By Eric Schweibenz and Tom Yebernetsky
On March 12, 2015, ALJ David P. Shaw issued Order No. 11 in Certain Dental Implants (Inv. No. 337-TA-934).

By way of background, this investigation is based on a September 25, 2014 complaint filed by Nobel Biocare Services AG and Nobel Biocare USA, LLC (collectively, "Nobel") alleging that Respondents Instradent USA, Inc., formerly known as Neodent USA, Inc., and JJGC Industria e Comercio de Materiais Dentarios S/A (collectively, "Neodent") violated Section 337 in the importation into the U.S. and sale of certain dental implants that infringe one or more claims of U.S. Patent Nos. 8,714,977 and 8,764,443.  See our September 29, 2014 and October 22, 2014 posts for more details on the complaint and the notice of investigation, respectively.

According to the Order, non-party DevRight LLC ("DevRight") filed a motion seeking to quash a subpoena ad testificandum issued by Nobel. Specifically, the subpoena requires that DevRight provide a witness to testify regarding various aspects of Neodent's Ambassador Program.  The Order noted that "DevRight is a professional services firm that trained dentists to improve their lecturing and presentation skills on behalf of Neodent as part of Neodent's Ambassador Program."  DevRight argued that the subpoena should be quashed because DevRight's program was limited to effective lecturing skill and not the technical details of Neodent's products.  Furthermore, DevRight asserted that Neodent is the best source of technical information on the accused products.

In opposition, Nobel argued that the "deposition subpoena is narrowly tailored to obtain relevant testimony regarding DevRight's involvement in the Neodent Ambassador Program, including its involvement in helping clinicians refine their audiovisual presentations on the Neodent system."  Specifically, Nobel asserted that is sought information relevant to infringement and secondary considerations of nonobviousness contained in presentations used during Neodent's Ambassador Program.

ALJ Shaw held that "[t]he information Nobel seeks via the subpoena at issue overlaps in large part with the information sought via the subpoena duces tecum served on DevRight."  ALJ Shaw noted that Nobel can seek the relief they desire, i.e., production of the presentations, using a motion to compel or a motion to enforce the subpoena duces tecum.  Accordingly, ALJ Shaw granted DevRight's motion to quash.