Pam,I did some research and found out a few things of interest.First, let me show the various documents in play here between EDIG and Samsung.
Doc 139 – Motion To Compel Infringement Contentions in Compliance with PR 3-1 and to Limit e.Digital to its Prior Theories by Samsung.
Doc 147 – Response in Opposition to Motion 139 by EDIG.
Doc 148 – Reply to Response to Motion 139 by Samsung.
Doc 151 – Sur-Reply to Reply to Response to Motion 139 by EDIG.
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In Doc 139, Samsung writes, “56% (76 of 136) of the accused Samsung products have never been made, used, sold, offered for sale, or imported in the United States by Samsung.
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In Doc 147 (EDIG’s response) on page 7, EDIG writes:
(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 [apparently the number of accused products went up sometime from 131 originally to 136]. 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.
e.Digital first identified 71 of these 76 products on November 21 when it served its Initial Infringement Contentions. Samsung first alleged the absence of U.S. sales for the 76 products 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 Samsung now seeks to compel.
I checked a few of the accused products and did find them available on exoticphones.com.
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In Doc 148 (Samsung’s Reply to Response), the issue of the accused products not being sold or available in the United States doesn’t come up.Instead they talk about Infringment Contention deficiencies by EDIG, EDIG not complying with Local Patent rules by not reverse-engineering the products, products using Zoran COACH processors and Fujitsu processors, etc.
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In Doc 151 (EDIG’s Sur-Reply), they write:
As a second example, Samsung reargues that e.Digital should have known that many of the accused products are allegedly not sold in the United States. However, Samsung’s argument again is not very persuasive when viewed in light of the evidence that the products Samsung swore are not sold in the United States are, in fact, sold in the United States. In an attempt to subvert the conflicting evidence, Samsung dismisses the sales identified by e.Digital as “graymarket” sales. Samsung’s “gray-market sales” argument, however, misses the point. Is e.Digital supposed to know what Samsung considers gray-market goods?
What is clear is that Samsung’s products are offered for sale in the United States by companies such as Wal*Mart or Target, as alleged in the Complaint (Doc. No. 1) and by the distributors identified on the www.amazon.com and exoticphone.com websites.2 Based on these undisputed sales, e.Digital has a good faith basis to accuse those products of infringement. Even assuming, arguendo, that discovery from Samsung may show that the on-line retailers get their products from foreign distributors as Samsung now appears to contend, then Samsung may have an issue to raise with United States customs office and its distributors. However, that does not mean that e.Digital has no basis to accuse those products of infringing based on the U.S. sales.
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Then we have Doc 159, a SEALED DOCUMENT from Samsung titled, “Samsung Electronics America, Inc's Notice of Withdrawal of Certain Relief Requested in Samsung's Motion to Compel Infringement Contentions in Compliance with PR 3-1 and to Limit e.Digital to its Prior Theories [Dkt 139]. I find this very interesting as it seems EDIG has convinced Samsung to voluntarily withdraw some aspects of Doc 139. Could very well be the number of accused products that Samsung said shouldn’t be part of the lawsuit. We won’t know until discovery is completed which is scheduled for 11 Sep 09, and the discovery could be sealed.
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Now in Doc 169, another SEALED DOC, we find Samsung trying to dismiss 20 accused mobile phones. Not for point of sale issues but for technical reasons (i.e., video clips that include audio).
Bottom line is the public doesn’t know how many of the 136 products are still being accused but I think EDIG’s made good arguments to keep most in play. They’re continuing to make good arguments against Samsung’s motion to dismiss the 20 phones. This is going to be an exciting case to follow to conclusion.
