By Eric Schweibenz
On October 28, 2010, ALJ Robert K. Rogers, Jr. issued Order No. 11 in Certain Digital Imaging Devices and Related Software (Inv. No. 337-TA-717).  In the Order, ALJ Rogers denied Complainant Apple, Inc.’s (“Apple”) motion to compel documents and testimony relating to the source code for Respondent Eastman Kodak Company’s (“Kodak”) accused devices.

According to the Order, Apple argued that Kodak should produce certain source code since agreements between Kodak and its suppliers demonstrated that Kodak had the ability to demand the source code from those suppliers.

In response, Kodak stated it did not manufacture any of the accused devices, rather they were manufactured by Kodak’s suppliers in China.  Kodak also argued that only in six of the accused models did it provide its own source code to the supplier.  With regard to the remaining twenty-three accused models, Kodak asserted it did not have possession, custody, or control of the source code.  Kodak added that it made a good faith effort to obtain the missing source code and argued that the contract language cited by Apple did not establish that Kodak had the right to obtain source code from the suppliers.

After considering the contractual language cited by Apple, ALJ Rogers determined it was unclear whether or not Kodak had a contractual right to obtain source code from its suppliers. The ALJ also noted that Apple only offered evidence with regard to three of Kodak’s asserted suppliers.  Thus, ALJ Rogers concluded that Apple had not demonstrated possession, custody, or control of the source code by Kodak and denied the motion to compel.