On September 11, 2015, ALJ David P. Shaw issued the public version of Order No. 20 (dated August 17, 2015) in Certain Electronic Devices, Including Wireless Communication Devices, Computers, Tablet Computers, Digital Media Players, and Cameras (Inv. No. 337-TA-952).
By way of background, this investigation is based on a February 26, 2015 complaint filed by Ericsson Inc. alleging violation by Apple Inc. a/k/a Apple Computer Inc. of Section 337 in the importation into the U.S. and sale of certain wireless standard compliant electronic devices, including communication devices and tablet computers that infringe one or more claims of U.S. Patent Nos. 8,717,996; 8,660,270; 6,058,359; 6,301,556; 8,102,805; 8,607,130; 8,837,381; and 8,331,476. See our March 2, 2015 and April 2, 2015 posts for more details on the complaint and Notice of Investigation, respectively.
According to the Order, Complainants Ericsson Inc. and Telefonaktiebolaget LM Ericsson (collectively, "Ericsson") filed a motion to compel Apple Inc. ("Apple") "to produce all missing source code responsive to Ericsson's discovery requests, namely Ericsson Request for Production Nos. 12, 16, 47–63, 69–71, 73–77, 79, 81, 82, 94–113 and 124." Specifically, Ericsson argued that Apple should know what portions of its source code are responsive to Ericsson's discovery requests but had only produced a portion of the source code that was responsive. Ericsson further noted that Apple had engaged in serial meet and confers in an attempt to improperly delay discovery and that, as the close of discovery was less than a month away, Ericsson could no longer tolerate Apple's failure to produce relevant source code and prejudicial delay tactics.
In opposition, Apple argued that Ericsson had prematurely filed its motion to compel, that much of Ericsson's motion was moot because Apple informed Ericsson that it had resolved some of the issues identified in Ericsson's motion prior to the filing of the motion, and that Apple had produced the majority of Ericsson's outstanding requests in four supplemental productions. Additionally, Apple argued that it had not refused to produce any source code relevant to Ericsson's infringement theory and had only refused to produce source code that was irrelevant to any issue in the investigation.
After reviewing the evidence, ALJ Shaw found that Apple had already produced most of the source code that Ericsson sought in its motion. Thus, ALJ Shaw denied the portion of the pending motion pertaining to the first, already produced, subset of source code as moot. Regarding the second subset of source code sought by Ericsson, ALJ Shaw found that some of the source code may be relevant to U.S. Patent No. 8,812,059 and ordered Apple to produce the missing source code files by August 21, 2015. With respect to the third subset of source code, ALJ Shaw denied the motion finding that Ericsson had failed to show that the third subset was relevant to the issues in the investigation.