On November 25, 2013, ALJ E. James Gildea issued the public versions of Order Nos. 37 and 38 (both dated November 14, 2013) in Certain Consumer Electronics with Display and Processing Capabilities (Inv. No. 337-TA-884).
According to Order No. 37, Complainant Graphics Properties Holdings, Inc. (“GPH”) filed a motion to compel Respondents Panasonic Corp. and Panasonic Corp. of America (collectively, “Panasonic”) to produce a witness knowledgeable about certain Panasonic source code. GPH further requested that the deposition occur in the United States. GPH argued that Panasonic’s deposition witness was unprepared to discuss the pertinent source code. In opposition, Panasonic asserted that the deposition topic did not require any knowledge of the source code as long as the witness could discuss the “structure, function, operation, and implementation of” the application processor. The Commission Investigative Staff (“OUII”) agreed with Panasonic’s argument.
ALJ Gildea determined that the deposition topic required a witness with knowledge of the source code because the deposition topic explicitly stated “Source Code.” ALJ Gildea also noted that GPH specifically requested a source code computer. As to the depositions location, ALJ Gildea held that the deposition must be held in the United States because it is not feasible to complete all the procedural steps to have the deposition in Japan before the imminent close of fact discovery. Accordingly, ALJ Gildea granted GPH’s Motion to Compel.
According to Order No. 38, GPH filed a motion to compel Panasonic to produce certain documents and interrogatory responses, as well as to make certain source code available for inspection. GPH argued that Panasonic is withholding key technical information related to the accused products. In opposition, Panasonic asserted that it has already produced most of the requested information and that some of the information is not in its possession, custody, or control. Panasonic further argued that GPH is seeking discovery despite evidence that the accused products do not infringe the asserted patent claims. OUII supported GPH’s Motion to Compel with respect to the source code.
As an initial matter, ALJ Gildea noted that the sole remaining issue is the production of source code for the accused products. ALJ Gildea determined that GPH should be permitted to inspect the source code and make its own determination as to whether the accused products infringe the asserted patent claims. Therefore, ALJ Gildea granted GPH’s Motion to Compel with respect to Panasonic’s source code.