09
Apr
By Eric Schweibenz
On April 7, 2010, ALJ Charles E. Bullock issued public versions of three orders regarding motions to compel filed by Complainants Spansion, Inc. and Spansion LLC (collectively, “Spansion”) in Certain Flash Memory Chips and Products Containing Same (Inv. No. 337-TA-664).

In Order No. 48 (dated March 23, 2010), ALJ Bullock granted Spansion’s motion for an order compelling Respondents Samsung Electronics Corporation, Ltd., Samsung Electronics America, Inc., Samsung International, Inc., Samsung Semiconductor, Inc., and Samsung Telecommunications America, LLC (collectively, “Samsung”) to produce certain documents and other information relating to Samsung's 27 nm products.  According to the Order, Samsung argued that Spansion’s motion should be denied because their 27 nm products were not prototypes or samples that “have been imported into the United States,” “shown to customers,” or that “will be made or imported into the United States before the close of the evidentiary record.”   Samsung further argued that Spansion’s motion was moot because Samsung was providing the requested discovery.  The Commission Investigative Staff (“OUII”) supported Spansion’s motion, “[b]ecause the 27 nm products are sufficiently ‘close to completion’ to be ‘relevant to a finding of violation.’”  ALJ Bullock granted Spansion’s motion, to the extent Samsung had not yet produced all discovery sought by Spansion, upon the ground that “said product is sufficiently advanced such that production of information regarding these products is reasonably calculated to lead to the discovery of admissible evidence.”

In Order No. 51 (dated March 29, 2010), ALJ Bullock granted-in-part Spansion’s motion to compel Respondents Research in Motion Ltd. and Research in Motion Corporation (collectively, “RIM”) to serve complete answers to Spansion Interrogatory No. 4 that requests information relating to the cost of the Accused Chips used in their Downstream Products and the cost of their Downstream Products themselves; and to Spansion Interrogatory No. 9 that requests information concerning inventories of Downstream Products maintained by RIM in the United States.  ALJ Bullock found Spansion’s motion with respect to Interrogatory No. 4 moot, due to RIM’s agreement to provide such information.  With respect to Interrogatory No. 9, which requested inventory information for 2008 and 2009, RIM argued that Spansion’s motion was moot, because RIM had agreed to provide inventory information for the months of September 2009 through January 2010, and this “five-month period of end-of-month inventory levels is more than adequate for Spansion's purposes.”  ALJ Bullock granted Spansion’s motion with respect to Interrogatory No. 9, and noted “Respondent's unilateral determination that said information is ‘more than adequate’” is irrelevant and “not an appropriate basis to refuse to provide a complete response to an interrogatory.”

In Order No. 52 (dated March 29, 2010), ALJ Bullock denied Spansion’s motion for an order compelling Samsung to produce cross-sectional images (e.g., “SEMs” and “TEMs”) taken during each relevant stage of fabrication of all relevant device versions for all accused chips.  Spansion acknowledged that Samsung had produced some responsive information but alleged it was incomplete.  Although substantial portions of the arguments raised by Samsung were redacted, it asserted that its production of hundreds of images complied “with its discovery obligations and as such, Spansion's motion should be denied.”  ALJ Bullock stated that Spansion offered no evidence to suggest that Samsung willfully withheld documents, and that Spansion’s “conclusory allegations premised upon speculation is insufficient to compel judicial action.”   ALJ Bullock denied Spansion’s motion “in light of Samsung's representation that it has, inter alia, produced a complete set of SEMs and TEMs for the 51 nm, 42 nm, and 35 nm products, as well as photos showing the fabrication steps in the products as relevant to the '639 patent.”