On August 11, 2015, ALJ Theodore R. Essex issued Order No. 8 in Certain Electronic Products, Including Products with Near Field Communication ("NFC") System-Level Functionality and/or Battery Power-Up Functionality, Components Thereof, and Products Containing Same (Inv. No. 337-TA-950).

By way of background, this investigation is based on a February 6, 2015 complaint filed by NXP B.V. and NXP Semiconductors USA, Inc. (collectively, "NXP") alleging violation of Section 337 in the importation into the U.S. and sale of certain electronic products, including products with near field communication system-level functionality and/or battery power-up functionality, components thereof, and products containing same that infringe one or more claims of U.S. Patent Nos. 7,412,230; 8,280,304; 8,065,389; 8,204,959; 8,412,185; and 6,590,365.  See our February 17, 2015 and March 23, 2015 posts for more details on the complaint and notice of investigation, respectively. 

According to the Order, NXP filed a motion for leave to amend the complaint to add 18 dependent claims from the asserted patents as well as remove respondent Dell, Inc.'s ("Dell") desktop computers.  NXP argued that there was good cause to amend the Complaint because (1) the proposed amendment is modest, (2) the dependent claims are "relatively minor alterations from the existing claims," and (3) the additional dependent claims would only be asserted against products that are already as issue in the investigation.  NXP additionally argued that the parties would not be prejudiced by the proposed amendment because there is sufficient time in the procedural schedule.

In opposition, Dell asserted that they would be prejudiced by the proposed amendment because "[o]nly two months remain in the six-month fact discovery window, the deadline for responding to contention interrogatories is just over a month away, and the parties already have exchanged proposed claim terms and reduced them to 20 total for construction."  Additionally, Dell argued that the scope of the subject matter added to the investigation by the proposed amendment was "grossly understate[d]" by NXP.  The Commission Investigative Staff ("OUII") also opposed NXP's motion to amend and argued that NXP has not shown good cause to amend.

ALJ Essex held that NXP failed to show good cause for the proposed amendment to the Complaint.  Specifically, ALJ Essex stated that NXP provided only a "cursory statement without providing any specific reasons to justify 'good cause.'"  Nevertheless, ALJ Essex granted NXP's request to terminate Dell's desktop computers from the investigation.  Accordingly, ALJ Essex granted-in-part and denied-in-part NXP's motion.