On February 20, 2014, ALJ E. James Gildea issued Order No. 24 denying respondents’ motion to strike untimely infringement contentions in Certain Silicon Microphone Packages and Products Containing Same (Inv. No. 337-TA-888). 

According to the Order, respondents GoerTek, Inc. and GoerTek Electronics, Inc. (collectively, “GoerTek”) filed a motion to strike allegedly untimely infringement contentions served by Complainant Knowles Electronics, LLC (“Knowles”).  GoerTek stated that Knowles served two supplements to its contention interrogatory responses after the deadline for initial contention interrogatory responses and that the first supplement was served only nine days before the close of fact discovery and contained substantial new arguments based on discovery previously available to Knowles. 

Knowles argued that the motion should be denied because (1) GoerTek never requested further detail from Knowles and waited almost four weeks after Knowles served its initial contentions to allege any deficiency and then waited several more weeks before raising the issue in a motion to strike, (2) because GoerTek delayed the production of relevant technical discovery and Knowles’ supplementations incorporated numerous late-produced documents and deposition testimony, and (3) because GoerTek had not identified any prejudice arising from Knowles’ supplementation because GoerTek had ample time to address the supplements in rebuttal expert reports. 

ALJ Gildea found that GoerTek’s argument was misleading and unpersuasive and that Knowles’ October 24, 2013 interrogatory responses put GoerTek on notice of Knowles’ infringement theories, and that GoerTek has not specifically identified any new theories presented in the supplemental contentions.  Therefore, ALJ Gildea found that GoerTek had not shown that it would be prejudiced if the responses were not stricken.  ALJ Gildea also found that Knowles’ supplemental responses were provided, at least in part, in response to the parties’ stipulation regarding representative products and to extensive discovery produced by GoerTek after Knowles’ initial contentions were served.  Accordingly, ALJ Gildea denied the motion.