05
May
By Barry Herman
On April 23, 2009, ALJ Charles E. Bullock issued Order No. 4 in Certain Digital Cameras (337-TA-671) denying respondent Eastman Kodak Company’s (“Kodak”) motion for a two month extension of the target date, a request to extend the hearing date, and a request for a Markman hearing.  Complainants Samsung Electronics Company, Ltd. and Samsung Electronics America, Inc. (“Samsung”) and the Commission Investigative Staff opposed the motion.

Kodak sought the two month extension to allow time for a Markman hearing and to conduct foreign discovery as well as resolve a scheduling conflict with Investigation No. 337-TA-663 which, according to Kodak, involves the same parties and lead counsel.  Samsung and the Staff responded that, due to the simplicity of the technology, a Markman hearing is unnecessary and foreign discovery is routine in Section 337 investigations.  They also argued that the conflict with Investigation No. 337-TA-663 could resolve itself in view of the pending motion in that investigation to consolidate it with Investigation No. 337-TA-672, which would result in a rescheduling of that hearing.

ALJ Bullock agreed with Samsung and the Staff that a Markman hearing is unnecessary and that the need for foreign discovery is typical and does not warrant extension of the target date.  While ALJ Bullock acknowledged potential conflicts, he stated that the parties will have to work around any conflicts and offered two suggestions:  “As it is still relatively early in the investigation, Kodak could consider having separate lead counsel.  In order to alleviate any potential scheduling conflict with Investigation No. 337-TA-663, the undersigned will consider moving the hearing up by up to two days.”  Moving the date up two days (from September 25, 2009 to September 23) might still conflict with Kodak’s counsel’s trial date but ALJ Bullock left it to “the parties to discuss whether they would like the hearing to be moved up.”
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