Complainant, Samsung, filed a motion to strike certain
paragraphs of Apple's expert's, Dr. James Davis, report
regarding non-infringement and lack of a domestic industry. Samsung
asserted that the Davis Report contained arguments that Apple
failed to disclose in response to interrogatories and, as a result,
Samsung was prejudiced because the untimely arguments prevented
Samsung's infringement and domestic industry expert from
addressing them. Samsung explained that after late discovery from a
non-party, Qualcomm, Apple should have supplemented its contentions
and instead waited until the rebuttal report to assert for the
first time that Samsung had not shown sufficient evidence to
establish the domestic industry requirement.
Apple responded by arguing that Dr. Davis's opinion was not
new because Apple's interrogatory responses expressly
identified that Samsung failed to put forth evidence that the
domestic industry products input the specific information needed
for the patent-in-suit. Apple also asserted that Samsung was
engaging in discovery gamesmanship in that the Qualcomm deposition
occurred after Samsung's initial report was submitted and that
the Administrative Law Judge had approve the late deposition.
After reviewing the discovery responses and the Davis Report,
the Administrative Law Judge concluded that Apple did not disclose
the theory in its discovery responses and the Davis Report was not
an elaboration of what was previous disclosed, as Apple termed it.
The Administrative Law Judge also noted that the parties had
jointly represented that the Qualcomm deposition would not affect
any deadlines. The Administrative Law Judge stated that this was
apparently a "half-truth, because this discovery directly
impacted the expert reports and was poorly timed, as outlined in
their respective papers." The Administrative Law Judge also
stated that: "The Administrative Law Judge is not persuaded
that Respondent could not have disclosed more detailed contentions
with respect to domestic industry related to claim 75 of the
'348 patent prior to Dr. Min's initial expert report on the
topic. By waiting until Dr. Davis' rebuttal report to fully
disclose this contention, Complainants could do little more than
speculate based on the questions Respondent was asking at the
pertinent Qualcomm deposition. (Opp. At 6.) Consequently, the
administrative Law Judge finds that a grant of some relief is
appropriate here. See e.g. Certain Electronic Devices With
Image Processing Systems, Components Thereof, and Associated
Software, Inv. No. 337-TA-724, Order No. 24 (U.S.I.T.C.,
2011)."
Nonetheless, the Administrative Law Judge found that Samsung
sought to strike more than what was necessary to remedy the
situation. Indeed, certain of the paragraphs Samsung requested to
be stricken did not contain the undisclosed argument and with
respect to those paragraphs, the Administrative Law Judge denied
Samsung's motion to strike.
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