On August 22, 2011, ALJ Robert K. Rogers, Jr. issued Order No. 24C in Certain Liquid Crystal Display Devices, Including Monitors, Televisions, and Modules, and Components Thereof (Inv. No. 337-TA-741/749).  In the Order, ALJ Rogers granted-in-part and denied-in-part Complainants Thomson Licensing SAS and Thomson Licensing LLC’s (collectively, “Thomson”) motion to strike untimely prior art contentions and related portions of expert reports.

According to the Order, Thomson asserted that it served contention interrogatories in October and December 2010 requesting claim charts for the prior art Respondents intended to rely upon. Although Respondents Chimei Innolux Corp., Chi Mei Optoelectronics USA, Inc., Innolux Corp. (collectively, “CMI”); Qisda Corp., Qisda America Corp., Qisda (Suzhou) Co., Ltd. (collectively, “Qisda”); BenQ Corp., BenQ America Corp., BenQ Latin America (collectively, “BenQ”); AU Optronics Corp., and AU Optronics Corp. America (collectively, “AUO”) provided timely responses to the contention interrogatories, Thomson argued that Respondents improperly supplemented those interrogatories in May and June 2011 to include claim charts for additional prior art references. Thomson asserted that this supplementation was untimely and thus, the supplemental prior art contentions and expert opinions related to those contentions should be stricken.

In opposition, AUO argued that the supplementation was prior to the close of fact discovery and that Thomson was not prejudiced by the supplementation as Thomson’s expert had the opportunity to respond to all prior art contentions at issue. CMI, Qisda, and BenQ incorporated by reference AUO’s opposition.

ALJ Rogers determined that because Respondents should reasonably be allowed to supplement their invalidity contentions after finalizing their notice of prior art, the proper frame of reference for timeliness was not the due date for the contention interrogatories, but rather the date on which the notice of prior art was due – in this case, April 15, 2011. The ALJ then stated that supplementations made less than one month after this date would be reasonable under the circumstances. Accordingly, ALJ Rogers determined that Respondents’ May 10, 2011 and May 13, 2011 supplementations were timely, while their May 25, 2011 and June 3, 2011 supplementations were untimely. Accordingly, Thomson’s motion was granted-in-part and denied-in-part and Respondents’ experts were precluded from relying on three items of prior art whose claim charts were provided in the May 25, 2011 and June 3, 2011 supplementations.