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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE POLAROID CORPORATION Plaintiff, v. HEWLETT-PACKARD COMPANY, Defendant. ) ) ) ) ) ) ) ) )

C.A. No. 06-738 (SLR) REDACTED PUBLIC VERSION

POLAROID'S REPLY BRIEF IN SUPPORT OF ITS MOTION TO PRECLUDE HEWLETT-PACKARD FROM RELYING ON UNTIMELY PRODUCED DISCOVERY

OF COUNSEL: Russell E. Levine, P.C. G. Courtney Holohan Michelle W. Skinner David W. Higer Maria A. Meginnes KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, IL 60601 (312) 861-2000 Original Filing Date: June 23, 2008 Redacted Filing Date: June 26, 2008

MORRIS, NICHOLS, ARSHT & TUNNELL LLP Jack B. Blumenfeld (#1014) Julia Heaney (#3052) 1201 N. Market Street Wilmington, Delaware 19801 (302) 658-9200 [email protected] [email protected] Attorneys for Plaintiff, Polaroid Corporation

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TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 ARGUMENT...................................................................................................................................1 I. II. DR. RANGAYYANS' SUPPLEMENTAL EXPERT REPORT SHOULD BE STRICKEN........................................................................................................1 HP'S EVIDENCE AND PROPOSED TESTIMONY ON NONINFRINGING ALTERNATIVES SHOULD BE EXCLUDED.....................4 A. B. III. Retinex .........................................................................................................4 Disabling LACE...........................................................................................6

HP'S UNTIMELY SALES AND FINANCIAL INFORMATION SHOULD BE EXCLUDED.....................................................................................7 A. B. C. Late Identification of HP Products Containing LACE ................................7 Late Identification of iPAQs That Contain LACE ......................................8 Late Identification of International Sales of Accused Products...................9

IV.

HP'S "LISTS OF PATENTS" AND LICENSE AGREEMENT EVIDENCE SHOULD BE EXCLUDED..............................................................10 A. B. Lists of Patents...........................................................................................10 Exhibit A to Flashpoint License Agreement..............................................11

V.

POLAROID'S MOTION IS APPROPRIATE FOR CONSIDERATION NOW ......................................................................................................................11

CONCLUSION..............................................................................................................................12

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TABLE OF AUTHORITIES CASES Bridgestone Sports Co., Ltd. v. Acushnet Co., 2007 WL 521894 (D. Del. Feb. 15, 2007) ..............................................................................12 Philips Electronics North America Corp. v. Contec Corp., 2004 WL 769371 (D. Del. April 5, 2004)..................................................................................8 Praxair v. ATMI Inc., 231 F.R.D. 457 (D. Del. 2005) ............................................................................................4, 12 U.S. v. Sarraga-Solana, No. 04-144-6-JJF, 2005 WL 3701472 (D. Del. Oct. 6, 2005) .................................................10 RULES Federal Rule of Civil Procedure 26 .........................................................................................1, 4, 7 Federal Rule of Civil Procedure 37 ......................................................................................... 11-12 F.R.E. 1006 ....................................................................................................................................10

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INTRODUCTION Polaroid filed its Motion to strike the Supplemental Expert Report of Dr. Rangayyan on invalidity, as well as portions of HP's damages expert's report and summary judgment briefs that rely on evidence that HP failed to produce and witnesses it failed to timely disclose. Polaroid filed that motion because HP has repeatedly disregarded this Court's

deadlines under the Scheduling Order and F.R.C.P 26. In its opposition, HP does not dispute its delay in providing discovery or disclosing witnesses, but instead contends that its failures should be excused. HP's general excuse -- blaming Polaroid -- is unavailing, and Polaroid has suffered substantial prejudice because of HP's conduct. HP's failure to provide timely discovery and to disclose witnesses has no substantial justification and is not harmless. Polaroid's Motion to Preclude should be granted. ARGUMENT I. DR. RANGAYYANS' SUPPLEMENTAL EXPERT REPORT SHOULD BE STRICKEN HP does not deny that it served Dr. Rangayyan's supplemental expert report on invalidity five weeks after the deadline for opening expert reports, or that the supplemental report contained new opinions and new prior art. HP's excuse that Dr. Rangayyan prepared his supplemental report to respond to "new infringement theories" that supposedly first appeared in Dr. Agouris' opening report is incorrect. D.I. 212 at 4. Dr. Rangayyan admitted during his deposition that he did not consider Polaroid's infringement contentions before he delivered his initial report on invalidity. D.I. 172 at 3. Dr. Rangayyan does not reference Polaroid's infringement contentions in his initial report and he did not review any other Polaroid documents before he provided his initial report. D.I. 173, Exh. 3,

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Rangayyan Dep. at 74:10-77:4.

In preparing his initial expert report, any decision Dr.

Rangayyan made as to what art to rely upon or not rely upon, or what arguments to make or not make, simply was not based upon Polaroid's infringement theories, arguments or evidence ­ because he did not look at Polaroid's infringement theories, arguments or evidence before submitting that report, there is no way that that report could have been based on Polaroid's infringement contentions. Because Dr. Rangayyan never considered infringement in the first instance, any allegedly "new infringement theories" could not have been "new" to him, or provided a justification for a supplemental report. Even if Dr. Rangayyan had reviewed Polaroid's infringement contentions before submitting his original report, Dr. Agouris did not assert any new infringement contentions in her opening report. None of the five examples that HP claims are "new infringement theories" were in fact new (D.I. 212 at 4-5). Polaroid disclosed all of the points in paragraphs 19-29 and 34 of Dr. Rangayyan's supplemental report (id. at examples 1 and 5) in its responses to interrogatories long before it served Dr. Agouris' expert report. E.g., compare 9/14/07 Response to Interrog. No. 2 (D.I. 173, Exh. 5) at 10, 11 with D.I. 151, Exh. B at 28. As to paragraph 30 of Dr. Rangayyan's supplemental report (D.I. 212 at 4, example 2), he simply mischaracterizes Dr. Agouris' report -- she did not opine that "any differences in the exponents of transfer functions are insubstantial." Rather, she said that a decimal in the form of a ratio in HP's LACE algorithm is insubstantially different from a fraction in the form of a ratio as described in the `381 patent. As with HP's other examples, Polaroid also stated this infringement contention before it served Dr. Agouris' expert report. Cf. D.I. 212 at 4 with D.I. 155, Exh. B at 29.

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Two of HP's examples (D.I. 173, Exh. 2 at ¶32 and ¶33) were issues that arose only when Dr. Agouris considered HP's claim construction. Polaroid was not required to provide infringement contentions under HP's claim construction during fact discovery, so HP cannot blame Polaroid for a discovery failure here. Dr. Rangayyan in his opening report applied HP's claim construction to prior art issues and could also have applied it to this issue of repeating/non-repeating block averagers, rather than delay until his supplemental report (id. at ¶32). Likewise, Dr. Rangayyan's initial report addressed issues that applied HP's claim

construction, similar to the range of values of M in the algorithm (id. at ¶33). He just as easily could have addressed the issue in ¶33, but instead he did not address it until he offered his late supplemental report. HP's unsupported assertion that Polaroid has not been prejudiced by HP's untimely supplemental report is incorrect. Dr. Rangayyan's supplemental report was served late on the same day that Dr. Agouris' rebuttal to Dr. Rangayyan's invalidity opinions was due, and Dr. Agouris therefore had no chance to respond to Dr. Rangayyan's supplemental opinions in her rebuttal report. Polaroid also had no opportunity to take discovery on Dr. Rangayyan's new prior art (Okada and Iiida), or on Dr. Rangayyan's new enablement defense (see D.I. 172 at 2-4) submitted long after fact discovery had closed. Contrary to HP's assertion, a deposition of Dr. Rangayyan does not cure the prejudice. Such a deposition ignores the need for additional fact discovery, an additional expert report from Dr. Agouris, an additional deposition of Dr. Agouris, and re-writing of already pending summary judgment motions. Allowing HP to offer and rely upon Dr. Rangayyan's supplemental report would necessitate reopening of fact and expert discovery and re-doing summary judgment briefing, all of which would delay the trial in the matter. Because HP has no justification for the late supplemental report and Polaroid has been

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incurably prejudiced, this Court should preclude HP from offering opinion testimony on the subjects in the Rangayyan Supplemental Report. Praxair v. ATMI Inc., 231 F.R.D. 457, 463 (D. Del. 2005). II. HP'S EVIDENCE NONINFRINGING EXCLUDED AND PROPOSED ALTERNATIVES TESTIMONY SHOULD ON BE

HP also does not dispute that it first provided its contentions on noninfringing alternatives and supplemented its F.R.C.P. 26(a) disclosures to identify witnesses having knowledge on that subject a month after the close of discovery and more than three months after Polaroid served its Interrogatory No. 22, seeking HP's contentions on that subject. Nor does HP provide any justification for its delay ­ it merely states that "[b]y then the issues in the case were more developed then they had been at the outset." D.I. 212 at 7. HP simply chose to ignore the Court's deadlines in direct violation of this Court's Scheduling Order and F.R.C.P. 26(a). Polaroid is prejudiced by HP's introduction of the new subject of noninfringing alternatives into summary judgment briefing (that has now been completed) in its Motion for Summary Judgment on Grounds of Estoppel or Laches (D.I. 140). Polaroid has been prejudiced by HP's untimely contentions and identification of witnesses that it did not provide until after Polaroid's experts served their initial reports. This prejudice to Polaroid cannot be cured through depositions, because depositions of those witnesses now would lead to further rounds of expert reports and additional evidence related to the briefing on summary judgment that has already been completed. Therefore, HP should be precluded from offering the evidence on noninfringing alternatives identified below. A. Retinex

HP's damages expert, Mr. Wallace, should be precluded from offering an opinion on Retinex as a noninfringing alternative. The information on which Mr. Wallace relies from -4-

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the Fredrickson Report was not provided during discovery, and witnesses on whom he relies ­ Paul Fredrickson and Rhanjit Bhaskar­ were not timely identified. HP's attempt to justify its failure to comply with this Court's Scheduling Order by referencing Dr. Agouris' initial report is unsupportable. HP asserts that Mr. Fredrickson

undertook his investigation in response to the opinion stated in Dr. Agouris' initial report that Retinex was not substitutable for LACE in printer drivers. In reality, HP was aware that Polaroid would dispute that Retinex was a noninfringing alternative long before Dr. Agouris' report ­ HP's counsel even told the Court at the November 2007 discovery conference "We are not abandoning an argument that [Retinex] is a noninfringing alternative." D.I. 172 at 20. Dr. Agouris' report was no surprise to HP. HP's contention that despite its failure timely to identify Messrs. Fredrickson or Bhaskar or Ms. Lee as witnesses having knowledge of Retinex as a substitute for LACE, Polaroid was not prejudiced because Polaroid's own document requests directed specifically to those individuals' documents concerning Retinex show that Polaroid "evidently knew these witnesses might have knowledge" is equally unpersuasive. D.I. 212 at 7-8. HP actually refused to produce any documents in response to those requests. Exh. 52. HP's discovery stonewalling is not a reasonable justification for HP's failure to timely disclose information. Polaroid will be prejudiced if Messrs. Fredrickson or Bhaskar or Ms. Lee are permitted to testify on noninfringing alternatives. HP did not produce the Fredrickson report until more than two months after Mr. Bhaskar's deposition, so there was no way for Polaroid to question Mr. Bhaskar about it. If Polaroid were to take the depositions now under paragraph 3(f) of the Scheduling Order, it would lead to another round of expert discovery, and would likely also uncover evidence that would impact HP's motion for summary judgment on laches. The

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time for expert discovery has passed and briefing on summary judgment motions is completed. These issues should not be reopened to accommodate HP's failure to comply with the Scheduling Order and provide its contentions on noninfringing alternatives during fact discovery, as it was required to do. B. Disabling LACE

As with Retinex, HP does not deny that it did not provide its contention that disabling LACE in its printer drivers (and removing the LACE code going forward) was a noninfringing alternative until it served its supplemental response to Interrogatory No. 22 -- a month after the close of discovery and after Polaroid had served its initial expert reports. HP argues instead that Polaroid did not specifically seek HP's contentions about disabling LACE (D.I. 212 at 9, n. 7). HP's own (late) response to Interrogatory No. 22, however, acknowledges that its "future plans" concerning whether to include a LACE feature was a noninfringing alternative (D.I. 174, Exh. 13 at 22-23). Polaroid's discovery requests did encompass HP's contention that disabling LACE was a noninfringing alternative. In addition to Polaroid's Interrogatory No. 22 -- served in November 2007 -- Polaroid served numerous document requests seeking information on noninfringing alternatives (e.g. D.I. 174, Exh. 9 at nos. 424-30), including a request specifically directed at "HP's decision whether to use any product HP alleges is a non-infringing substitute" (id. at no. 426) as well as broader requests seeking all docs identified in response to any Polaroid interrogatory. There is no question that Polaroid's discovery requests sought information

concerning HP's future plans for LACE. HP's contention that its abuse of the discovery process should be overlooked because Polaroid has taken the deposition of Mr. Bhaskar, and can take the deposition of Ms. Lee now, pursuant to paragraph 3(f) of the Scheduling Order (D.I. 212 at 9-10) does not cure the -6-

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prejudice to Polaroid. For example, Polaroid did not have the Martinez Declaration (which HP only provided with its opposition, D.I. 214) at the time it took Mr. Bhaskar's deposition. Paragraph 3(f) of the Scheduling Order requires that a party's list of trial witnesses include only witnesses who have "previously been disclosed during discovery," and it does not provide a mechanism for late identification of witnesses (such as Mr. Lee), as HP suggests. HP did not identify Ms. Lee as a witness on its Rule 26(a)(1) disclosure on the subject of disabling LACE until after the close of discovery (D.I. 174, Exh. 16 at 2-3). profit from its abuse of the discovery process. III. HP'S UNTIMELY SALES AND FINANCIAL INFORMATION SHOULD BE EXCLUDED A. Late Identification of HP Products Containing LACE HP should not be permitted to

HP does not dispute that it identified products that use LACE more than a month after the close of discovery and after Polaroid served its damages expert's report, or that it produced sales data for those products more than two months after the close of discovery.1 See D.I. 174, Exh.13, D.I. 172, Exh. A, Items 17, 19-20 (HP_97225-226, produced on April 15, 2008). Polaroid was not able to take discovery on those products or the sales data because of HP's delay. HP attempts to justify its delay by offering a new declaration by an HP employee, Teodoro Haasl-Martinez, who had to "spend a lot of time" to identify the HP products. D.I. 212 at 11.2 HP's failure to comply with the discovery schedule was not a result of the amount of

1

HP notes that Polaroid produced more than 4500 pages of documents after the cutoff date, as a way of arguing that "HP's efforts have been more than reasonable in the circumstances." D.I. 212 at 3-4. In fact, all of those documents related solely to expert discovery, and were not late fact discovery as HP suggests. The Martinez Declaration attached to HP's opposition (D.I. 214) raises more questions about HP's products than it answers, and Polaroid has not been able to take discovery on it. The Court should also preclude the Martinez Declaration. -7-

2

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work that Mr. Martinez had to do, but rather a product of HP's failure to undertake that work until it was too late, despite Polaroid's repeated requests. For months during discovery, Polaroid pressed HP to produce sales data for its accused products and to supplement its identification of those products. In response to

Polaroid's October and November requests for relief from the Court on this issue, HP represented to the Court at the November 6 discovery conference that it had provided all sales data for its "accused products as we understood them." (D.I. 172 at 6:22-7:1; Exh. 53). Despite Polaroid's repeated requests even after the conference with the Court, HP refused to supplement. (Exh. 54). HP has not justified its delay. The Court should preclude HP from offering item 17, 19 or 20 as identified in Polaroid's motion, any opinion of Mr. Wallace that relies on that evidence, or the Declaration of Mr. Martinez. Philips Electronics North America Corp. v. Contec Corp., 2004 WL 769371 at *1 (D. Del. April 5, 2004). B. Late Identification of iPAQs That Contain LACE

HP argues that Mr. Wallace should not be precluded from relying on a document containing sales data for iPAQ units that contain LACE code (HP_97227, produced April 15, 2008) or the testimony of Chris Hayes on that subject. HP does not deny that HP_97727 was produced two months after the close of fact discovery and a month after initial expert reports, or that Chris Hayes was not identified until Mr. Wallace's expert report. HP instead attempts to justify its conduct by asserting that HP employee, Mr. Martinez, "had not been aware that iPAQs might contain LACE code" and "[a]t the time HP prepared its initial disclosures, HP could not have known that this information would be relevant" until Polaroid's damages expert, Dr. Strickland, served his report (D.I. 212 at 12, 17). HP's purported ignorance about its own products during discovery is not a reasonable justification for its belated production or the prejudice caused to Polaroid. Contrary -8-

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to HP's suggestion, the prejudice to Polaroid would not be cured by reopening discovery so that Polaroid could take Mr. Hayes' deposition. As explained above, paragraph 3(f) of the Scheduling Order was not intended to provide a second chance to a party such as HP that does not cooperate in discovery. The Court should also strike the Declaration of Chris Hayes attached to HP's opposition (D.I. 215). C. Late Identification of International Sales of Accused Products

As with its late evidence of iPAQ sales, HP also belatedly addressed the issue of its international sales of accused products that were made in the United States, and now argues that it was merely responding to contentions made for the first time in Dr. Strickland's report. In fact, HP knew that international sales of U.S.-made products were at issue. Polaroid asked for that information repeatedly during discovery. For example, Polaroid took the deposition of HP's 30(b)(6) witness, Ms. Dogan, in October 2007 and asked her where HP's accused products are manufactured, and followed up in correspondence to try to get the answers that Ms. Dogan could not provide (although obligated to do so as a 30(b)(6) witness). Exh. 54. In December, HP produced a Declaration of Kathryn Doyel that still did not respond to Polaroid's requests about manufacturing locations. (Exh. 55). Polaroid then sought another 30(b)(6) deposition specifically directed to "the names and locations of each of the HP facilities that manufacture and/or distribute" the accused products. Exh. 56 at ¶ 13. HP refused to produce a witness for this topic. (Exh.. 57). Months later, after Dr. Strickland provided his expert report, HP assigned Paul Ruiz to investigate HP's manufacturing locations for the accused products. Having refused to do that investigation or provide that information during discovery, HP should not be permitted to

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offer it now. The Court should exclude the evidence at page 81 of Mr. Wallace's report concerning international sales, and preclude HP from offering Mr. Ruiz's testimony at trial.3 IV. HP'S "LISTS OF PATENTS" AND LICENSE AGREEMENT EVIDENCE SHOULD BE EXCLUDED A. Lists of Patents

HP's contention that its belated production of the Lists of Patents -- provided after the close of discovery and submission of Polaroid's damages expert's report -- should be excused because Polaroid did not seek that information in discovery is incorrect. The Lists of Patents are HP documents that list the HP patent inventions that are incorporated in its printer products. Mr. Wallace relies on those documents for his opinion relating to Georgia-Pacific factor no. 13, the portion of profit that should be credited to the patented technology. Polaroid sought production of all documents "that support, contradict, or otherwise refer or relate to HP's contention as to what constitutes a reasonable royalty..." (Polaroid's 2d Set of Requests for Production, No. 65, D.I. 174, Exh. 8 at 3). HP has no excuse for its late production of these documents and they should be excluded. Furthermore, HP's argument that the Lists of Patents should be admissible as a summary chart of public records under F.R.E. 1006 is not persuasive. That rule requires that "[t]he originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place." See F.R.E. 1006; U.S. v. Sarraga-Solana, No. 04-144-6JJF, 2005 WL 3701472, at *4 (D. Del. Oct. 6, 2005) (finding that the proponent of a summary must prove that the documents have been made available for inspection or copying). HP did not produce the patents underlying the Lists of Patents charts, and the patents that are publicly

3 Polaroid is concurrently filing a separate motion to preclude HP from offering testimony of Mr. Ruiz, and other witnesses that HP did not identify in discovery. - 10 -

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available provide no information regarding the "family of HP printers" to which they supposedly relate. See Wallace Rpt. at 58 (D.I. 174, Exh. 18) (linking both lists of patents to one, unidentified "family of HP printers"). Moreover, the underlying HP patents do not by themselves reveal HP's intention to rely on them. And, the fact that HP marked this document as Outside Counsel Eyes Only is proof on its face that it does not present public information. (Exh. 58). B. Exhibit A to Flashpoint License Agreement

In its opposition, HP withdrew its reliance on all of the license and settlement agreement evidence in Polaroid's motion, except for one agreement. HP maintains its reliance only on Exhibit A to the Flashpoint License Agreement and argues that Polaroid was not prejudiced by its late production, a month after the close of fact discovery, because it had the document "well in advance" of Mr. Wallace's deposition. D.I. 212 at 15. HP offers no justification for its late production, other than inadvertence, and neglects to mention that it did not produce the document until the day before the deposition of HP's 30(b)(6) witness on that subject, and only two days before Polaroid's damages expert's report was due, so that he was not able fully to consider it in his analysis. Polaroid was prejudiced and HP's neglect is not excusable; therefore, the

attachment to the Flashpoint License Agreement should be excluded. V. POLAROID'S MOTION CONSIDERATION NOW IS APPROPRIATE FOR

HP argues that Polaroid's motion is not properly filed at this stage of the proceedings because the Court does not permit Rule 37 or in limine motions, absent express approval, and that the issues in Polaroid's motion will not be ripe until after the parties have exchanged exhibit lists and witness lists. D.I. 212 at 20-21.

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HP's late-produced evidence and discovery failures that are the subject of this motion are interlaced with the issues that the parties are briefing on summary judgment, and properly considered in that context. They also affect trial preparation in important ways. It is more efficient for the Court to have Polaroid's preclusion request at the time it is considering summary judgment. Furthermore, as a result of the briefing on this motion, HP has withdrawn some of the late evidence that was the subject of Polaroid's motion, which will promote some efficiency as this case moves toward trial. Finally, this motion is not a Rule 37 motion to compel discovery. It is a motion to exclude evidence that HP has failed to provide in accordance with this Court's discovery schedule. In view of HP's disregard of its discovery obligations, Polaroid's Motion to Preclude should be granted. It is a motion of the sort that this Court granted in Praxair, supra, and Bridgestone Sports Co., Ltd. v. Acushnet Co., 2007 WL 521894 (D. Del. Feb. 15, 2007), based upon similar preclusion motions. CONCLUSION For the foregoing reasons, Polaroid's Motion to Preclude HP From Relying on Untimely Produced Discovery should be granted.

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MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Julia Heaney_________________________
Jack B. Blumenfeld (#1014) Julia Heaney (#3052) 1201 N. Market Street Wilmington, Delaware 19801 (302) 658-9200 [email protected] [email protected] Attorneys for Plaintiff, Polaroid Corporation

OF COUNSEL: Russell E. Levine, P.C. G. Courtney Holohan Michelle W. Skinner David W. Higer Maria A. Meginnes KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, IL 60601 (312) 861-2000 June 23, 2008
2377405

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CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on June 26, 2008, I electronically filed the foregoing with the Clerk of the Court using CM/ECF, which will send notification of such filing(s) to the following: William J. Marsden, Jr. FISH & RICHARDSON P.C. I also certify that copies were caused to be served on June 26, 2008 upon the following in the manner indicated: BY E-MAIL William J. Marsden, Jr. FISH & RICHARDSON P.C. 919 N. Market Street, Suite 1100 Wilmington, DE 19801 Matthew Bernstein John E. Giust MINTZ LEVIN COHN FERRIS GLOVSKY AND
POPEO PC

Bradley Coburn FISH & RICHARDSON P.C. One Congress Plaza, Suite 810 111 Congress Avenue Austin, TX 78701 Daniel Winston CHOATE HALL & STEWARD, LLP Two International Place Boston, MA 02110

5355 Mira Sorrento Place Suite 600 San Diego, CA 92121-3039 /s/ Julia Heaney __________________________ Julia Heaney (#3052)

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