On May 9, 2013, ALJ E. James Gildea issued the public version of Order No. 35 (dated April 30, 2013) in Certain Wireless Consumer Electronics Devices and Components Thereof (Inv. No. 337-TA-853).
According to the Order, Respondents ZTE Corporation and ZTE (USA) Inc. (collectively, “ZTE”) moved to strike several of Complainants Technology Properties Limited, LLC, Phoenix Digital Solutions LLC, and Patriot Scientific Corporation’s (collectively, “Complainants”) discovery responses and related expert reports. Specifically, ZTE argued that Complainants submitted untimely supplemental infringement contention responses which included previously unasserted infringement allegations and new accused products. In opposition, Complainants maintained that they properly sought to provide representative charts of accused products and to supplement those charts when required. Further, Complainants asserted that they were not required to disclose every detail of an expert’s analysis in advance.
ALJ Gildea found that Complainants gave ZTE proper notice of 29 accused products, but failed to provide proper notice to the five accused products first disclosed in Complainants’ expert reports. Accordingly, the ALJ held that Complainants cannot rely on those five accused products in the investigation. Further, the portions of the expert reports which discuss those five accused products were stricken. Accordingly, ZTE’s motion was granted-in-part.