Patentees in federal court litigation are generally not required to identify every accused product in their complaint. Often, the complaint and early contentions identify an exemplary product or two, and the larger list of related accused products is hashed out during discovery. Simply identifying an exemplary product, however, does not entitle the patentee to demand that the defendant do all the work of identifying - and producing technical discovery on - similar products.
Judges in this District have historically limited patentees' ability to obtain discovery into unaccused products without articulating some basis for believing that those unaccused products infringe, or at least share some relevant characteristic with the products alleged to infringe in the complaint and/or contentions. Judge Burke regularly wades into these waters, applying a multi-factor test that acknowledges the relevant burdens but also leaves room for practical adjustments to those burdens where necessary.
That test was applied recently by Judge Burke in Fundamental Innovation Systems International LLC v. TCT Mobile (US) Inc., C.A. No. 20-552, and his analysis demonstrates...
