On February 23, 2012, ALJ David P. Shaw issued the public version of Order No. 24 (dated December 12, 2011) granting Complainants Motorola Mobility, Inc. and General Instrument Corporation’s (collectively, “Motorola”) motion to present certain evidence at the evidentiary hearing in Certain Gaming And Entertainment Consoles, Related Software, And Components Thereof (Inv. No. 337-TA-752).

By way of background, the investigation is based on a November 22, 2010 complaint filed by Motorola alleging that Microsoft Corp. (“Microsoft”) violated Section 337 by infringing various patents.  See our November 24, 2010 post for more details.

According to the Order, Motorola sought “leave to present at the hearing certain evidence that was the subject of discovery timely commenced prior to the discovery cutoff, but obtained only afterward, as well as certain expert reports and testimony that addressed such discovery.”  Motorola presented its arguments in three groups.  First, Motorola sought leave to present evidence relating to the deposition of Microsoft’s Ashley Speicher taken after the grant of Motorola’s motion to compel discovery (Order No. 15, Aug. 31, 2011), and evidence relating to the supplemental expert report of Timothy Drabik, Motorola’s expert, responsive to arguments presented for the first time in Microsoft’s rebuttal expert reports (“Group 1” evidence).  Second, Motorola sought leave to present evidence relating to two expert reports regarding infringement of Motorola’s patents in light of source code that was the subject of depositions conducted on the last day of fact discovery (“Group 2” evidence).  Third, Motorola sought leave to present evidence concerning depositions and expert reports obtained after the last day of fact discovery and relating to source code used in third party devices included in Motorola’s domestic industry products (“Group 3” evidence).

Microsoft opposed the motion stating that it “would be severely prejudiced by Motorola’s inexcusable delay in both obtaining third-party discovery and serving its expert reports well past the established deadlines, and in moving for leave to rely on such untimely materials after the parties have already completed the majority of their pretrial exchanges,” including, inter alia, claim constructions, direct exhibits, direct witness statements, and deposition designations.

In this instance, ALJ Shaw found Motorola’s arguments to be persuasive and granted Motorola’s motion in its entirety.  Specifically, with respect to Group 1, ALJ Shaw determined that it was appropriate for Motorola to rely on the expert report of Timothy Drabik, and the deposition of Ashley Speicher, as these matters were the subject of Motorola’s motion to compel discovery.  With respect to Group 2 and 3 evidence, ALJ Shaw determined that it was permissible for Motorola to rely on the evidence in light of reasonable delays encountered by Motorola.