By Eric Schweibenz
On May 25, 2011, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 12C (dated April 19, 2011) in Certain Liquid Crystal Display Devices, Including Monitors, Televisions, and Modules, and Components Thereof (Inv. No. 337-TA-741/749).

According to the Order, Complainants Thomson Licensing SAS and Thomson Licensing LLC (collectively, “Thomson”) filed a motion to compel Respondents Chimei Innolux Corp., Innolux Corp., and Chi Mei Optoelectronics USA, Inc. (collectively, “CMI”) and Respondent AU Optronics Corp. (“AUO”) to provide counsel for Thomson and its technical experts access to the manufacturing facilities of CMI and AUO for the purposes of conducting videotaped and photographed inspections of CMI and AUO’s manufacturing processes.

In support of its motion, Thomson argued, inter alia, that (i) the requested inspections were to observe LCD fabrication processes accused of infringing the asserted patents and were reasonably calculated to lead to the discovery of admissible evidence, (ii) the plant inspections were highly relevant to its infringement claims, (iii) a physical inspection would allow its experts to see the intermediate and full steps in process and sequence and would be helpful to their understanding of the accused processes, (iv) it would be able to develop evidentiary material by recording and photographing the inspections, and (v) the plant inspections were necessary because CMI and AUO have not provided complete discovery responses.  In opposition, CMI and AUO argued, inter alia, that (i) the burden of the plant inspection sought by Thomson far outweighed the marginal relevance of the information that could be gleaned from the inspection, (ii) the accused processes are generally not visible to the human eye, (iii) offers had been made to videotape relevant aspects of the manufacturing process and/or stipulate to certain aspects of the accused products and/or processes that Thomson claimed it could see during an inspection, and (iv) Thomson ignored the burden plant inspections will impose, including the threat to the integrity of manufacturing lines and the potential dangers associated with a plant inspection.

In the Order, ALJ Rogers determined that “the access to CMI and AUO’s manufacturing facilities requested by Thomson would impose undue burden and expense on CMI and AUO.”  ALJ Rogers also determined that Thomson did not address the potential of physical and economic harm access would likely cause and did not identify any steps alleged to be covered by the claimed subject matter of the asserted patents that can be detected by visual inspection or videotaping or through less burdensome discovery.  Accordingly, ALJ Rogers denied the motion.