The Federal Circuit Court of Appeals has upheld nearly $44,000 in sanctions imposed on the attorney for a plaintiff in patent litigation, finding that he was equally responsible for his client’s failure to adequately respond to an interrogatory seeking its infringement theory. Rates Tech., Inc. v. Mediatrix Telecom, Inc., No. 2011-1384 (Fed. Cir., decided July 26, 2012). The disputed patents involved systems for minimizing the cost of placing long-distance telephone calls.  

The interrogatory sought the basis for each claim of infringement, “including without limitation, identification on an element-by-element basis of the component, structure, feature, functionality, method or process of each accused Mediatrix product that allegedly satisfies each element.” According to the Federal Circuit, the plaintiff failed on four separate occasions to respond to the “contention” interrogatory despite the court’s repeated orders that it do so.  

On appeal, the plaintiff’s counsel argued that he should not be sanctioned for failing to provide information not within his possession and that he did not personally violate any discovery orders. The court found that the “thousands of pages of technical drawings and other documents” produced by the defendant in discovery was “substantial” and enabled the plaintiff and counsel “to make an element-by-element claim construction analysis” as requested by the interrogatory. Thus, the court rejected counsel’s argument that “sanctioning him for failing to produce information not within his possession violated his due process rights.” The court also found that counsel had more than adequate notice that he could be subject to sanctions for failing to comply with the lower court’s directives.