on infringemnt is spot on. Barco needs to be hammered.

GL

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