Parties in patent cases often fight about the sufficiency of infringement and invalidity contentions. Parties may offer broad initial contentions, keeping their options open as the case develops and avoiding the cost of detailed contentions. The opposing party, though, may want detailed contentions to narrow and explain the case and to tie parties to their positions.
Often, one side or the other moves to compel more detailed contentions knowing that, if they lose and if the opposing party refuses to supplement, they will be better positioned to exclude the more detailed contentions inevitably offered later.
The defendant in Almondnet, Inc. v. Viant Technology LLC, C.A. No. 23-174-MN (D. Del. July 15, 2024) had a different problem, though. There, Plaintiff accused 40 products and set forth their contentions as to all 40 products in a single chart per patent.
Defendant moved to compel the plaintiff to provide separate charts for each product, arguing that combining all 40 products into a single chart resulted in a jumbled mess that failed to explain how each product infringed:
In support of the motion to compel, Defendant argues that Plaintiffs' supplemental infringement contentions remain deficient in two respects: (1) they provide a single claim chart for each Asserted Patent, instead of charting each accused product and relating it to each asserted patent claim; and (2) each patent chart "includes a jumble of accusations pointing to over 40 different accused instrumentalities." . . . According to Defendant, broad references to the "Accused Instrumentalities" throughout Plaintiffs' infringement contentions provide no specific guidance on which products are associated with particular claim limitations, and the contentions provide no clarity on how multiple accused products work in concert to infringe the Asserted Patents.
Id., ¶ 10. The Court, however, focused on the overall level of detail of the chart, and found it to be fairly detailed, describing contentions and the functionality of the accused services:
The accompanying chart for this claim element identifies 19 services or components and provides a narrative explaining that those services or components electronically receive a partial profile of a computer user from a server controlled by an unaffiliated third party, and the partial profile contains profile attribute information related to that user. . . . This narrative explanation is accompanied by links to Defendant's website and privacy policy platform, and it includes screenshots of content supporting a connection the identified services or components and the requirements of the claim language. . . . Those screenshots, in turn, describe the functionality of specific services or components that make up the Accused Instrumentalities. (See, e.g., D.I. 76, Ex. 3 at 6, 11 (identifying Adelphic as one of the Accused Instrumentalities that meets claim 1[a], and describing how data can be uploaded in Adelphic in Defendant's accused advertising platform).
Id., ¶ 13. According to the Court, that was enough:
Plaintiffs' contentions are sufficient to serve their purpose of providing Defendant with reasonable notice as to how Defendant's advertising platform meets the claim limitations of the Asserted Patents. The supplemental infringement contentions include charts with narrative descriptions, citations, and screenshots of schematics and other technical documents on a limitation-by-limitation basis. . . .
Plaintiffs' contentions are lengthy and detailed, and the narrative infringement theories therein are supported by extensive citations to schematics and other evidence showing the functionality of the services and components that make up Defendant's advertising platform. (D.I. 82, Ex. B at 27:25-28:17) (denying motion to compel supplementation of claim charts that explained why and how 700 accused processors could be grouped together) . . . . The level of detail is sufficient to put Defendant on notice of Plaintiffs' infringement theories. These contentions will be further developed and refined as the case proceeds through discovery, claim construction, and expert reports, but at this stage, Plaintiffs are not required to prove their theories of infringement.
Id., ¶ 12-14. It denied the motion, rejecting the idea that accusing all 40 products in a single chart was necessarily improper.
Of course, there are two sides to the contention issue. While the contentions may be sufficient to avoid an order to supplement, that doesn't mean that the plaintiff will necessarily be free to add contentions later on, if the Court determines that they should have disclosed it initially but that it was obscured by the combined chart. That may be a heavy lift for the defendant, though.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
