. 3-4 provides 

3-4. Document Production Accompanying Preliminary Invalidity Contentions.

With the "Preliminary Invalidity Contentions," the party opposing a claim of patent

infringement must produce or make available for inspection and copying:

(a) Source code, specifications, schematics, flow charts, artwork, formulas, or

other documentation sufficient to show the operation of any aspects or elements

of an Accused Instrumentality identified by the patent claimant in its Patent L.R.

3-1(c) chart; and

(b) A copy of each item of prior art identified pursuant to Patent L.R. 3-3(a)

which does not appear in the file history of the patent(s) at issue. To the extent

any such item is not in English, an English translation of the portion(s) relied

upon must be produced.

The magistrate judge stated, 

This court is not persuaded that the conditions for amendment under Civ. L.R. 3-6(a)

exist. In its papers, CCCC did not argue that such circumstances were presented here;

and for the first time at the hearing, its counsel offered only a very generalized

statement that the amendment was prompted, in part, by non-public design

documents defendant produced, including (possibly) documents produced in the

course of settlement negotiations.

MJO at 3. CCCC also objects that it raised the issue of Patent L.R. 3-6(a) before the magistrate

judge. CCCC's briefs indeed mentioned Patent L.R. 3-6(a) to the magistrate, but only in passing. 

See, e.g., docket no. 54 at 1, 3. CCCC brought no facts to the attention of the magistrate judge that

would have allowed him to determine that Patent L.R. 3-6(a) was indeed applicable.2

 The

magistrate judge's ruling on this point is therefore neither clearly erroneous nor contrary to law.

B. Amendment under Patent L.R. 3-7

Under Patent L.R. 3-7, a party may amend its Preliminary Infringement Contentions if Patent

L.R. 3-6 does not apply only upon order of the court and a showing of good cause. The magistrate

judge stated that CCCC 

makes no showing to support its bare assertion that it acted with diligence in

investigating VIA’s products with respect to Claims 2 and 3 of the ‘369 patent. 

Case 5:05-cv-01668-RMW Document 90 Filed 05/08/06 Page 3 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S MARCH 29, 2006 ORDER—No. C-05-01668

RMW 

JAH 4

CCCC does not say what diligence it used before it served its initial PICs. Nor does

it identify when it began “its further investigation and analysis of Via’s accused

products.” Indeed, CCCC’s papers indicate that its investigation may have been

undertaken only after it served its initial PICs. Here, CCCC states that its amendment

was “based on a diligent and good faith investigation of Via’s products since its

initial PICs.” As noted above, CCCC asserted for the first time at the hearing that its

Supplemental PICs were based, in part, on some non-public design documents

produced by VIA. However, it has not pointed to any specific information disclosed

by VIA which would justify giving leave to assert the additional claims and relies

primarily upon generalizations in arguing about the accused products it seeks to add. 

Further, CCCC does not explain why, despite the exercise of reasonable diligence, it

could not assert Claims 2 and 3 earlier.

MJO at 6 (citations omitted). Examination of the record before the magistrate judge reveals that he

was correct: CCCC provided the magistrate judge with no evidence that it had been diligent, and

instead made only conclusory allegations that it had been so. 

Nor is CCCC's belated argument that evidence of its diligence is protected by attorney-client

privilege availing. CCCC did not raise this issue before the magistrate judge. It is difficult to

understand why a showing of due diligence would implicate the attorney-client privilege. In any

event, CCCC did not present that question to the magistrate judge who could have addressed the

issue, if necessary. Since it did not raise the issue before the magistrate judge, CCCC cannot now

raise the issue before the district court. 

On the record before the magistrate judge, there was no showing of good cause sufficient to

justify allowing amendment of CCCC's preliminary infringement contentions. The magistrate

judge's ruling on this point is therefore neither clearly erroneous nor contrary to law.

III. ORDER

For the foregoing reasons, the court overrules CCCC's objections to the magistrate judge's

March 29, 2006 order.

DATED: 5/8/06

RONALD M. WHYTE

United States District Judge

Case 5:05-cv-01668-RMW Document 90 Filed 05/08/06 Page 4 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S MARCH 29, 2006 ORDER—No. C-05-01668

RMW 

JAH 5

Notice of this document has been electronically sent to:

Counsel for Plaintiffs:

Lawrence M. Hadley hadleyl@hbdlawyers.com 

Roderick G. Dorman dormanr@hbdlawyers.com 

Omer Salik saliko@hbdlawyers.com 

Counsel for Defendants:

Jennifer Ochs jochs@wsgr.com 

Maura Rees mrees@wsgr.com 

Robert Paul Feldman rfeldman@wsgr.com 

Matthew R. Reed mreed@wsgr.com 

John Michael Farrell jfarrell@fr.com 

Joseph V Colaianni, Jr. Colaianni@fr.com 

Juanita R. Brooks brooks@fr.com 

Ruffin B. Cordell 

Timothy Wayne Riffe Riffe@fr.com 

Luann Loraine Simmons lsimmons@omm.com 

Mark E. Miller markmiller@omm.com 

Counsel are responsible for distributing copies of this document to co-counsel that have not

registered for e-filing under the court's CM/ECF program.

Dated: 5/8/06 /s/ JH

Chambers of Judge Whyte

Case 5:05-cv-01668-RMW Document 90 Filed 05/08/06 Page 5 of 5