Amendment to Contentions

(a) Amendment of the Infringement Contentions or the Invalidity Contentions may be made once as a matter of right, as follows: (1) A party claiming patent infringement may serve Amended Infringement Contentions (limited to the information required by Patent L.R. 3.1(c), (d), and (e not later than 28 days after filing by the court of its claim construction order if it believes in good faith that amendment is required by the court’s claim construction order. (2) A party opposing a claim of patent infringement may serve Amended Invalidity Contentions (limited to the information required by Patent L.R. 3.3) not later than 56 days after filing by the court of its claim construction order if: (A) a party claiming patent infringement has served Amended Infringement Contentions pursuant to Patent L.R. 3.5(a)(1) and believes in good faith that amendment is required based on an opposing party’s Amended Infringement Contentions, or (B) the party opposing a claim of patent infringement believes in good faith that amendment is required by the court’s claim construction order. (b) In all other situations, amendment of the Infringement Contentions or the Invalidity Contentions may be made only by order of the court upon a timely showing of good cause. Non-exhaustive examples of circumstances that typically will, absent undue prejudice to the non-moving party, support a finding of good cause include: (1) Recent discovery of material, prior art despite earlier diligent search; or 8 (2) Recent discovery of nonpublic information about the Accused Instrumentality that was not discovered, despite diligent efforts, before the service of the Infringement Contentions.

The duty to supplement discovery responses does not excuse the need to obtain leave of court to amend contentions. (c) The court will not entertain any motion seeking leave to amend the Infringement Contentions or the Invalidity Contentions until the following requirements have been satisfied: (1) (2) Counsel for the moving party has in good faith conferred or has made reasonable efforts to confer (consistent with Local Rule 37.1) by telephone or in person with opposing counsel concerning the amendment before filing the motion. Merely writing a letter is not sufficient. Counsel for the moving party must certify compliance with this rule in any subsequent motion for leave to amend; and If the parties resolve the issue, the moving party must file an unopposed motion for leave to amend expressly noting that opposing counsel does not oppose the motion.

If, however, the proposed amendment remains unresolved after the attorneys have conferred in person or by telephone, the parties must refer to Local Rule 37.1(a) regarding seeking court intervention.