HERE EDIG CLAIMS SAMSUNG WAS NEVER GIVEN THE DETAILS RE PROCESSORS
AND OTHER COMPONENTS ! INITIALLY EDIG IDENTIFIED 71 INFRINGERS
PRODUCTS AND THEN SAMSUNG REFUSED TO ACCEPT THAT THEN AT
THE END WITH FURTHER RESEARCH BY EDIG IT APPEARS SAMSUNG
ADMITTED !!!
(1) Samsung’s Disclosure of Sources of Circuitry Information Samsung has claimed that e.Digital should have identified with specificity the exact location in the processors for each accused Samsung product where the claimed “control circuitry,” “compression circuitry,” “DSPs,” “CODECs” “printed circuit boards,” “recording means,” and “cache memory” can be found. (See Motion at Attachment A, p. 1). Although Samsung has not stated any belief that the accused products lack the claimed circuitry and related components, it has contended throughout the meet-and-confer process that e.Digital failed to comply with its Patent Rule 3-1 obligation by not identifying from “publicly available sources” specifically where in the processors those elements can be found.
Because e.Digital wanted to avoid wasteful motion practice and because Samsung and its counsel were presumably aware of sources of public information regarding its own products that were not known to e.Digital, e.Digital inquired throughout the meet-and-confer process as to the identity of the sources of information to which Samsung referred so that e.Digital could consult those sources. (See Doc. No. 139-16, p. 4). Samsung was reluctant to identify any such source, claiming that it is not Samsung’s duty to identify such sources of public information: “Even more incredible is that e.Digital . . . has asked Samsung to provide links and publicly available documents to help e.Digital formulate adequate infringement contentions. This is not Samsung’s
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burden.” (Id.). e.Digital, however, was not asking for help in formulating its contentions and it was not intending to impose on Samsung any such duty, other than its duty to provide full discovery responses and comply with the meet-and-confer rules. However, e.Digital explained that if Samsung wanted additional detail and knew where it could be found, it was in Samsung’s interest to tell e.Digital so that e.Digital could more quickly provide the requested detail.
In response, Samsung identified for the first time a single source of information, www.manualuniverse.com, a website from which e.Digital could purchase service manuals for some of the accused products. Importantly, this is not a website that was known to e.Digital or its counsel and it is not one that is sponsored by Samsung. Stated differently, this is not the type of website that a party would necessarily find as part of a pre-filing investigation, but instead is the type of website that Samsung was privy to and directed e.Digital to for additional information. Approximately two weeks after Samsung identified that source of information, e.Digital used information it purchased from this website to amend its contentions to provide additional detail for the representative accused products.5
By comparison, two days after Samsung unilaterally terminated the meet-and confer, it filed its Motion and accompanying exhibits that spanned over 923 pages and identified
twenty new websites that Samsung characterizes as sources of “publicly available” information -- websites that Samsung never identified during the meet-and-confer process and of which e.Digital was not aware
5 (See e.Digital’s Second Amended Disclosures of Asserted Claims and Preliminary Infringement Contentions to Samsung Electronics America, Inc. (“e.Digital’s Amended Contentions”), Doc. No. 139-18, 19 and 20). e.Digital’s Amended Contentions were intended to address Samsung’s concerns by: (i) creating sub-groups within the camcorder and mobile phone families based on distinctions identified by Samsung’s counsel, (ii) adding detail regarding the processors and related components based on newly discovered information, and (iii) provide further detail regarding how the steps in the method claims were performed. . Many of these websites are in Japanese, Korean, and Czech and hardly
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can be considered sources of public information; and none of them appear to be sponsored by Samsung.6
(2) Samsung’s Allegations Regarding Non-U.S. Sales As a second example, on February 20 and 25, Samsung alleged for the first time that 76 of the 131 originally accused Samsung products are not sold in the United States. According to Samsung this is concrete evidence that e.Digital did not conduct a proper investigation prior to serving its Initial Infringement Contentions. However, similar to Samsung’s other blanket allegations in its Motion, there is less to this allegation than meets the eye. Nevertheless, had Samsung revealed these websites during the meet-and-confer, e.Digital could have at least considered them in the meet-and-confer process. Inexplicably, instead of providing this information, which likely would have resolved many of the current issues, Samsung withheld this information until the filing of its Motion. e.Digital is at a loss to understand how the meet-and-confer process can be satisfied when Samsung is willing to tell the Court the locations of publicly available information as part of its Motion, but is not willing to tell e.Digital about these same sources as part of the meet-and-confer process. e.Digital respectfully submits that Samsung did not satisfy the “expectations of the court” that the parties “fully cooperate in discovery of relevant information,” as required by Local Rule CV-7(h)
e.Digital first identified 71 of these 76 products on November 21 when it served its Initial Infringement Contentions.7
6 The new websites include: qctconnect.com, maxim-ic.com, qimonda.com, focus.ti.com, datasheetpro.com, datasheetcatalog.org, datasheetdir.com, kr.ic-on-line.cn, alldatasheet.com, datasheet4u.com, datasheetarchive.com, digchip.com, tw.ic-on-line.cn, ic-on-line.cn, cn.ic-on-line.cn, jp.ic-on-line.cn, ic-cn.com.cn, soft.laogu.com, nanya.com, and penguin.cz. Examples of the foregoing websites in foreign languages are attached as Ex. E to the Yungwirth Declaration. Samsung first alleged the absence of U.S. sales for the 76 products
7 With respect to the five other products, e.Digital discovered those camcorders in February 2009 when it searched for service manuals on www.manualuniverse.com, as directed by Samsung. According to the service manuals and related product documentation for three of (Continued…)
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three months later -- on February 20 and 25 -- when it provided sworn declarations from its employees in support of its allegation. e.Digital immediately informed Samsung that while the declarants’ allegations are contrary to e.Digital’s initial investigation, it agreed to remove the identified products from the list of accused products, until such time as “discovery shows that the products identified by Samsung were sold, offered for sale or imported into the United States as e.Digital initially believed. . . .” (Yungwirth Decl. at Ex. F, p. 3).
