On May 9, 2012, Chief ALJ Charles E. Bullock issued the public version of Order No. 45 (dated April 19, 2012) in Certain Digital Televisions and Components Thereof (Inv. No. 337-TA-789).  In the Order, ALJ Bullock denied Respondents Coby Electronics Corp., ON Corp. US, Inc., Renesas Electronics Corp., Renesas Electronics America, Inc., and Sceptre, Inc’s (collectively, the “Respondents”) motion to strike portions of the Initial Expert Reports of Drs. Bill Lin and Anthony Acampora.

According to the Order, the Respondents sought to strike certain paragraphs of Dr. Lin’s and Dr. Acampora’s expert reports because the reports allegedly relied on constructions of the claim terms “a(x)” and “b(x)” in U.S. Patent No. 5,703,887 (the ‘887 patent) that had already been rejected by ALJ Bullock.  See our April 19, 2012 post for more details on ALJ Bullock’s claim construction order.  For example, the Order states that the Respondents contended that Dr. Lin had improperly relied on an embodiment from the ‘887 patent where a(x) = 1.  The Respondents also contended that Dr. Acampora had used Dr. Lin’s improper analysis to conclude that the QAM decoders in the Respondents’ and Complainant Vizio, Inc.’s (“Vizio”) products meet the explicit disclosure of the patent.

In opposition, Vizio argued that neither Dr. Lin nor Dr. Acampora were offering testimony concerning a claim construction other than that set forth in ALJ Bullock’s claim construction order.  For example, Vizio contended that “Dr. Lin’s analysis and proffered testimony expressly concerns identifying the accused structure in the accused devices – not comparing that identified structure to the claim language.”  Vizio further stated that Dr. Acampora had directly adopted ALJ Bullock’s claim construction.

The Commission Investigative Staff (“OUII”) also opposed the Respondents’ motion.  OUII contended that while Dr. Lin had not addressed or applied ALJ Bullock’s claim construction for the terms “a(x)” and “b(x),” he had also not relied on any construction for those terms different from ALJ Bullock’s construction.  OUII further asserted that Dr. Acampora’s opinions were governed by ALJ Bullock’s claim construction.

After considering the arguments, ALJ Bullock determined to deny the Respondents’ motion.  The ALJ found that while Dr. Lin’s report may not have applied or addressed the ALJ’s claim construction, it also did not apply a different claim construction.  Accordingly, whether Dr. Lin compared the accused structures to the specification instead of to the ALJ’s claim construction or the claim language itself went to the weight of the evidence, and was not a violation of the ground rules.  ALJ Bullock further found that Dr. Acampora’s opinion expressly relied on the ALJ’s claim construction.  Accordingly, ALJ Bullock denied the Respondents’ motion to strike the certain portions of Dr. Lin’s and Dr. Acampora’s expert reports.