This decision is a bit dense, but it's on an issue that could come up in any case.
The plaintiff in TOT Power Control, S.L. v. Samsung Electronics Co., Ltd., C.A. No. 21-1305-MN (D. Del.) accused several products by name, and also stated in its infringement contentions that it would "seek discovery as to the identity of any [of the defendant's] products with substantially similar designs to the expressly listed accused products." D.I. 131.
The case progressed, and it turns out that the defendant does, indeed, have multiple products with similar names. The Court ultimately granted a motion to compel the defendant to provide financial discovery on each of the alternative products, even though the plaintiff had never explicitly named them as accused products:
Plaintiff's motion to compel Defendants to produce a supplemental version of SAMSUNG0293821 that includes financial information for all lettered versions of Accused Product models that Plaintiff accused of infringement is GRANTED, and Defendants shall produce the supplementation on or before May 31, 2024. Defendants argue that Plaintiff should not be permitted to obtain financial discovery on additional versions associated with accused model numbers if those versions were not expressly included in the final list of accused products served on January 26, 2024. (D.I. 130 at 1-3) But Plaintiff's infringement contentions disclosed Plaintiff's intention to seek discovery on "the same underlying products [that] have multiple identification numbers." (D.I. 129, Ex. 2; see also id., Ex. 4 at 2) Prior to serving its final list, Plaintiff put Defendants on notice of the same underlying products it was accusing notwithstanding variations in the version numbers used to label them by stating its intention to "seek discovery as to the identity of any Samsung products with substantially similar designs to the expressly listed accused products." (Id.) The requested discovery encompasses only financial data, no technical data is needed, and the discovery will have no impact on Plaintiff's infringement contentions. . . . The cases cited by Defendants [to the contrary] are distinguishable because they address untimely amendments to substantive contentions, as opposed to an identification of similarly designed additional versions of already-accused products.
Id., D.I. 131.
Importantly, the Court noted that there was no sufficient prejudice or burden argument:
Defendants identify no prejudice beyond a need to investigate whether the accused Qualcomm chipset is used in different versions of the same model numbers. (D.I. 130 at 3; Ex. F at Sched. A) Defendants do not describe any specific burden associated with this inquiry.
Thus, it granted the discovery.
Plaintiff succeeded here even though it looks like the dispute reached the Court after the close of fact discovery and—from what I can tell—Plaintiff never actually amended its list of accused products to include the new products.
I imagine they didn't amend because, if they had, the other side would have argued that the amendment was too late, coming at or after the close of fact discovery. On the other hand, "we just found out they have a bunch of product names they failed to disclose, even though we asked" could be a pretty persuasive justification for a late amendment.
Note to self: Include "substantially similar designs" in future disclosures of accused products...
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