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Comcast Cable Communications, LLC v. OpenTV, Inc.

United States District Court, N.D. California

June 19, 2017

COMCAST CABLE COMMUNICATIONS, LLC, Plaintiff,
v.
OPENTV, INC., and NAGRAVISION SA, Defendants.

          ORDER RE MOTION TO STRIKE AND MOTION TO AMEND INFRINGEMENT CONTENTIONS

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         In this action for declaratory judgment of patent noninfringement, plaintiff moves to strike the patent owners' infringement contentions for failure to comply with Patent Local Rule 3-1. The patent owners oppose and separately move to amend their infringement contentions. Plaintiff's motion to strike is Granted in part and Denied in part. The patent owners' motion to amend is Granted subject to the conditions stated herein.

         STATEMENT

         This patent dispute began in October 2015, when defendants OpenTV, Inc., and Nagravision SA, both subsidiaries of Kudelski SA, approached plaintiff Comcast Cable Communications, LLC, to negotiate a licensing deal based on the premise that certain Comcast products infringed Kudelski's patent portfolio.

         In October 2016, Comcast filed this action for declaratory judgment of noninfringement of certain patents from Kudelski's portfolio.[1]

         After an initial case management conference, a case management order set forth a procedure for pilot summary judgment motions from both sides as to one chosen claim per side (Dkt. No. 82). Since then, the parties have agreed to cross-move for early summary judgment as to the same claim (claim 1 of the '595 patent) (Dkt. No. 114). The patent owners have also notified Comcast of their intent to provide covenants not to sue on four of the patents asserted in this case (id. at 1 n.1). Under the current case management schedule, fact discovery for the pilot summary judgment motions will close on June 2 and the motions will be filed on June 26, to be heard on August 3 (Dkt. No. 135).

         On March 27, the patent owners answered and counterclaimed for infringement of the '082, '139, '327, '389, '461, '586, and '595 patents. On April 3, Comcast moved to dismiss count four of the counterclaim, which concerns the '139 patent (Dkt. No. 96). On April 17, the patent owners opposed the motion to dismiss and separately cross-moved to amend their infringement contentions for the '139 patent (Dkt. Nos. 99-100). On April 24, the patent owners filed a first amended answer and counterclaim (Dkt. No. 105), thereby mooting the motion to dismiss and the cross-motion to amend infringement contentions for the '139 patent (see Dkt. No. 138 at 11:25-12:21).

         On April 19, the patent owners filed another motion to amend their infringement contentions as to the '586 patent (Dkt. No. 101). On April 20, Comcast moved to strike the infringement contentions as to the '082, '139, '461, '586, and '595 patents with prejudice (Dkt. No. 102). This order follows full briefing and oral argument.[2]

         ANALYSIS

         1. Comcast's Motion to Strike.

         As a preliminary matter, the patent owners contend Comcast's motion to strike should be denied as “procedurally deficient” because Comcast did not meet and confer prior to filing pursuant to Civil Local Rule 37-1(a) (Dkt. No. 111 at 5-7). That rule falls under CLR 37, which concerns “motions to compel disclosure or discovery or for sanctions, ” and states, “The Court will not entertain a request or a motion to resolve a disclosure or discovery dispute unless, pursuant to Fed.R.Civ.P. 37, counsel have previously conferred for the purpose of attempting to resolve all disputed issues.” The patent owners posit that CLR 37-1(a) applies to Comcast's motion to strike because “[a] motion to strike a party's disclosure of asserted claims and infringement contentions, by definition, constitutes a ‘disclosure or discovery dispute.'” (Dkt. No. 111 at 6 (emphasis in original)).

         This myopic focus on the word “disclosure” ignores the substance and context of CLR 37. Each provision of that rule (save and except for CLR 37-4, which concerns motions for sanctions) unambiguously concerns discovery disputes and motions to compel discovery. Furthermore, Federal Rule of Civil Procedure 37, which provides the context for CLR 37, makes clear that motions to compel “disclosure” thereunder contemplate discovery disclosures required by FRCP 26(a). See F.R.C.P. 37(a). Thus, contrary to the patent owners, mere overlap of the word “disclosure” between CLR 37 and PLR 3-1 does not suggest that the meet-and-confer requirement of the former should apply to the latter. None of the decisions cited by the patent owners so held. This order therefore declines to deny as “procedurally deficient” Comcast's motion to strike and proceeds to consider the motion on its merits.[3]

         Comcast contends the patent owners' infringement contentions violate PLR 3-1 by (1) relying too much on “information and belief, ” (2) charting asserted claims for only one or two accused products despite purporting to accuse more products of infringement, (3) asserting indirect infringement theories in generic terms by merely tracking the pertinent statutory language, (4) using only boilerplate language to assert infringement under the doctrine of equivalents, and (5) failing to specifically identify the patent owners' own “instrumentalities and products purportedly embodying the '139 Patent” (Dkt. No. 102 at 3).

         A. Allegations Upon “Information and Belief.”

         Comcast argues that the patent owners' infringement contentions should be stricken for lack of “pre-suit investigation” because their reliance on “information and belief” violates PLR 3-1(c) (see Dkt. No. 102 at 5-10). That rule requires only “[a] chart identifying specifically where and how each limitation of each asserted claim is found within each Accused Instrumentality, including for each limitation that such party contends is governed by 35 U.S.C. § 112(6), the identity of the structure(s), act(s), or material(s) in the Accused Instrumentality that performs the claimed function.” It does not prohibit allegations made upon “information and belief.” Indeed, reading PLR 3-1 as a whole makes clear that it requires specific allegations but not evidence of ...


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