On April 24, 2012, Chief ALJ Charles E. Bullock issued the public version of Order No. 40 (dated April 12, 2012) in Certain Digital Televisions and Components Thereof (Inv. No. 337-TA-789).  In the Order, ALJ Bullock denied Respondents Coby Electronics America, Inc., Sceptre, Inc. and Westinghouse Digital, LLC’s (collectively, “Respondents”) motion for leave to file a supplemental notice of prior art.

In support of the motion, Respondents argued that certain prior art was recently discovered and thus it was impossible to include this prior art by the January 18, 2012 deadline.  Respondents further argued that there was sufficient time remaining before the evidentiary hearing to alleviate any prejudice to the other parties and that granting this motion would further the public interest.  Complainant Vizio, Inc. (“Vizio”) opposed the motion and argued that it was untimely since Respondents knew of the prior art “from the beginning of the investigation.”  Vizio also argued, inter alia, that it would be severely prejudiced by the supplementation because fact discovery is over and thus it would be unable to properly conduct discovery regarding Respondents’ new prior art allegations.

According to the Order, ALJ Bullock noted that his Ground Rule 5 requires the parties to file a notice of prior on or before the date set forth in the procedural schedule.  The rule provides that “[i]n the absence of such notice, proof of said matter may not be introduced into evidence at the hearing except upon a timely written motion showing good cause.”  ALJ Bullock determined that the Respondents failed to demonstrate good cause to allow the supplemental notice of prior art since documents produced by Vizio early in the investigation referenced the prior art and thus Respondents “knew or should have known of the [prior art] as early as August 2011 and should have diligently pursued discovery related to [such prior art].”  Instead, Respondents waited nearly three months to seek a subpoena and waited nearly five weeks to file the present motion.  ALJ Bullock further determined that Respondents argument that “they needed to ‘authenticate’ the documents does not suffice as a reasonable explanation for why they delayed their supplementation.”  Accordingly, ALJ Bullock denied the Respondents’ motion for leave to supplement their notice of prior art.