By Eric Schweibenz and Michael West
On October 12, 2018, Chief ALJ Charles E. Bullock issued the public version of Order No. 26 (dated October 4, 2018) in Certain Graphics Processors and Products Containing the Same (Inv. No. 337-TA-1099)

By way of background, this investigation is based on a December 29, 2017 complaint filed by ZiiLabs Inc., Ltd. of Bermuda alleging violation of Section 337 by way of unlawful importation into the U.S., selling for importation, and/or selling within the U.S. after importation of certain graphics processors and products containing the same that infringe one or more claims of U.S. Patent Nos. 6,181,355; 6,900,800; 8,144,156; and 8,643,659. See our January 30, 2018 post for more details on the Notice of Investigation.

According to the Order, Complainant moved to compel: (1) Respondent NVIDIA Corporation (“NVIDIA”) to produce various categories of source code; and (2) Respondents ASUSTeK Computer Inc., ASUS Computer International, EVGA Corporation, Qigabyte Technology Co., Ltd., G.B.T. Inc., Micro-Star International Co., Ltd., MSI Computer Corp., PNY Technologies Inc., Zotac International (MCO) Ltd., and Zotac USA Inc. (“Respondents”) to provide supplemental responses and witness designations to their respective Notices of Deposition. NVIDIA and the Respondents opposed the motion.

Specifically, Complainant argued that additional discovery was necessary because NVIDIA produced source code in bits and pieces, forcing the Complainant to review and analyze the code in order to determine that the deficiencies it previously raised still existed in addition to producing that code in proprietary languages in place of “commonly understood hardware languages such as Verilog RTL.” Complainant identified thirteen categories of data it moved to compel NVIDIA to produce. In response, Respondent NVIDIA argued the motion should be denied for two reasons. First, it violated the Ground Rules and thus was procedurally improper. Second, it sought discovery that was irrelevant and/or duplicative and therefore had no bearing on any issue in the Investigation. Respondent NVIDIA asserted that majority of the complaints by the Complainant were new and had never been discussed during the parties’ prior discovery committee meetings or meet-and-confers. Further, NVIDIA asserted that each and every category of source code had been produced, was going to be produced, or was irrelevant/duplicative.

ALJ Bullock agreed with some of NVIDIA's arguments and thus categories 1, 2, and 4 of the motion were granted and categories 6 and 7 were granted-in-part. Categories 3, 5, 8, 10, and 13 were denied as being moot. Categories 9 and 11 were denied. Category 12 was deemed no longer in dispute.

With respect to Complainant’s motion to compel deposition notices of the non-NVIDIA Respondents, Complainant argued that Respondents refused to provide information the Complainant sought and deposition testimony to the extent necessary. Respondents asserted that they never refused to provide the requested information and provided some of the requested “technical” information through interrogatory responses. Nonetheless, ALJ Bullock was unpersuaded that complainant’s requests were satisfied and granted the motion with respect to the deposition notices.

Copyright © 2020 Oblon, McClelland, Maier & Neustadt, L.L.P.