A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Accused Products

Television
Ajeet Mestry, Unsplash

Last week Magistrate Judge Burke ruled on a core technical documents dispute in The Nielsen Company (US), LLC v. TVision Insights, Inc., C.A. No. 21-1592 (D. Del.). The defendants sought to avoid production of core technical documents for a product that was accused but that could not infringe. Judge Burke rejected that position:

Defendant shall produce core technical documents for the Logitech-based system. . . . [I]f the Court did not allow discovery of properly-accused products every time a defendant said that its product did not infringe the patent-in-suit, there would be little to no discovery permitted in the patent cases in this Court.

He suggested that the infringement allegation here was not completely baseless, and that whether the product meets the claims depends on claim construction:

The real dispute here appears to be about whether a product can infringe the relevant patent if it contains a two-dimensional and three-dimensional sensor that are implemented in one piece of hardware. . . . It strikes the Court that that issue may get resolved via claim construction, or, if not, then pursuant to a later dispute (perhaps at summary judgment) regarding infringement. But those steps in the case are still to come.

He also rejected the ...

Shades of Coffee

Delaware’s Default Standard for Discovery requires that plaintiff “specifically identify the accused products and the asserted patent(s) they allegedly infringe” within 30 days of the Rule 16 Scheduling Conference. So, if the accused products were not identified in the complaint itself, they must be identified early in discovery. But what is the scope of discovery on products that were not specifically identified in the complaint or accused before the Default Standard deadline?

Can plaintiffs seek information regarding “substantially similar” models? Generally, this question is answered on a case-by-case basis using three factors found in in Invensas Corp. v. Renesas Elecs. Corp., 287 F.R.D. 273, 282 (D. Del. 2012):

(1) [A]s to relevance, the specificity with which the plaintiff has articulated how the unaccused products are relevant to its existing claims of infringement (and how they are thus “reasonably similar” to the accused products at issue in those claims);
(2) [W]hether the plaintiff had the ability to identify such products via publicly available information prior to the request; and
(3) [T]he nature of the burden on defendant(s) to produce the type of discovery sought.

In an order last week, Judge Fallon denied ...