Abbreviation Of Alj

ALJ Rogers Rules on Motions to Compel, Motions to Strike and ...

(Inv. No. 337-TA-717).

In Order No. 16 (dated December 6, 2010), ALJ Rogers denied Respondent Eastman Kodak Company’s (“Kodak”) motion to strike a portion of a supplemental expert report filed on behalf of Complainant Apple, Inc. (“Apple”).  According to the Order, Kodak argued that while the parties agreed that Apple’s expert could serve a supplemental expert declaration to address source code first produced by third parties after the deadline for initial expert reports, a portion of Apple’s supplemental expert report addressed the technical prong of the domestic industry requirement, which in turn was based on information available prior to the initial expert report deadline.  Apple responded that it would not rely upon this disputed portion of the supplemental report when its expert testifies on the technical prong.  ALJ Rogers determined that Apple would be held to its representation and on that basis denied Kodak’s motion as moot.

In Order No. 20 (dated December 9, 2010), ALJ Rogers granted-in-part Apple’s motion to strike Kodak’s second supplementary response to a contention interrogatory inquiring into the basis of Kodak’s ownership defense.  According to the Order, Apple argued that Kodak filed a second supplementary response to the interrogatory on November 3, 2010, which should be considered untimely, because Kodak’s response (1) was after the August 13, 2010 deadline for responding to contention interrogatories, (2) after the deadline for fact discovery, (3) raised a “plethora of new arguments” supporting Kodak’s contention that it jointly owns the two asserted patents, and (4) relied on documents in Kodak’s possession prior to August 13, 2010.  Kodak opposed the motion and countered that (1) it did not add any new argument, but rather identified parol evidence that it intends to rely upon to prove its ownership defense; (2) Apple was not prejudiced by the second supplemental response because all documents cited therein were already known to Apple prior to August 13, 2010, and many were even produced by Apple; (3) Apple’s motion violated ground rules requiring good-faith efforts to resolve the dispute, because Apple’s motion requested relief, in the alternative, to depose a further Kodak witness on this issue, when Kodak specifically offered such a witness to resolve the dispute, and Apple declined Kodak’s offer.

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