19
Jan
By Eric Schweibenz
On January 18, 2012, ALJ Thomas B. Pender issued the public version of Order No. 19 (dated January 6, 2012) in Certain Wireless Communication Devices and Systems, Components Thereof, and Products Containing Same (337-TA-775).  The Order denied Complainant Linex Technologies, Inc.’s (“Linex”) motion to extend the deadline for completion of fact discovery from November 30, 2011 until December 23, 2011.

By way of background, the investigation is based on a May 6, 2011 complaint filed by Linex alleging violation of Section 337 in the importation into the U.S. and sale of certain products and components that infringe U.S. Patent Nos. 6,757,322 and RE42,219.  See our May 10, 2011 post for more details.

According to the Order, Linex contended that an extension was “necessary to allow Linex to obtain full and complete discovery from the Respondents and Third Parties…that Linex has subpoenaed on critical issues.”  Linex alleged that it had diligently worked cooperatively with the Respondents and Third Parties to obtain source code and non-source code technical documents, but “it has only recently been permitted to begin inspecting those materials and the depositions have yet to be scheduled.”  Linex argued that the extension would provide it with the additional time necessary to meaningfully review materials and would not cause Respondents to suffer any prejudice.

Respondents opposed the motion arguing that “no good cause exists for the extension sought by Linex because Linex has failed to diligently obtain discovery in this investigation.”  Respondents point out that Linex has known since the outset that the relevant source code documents were in the possession of third party chip suppliers, but that Linex “began serving subpoenas…in July but then delayed until September 29, 2011 to move for the entry of a supplemental protective order governing source code and failed to follow up on its requests until October 2011.”  Respondents also asserted that delaying fact discovery would prejudice them by requiring them to conduct fact and expert discovery simultaneously. 

The Commission Investigative Staff agreed with Respondents regarding prejudice and opposed the motion, emphasizing that “Linex has failed to show diligence” and additionally argued that many of the issues raised were moot because Linex had received all of the requested documents.

ALJ Pender denied Linex’s motion, stating “Linex laments in its motion that it does not have sufficient time to complete discovery, particularly Third Party discovery.  Linex’s troubles, however, are of its own making.”  ALJ Pender pointed to the chronology detailed by Respondents and stated that Linex’s efforts cannot be considered diligent “in light of the tight procedural schedules under which we operate in Section 337 investigations.”  ALJ Pender cited specific examples of Linex’s efforts he considered to be non-diligent and found that, for these reasons, “Linex has failed to establish good cause for the relief it seeks.” 

ALJ Pender went on to address specific points raised by Linex, noting that issues between Linex and the Third Parties were moot or could be resolved between the parties.  As for issues between Linex and Respondents, ALJ Pender emphasized that Linex’s “predicament is of its own making” in regard to having insufficient time to review documents because Linex did not serve requests for production on Respondents until late October.  ALJ Pender also noted that allegations about the “challenging” number of depositions or that Respondents may not have searched for particularly relevant documents before making their 4.5 million page production are insufficient to support a finding of good cause to extend fact discovery.  Accordingly, ALJ Pender denied the motion to extend the fact discovery deadline.
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