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Wi-LAN Inc. v. LG Electronics, Inc.

United States District Court, S.D. California

September 25, 2019

WI-LAN INC.; WI-LAN USA, INC.; and WI-LAN LABS, INC., Plaintiffs,
v.
LG ELECTRONICS, INC.; LG ELECTRONICS U.S.A., INC; and LG ELECTRONICS MOBILECOMM U.S.A., INC., Defendants.

          ORDER DENYING PLAINTIFFS’ MOTION TO STRIKE [DOC. NO. 136.]

          MARILYN L. HUFF, DISTRICT UNITED STATES DISTRICT COURT

         On August 30, 2019, Plaintiffs Wi-LAN Inc., Wi-LAN USA, Inc., and Wi-LAN Labs, Inc. filed a motion to strike and exclude portions of the export report of Defendants LG Electronics, Inc., LG Electronics U.S.A., Inc., and LG Electronics Mobilecomm U.S.A., Inc.’s technical expert, Mr. Proctor, and portions of the expert report of LG’s source code expert, Mr. Frappier. (Doc. No. 136.) On September 16, 2019, LG filed its response in opposition to Wi-LAN’s motion to strike. (Doc. No. 165.) On September 18, 2019, the Court took the matter under submission. (Doc. No. 171.) On September 21, 2019, Wi-LAN filed its reply.[1] (Doc. No. 175.) For the reasons below, the Court denies Wi-LAN’s motion to strike.

         Background

         On July 11, 2018, Wi-LAN filed a complaint for patent infringement against LG, alleging infringement of U.S. Patent Nos. 8, 787, 924, 8, 867, 351, 9, 226, 320, and 9, 497, 743. (Doc. No. 1.) Specifically, Wi-LAN alleges that LG’s wireless communication products that are compliant with the 3rd Generation Partnership Project 4G LTE standard directly infringe the patents-in-suit. (Id. ¶¶ 37, 40, 53, 66, 79.)

         On October 10, 2018, LG filed an answer to Wi-LAN’s complaint along with counterclaims for: (1) declaratory judgments of non-infringement and invalidity of the patents-in-suit; (2) declaratory judgment of unenforceability for failure to disclose to standard setting organizations; (3) declaratory judgment of unenforceability of the ’351 patent; (4) declaratory judgment that LG is entitled to license the patents-in-suit on FRAND/RAND terms and conditions; (5) breach of contract; (6) monopolization and attempted monopolization in violation of section 2 of the Sherman Act; and (7) unfair business practices under California Business and Profession Code § 17200 et seq.[2] (Doc. No. 17.) On November 13, 2018, the Court issued a scheduling order in the action. (Doc. No. 36.) On January 9, 2019, the Court entered a supplemental protective order for non-party Qualcomm, Inc. (Doc. No. 51.)

         On March 11, 2019, Wi-LAN served its first set interrogatories on LG, which included the following two interrogatories:

         Interrogatory No. 4: Identify with specificity which claim elements asserted in Plaintiff’s Patent Local Rule 3.1 infringement charts You admit are present in Your Accused Products, and which You contend are absent, setting forth in detail the basis for any contention that an element is absent, including any specific evidence that You assert proves a particular claim limitation is not present in any Accused Product.

         Interrogatory No. 5: Identify with specificity any products or processes that You contend are acceptable noninfringing alternatives to those covered by the Asserted Claims, identifying with specificity which claim elements asserted in Plaintiff’s Patent Local Rule 3.1 infringement chart You contend are absent from such noninfringing alternatives, and stating why.

(Doc. No. 136-2, First Decl. Ex. 2 at 7, 18; Doc. No. 141 at 1.)

         On July 5, 2019, LG served its first supplemental objections and responses to Wi-LAN’s interrogatories. (Doc. No. 136-2, First Decl. Ex. 2.) In its objections and responses, LG objected to interrogatories Nos. 4 and 5 on, among other grounds, that the interrogatories requested “information, that is outside of LG’s possession, custody, or control and that LG is not entitled to view or access as a result of the Qualcomm Supplemental Protective Order.” (Id. at 14, 22.) LG also objected to interrogatories Nos. 4 and 5 “as premature to the extent [they] request[] opinion or expert testimony. (Id. at 7, 18.) LG further stated that it “intends to rely upon expert testimony to sufficiently respond to Interrogatory No. [4/5] and to support its noninfringement of the Asserted Claims.” (Id. at 16, 24.)

         On August 20, 2019, the Court granted Wi-LAN’s motion to extend the deadline for rebuttal expert reports to August 28, 2019. (Doc. No. 131.) On August 28, 2019, LG served the rebuttal expert report of James A. Proctor, Jr. and the rebuttal expert report of Mark Frappier. (Doc. No. 141, First Decl. Exs. 1, 9.) On September 3, 2019, LG served its second supplemental responses to Wi-LAN’s interrogatories Nos. 4 and 5. (Doc. No. 166-2, Lukas Decl. Ex. 2.) In its second supplemental responses, LG incorporated Messrs. Proctor and Frappier’s expert reports into its responses pursuant to Federal Rule of Civil Procedure 33(d). (Id. at 21, 30.) On September 3, 2019, the Court issued an amended scheduling order in the action. (Doc. No. 143.)

         By the present motion, Wi-LAN moves to strike certain portions of the export report of LG’s technical expert, Mr. Proctor, and certain portions of the expert report of LG’s source code expert, Mr. Frappier. (Doc. No. 141.) Specifically, Wi-LAN moves to strike paragraphs 208-211, 214-216, 218-221, 241-248, 250-256, 258-261, 264-266, 277-282, 286-297, 321-325, 328-331, 333-341 and 383-388 of Mr. Proctor’s rebuttal expert report and paragraphs 40-73, 81-90, and 92 of Mr. Frappier’s expert report. (Id. at 1.)

         Discussion

         Wi-LAN argues that the Court should strike the paragraphs at issue from Messrs. Proctor and Frappier’s expert reports because they contain new non-infringement positions and new non-infringing alternatives that should have been disclosed earlier in the litigation. (Doc. No. 141 at 1.) Specifically, Wi-LAN argues that these non-infringement theories and non-infringing alternatives should have been included in ...


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