Free Letter - District Court of Delaware - Delaware

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Case 1 :04-cv-00343-JJF Document 729 Filed 07/19/2007 Page 1 of 3 l
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The Honorable Vincent J. Poppiti "’*" (ml 293 6229
Blank Rome LLP
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Wilmington, DE 19801
Re: LG.PIzilq2s LCD C0., Ltd. v. ViewSonic etal., USDC, D. Del., N0. 04-343-JJF
Dear Special Master Poppiti:
Pursuant to permission granted by Your Honor during the July 13, 2007 hearing, I write
on behalf of ViewSonic to respond to Mr. Kirk’s July 12, 2007 letter (DI 713) regarding the
defense in this case of the inequitable conduct LPL engaged in to procure the patents in suit.
LPL’s July 12 letter mischaracterizes the record regarding the defense of inequitable E
conduct in this case, and attempts to prevent ViewSonic from exercising its right to amend its R
Answer under Rule 15 of the Federal Rules of Civil Procedure, which liberally allows
amendments to the pleadings.1
As LPL knows, ViewSonic’s Eighth Affirmative Defense in its originally filed Answer
alleged that "[w]ith discovery still ongoing, ViewSonic has yet to complete its investigation.
ViewSonic reserves the right to assert any other defenses that discovery may reveal, including
inequitable conduct." See DI 21 (V iewSonic’s Answer), at 8. ViewSonic elected to follow
conventional practice in this District to seek discovery regarding inequitable conduct before
tiling an (amended) answer to plead such an affirmative defense. See Enzo LW Sciences, Inc. v.
Digene Cmp., 270 F.Supp.2d 484, 489 (D.Del.2003) (J. Farnan) (accused iniiinger "prudent and
possibly required to confirm the factual allegations through discovery" prior to pleading
inequitable conduct) (emphasis added).
Until only this week, LPL had refused to provide any of the discovery ViewSonic sought
related to LPL’s inequitable conduct before the U.S. Patent and Trademark Office (“PTO"). For
example, LPL had not provided any technical or sales information related to its own LCD
modules made or sold prior to November 22, 1999, the effective U.S. filing date ofthe patents in
‘ suit, or prior to October 27, 1998, the claimed foreign filing date of the patents in suit. This
information is highly relevant not only to ViewSonic’s inequitable conduct investigation, but
also to ViewSonic’s invalidity defenses.
In addition to refusing to provide technical information about its LCD modules, LPL
refused to provide any discovery regarding flat screen LCD monitors sold in the U.S. by LPL’s
predecessor and parent company, LG Electronics ("LGE”), which contain LCD modules made
by LPL or its predecessor. ViewSonic diligently sought the information LPL refused to produce
through 3rd party discovery, and was able to learn in April 2007 that at least one LGE flat screen
monitor, the 500LC, was sold in the U.S. prior to October 1998. This prior art monitor has the
same physical configuration as many of ViewSonic’s products accused in this case, including an l
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1 FRCVP l5(a) provides that "leave [to amend a pleading] shall be freely given when justice so
requires? T

Case 1 :04-cv-00343-JJF Document 729 Filed 07/19/2007 Page 2 of 3 J
‘ CONNOLLY Bova LODGE ar HUTZ LLP l
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The Honorable Vincent]. Poppiti
Page 2
July 18, 2007
LCD module (corresponding to a claimed "tlat panel display device") which is mounted to a f
metal chassis or bracket, and the chassis or bracket is then fastened to the monitor stand via 1
screws through the rear case. If ViewSonic’s monitors infringe, the 500LC represents
invalidating prior art made by LPL’s predecessor and parent that was withheld from the PTO.
ViewSonic learned in May 2007 through third party discovery in this case that the Video
Electronics Standards Association (VESA) Flat Panel Monitor Physical Mounting Interface l
Standard (‘?VESA Standard"), was first published in November 1997, two years before the
effective US filing date of the patents in suit. The VESA Standard establishes specific
requirements for mounting a flat panel monitor to a monitor stand, thereby increasing
compatibility among products from different sources. All of the ViewSonic accused products are
compliant with the VESA Standard. Upon information and belief, LPL’s predecessor and parent
company, LGE, sold monitors prior to October 1998 that were compliant with the VESA
Standard. LPL failed to disclose to the PTO either the VESA Standard, or the LGE monitors
compliant with the VESA Standard.
Despite LPL’s refusal to provide relevant technical discovery until Ordered to do so by
Your Honor, based upon the information available to ViewSonic at the time, ViewSonic served
amended interrogatory responses on March 31, 2007 that expressly put LPL on notice that
ViewSonic was pursuing an inequitable conduct defense. See Ex. 1, at 606-607. ViewSonic has
since further amended that interrogatory response in June 2007 to include information it learned
through 3rd party discovery. See Ex. 2, at 892-894; see also Enzo LW Sciences, at 489 (patentee
not prejudiced by addition of inequitable conduct since accused infringer had already voluntarily
supplemented written discovery responses to address the proposed new defense).
Further, in May 2007, LPL reiiised to agree to permit ViewSonic to file an Amended
Complaint, choosing instead to force ViewSonic to burden the Court with yet another motion. I
See Exs. 3, 4. ViewSonic intends to file a motion for leave to serve and file an Amended Answer
that pleads inequitable conduct in compliance with FRCvP 9(b), but awaits the forthcoming
discovery LPL has been Ordered by Your Honor to produce to be able to fully particularize and
finalize the inequitable conduct allegations. ViewSonic has no objection to having this matter be Q
presented either to the District Court or having it be first referred to Your Honor for a Report and
Recommendation. _ - V · · · ‘.·`
Finally, it bears mentioning that, in their Answers filed April 19, 2005, the Tatung
defendants pled, with particularity, LPL’s inequitable conduct as an affirmative defense (DI 186,
at 8-9; DI 187, at 8-9). Thus, inequitable conduct already is an issue that was joined in the case
long ago. Thus, LPL will not be prejudiced by ViewSonic’s proposed Amended Answer
similarly asserting a defense of inequitable conduct. Furthermore, coupled with the fact that
discovery is still ongoing (reflected in part by LPL’s supplemental productions extending until at
least the end of this month, and the Court’s extension of discovery on advice of counsel defense
until September 5, 2007), allowing ViewSonic to Amend its Answer to include the defense of
inequitable conduct will have little or no impact on the schedule in this case; any minor
adjustments can be accommodated easily in the forthcoming Scheduling Order which is
presently being revised.

Case 1 :04-cv-00343-JJF Document 729 Filed 07/19/2007 Page 3 of 3 i
I CONNOLLY Bova LODGE a: HUTZ LLP
The Honorable Vincent J. Poppiti
Page 3
July 18, 2007
Counsel for ViewSonic looks forward to discussing the issues raised herein at Your 1
Honor’s convenience. 1
Respectfully submitted,
/s/ Jejfrey B. Bove
Jeffrey B. Bove (#998)
cc: Counsel of record

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