Thanks again silver...
Plaintiff’s second set of document requests, served by mail on August 24, 2010, (Ex. 9,
8/24/10 email from M. Yungwirth to Defendants’ counsel; Ex. 10, Second Set of Requests for
Production of Documents to Defendants), require production of
all
of the development
documents for each of the 324 accused products, including “project proposals, memos, notes,
inventor notebooks, invention disclosures, communications regarding product development,
revisions histories, flowcharts, drawings, specifications, documents pertaining to testing, status
reports or summaries, progress reports or summaries, development schedules, computer
simulations, logic diagrams, technical documentation, and functional documentation.” (Ex. 10,
Req. No. 10.) '
Ouch...sounds like we hit a nerve...Goes to willfulness and treble damages you sorry bastards....
This information is entirely irrelevant. It does not matter how the accused
products were developed. (OH but it does....) All that matters for purposes of infringement is the structure and
operation of the devices that are sold or offered for sale in the United States.
Further, Plaintiff’s second set of document requests demand production of documents
“that discuss ... how end-users use the Currently Accused Products.” (
Id., Req. No. 14.)
Plaintiff also demands documents “pertaining to
any patent(s) or patent application(s) whether
domestic or foreign
Id., Req. No. 15 (emphasis
added).) But the accused products in this case include both cell phones and digital cameras. In
Case 1:09-cv-02578-MSK-MJW Document 309 Filed 08/24/10 USDC Colorado Page 8 of 18
8
the cell phone industry, it is common knowledge that major competitors include Apple, Motorola,
Nokia, HTC and Sony-Eriksson, among others. e.Digital does not market cell phones. Major
competitors in the digital camera market include Canon, Pentax, Nikon, and Olympus, among
others. e.Digital also does not market digital cameras.
In this regard, it is important to note that e.Digital is a non-practicing entity. It does not
now offer any products allegedly covered by the patents-in-suit, and it has never to Defendants’
knowledge marketed any products that compete with any of the accused products. e.Digital once
marketed a “Flashback” digital recorder, but it was a commercial failure. Indeed, e.Digital has
not alleged in its complaint that it ever achieved widespread sales of the Flashback digital
recorder.
The second set of document requests also calls for additional documents relating to
privileged communications, such as advice of counsel, (
id.
, Req. No. 17), communications
between defendants regarding the patents-in-suit or claim construction (protected by the common
interest privilege), (
id.
, Req. Nos. 18-19), and documents reflecting designs of new products that
avoid the patents-in-suit (privileged and irrelevant to the extent that the products have not been
marketed or accused of infringement). (
Id.
, Req. No. 21.)
The second set of document requests also request minutes of meetings of “officers,
executives or directors” regarding this case, (
id.
, Req. No. 25); “the quality value, usability
performance demand or benefits of the Currently Accused Products,” (
id.
, Req. No. 27);
“advertising, marketing or sales” of the accused products, including “consumer surveys and
market analyses,” (
id., Req. No. 28); license fees (id.
, Req. No. 29); and sales, costs of
This is a very rich document and it will be VERY interesting to see DM's reply I am quite sure. They are trying desperately to paint us as mere patent trolls. They are certainly hurling a lot of spaghetti at the wall to see what sticks in the judge's mind imo.
