On May 3, 2011, Chief ALJ Paul J. Luckern issued the public version of Order No. 30 (dated March 18, 2011) in Certain Biometric Scanning Devices, Components Thereof, Associated Software, and Products Containing the Same (Investigation No. 337-TA-720).  In the Order, ALJ Luckern denied Complainant Cross Match Technologies, Inc.’s (“Cross Match”) motion to reconsider granting Respondents Suprema, Inc. and Mentalix, Inc.’s (“Respondents”) oral motion to strike certain testimony of Cross Match’s expert Dr. Roger McWilliams at an evidentiary hearing held on March 8, 2011.

According to the Order, Respondents and the Commission Investigative Staff opposed Cross Match’s motion on the grounds that certain testimony of Dr. McWilliams regarding the alleged infringement of a RealScan-F device should be stricken because such testimony was not previously disclosed in expert reports or deposition testimony.

ALJ Luckern first determined that Cross Match’s motion should be denied on procedural grounds, because it failed to argue or meet its burden to show any one of the following three bases to grant reconsideration: (1) a clear error of law; (2) newly discovered evidence that was not previously available to the parties; or (3) an intervening change in controlling law.

As to the merits, ALJ Luckern compared Dr. McWilliams’ stricken testimony with his opening and rebuttal expert reports and found that a single statement in the reports as to the RealScan-F was insufficient to support the stricken testimony.  ALJ Luckern similarly found that Dr. McWilliams’ deposition testimony did not support the stricken testimony, and that Respondent’s expert’s supplemental expert report did not indicate that Respondents had notice of the stricken testimony.  ALJ Luckern further determined that in Cross Match’s prehearing brief, “complainant merely repeated the conclusory statement found in its expert McWilliams’ opening and rebuttal expert reports” with respect to the RealScan-F, which is insufficient.

Finally, ALJ Luckern found unavailing Cross Match’s submission pursuant to Order No. 23, which required responses to certain questions posed by the ALJ, and which “should not be mere argument” and required that “any change in position taken in response to this Order must be made by motion prior to the hearing, with good cause shown.”  ALJ Luckern determined that Cross Match’s statement in response to Order No. 23 set forth the opinion in the stricken testimony, but cited to just one exhibit, consisted only of attorney argument, did not cite to any previous opinion set forth by its expert McWilliams, and presented a new theory of infringement not previously disclosed to respondents or the staff.  Since Order No. 23 required Cross Match to file a motion for any change in position taken in response to the questions posed, ALJ Luckern determined that Cross Match’s new position presented in response to Order No. 23 was also insufficient.