222 Drzrnxvararz Avrrvriré, Surrr 900
PO. Box 25150
THE BAYARD Pmrvr "Ci;“£I‘i$ii?.i;..}?}E..}i23$
A ,1* T R N E Y S 1‘r1E1t1Tf2S 1./112 f1111»1i ‘.“}0EZl13tVi1Jt
www bay;1rr11`ir1n xorn
502-655-5000
(Fax) 502-658-6595
ELECTRONICALLY FILED \Wr
(302) 429-4208
rkirk@,bayardf1rrn.com
June 8, 2007
The Honorable Vincent J. Poppiti
Blank Rome LLP
1201 Market Street, Suite 800
Wilmington, DE 19801
Re: LG.Philqrs LCD C0., Ltd. v. ViewSonic, C.A. N0. 04-343 JJF
Plaintiffs Resgonse to ViewSonic’s May 8 Motion to Comgel
Dear Special Master Poppiti:
Plaintiff LG.Philips LCD Co., Ltd. ("LPL") submits this opposition to Defendant
ViewSonic Corporation’s ("ViewSonic") May 8, 2007 motion to compel LPL to produce sales
summaries for 1998-99 (the "Motion"). ViewSonic contends that the sales summaries it seeks
will be responsive to its Document Requests 122 and 124 and Interrogatories 31, 33, 36 and 37.
(See Mot. at 1; Exs. 6, 8 and 9 to ViewSonic’s May 2, 2007 L.R. 7.1.1 Certification (containing
the discovery requests at issue here and LPL’s responses and objections to same).) The Motion
should be denied because, among other reasons: (1) it seeks financial information that is not
relevant or reasonably calculated to lead to discovery of admissible evidence; (2) ViewSonic
previously has argued that it is improper to require a party to prepare data summaries for
litigation purposes; and (3) ViewSonic’s Motion raises discovery requests that overlap with
disputed claim terms of the Patents—in—Suit.
By agreement and in response to the temporal scope of ViewSonic’s previous discovery
requests, LPL has already produced sales summaries for 2000-06. ViewSonic now seeks broader
sales summaries to include sales of all LPL products anywhere in the world during 1998-99.
These new demands, however, contradict ViewSonic’s prior contentions that financial
information from before December 2002 is irrelevant to this case.} ViewSonic should be
estopped from asserting a contrary position now.
During the March 13, 2007 hearing regarding LPL’s deposition topics, ViewSonic argued
that LPL’s discovery from ViewSonic should be limited to the time period after the Patents-in-
Suit issued. (See Ex. A, Mar. 13, 2007 Hr’g Tr. at 48-55; Ex. B, E-mail from C. Connor to S.
i The discovery requests covered by the Motion were all served in February 2007 after Your Honor permitted
Defendants to serve new written discovery requests that focused on the claim terms that LPL identified in November
2006. ViewSonic’s demand for financial information from 1998-99 is totally unrelated to the claim terms identified
in November.
662293-1
Case 1 :04-cv—00343-JJF Document 685 Filed 06/08/2007 Page 2 of 4
The Honorable Vincent J. Poppiti
THE BAYARD FIRM time 8,2007
Page 2
Miller (May 21, 2007).) At that hearing, ViewSonic noted that the Patents-in-Suit issued in
December 2002 and, as a result, December 2002 is "the earliest date that could come into play."
(Ex. A at 49.) ViewSonic also argued that, because LPL is only seeking reasonable royalty
damages in this case, requiring ViewSonic to prepare to testify about information from before
December 2002 would be "an undue burden for information that can’t actually be used in this
case.†(Id. at 51.) Based on that position, ViewSonic confinned that it had refused to produce
information for sales prior to December 2002. (Id. at 54-55.) Your Honor accepted ViewSonic’s
arguments and limited LPL’s deposition topics to "the time frame for which production has been
provided." (Id. at 51 & 55.) LPL’s production of sales summaries going back to 2000, therefore,
exceeds the scope of ViewSonic’s production by almost three years. If, according to ViewSonic,
financial information prior to December 2002 is irrelevant, then LPL should not be held to
different standard and should not be required to produce any sales information for 1998 or 1999.2
ViewSonic incorrectly argues that sales summaries are relevant: (1) to "a reasonable
royalty investigation"; and (2) to "evaluate the commercial success of the alleged invention."3
As stated above, ViewSonic specifically has argued that sales infonnation before December
2002 is generally irrelevant because such information cannot "actually be used in this case."
(Ex. A at 51.) The reasonable royalty analysis focuses on the so-called hypothetical negotiation
for a license at the time of first infringement (in or about December 2002). See Applied Med.
Res. Corp. v. UTS. Surgical Corp., 435 F.3d 1356, 1363-64 (Fed. Cir. 2006). ViewSonic has not
produced any sales information prior to December 2002, while LPL has already produced data
since 2000. Nor has ViewSonic satisfactorily explained how LPL’s 1998-99 financial
information is relevant and discoverable, despite LPL’s inquiries. (See Exs. B & C.)
ViewSonic’s "commercial success" argument is equally unavailing. Again, ViewSonic’s
contention that pre—2002 information is not discoverable should preclude its current Motion.
Further, ViewSonic already has LPL’s sales infonnation that predates the Patents-in-Suit by
almost three years. ln any event, the commercial success of the invention refers to whether
LPL’s reannounting technology enhances the commercial success of products using that
technology.4 ViewSonic, however, cannot show that all of LPL’s module sales in 1998-99 are
relevant to either the patented invention or commercial success.
2 During meet-and-confer discussions, LPL had made a proposal to produce certain sales information to resolve
various disputed issues. (See, eg., Ex. 25 to ViewSonic’s May 8 L.R. 7.1.1. Cert. (5/2/07 email from Mr. Connor:
"Therefore, LPL is willing to produce the sales summaries in the form that we discussed, but only if ViewSonic will
accept those summaries as being fully responsive to RFPs 121-124 and Interrogatories 30·33 and 36-37).)
ViewSonic, however, did not accept LPL’s proposal. (See id. (5/2/07 and 5/3/07 emails from Mr. Nelson to Mr,
Connor).) Before LPL could discuss the issue further, moreover, ViewSonic rebuffed LPL and filed the Motion.
3 ViewSonic’s Motion seeks only summaries, rather than any source data, and source data is not at issue.
4 Commercial success is a factor that can be used to show non—obviousness. See, e.g., Graham v. John Deere C0. of
Kansas Ciiy, 383 U.S. 1, 18 (1966). As the Federal Circuit has explained, "there must of course be a sufficient
relationship between the commercial success and the patented invention." Demaco Cmp. v. F. Von Langsdorf
Licensing Ltd., 851 F.2d 1387, 1392 (Fed. Cir. 1988). The nexus generally exists when "the thing (product or
method) that is conmiercially successful is the invention disclosed and claimed in the patent." Id.
662293-1
Case 1 :04-cv—00343-JJF Document 685 Filed 06/08/2007 Page 3 of 4
The Honorable Vincent J. Poppiti
T1-in BAYARD FIRM June 8,2007
Page 3
Further, the Motion seeks to compel LPL to generate and produce summaries for
discovery purposes, even after ViewSonic contended that "to create [summaries] solely for the
purposes of responding to a discovery request" is "entirely inappropriate? (Ex. D, May 23, 2007
Hr’ g Tr., 45-46.) Based on ViewSonic’s contentions, Your Honor ruled that, even if a party has
the ability "to go into a database and create something that is new and snappy and more clear and
more cogent and more focused, if that’s not done in the ordinary course of business and it is only
done — or only done against the backdrop of a litigation request, it’s something that the Court is
not going to direct." (Id. at 44-45.) LPL therefore should not be required to produce summaries
specifically for purposes of litigation and responding to a discovery request, as opposed to
producing existing reports or summaries that LPL had already created for business purposes.
Underlying cost and profit data from 1998-99 also is not relevant or reasonably
calculated to lead to discovery of admissible evidence. In any event, based on its investigations,
LPL only has certain cost data for the month of December 1999. Thus, LPL cannot produce
summaries with cost and profit data from 1998-99. (See Ex. C, Letter from C. Connor to M.
Nelson (May 11, 2007); Ex. 18 to ViewSonic’s May 2 Cert., E-mail from C. Connor to M.
Nelson (Apr. 30, 2007), il 1; Ex. 19-1 to ViewSonic’s May 2 Cert., at 1-2, E-mail from C.
Connor to M. Nelson (May 2, 2007) and E-mail from M. Nelson to C. Connor (May 2, 2007).)
Finally, at a minimum, the Motion should be deferred to the extent that the discovery
requests inject disputed claim terms and require claim construction in order to respond.
Document Request 124, for example, focuses on the disputed term "rear mountable" and
Interrogatories 36 and 37 focus on the disputed term "comers." Their reliance on disputed claim
terms means that these requests improperly preempt the claim construction process contrary to
the Scheduling Order. Just as resolution of ViewSonic’s May 2, 2007 motion to compel was
deferred until after the claim construction process, if the instant Motion is not denied, it should
be deferred to the extent it requires Your Honor’s claim construction.5 (See generally Ex. E,
May 24, 2007 Hr’ g Tr., 3-33 (deferring motion largely because it was based on disputed terms).)
For all of these reasons, ViewSonic’s Motion should be denied.
Respectfully submitted, _
, Qléc,/@2;,
Richard D. Kirk (rk0922)
cc: Counsel as shown on the attached certificate
5 ViewSonic appears to concede that at least some of these issues overlap with claim construction and should be
deferred. (See Ex. 19-1 to ViewSonic’s May 2 Cert., 2 (noting that Interrogatory 33 and Document Request 124
either require claim construction or are mooted by other requests).)
662293-l
Case 1:04-cv-00343-JJF Document 685 Filed 06/08/2007 Page 4 of 4
CERTIFICATE OF SERVICE
The undersigned counsel certifies that, on June 8, 2007, he electronically filed the
foregoing document with the Clerk of the Court using CM/ECF, which will send
automatic notification of the filing to the following:
Jeffrey B Bove, Esq. Frederick L. Cottrell, III, Esq.
James D. Heisman, Esq. Anne Shea Gaza, Esq.
Jaclyn M. Mason, Esq. Richards, Layton & Finger
Connolly Bove Lodge & Hutz LLP One Rodney Square
1007 North Orange Street P.O. Box 551
P.O. Box 2207 Wilmington, DE 19899
Wilmington, Delaware 19899-2207
The undersigned counsel further certifies that copies of the foregoing document
were sent by email on June 8, 2007 and will be sent by hand to the above counsel on May
17, 2007, and were sent by email on June 8, 2007, and will be sent by first class mail
onMay 17, 2007, to the following non—registered participants:
Scott R. Miller, Esq. Valerie Ho, Esq.
Connolly Bove Lodge & Hutz LLP Mark H. Krietzman, Esq.
355 South Grand Avenue Frank C. Merideth, Jr., Esq.
Suite 3150 Greenberg Trauri g LLP
Los Angeles, CA 90071 2450 Colorado Avenue, Suite 400E
Santa Monica, CA 90404
Tracy Roman, Esq.
Raskin Peter Rubin & Simon LLP
1801 Century Park East, Suite 2300
Los Angeles, CA 90067
/s/ Richard D. Kirk grk922)
Richard D. Kirk
571447-l
Case 1:04-cv-00343-JJF
Document 685
Filed 06/08/2007
Page 1 of 4
Case 1:04-cv-00343-JJF
Document 685
Filed 06/08/2007
Page 2 of 4
Case 1:04-cv-00343-JJF
Document 685
Filed 06/08/2007
Page 3 of 4
Case 1:04-cv-00343-JJF
Document 685
Filed 06/08/2007
Page 4 of 4
United States Free Forms
Canada Free Forms
United Kingdom Free Forms
Australia Free Forms