On April 21, 2009, Chief ALJ Paul J. Luckern issued the public version of Order No. 18 (dated March 23, 2009) in Certain Video Game Machines and Related Three-Dimensional Pointing Devices (337-TA-658) denying respondent Nintendo Co., Ltd.’s  (“Nintendo”) motion to preclude complainant Hillcrest Laboratories Inc. (“Hillcrest”) from introducing evidence on the subject of infringement by Nintendo’s Nunchuk and Wii MotionPlus accessories and that the ALJ grant partial summary determination of non-infringement with respect to these two accessories.  Hillcrest and the Commission Investigative Staff  opposed the motion.

Nintendo argued that it had repeatedly inquired as to the scope of Hillcrest’s allegations of infringement, and that Hillcrest refused to answer.  Instead, according to the order, Nintendo argued that Hillcrest answered an interrogatory on the issue by “simply pointing to its expert reports,” which were served on the same day as the interrogatory answer, and that neither Nintendo nor the expert reports discussed how the Nunchuk and Wii MotionPlus accessories infringe the patents.  Hillcrest and the Staff responded that it was premature for the ALJ to preclude expert testimony regarding the Nunchuk and Wii MotionPlus accessories, citing Ground Rule 4(viii), which states that “[t]he party submitting said expert report shall have the opportunity to supplement at appropriate intervals the information contained therein if the party learns that in some material respect the information disclosed therein is incomplete or incorrect.”

ALJ Luckern agreed with Hillcrest and the Staff that Ground Rule 4(viii) provides for such supplementation, and further found that Hillcrest’s expert Riviera did identify the Nunchuk and Wii MotionPlus accessories in his expert report.  In addition, ALJ Luckern found that Riviera’s expert report included his opinions as to whether the accused accessories infringe certain claims of the patents being asserted by Hillcrest.  ALJ Luckern further found that his denial of Nintendo’s motion to preclude testimony on the Nunchuk and Wii MotionPlus accessories mooted Nintendo’s motion for partial summary determination for non-infringement by these accused accessories.