2nd Pacer--DISCOVERY DISPUTE JOINT REPORT #2

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
BARCO N.V., a Belgian corporation
Plaintiff,
v.
TECHNOLOGY PROPERTIES LTD.,
PATRIOT SCIENTIFIC CORP., and
ALLIACENSE LTD.,
Defendants
.
DISCOVERY DISPUTE JOINT REPORT #2


Issue to be decided: Whether Defendants should be required to amend their Invalidity Contentions
to comply with Patent Local Rule (P.L.R. 3-1).
Joint Meeting: July 7, 2011, Denver Int'l Airport, Approx. 5 hours.
Date of Close of Discovery: TBD (Dependent on date of claim construction ruling).
The following lead counsel attest that they have complied with Judge Lloyd's Standing Order re:
Civil Discovery Disputes:
Dated: July 19, 2011
FARELLA BRAUN + MARTEL LLP
By:/s/
John L. Cooper
Attorneys for Defendants
TECHNOLOGY PROPERTIES LIMITED
and ALLIACENSE LIMITED
Dated: July 19, 2011
BAKER & MCKENZIE LLP
By:s/ Dan O. Connor
Daniel J. O’Connor
Attorneys for Plaintiff
BARCO, N.V.

I. FACTS UNDERLYING THE DISPUTE

Barco filed this suit for declaratory judgment and noninfringement of TPL's patents in
December 2008. There are currently three patents in the case, United States Patent Nos. 5,809,336,
5,440,749, and 5,530,890. Each of these patents is directed to circuitry within microprocessor
Integrated Circuits or "chips". As required by this court's Patent Local Rules (P.L.R.s), TPL served
Barco with its first Disclosure of Asserted Claims and Infringement Contentions (ICs), accompanied
by Claim Charts purporting to show where each limitation of each asserted claim is found within the
accused instrumentalities.

BARCO'S POSITION

For every asserted claim, TPL's ICs do not comply with P.L.R. 3-1. As an example, for
some claims, TPL has relied on publications or "the laws of physics and the state of the art" without
showing any relationship of the publications or laws or "state of the art" to any accused products for
"support" in its IC claim charts. For other claims, TPL has accused certain chips of infringing but
has only provided information relating to different chips for support in its IC charts. In addition,
many of TPL's contentions are simply too vague to show "specifically where" the accused
instrumentality meets the claim limitation. The deficiencies identified in this Report are not meant
to be an exhaustive list. Barco does not believe it can sufficiently address all of the deficiencies in
TPL’s ICs in this Report. The ICs that have been identified in this Report illustrate the need for
amended ICs that would comply with P.L.R. 3-1. TPL cites Network Caching Tech. for the
proposition that marketing materials, white papers, etc. can adequately support ICs. This misses the
point, since in Network Caching there was no dispute over whether the white papers, etc. pertained
to the accused products. TPL's ICs fail because they rely on white papers, etc. that have no
relationship to the accused products.
TPL also argues that it is too late for Barco to complain about TPL's ICs, an argument it
made rather than responding substantively to Barco's position at the joint meeting. When TPL raised
this issue in the meeting, Barco's counsel asked if TPL had any authority for this position: TPL had
none, and does not cite any now. This case was stayed during reexamination, and since the stay was
lifted it has not moved rapidly: as recently as this May the Court stated that "[a]fter nearly three
years of litigation, this case still is in its early stages." Order, D.I. 286 (May 13, 2011). Further,
because all the patents have been reexamined and had their claims amended, this court has allowed
TPL's ICs to be amended. The IC for the '749 patent was amended on June 3, 2011 and the IC for
the '890 patent was amended on May 17, 2011.
A. The '336 Patent
All the asserted claims of the '336 patent expressly require "a microprocessor system" that
includes "a central processing unit". TPL has accused a "field-programmable gate array" ("FPGA")
chip called the Xilinx Virtex-5, of infringing. Barco has pointed out to TPL that, although some
Virtex-5 chips include on-board microprocessors, the one Barco uses does not. TPL's ICs are
deficient in this respect because they only contain the unsupported statement that "the device
contains the Xilinx Virtex-5 microprocessor. This microprocessor is a monolithic integrated
circuit." Ex. A, PIC1637. TPL does not even allege that the purported "microprocessor" includes a
central processing unit. Id.
All the asserted claims of the '336 patent also require "an entire oscillator" or "entire ring
oscillator variable speed system clock"1. For every such term and every accused product, TPL has
simply alleged the following statement or a similar statement: "Note: The presence of a PLL
indicates the presence of a ring oscillator, either a voltage controlled oscillator ('VCO') or current
controlled oscillator ('ICO')" 2 . Telling the court that one thing indicates the presence of another
does not "show specifically where" these limitations are "found within each Accused
Instrumentality" as required by P.L.R. 3-1(c). Bender v. Maxim Integrated Products, 2010 U.S.
Dist. LEXIS 32115, *5 (N.D. Cal. 2010) (“Plaintiff’s claim charts do not actually specify the
location of each element within the accused product. Rather, the court is asked to assume that
certain elements of the patent are present in the accused product.”).3
1 In some cases, the exact language of the claim may vary slightly.
2 For a few examples, see Ex. A, PIC1599, PIC1604, PIC1610, PIC1612, PIC 1617, PIC1678, PIC1683, PIC1689,
PIC1691, PIC1696, PIC1701, PIC1707, PIC1709, PIC1719, PIC1724, PIC1730, PIC1733, PIC1737, PIC1743, PIC1748,
PIC1751, PIC1760, PIC1767.
3 For one of the charts, TPL relies on “industry best practices and other commercial realities” to "show" that accused
products have the claimed “entire ring oscillator.” For a few examples, see Ex. A PIC1638, PIC1643, PIC1651, PIC1656.
In addition to vague allegations that ask the court to assume elements are present, TPL’s
ICs also rely on published articles and chips other than the accused chips to allegedly show where
the claim elements are found within the accused instrumentalities. In each such case, TPL does not
and cannot show any relationship between the actual accused products and the material referenced.
The table below charts the claim elements, where an example from the ICs can be found, and an
explanation of the deficiency regarding the element. In most cases, the deficiency noted is identical
for all the accused products and asserted claims, and is accordingly repeated many times throughout
TPL's claim charts.
ACCUSED CHIP OR
CLAIM ELEMENT
EXAMPLE IN
INFRINGEMENT
CONTENTIONS
EXPLANATION OF DEFICIENCY
“constructed of the same
process technology with
corresponding
manufacturing variations”.
Exh A-1, . PIC1599. Reliance on a published article by
“Zuchowski” with no connection to any
accused products.
The oscillator speed and
central processing unit
frequency capability vary
together.4
Exh. A-1, PIC1600. Published article by Sundaresan, Fetzer,
the “laws of physics and the state of the
art . . .” with no connection to any
accused products.
An on-chip input/output
interface.
Exh. A-1, PIC1601. Photograph showing the outside of the
accused chip, which cannot show
specifically where an on-chip interface
inside the chip package is.
DDP 3020 Chip. Exh. A-2, PIC1678. Datasheet of CDCDLP223, with no
connection to any accused products.
“second clock”. Exh. A-3, PIC1681. Datasheet of CDCDLP223, with no
connection to any accused products.
DDP1011 Chip Exh. A-8, PIC1927 Reliance on a Texas Inst. presentation
concerning the DDP1000 chip, Datasheet
of CDCDLP223, with no connection to
the accused products shown.
TTP4398A0 Chip. Exh. A-6, PIC1813-
15, alleging the chip
has an ARM7 core.
Reliance on a statement in a white paper
(itself unrelated to the accused chip) that
"A typical HDD has a dual ARM MPU."
Again, there is no connection shown to
any accused products.
B. The '749 and the ‘890 Patents
4 The actual claim language, but not the meaning, varies somewhat among the asserted claims.
Case5:08-cv-05398-JF Document208 Filed07/19/11 Page4 of 11
TPL has accused five Barco products of infringing claims 1, 43, 44, 45, 47, 54, and 55 of the
‘749 patent. While TPL has served a separate IC for each of the five products, all of the ICs for the
‘749 patent are the same where they purport to show where the accused products have the claimed
elements. In this regard, comments on the deficiencies of any one ICs for the ‘749 patent are
applicable to all of the ICs.
Similarly, TPL has accused the same five products of infringing claims 11, 12, 13, 17, and
19 of the '890 patent. While TPL has served a separate IC for each of the five products, all of the
ICs for the ‘890 patent are exactly the same. In this regard, comments on the deficiencies of any one
ICs for the ‘890 patent are applicable to all of the ICs. The ICs for the ‘749 and ‘890 patents, like
the ICs for the ‘336 patent, are too vague to show "specifically where" the accused instrumentality
meets the claim limitation. The table below shows where the ICs are too vague to show where the
accused product meets the claim elements, or otherwise fail to comply with P.L.R. 3-1.
Deficiencies of TPL’s Infringement Contentions - ‘749 and ‘890 patents
ACCUSED CHIP OR
ELEMENT(s)
EXAMPLE IN
ICs
EXPLANATION OF DEFICIENCY
Ex. B-2, PIC10453;
Ex. C-2, PIC9325
ICs do not establish that Barco products contain this
TI chip. ICs cite to TI materials. Barco webpage
does not identify the TI Chip being used.
Texas Instrument (TI)
DDP 3020 Chip.
Ex. B-2, PIC10454;
Ex. C-2, PIC9326
Image of TI chip is provided from a generic website
(www.cin4home.de). No showing or connection that
this TI chip is actually used in the Barco products.
microprocessor
includes an instruction
register5
Ex. B-3, PIC10482,
Ex. C-2, PIC9332
No showing of an instruction register and where it is
located. Charts highlight (by using a box around) a
dotted line, which is not an instruction register.
a ring oscillator
variable speed system
clock connected to said
central processing unit
integrated circuit1
Ex. B-2, PIC10468;
Ex. B-3, PIC10490
Ex. B-4, PIC10512
Ex. C-2, PIC9345;
Ex. C-3, PIC9373;
Ex. C-4, PIC9401
ICs cite to CDCDLP223 datasheet to “show” that
the accused projectors have a ring counter variable
speed system clock. TPL is accusing Barco of
infringing by the use of a DDP3020 not a
CDCDLP223. The ICs do not show any relationship
between the two.
connections to the
ALU5
Ex. B-2, PIC10458-
10459; Ex. C-2,
PIC9328-9329
ICs merely repeat claim language and asks Barco
and the Court to assume that the claimed limitations
are present in a block diagram of an ARM
publication. ICs do not show a first push-down
stack, or that it is connected to an ALU, do not show
where “any means for storing top-item is,” nor
where it is “connected to a first input” of the ALU.
5 The actual claim language, but not the meaning, varies somewhat among the asserted claims.
The ICs do not show how or where the claimed
elements connect to the ALU.
“memory external of
said central processing
unit integrated circuit”
(only for the ‘749)
Ex. B-2, PIC1045-
10456; Ex. B-3,
PIC10477-10478
ICs cite to a generic Texas Instruments website that
does not refer to the accused chip. No showing that
Barco products contain a "memory external" of
CPU.
bus connecting said
CPU integrated circuit
to external memory
(only for the ‘749)
Ex. B-2, PIC10457;
Ex. B-3, PIC10479;
Ex. B-5, PIC10523
No showing that any bus connects CPU to memory,
external or internal. ICs show CPU connected to
system controller.
“supplying the multiple
sequential instructions
in parallel to said
instruction register
during the same
memory cycle.” (only
for the ‘749)
Ex. B-2, PIC10460-
10461;Ex.B-3,
PIC10482-10483;
Ex. B-4, PIC10504-
10505; Ex. B-5,
PIC10526-10527.
ICs suggest the exact opposite. Highlighted text
shows that either one of two instructions is supplied
– “…fetch draws either one 32-bit ARM instruction
or two 16-bit Thumb instructions.” Nothing is said
about instructions supplied in parallel.
direct memory access
central processing unit
providing inputs to said
memory controller
(only for the ‘890
patent)
Ex C-2, PIC9337;
Ex. C-3, PIC9356;
Ex. C-4, PIC9393;
Ex. C-5, PIC9412
ICs cite to a white paper. ICs do not show that
white paper applies to accused products. White
paper does not show that any such controller
includes its own separate central processing unit.
1) said internal bus
being bidirectionally
connected to a stack
pointer and 2) return
stack pointer (only for
‘890 patent)
Ex. C-2, PIC9331;
Ex. C-3,PIC9359,
Ex. C-5, PIC9415
ICs do not show where a stack pointer is
bidirectionally connected to an internal data bus.
For the stack pointer, the ICs simply copy a table
from an ARM publication that has the words “stack
pointer” but no physical structure.
said memory controller
having an address/data
bus and a plurality of
control lines for
connection to a random
access memory (only
for ‘890 patent)
Ex. C-2, PIC9337-
9338; Ex. C-3
PIC9365-9366
ICs rely on web pages that do not show the claimed
elements. Further, the web pages have no
connection with the accused product (e.g., the
“Rambus” web page on PIC9338 does not apply to
accused products and ICs do not explain how
“Rambus” is related to any of the accused products).
“address bits” from a
program counter “are a
most significant bit
portion from the
program counter” (only
for ‘749 patent)
Ex. B-3,
PIC10486;Ex. B-4,
PIC10508; Ex. B-5,
PIC10530
The highlighted language only describes the bottom
two bits and does not mean the program counter has
address bit, or that, if it does, they are “a most
significant bit portion from the program counter.”
BARCO’S PROPOSAL: Barco proposes that TPL amend their ICs (without adding new
products or new theories to their ICs) and that further technical discovery from Barco be stayed until
TPL complies with P.L.R. 3-1.

II. TPL’S POSITION

A. Additional Facts Underlying The Dispute.
In the 2-1/2 years that this case has been pending, Barco has responded to 94 document
requests, 18 interrogatories, and allowed two of its experts to be deposed, never once objecting that
TPL’s infringement contentions (ICs) were insufficient. To the contrary, the ICs were adequate
enough for Barco to participate in discovery, file a motion for summary judgment of
noninfringement of the ‘336 patent in December 2010, and brief the construction of 30 disputed
claim terms. (See e.g., Dkts. 140, 130, 146; 112, 135, 143). Barco recently identified an additional
five claim terms of the newly amended patent claims that require construction. With each and all of
these acts, Barco has both waived any objections it could have had to the contentions, and conceded
it has notice of TPL’s theories of infringement, which is the purpose of ICs.
As each patent-in-suit emerged from reexamination, TPL provided claim-by-claim, elementby-
element ICs for Barco’s eleven accused products. In total, TPL has prepared 9,000-plus pages of
ICs. These reports show that TPL purchased and disassembled Barco products, analyzed and
photographed their internals, and evaluated publicly available product literature, datasheets, and
white papers. They incorporate all technical information about the accused products that is
practically accessible, and link specific features to the limitations of the patents.
If Barco’s participation without objection in crucial aspects of this case were insufficient by
itself to reject the relief Barco is now seeking, Judge Fogel’s denial of Barco’s summary judgment
Motion further supports TPL’s position. Barco argued in its Motion that “TPL’s infringement
contentions with respect to the ‘336 Patent do not state how the accused products meet the asserted
claim limitations.” (Dkt. 168 at 2). Judge Fogel rejected this attack on TPL’s ICs, and granted
TPL’s Rule 56(d) request for discovery, stating that “any future motion for summary judgment will
need to address additional evidence obtained in discovery.” Id. at 6.
Thus, TPL engaged in discovery with Barco and its chip suppliers for the detailed technical
information, including source code, that is exclusively within their possession. Only when TPL told
Barco it would move to compel production of Barco’s technical documents and emails did Barco
demand TPL amend its infringement contentions to provide greater specificity.
B. Barco Has Waived Any Objections That The Contentions Are Inadequate.
Barco’s failure to object previously based on TPL’s ICs demonstrates (1) that the ICs were
then—and now—sufficient, and (2) that it is not entitled to now seek a “stay” of technical discovery
having waived this belated objection. See Peskoff v. Faber, 244 F.R.D. 54, 64 (D.D.C. 2007)
(failure to state objections to the production of documents in a timely manner constitutes a waiver).
C. TPL’s Infringement Contentions Are Sufficient.
TPL’s ICs set forth “particular theories of infringement with sufficient specificity to provide
defendants' with notice of infringement beyond that which is provided by the mere language of the
patents themselves.” Network Caching Tech., LLC v. Novell, Inc., 2003 U.S. Dist. LEXIS 9881, *13
(N.D. Cal. Mar. 21, 2003). “PICs are not meant to provide a forum for litigation of the substantive
issues; they are merely designed to streamline the discovery process.” Id. Infringement contentions
need only “reasonably disclose all of the information [the patentee] presently possesses.”
FusionArc, Inc. v. Solidus Networks, Inc., 2007 U.S. Dist. LEXIS 28970, *2 (N.D. Cal. Apr. 5,
2007) (denying motion to strike or to compel amendment where contentions described accused
technology in “broad terms,” and relied on marketing materials). They “provide structure to
discovery and enable the parties to move efficiently toward claim construction and the eventual
resolution of their dispute.” Id. at * 6 (int. cit. omitted).
TPL’s ICs fulfill the “notice” function by showing how particular features of Barco’s
products satisfy various limitations of the claims. The ICs include pincite references to datasheets,
ARM manuals, other publicly available documents and actual teardowns of Barco products:
Claim
Elements
Adequacy of TPL’s IC Disclosure
On-chip
oscillator
connected
to a CPU
In one example, TPL identifies the PLL connected to the AMCC PowerPC CPU as
the location of the ring oscillator based on a technical datasheet. (Ex. A-7,
PIC00001875.) Such contentions provide “notice of infringement beyond that which
is provided by the mere language of the patents themselves.” Network Caching
Tech., 2003 U.S. Dist. LEXIS 9881, *13.
Input/output
interface
TPL identifies the Cortina chip as being connected to a PowerPC chip via
input/output interfaces that are called out using graphical markups on photographs
taken from an actual teardown. (Ex. A-7, PIC00001877; see also, PIC00001827.)
Second
Clock
TPL identifies the Rx and Tx clocks from the Cortina chip that are connected to the
AMCC microprocessor, as the second clock. (Ex. A-7, PIC00001880.) In another,
TPL marks up a teardown to demonstrate the presence of the SATA interface and the
second clock associated with that SATA interface is confirmed by a technical paper.
(Ex. A-6, PIC00001820-21.)
TPL identified both a PowerPC processor and, in the alternative, the DSP48E slices
on the Virtex-5 based on XiLinx datasheets as indicating CPUs within
microprocessors. (Ex. A-1, PIC00001598.)
External
Memory
TI’s DLP documentation shows that DLP chips require external memory and the
DDP 3020 Processor Brief shows that the DDP3020 chip in the accused device is
part of the DLP product family. (Ex. B-2, PIC00010453, 56.)
Chips
within the
same Texas
Instruments
family
For some chips in the accused products, TPL has cited to technical reference
material for related chips. For example, the ICs regarding the Texas Instruments
DDP3020, and DDP1011 chips reference technical information regarding Texas
Instruments’ related CDCDLP223 and DDP1000 chips. As explained by Dr.
Oklobdzija, TPL’s expert, relying on literature for chips in the same family to
explain basic implementation features is appropriate as “[p]roducts within the same
family generally have the same structure except for possibly some minor functional
enhancements” and “t is customary that products in the same family have the same
numbering designation where the newer product has a higher number.” (Dkt. 137 at
27.)

CPU

Features
TPL reviewed and made multiple pincites to documentation provided by the
designers of ARM processor cores, which confirm the presence of the various
required elements, such as push down stacks, instruction registers, address/memory
busses, etc. (Ex. B-2, PIC00010457-61.)
Contrary to Barco’s assertion that TPL cites materials that have “no relationship to the accused
products,” TPL’s teardowns and chip documents pertain directly to Barco products, Barco’s
products actually have ARM cores, and the concepts in TPL’s published articles apply directly to
these chips. This level of detail provides notice of infringement that exceeds what has been held
satisfactory in other cases. Network Caching Tech., 2003 U.S. Dist. LEXIS 9881, *14 (contentions
based on “marketing materials, white papers and other publicly available product documentation”
are adequate); FusionArc, 2007 U.S. Dist. LEXIS 28970, *4 (no reverse engineering required).6
Whether Barco agrees with TPL’s theories is a separate matter from whether it has notice.
For example, by arguing there is no PowerPC processor on the Virtex-5 chip (supra pp. 1-2), Barco
is making a factual assertion that goes to the merits; however, in doing so it concedes it has notice of
TPL’s theory of infringement. Tellingly, neither at the in-person meeting of counsel and nowhere in
its portion of this Report does Barco deny having adequate notice of TPL’s theories.
The ICs have also fulfilled the purpose of the notice requirement – they have “move[d] [the
parties] efficiently toward claim construction” (id. at * 6) and permitted two early summary
judgment motions. (Dkt. 168 (Barco SJ Motion); Case No. 5:08-cv-0882 JF, Dkt. 293 (HTC SJ
6 Barco’s assertions that the ICs for the five products accused of infringing the ‘749 and ‘890 patents are all the same, is
misleading. While there is invariably some overlap because the infringing technology is similarly implemented in the
various Barco products, TPL’s contentions are customized for each product.
Motion).) As enabling such briefing is the quintessential purpose of ICs, their sufficiency is
manifest.
D. Barco’s Criticisms Seek Detail That Is Neither Required Nor Possible.
Patent Local Rule 3-1 “does not require [a patentee] to produce evidence of infringement” or
provide “excruciating detail;” nor must the patentee “thoroughly present and successfully defend its
theories of infringement in the confines of a PIC chart.” Network Caching Tech., 2003 U.S. Dist.
LEXIS 9881, *13-14. TPL’s expert Dr. Oklobdzija previously explained that the type of circuit
level detail that Barco would prefer is as a practical matter impossible given that “[t]he minimal
transistor feature size of the fabrication technology today is in the order of hundreds of angstroms,
making it far below the wavelength of the visible light (even X-rays).” (Dkt. 137, at 35.) The case
law recognizes that in the high-tech context such detailed proof is often uniquely in the possession of
accused infringers and third parties and requires discovery. See Network Caching Tech., LLC v.
Novell, Inc., 67 U.S.P.Q.2D (BNA), 1034 (N.D. Cal. 2002) (“the only way to pinpoint the specific
routine is to analyze the source code, which is solely in the defendants’ possession.”); see also,
American Video Graphics, L.P. v. Electronic Arts, Inc., 359 F.Supp.2d 558, 560 (E.D. Tex. 2005)
(finding preliminary contentions sufficient where "defendants' sole possession of the information
plaintiffs need" precluded greater specificity). That is why Patent Local Rule 3-4(a) mandates that
the accused infringer produce “[s]ource code, specifications, and schematics” for the accused
instrumentalities. TPL’s ICs “reasonably disclose all of the information it presently possesses,”
FusionArc, 2007 U.S. Dist. LEXIS 28970, *2, and are accordingly adequate.
Barco has already tried identical arguments to the ones it raises here with Judge Fogel in a
summary judgment motion, namely that TPL’s ICs contain insufficient technical detail:
Barco’s SJ Motion This Joint Report for Amended ICs
Barco argued that TPLs ICs “refer to
irrelevant articles, white papers, and
‘principles of physics,’” and rely on
“Zuchowski”, “Sundaresan” and “Fetzer.”
(Dkt. 112 at 13-14)
“TPL has relied on publications or ‘the laws of
physics and the state of the art’,” (p.1)
“Zuchowski”, “Sundaresan” and “Fetzer.” (supra,
p.3)
Barco argued “TPL is not even sure there is a
ring oscillator, [and] it cannot say where it is
(as required by the Patent Local Rules)” (Id.
at 15)
“TPL has simply alleged the following statement
or a similar statement: "Note: The presence of a
PLL indicates the presence of a ring oscillator…"
(supra, p. 2)
Barco argued that TPLs ICs “accuse one TPL has accused certain chips of infringing but
particular chip of infringing, but rely on
technical information from a different chip or
product.” (Id. at 20)
has only provided information relating to
different chips for support in its IC charts.
(supra, p.1)
Confronted with the same litany of complaints Barco presents now, Judge Fogel denied Barco’s
motion and granted TPL’s request for Rule 56(d) discovery. The clear implication of Judge Fogel’s
order was that Barco’s focus should turn to engaging in discovery to move this case forward.
Nevertheless, Barco now seeks a “stay” of technical discovery that, if granted, would undermine
Judge Fogel and whitewash Barco’s own discovery obstructionism.
Barco ignores the legal standard for ICs, which is simply to provide notice, and instead tries
to compare this case to Bender v. Maxim Int. Prods, 2010 U.S. Dist. LEXIS 32115, *6 (N.D. Cal.
2010), a case that is readily distinguishable. Bender sued a spate of 24 defendants who swiftly
moved to compel more detailed ICs because Bender’s initial contentions could not have been more
bare—they merely repeated the contention over and over for each claim limitation that “[t]his
element is located on the integrated circuit contained in the product,” with no technical drawings or
analysis. See Bender v. Maxim Int. Products, Case 3:09-cv-01152-SI, Dkt. 48-1, February 5, 2010.
Without Bender amending, those cases should have legitimately been blocked. Here, by contrast,
Barco sued TPL, engaged in discovery, filed summary judgment, and briefed claim construction, and
now 2-1/2 years later, without even making a proper production under P.L.R. 3-4, seeks amended
ICs. This gamesmanship should be denied. TPL’s contentions, unlike Bender’s, pincite key
technical features of the accused products based on teardown reports and detailed technical
documents, thereby providing notice well beyond the claim language itself. Indeed, the Bender
contentions and inapposite procedural posture serve to further confirm the adequacy of TPL’s ICs.
E. TPL’s Final Proposal.
There is no justification to now stay Barco’s discovery obligations after Barco waived any
objection it had to TPL’s infringement contentions by participating in discovery and extensive
substantive briefing. TPL’s infringement contentions are adequate, and Barco’s actions speak louder
than its words that Barco has sufficient notice of TPL’s infringement theories. The relief Barco
requests should be denied in its entirety.