02
Feb
By Eric Schweibenz
On January 31, 2012, Chief ALJ Charles E. Bullock issued the public version of Order No. 33 (dated January 9, 2012) concerning a motion for leave to serve a supplemental expert report and a motion to strike one of Respondents’ supplemental expert reports filed by the Complainants Creative Kingdoms, LLC and New Kingdoms, LLC (collectively, “CK”) in Certain Video Game Systems and Wireless Controllers and Components Thereof (337-TA-770).

By way of background, this investigation was instituted on April 20, 2011 based on CK’s complaint alleging a violation of Section 337 by Respondents Nintendo of America, Inc. and Nintendo Co., Ltd. (collectively, “Nintendo”) for the importation into the U.S. and sale of certain video game systems and wireless controllers and components thereof, including Nintendo’s Wii wireless game system and controllers.  See our March 23, 2011 and April 21, 2011 posts for more information. 

According to the Order, CK filed a motion to serve a supplemental expert report alleging “Nintendo introduced certain claim construction arguments for the first time in the rebuttal expert report” and “Nintendo improperly refused to agree to a mutual exchange of claim constructions and signaled an intent to withhold its claim construction until the due date for rebuttal expert reports and the close of fact discovery.”  As a result, CK argued that it did not have an opportunity to take fact discovery or have its experts analyze these untimely constructions.  In response, Nintendo countered that both sides should be required to submit supplemental expert reports since neither side exchanged claim constructions at an early point.  Nintendo also argued that its claim construction position was not due any earlier according to the procedural schedule, and that it is unnecessary to seek leave to supplement an expert report since “supplementation is allowable under the Ground Rules and Commission Rules.” 

ALJ Bullock determined that CK had the better position on this issue, specifically rejecting Nintendo’s argument that the motion seeking leave to file a supplemental expert report was unnecessary.  The ALJ stated that he “generally requires parties to move for leave to serve supplemental expert reports” and that “CK has good cause to supplement its expert report.”  Accordingly, CK’s motion for leave to serve a supplemental report was granted.

CK argued to strike Nintendo’s supplemental expert report, asserting that it was served “long after the due date for opening and rebuttal expert reports” and “Nintendo failed to seek leave to file the supplemental report, even though it was outside of the time permitted by the procedural schedule.”  Nintendo opposed this motion, contending that there was no deadline for supplemental reports, and again asserting that “parties were permitted to supplement their expert reports without motions practice.” 

In this instance, ALJ Bullock found Nintendo’s arguments persuasive, noting that “contrary to CK’s assertions, the procedural schedule does not set forth any deadline for serving supplemental reports” and thus, Nintendo’s supplemental report was not untimely.  Therefore, even though the ALJ’s general practice is to require parties to move for leave to serve supplemental reports, CK’s motion to strike the expert report filed without such leave was denied.