This part shows another interesting discovert by EDIG attorney YUNGWIRTH

with following comments ", e.Digital has re-confirmed that at least 34 of the 76 products alleged by Samsung to not be sold in the United States, in fact, can be purchased from those two websites and shipped to United States consumers from locations within the United States." Then you see amended contentions at the bottom of page WITH FOLLOWING IMPORTANT CLAIM BY EDIG "e.Digital first identifies the processor that it understands is in the accused product and in which the claimed “circuitry for compression” can be found"AND THE FOLLOWING " based on e.Digital’s investigation to date, it is e.Digital’s understanding that the Samsung S-860 camera uses a Zoran COACH processing integrated circuit that includes compression circuitry to compress audio data for storage on flash memory "

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).
Now, in its Motion, Samsung makes much ado about e.Digital’s alleged failure to “even realize that 76 of the products are not, and never have been, sold by Samsung in the United States.” (See Motion at p 2). However, Samsung’s rhetoric is inconsistent with the facts. Based on a recent search of two United States-based websites, www.amazon.com and exoticphone.com, e.Digital has re-confirmed that at least 34 of the 76 products alleged by Samsung to not be sold in the United States, in fact, can be purchased from those two websites and shipped to United States consumers from locations within the United States. (See Sze Decl. at ¶¶ 10-11). In other words, the limited publicly available information again supports e.Digital’s contentions.
As the foregoing examples illustrate, e.Digital is not the bad actor portrayed by Samsung. Rather, e.Digital has repeatedly agreed to review all sources of information of which it becomes aware and to add to its contentions any detail that it finds or otherwise amend its contentions, as necessary. e.Digital’s willingness to move this case forward by addressing Samsung’s concerns continued through the March 4 meet-and-confer when it agreed to provide additional detail that
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the previously accused camcorders, the five new model numbers that e.Digital identified appear functionally equivalent for the purpose of the infringement analysis to the previously identified camcorders. In any case, this issue is moot with respect to all but the SC-X105L because e.Digital is not currently accusing the other products of infringement in light of Samsung’s allegation that they are not sold in the United States. (See Yungwirth Decl. at Ex. F).

e.Digital’s Amended Contentions Specify Where Each Claim Limitation Is Found in the Accused Products and How the Method Claims Are Infringed
In Sections III, C. and D. of its Motion, Samsung contends that e.Digital’s Amended Contentions do not specify where each claim limitation is found or how the asserted method
10 As a second example, Samsung’s reliance on Mass. Inst. of Tech. v. Abacus Software, 2004 U.S. Dist. LEXIS 30045 (E.D. Texas Sept. 10, 2004) is similarly distinguishable because in that case, the Court considered the sufficiency of contentions served after discovery had progressed and a Markman order already had been issued. Id. at *18-21. In the instant case, discovery has just commenced and the Markman hearing is not scheduled until February 2010.
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claims are infringed. Samsung, however, ignores the specific language of the contentions. First
, Samsung argues that e.Digital’s use of the terms “believes” and “other systems” create confusion as to what e.Digital is accusing of infringement. Samsung’s argument does not make any sense, as e.Digital does not use the terms “believes” or “other systems” to describe where the claim limitation is found in the accused product in the referenced contention (Ex. K, p.3, claim 10). Instead, e.Digital first identifies the processor that it understands is in the accused product and in which the claimed “circuitry for compression” can be found: Similar to the “control circuitry” element in claim 1, based on e.Digital’s investigation to date, it is e.Digital’s understanding that the Samsung S-860 camera uses a Zoran COACH processing integrated circuit that includes compression circuitry to compress audio data for storage on flash memory. Then, after disclosing what meets the claim limitation, e.Digital explains that there is limited public information about the processor and that its understanding is based on its familiarity with similar processors. e.Digital’s explanation that follows its contention that the “Zoran COACH processing integrated circuit” meets the claim limitation does not create confusion.
Second, Samsung argues that e.Digital’s Amended Contentions are deficient because they do not explain the method by which the accused Samsung products “write[] and store[] data to flash memory without using the traditional file allocation tables found in nearly all file memory systems.” (Motion at 11). However, e.Digital’s contentions provide both the “what” and “how” of its theory by identifying specific components within the accused products and the manner in which data is manipulated by those components. (See, e.g., Doc. No. 139-18, 19 and 20, pp. 35-37 (including discussion of processor components (what) and steps for writing data by identifying next available memory using linked list (how)).11
11 (See also, id. at p. 22 (corresponding discussion of root folder in charts for recording means limitation of ‘737 Patent, Cl. 1). To the extent that Samsung seeks more detail regarding (Continued…)
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Samsung’s argument really is a claim construction argument in disguise. Apparently, Samsung intends to advocate a construction of the claims to which it refers that excludes the linking described in the contentions by characterizing that type of linking as a traditional file allocation table. Accordingly, Samsung requests that the Court prematurely embrace Samsung’s construction by refusing to accept as sufficient e.Digital’s infringement contentions and instead, compel e.Digital to rephrase its contention so that Samsung can use the rephrased contention against e.Digital during the claim construction process. In other words, Samsung improperly invites this Court to turn e.Digital’s Rule 3-1 obligation into a claim construction sword, rather than a shield. Orion IP, 407 F.Supp.2d at 818 (“the burden of notice the Patent Rules place on plaintiffs is intended to be a shield for defendants, not a sword.”).
C. Samsung’s Attempt to Limit e.Digital’s Infringement Theories Is Premature and Improper
Samsung is trying to use mistakes in e.Digital’s Initial Infringement Contentions that were corrected in e.Digital’s Amended Contentions to create bases to avoid liability for many of the accused Samsung products. Samsung’s arguments are two-fold. First, Samsung argues that e.Digital’s infringement theory should be limited by its initial mistaken belief that all of Samsung’s cameras and camcorders use a Zoran COACH processor. According to Samsung, when e.Digital corrected that mistake and identified the correct processor that performs the same functionality as the Zoran COACH processor for purpose of the infringement analysis, e.Digital “changed its theory.” That is nonsense. e.Digital did not change its theory; it simply corrected its errant belief that the accused processor for each of accused cameras and camcorders was a (Continued…)
the specific memory controller and/or processor that performs the writing, identifying, etc., e.Digital already agreed to provide that additional data by March 31, similar to control circuitry.
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Zoran processor, instead of a comparable processor manufactured by TI, Fujitsu, Samsung, etc. Furthermore, e.Digital’s corrected mistake has not caused any prejudice to Samsung, yet it is seeking a death penalty sanction as to these products. Essentially, Samsung is asking this Court to find non-infringement by limiting e.Digital to accusing a Zoran COACH processor in products that Samsung knows
Second, Samsung argues that e.Digital should not be entitled to add to the list of accused products any products that e.Digital did not identify in its Initial Infringement Contentions, do not contain such processors. Since e.Digital served its Initial Infringement Contentions, Samsung has known (i) what processors are in its products that perform functionality similar to the Zoran processor, and (ii) that certain of the accused products did not contain a Zoran processor. Accordingly, the draconian relief sought by Samsung based on a mistake that e.Digital corrected as soon as it was brought to its attention is not justified.
regardless of why the products were not previously identified. Accordingly, what Samsung really seeks is an advisory opinion that precludes e.Digital from identifying accused products, such as products that Samsung introduces after e.Digital’s November 21 service of its Initial Infringement Contentions or products that are identical to the identified products, but may be offered under a different model designation. Because e.Digital would need to seek leave from the Court to accuse any new products, Samsung’s requested advisory opinion is premature.12
III.
Samsung’s Motion should be denied to the extent that it is contrary to the proposed Order (attached as Ex. B) that conforms to e.Digital’s proposal made at the March 4 meet-and-confer.
CONCLUSION
12 Currently, e.Digital has identified five camcorders that it first identified in February 2009 and that appear to be functionally equivalent to previously accused camcorders. Those five camcorders are identified in the Motion at footnote 10 and are discussed in footnote 9, supra. When e.Digital confirms that those products should be added to the list of accused products based on sales in the United States, it will seek leave of the Court to add them.
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Respectfully and jointly submitted this 17th day of March, 2009,
/s/ Michael C. Smith Siebman, Reynolds, Burg, Phillips & Smith, LLP – Marshall 713 South Washington Avenue Marshall, Texas 75670 Tel.: 903.938.8900 Fax: 972.767.4620 michaelsmith@siebman.com L. Norwood Jameson Matthew S. Yungwirth Duane Morris LLP 1180 West Peachtree St., # 700 Atlanta GA 30309-3448 Tel: 404.253.6900 Fax: 404.253.6901 wjameson@duanemorris.com msyungwirth@duanemorris.com Gary R. Maze Wesley W. Yuan Duane Morris LLP 3200 Southwest Freeway Ste 3150 Houston, TX 77027-7534 Tel.: 713.402.3900 Fax: 713.402.3901 grmaze@duanemorris.com wwyuan@duanemorris.com Attorneys for Plaintiff e.Digital Corporation
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CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule 5.1.