Plaintiff Synopsys, Inc. ("Synopsys") filed a motion to compel defendant, ATopTech, to respond to interrogatories. ATopTech opposed the motion by arguing that it had already answered Synopsys's Set One, Interrogatory Nos. 1-5, which contained at least 21 discrete subparts. ATopTech therefore contended that it was "not required to respond to any of the interrogatories in Set Two, Interrogatory Nos. 6-25, because the Set Two interrogatories also contain discrete subparts, and even responding to Interrogatory No. 6 would require ATopTech to exceed the 25 interrogatory limit under Federal Rule of Civil Procedure 33(a)(1)."

The district court began its analysis by noting that "[p]atent cases present unique challenges with respect to the application of Rule 33's numerical limit on interrogatories. A circuit judge for the Federal Circuit, sitting as the district court in a patent case, recently devoted an entire opinion to the issue of what constitutes a 'discrete subpart' for purposes of Rule 33(a)(1). See Erfindergemeinschaft Uropep GbR v. Eli Lilly & Co., 315 F.R.D. 191 (E.D. Tex. 2016).

This district court agreed "that the task of counting interrogatories requires a case-specific assessment. However, at least two recurring issues in patent cases have resulted in helpful principles. The first arises when one interrogatory asks a series of subpart questions about "all accused products." Where a case involves multiple accused products, courts generally have concluded that a single interrogatory seeking information about all accused products contains at least as many discrete subparts as there are accused products at issue, and potentially more depending on what information is sought about each accused product."

The district court also noted that "[t]his case involves a single accused product: Aprisa/Apogee. While there are different versions of Aprisa/Apogee at issue, Synopsys represents that 'all versions of the Aprisa/Apogee product are substantially similar with respect to the accused functionalities and infringe the above -listed claims in substantially the same way.'"

As a result, the district court granted the motion to compel. "Therefore, this court counts Aprisa/Apogee, including all of its versions, as one product. This means that an interrogatory that asks for specific information about 'all accused products' should be counted as one interrogatory, since the subparts all seek information about one distinct subject: Aprisa/Apogee. This is consistent with the approaches taken by the Collaboration Props., Inc., Rambus, Inc., and Stamps.com, Inc. courts, which look to the number of distinct accused products as a basis for counting interrogatories."

Synopsys, Inc. v. Atoptech, Inc., Case No. 13-cv-02965-MMC (DMR) (N.D. Cal. Nov. 16, 2016)