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(Dkt. 77, ¶¶ 7-40).) Aquatic propounded interrogatories and requests to produce on the defendants
in September 2014 and supplemental interrogatories and requests to produce in November 2014.
(Id., ¶10.) Thereafter, it followed up with defendants to obtain the written discovery reasonably
necessary to oppose the proposed summary judgment by meet and confer conferences on December
3, 2014 and January 7, 2015. (Id., ¶12.) Aquatic also (i) exchanged expedited Patent Local Rule 4-2
claim constructions on the terms at issue in the defendants’ proposed motion for summary judgment
on January 6, 2015, (ii) obtained samples of the Wired Remotes from Magnadyne on January 10,
2015, and (iii) deposed Magnadyne’s corporate representative, Mark Hockett, on January 29, 2015.
(Bohrer Decl., ¶7.) Mr. Hockett provided specific testimony at deposition regarding the function
and operation of the wired remotes. (Id., Ex. C.) At deposition, he used photographs of an
exemplar Wired Remote to demonstrate that the Wired Remote was a “user interface” and could be
physically attached and detached from the docking station. (Id., Ex. D.)
Aquatic also consulted with its technical expert Scott Ganaja regarding the samples of the
Wired Remotes as well as the testimony and exhibits obtained from Magnadyne’s corporate
representative, and Mr. Ganaja determined that the combination of the accused Magnadyne docking
stations with either the Wireless Remotes or the Wired Remotes infringes the asserted claims of the
‘756 patent. Mr. Ganaja’s infringement opinion and the bases therefor are discussed in the
concurrently filed declaration that he has submitted in support of Aquatic’s opposition to the
defendants’ motion for summary judgment.
III. LEGAL STANDARD
“Amendment of the Infringement Contentions ... may be made only by order of the Court
upon a timely showing of good cause.” Patent L.R. 3–6. The good cause inquiry “considers first
whether the moving party was diligent in amending its contentions and then whether the nonmoving
party would suffer prejudice if the motion to amend were granted.” Acer, Inc. v. Tech. Props. Ltd.,
2010 WL 3618687, at *3 (N.D.Cal. Sept. 10, 2010) (citing O2 Micro Int'l Ltd. v. Monolithic Power
Sys., Inc., 467 F.3d 1355, 1366–68 (Fed.Cir.2006)). “The burden is on the movant to establish
diligence rather than on the opposing party to establish lack of diligence.” Karl Storz Endoscopy–
America, Inc. v. Stryker Corp., 2011 WL 5574807, at *1 (N.D. Cal. Nov. 16, 2011) (quoting O2
-3-
AQUATIC’S NOT. OF MOT. AND MOT. FOR LEAVE TO AMEND INFRINGEMENT CONTENTIONS
Case No. 3:14-cv-01931-WHA
Case3:14-cv-01931-WHA Document87 Filed02/03/15 Page4 of 7
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