On June 26, 2012, ALJ Charles E. Bullock issued Order No. 44 (dated May 1, 2012) granting Complainant’s motion to compel product samples and source code in Certain Computer Forensic Devices and Products Containing Same (Inv. No. 337-TA-799).
By way of background, the investigation is based on a July 22, 2011 complaint filed by MyKey Technology Inc. (“MyKey”) alleging violation of Section 337 in the importation into the U.S. and sale of certain computer forensic devices and products that infringe one or more claims of various U.S. patents. See our July 28, 2011 post for more details.
According to the Order, MyKey filed a motion to compel Respondent CRU Acquisitions Group LLC (“CRU”) and Respondents Guidance Software, Inc. and Guidance Tableau LLC (collectively, “Guidance”) to produce product samples and source code for certain accused products. According to MyKey, both CRU and Guidance failed to provide samples of the full scope of their accused products and code, listing the specific accused products for which no samples were received (noting that CRU offered only three products for inspection out of thirty-two accused products). MyKey asserted that its requests to CRU and Guidance for additional samples have been refused.
Guidance filed an opposition to the motion, stating that it produced its samples for inspection, and was not opposed to making samples available, provided that “MyKey adhere to the same rules.” CRU also filed an opposition to the motion, but as it was filed after the deadline for responses, it was not considered. The Commission Investigative Staff filed a response in support of MyKey’s motion, noting there “does not appear to be any justification for producing some but not all of the accused products for inspection.”
ALJ Bullock began by considering whether or not the requested material is relevant and thus discoverable, concluding “there is no dispute that product samples and source code are relevant to this Investigation.” Thus, the ALJ determined that CRU and Guidance “failed to comply with their discovery obligations” and they were ordered to produce the requested samples and source code within five days.