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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

WELLCOMEMAT, LLC,

 Plaintiff,

v.

AYLO HOLDINGS S.à r.l., AYLO

FREESITES LTD, AYLO PREMIUM,

LTD, 9219-1568 QUEBEC, INC., and

JARROD BELTRAN,

 Defendants.

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CIVIL ACTION NO. 2:23-CV-00483-JRG-RSP

MEMORANDUM ORDER

Before the Court is the Motion for Leave to Supplement Infringement Contentions filed by 

Plaintiff WellcomeMat, LLC. Dkt. No. 103; Dkt. No. 111 (reply in support). Defendants Aylo 

Holdings S.à r.l., Aylo Freesites Ltd., Aylo Premium Ltd., and 9219-1568 Quebec, Inc. opposed 

the Motion through responsive briefing. Dkt. Nos. 104, 114, 118. For the reasons discussed below, 

the Motion is GRANTED. 

I. LEGAL STANDARD

“[A] party claiming patent infringement must serve on all parties” infringement 

contentions. P.R. 3-1. “Amendment or supplementation of any Infringement Contentions or 

Invalidity Contentions . . . may be made only by order of the Court, which shall be entered only 

upon a showing of good cause.” P.R. 3-6(b). “Good cause,” according to the Federal Circuit, 

“requires a showing of diligence.” O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 

1355, 1366 (Fed. Cir. 2006). Courts in this District routinely apply a four-factor test to determine 

whether good cause has been shown. See Alt v. Medtronic, Inc., No. 2:04-CV-370, 2006 WL 

278868, at *2 (E.D. Tex. Feb. 1, 2006) (citation omitted). Those four factors are: (1) the 

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explanation for the failure to meet the deadline; (2) potential prejudice in allowing the thing that 

would be excluded; (3) the importance of the thing that would be excluded; and (4) the availability 

of a continuance to cure such prejudice. The burden of proving good cause rests with the party 

seeking the untimely amendment. Id; S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 

F.3d 533, 536 (5th Cir. 2003)).

II. ANALYSIS

Plaintiff WellcomeMat seeks to add three items: additional supporting details, 

infringement contentions for dependent Claim 17, and a disclosure that Plaintiff practices the 

asserted claims. Dkt. No. 103 at 5. 

As an initial matter, Defendants respond to the requested supplements and amendments by 

raising several objections to the original contentions. Dkt. No. 104 at 6–9. Ultimately, Defendants 

assert that the proposed amended contentions replicate the perceived flaws, contending that 

amendment would be superfluous. Id. at 10. The Court finds that Defendants’ objections to 

the original contentions support Plaintiff’s request and the Court does not otherwise find 

that the amended contentions replicate deficiencies such that amendment would be inefficient. 

Further, the Court does not find that a motion to amend is the proper forum to adjudicate 

whether the contentions should be stricken. The Court turns to consideration of the four factors 

to determine whether good cause has been shown for the amendments. 

First, Plaintiff asserts that the amendments were diligently sought. Dkt. No. 103 at 12–17. 

Plaintiff contends that the need for amendment with regards to the additional details and Claim 17

was determined through recent discovery disclosures and that the delay is only 19 days. Dkt. No. 

103 at 12–16. Defendants respond that the proposed amendments rely on information that was

publicly available before the May 22 production. Dkt. No. 104 at 11, 14. For the additional details,

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Defendants attempt to distinguish technical documents that were disclosed during the production 

and then relied upon for the proposed amendments by pointing to publicly available information 

which Defendants assert reflects what is encompassed by the documents. Id. at 11–14. 

Defendants further rely on Plaintiff’s refusal to answer an interrogatory, regarding Plaintiff’s 

access to the accused websites, as showing a lack of good cause for amendment. Dkt. No. 118 at 

2. As for Claim 17, Defendants assert that use of the word “automatically” in publicly available 

documents, which Defendants contend mirrors language in Claim 17, shows that Plaintiff was 

not diligent. Dkt. No. 104 at 14–15. 

Second, Plaintiff asserts that the amendments are important to provide additional 

information about how the accused products work, provide an alternate means to prove 

infringement, and to rebut characterization of Plaintiff as an NPE. Dkt. No. 103 at 17–18. 

Defendants respond that the additional nature of the amendments undermine their 

importance, and that Defendants’ criticism of the original contentions was not an invitation to 

amend. Dkt. No. 104 at 16–17. 

Third, Plaintiff asserts that the early stage of the case mitigates any prejudice that could be 

suffered by Defendants. Dkt. No. 103 at 18–19. Defendants assert that the addition of new claims 

and subject matter introduces prejudice due to the need for further discovery. Dkt. No. 104 at 

17–18. Defendants contend specifically that, as to Claim 17, the “timing indicates an attempt to 

gain an unfair advantage in this litigation . . . directed at exploiting this Court’s rules to try to 

foil Defendants’ Motion to Stay.” Dkt. No. 104 at 18. Defendants’ argument is predicated on a 

finding that Plaintiff was not diligent in seeking the amendment. Id. 

Fourth, Plaintiff asserts that a continuance is not necessary and Defendants do not contest 

this assertion. Dkt. No. 103 at 19; see Dkt. No. 104. 

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Regarding the disclosure of practicing the asserted claims, Plaintiff contends that the need 

for amendment arose on “April 15 when Aylo accused WellcomeMat of being an NPE.” Dkt. No. 

103 at 17. Plaintiff asserts that an investigation into whether they practiced the asserted claims 

concluded on June 10 and the ensuing request for amendment was therefore timely. Id. Defendants 

respond that Plaintiff has waived the right to rely on a representation of practicing the asserted 

claims pursuant to P.R. 3-1(f). Dkt. No. 104 at 15–16. Further, Defendants assert that Plaintiff 

should be held to its earlier position that it does not practice the asserted patents since at all 

times Plaintiff was in the best position to evaluate its own products. Id. 

The Court finds that Plaintiff has adequately demonstrated diligence for the additional 

details and Claim 17. The potential for prejudice against Defendants is mitigated by the 

significantly early stage of this case. Claim construction briefing has yet to begin, fact discovery 

closes on February 11, 2025, and trial is set for July 7, 2025. 

Regarding the additional disclosure, the Court finds that P.R. 3-1(f) does not preclude 

amendment, but rather the good cause analysis pursuant to P.R. 3-6(b) would be applicable. The 

Court finds that the relevant delay in asserting the practicing position with respect to Plaintiff’s 

own products is from the initial disclosure until the amendment was sought. The Court is not 

persuaded that the earliest Plaintiff could have ascertained a need to assert this position was once 

it was used against them. However, the difference in resulting delay between these two reference 

points does not significantly tilt against a finding of good cause. And, where the only purpose of 

altering this position is to combat the notion that Plaintiff is an NPE, the Court finds that

importance with regards to this analysis is neutral. Finally, the Court does not find that the minimal

ensuing prejudice, given the early stages of this case, results in a lack of good cause to amend. 

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After weighing the factors for each of the requested amendments and supplements, 

Plaintiff’s Motion for Leave to Supplement Infringement Contentions (Dkt. No. 103) is 

GRANTED. It is ORDERED that Plaintiff has leave to supplement the contentions with the 

identified additional details, to amend the contentions to include Claim 17, and to amend the 

contentions to include the patent practicing disclosures. 

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