Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv—00343-JJF Document 659 Filed 05/09/2007 Page 1 of 4
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May 9, 2007
The Honorable Vincent J. Poppiti
Blank Rome LLP
1201 Market Street, Suite 800
Wilmington, DE 19801
Re: LG.Philq1s LCD C0., Ltd. v. ViewSonic, C.A. N0. 04-343 JJF
Dear Special Master Poppiti:
Plaintiff LG.Philips LCD Co., Ltd. ("LPL") opposes Defendant ViewSonic Corporatiorfs
("ViewSonic") May 2, 2007 motion to compel discovery concerning LPL’s LCD modules (the
"Motion"). The Motion should be denied because: (1) it overlaps with information that
ViewSonic is seeking through prior Document Requests and through ViewSonic’s February 16,
2007 motion to compel (the "February Motion") that Your Honor deferred resolving until after
claim construction; (2) Request 128 uses disputed claim terms; and (3) ViewSonic’s discovery
demands are burdensome, irrelevant, and not reasonably calculated to lead to discovery of
admissible evidence. The Motion should be denied or, alternatively, deferred until after claim
construction to coincide with a decision regarding the February Motion.
The instant Motion is duplicative of ViewSonic’s February Motion. When it tiled the
February Motion, ViewSonic introduced purported disputes concerning at least 24 different
Document Requests. (See, ag., Ex. 1, Mar. 2, 2007 Hr’ g Tr. at 155:3-161 :2 (listing disputes
concerning Document Requests 17, 18, 25, 29, 33, 36-40, 53, 57, 58, 63, 65, 71, 73, 77-79, 84-86
and 103).) At the hearing on March 2, 2007, ViewSonic presented arguments pertaining to its
February Motion, virtually all of which have resurfaced in the instant Motion. (Compare id. at
89:19-161 :2 with Mot. at 1-3.) However, during the April 13, 2007 hearing, Your Honor
determined that, because discovery concerning LPL’s products could be "signi1icant" and thus
burdensome, and because any need for and scope of that discovery depends on how the patent
claims are construed, any decision regarding whether to permit discovery on LPL’s products
would be postponed until after claim construction. (Ex. 2, Apr. 13, 2007 Hr’ g Tr. at 3:12-12:21.)
Yet, once again ViewSonic seeks sweeping discovery that overlaps with ViewSonic’s February
Motion, as ViewSonic attempts to justify both motions based on "prior art," (Mot. at 1; Ex. 1 at
155:7-12), "development and commercialization of the subject matter of the patents-in-suit,"
(Ex. 1 at 155:13-17; see Mot. at 3), "0bviousness or nonobviousness," (Ex. 1 at 155:21-22; see
Mot. at 2-3), "commercial success," (Ex. 1 at 155:23-156:3; Mot. at 3), "utility and advantage of
the patent," (Ex. 1 at 156: 14-20; see Mot. at 2-3), "noninfringing substitutes [including] front
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The Honorable Vincent J. Poppiti
THE BAYARD FIRM May 9, 2007
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mounting and side motmting," (Ex. 1 at 156:14-157:2; see Mot. at 2—3), and "the structure,
function and assemblage of LCD modules," (Ex. 1 at 157:12-158:14; Mot. at 1-2). This
discovery is irrelevant, overly broad, burdensome, and intrudes on the claim construction
process. (See generally Ex. 3, LPL’s Feb. 23, 2007 Resp. to Feb. Mot.; Ex. 1 at 89: 19-161 :2.)
ViewSonic is attempting to circumvent Your Honor’s decision that any discovery
regarding LPL’s modules is deferred until after the Markman process. (See Nov. 8, 2006 Report
at 2-3 (D.I. 306).) Previously, ViewSonic argued that it needed discovery concerning LPL’s
modules that are the subject of the inventions. The modules alone, however, do not practice the
invention} Further, LPL’s modules have various holes that may or may not be used for different
assembly-related purposes by third party OEMs. Indeed, ViewSonic and Tatung have not
produced technical discovery concerning all fastening parts and holes located on all frames
and/or modules used in their display products. This discovery is improper and unnecessary.
ViewSonic’s Motion seeks irrelevant information that would be an undue burden on LPL
to produce. ViewSonic seeks discovery regarding all of LPL’s modules, even though those
modules could not possibly be used by third parties to practice LPL’s rearmounting technology.2
(See Mot. at 2.) ViewSonic contends that all of LPL’s modules have some hole(s) somewhere on
the module. (See id.). ViewSonic admits that it does not care whether or not the function of one
or more holes could be related to assembly or mounting. (See ia'.) Rather, ViewSonic wants
discovery on all LPL modules, on the irrelevant basis that perhaps holes on the module "could be
used to attach various items to the module, or to attach the module to another component."
ViewSonic ignores the claim language, which pertains not to all modules with any type of holes,
or all ways of attaching any types of "items" or "components," but rather to flat panel display
devices and specific mounting methods or structures with certain "fastening elements" on a "tirst
frame" that is attached to a "housing" of a data processing device. (See ia'. at 1.) ViewSonic
thus has no basis for seeking incredibly broad discovery that covers every module product that
LPL has sold over the past ten years. (See ia'.)
l Further, even if LPL’s modules alone could practice the invention, those modules would have no relevance to this
case, with the sole possible exception of perhaps prior art issues, assuming that the modules existed before October
1998. ViewSonic’s counsel previously conceded that prior art discovery should not extend beyond 1998. (See id.
(discussing agreements reached in December 2006 hearing).) Yet, ViewSonic now refuses to limit the temporal
scope of its discovery requests, seeking information on LPL’s products sold long after the time that such products
could be relevant to any validity argument. Modules that do not practice the invention, moreover, cannot support
invalidity defenses or constitute prior art. ViewSonic cites Graham for the proposition that courts look at
differences between asserted claims and prior art, but this does not support discovery that is unrelated to prior art
based on substance or time period. (See Mot. at 2 (citing Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966).)
2 ViewSonic seeks virtually unlimited discovery on LPL’s modules largely based on a misplaced "non—infringing
altematives" argument. (See Mot. at 2-3.) In the Minco case on which ViewSonic also relies, the Federal Circuit
observed that one of many factors relied on by the District Court in settling a royalty rate was that "the market
contained no non-infringing altematives" to the invention. See Minco, Inc. v. Combustion Eng ’g, Inc., 95 F.3d
1109, 1120 (Fed. Cir. 1996). This factor refers to alternatives to rearmounting that may exist in the marketplace, not
to all products made by a patentholder. ViewSonic’s reliance on the doctrine of "non—intringing alternatives" is
misplaced and does not support ViewSonic’s newfound attempts to obtain technical discovery on every LPL module
regardless of type, time, or technology. Nor would ViewSonic need such discovery to argue that it uses alternative
mounting technology in its own products.
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The Honorable Vincent J. Poppiti
Tr-in BAY./mn FIRM May 9,2007
Page 3
The Motion also should be denied (or deferred) because Request 128 is focused on the
terms "corners" and "flat panel display device," which are terms that require construction. (See
Am. J t. Subm. of Claim Terms, Sched. A, at 7-10 and 27-29 (listing disputed claim terms) (D.l.
636).) Request 128 focuses specifically on LPL’s modules and the disputed term, "corners."
According to Your Honor’s previous rulings, because Request 128 focuses on disputed claim
terms, any discovery responsive to Request 128 should await claim construction.
ViewSonic unpersuasively argues that Your Honor should ignore the competing
constructions of "flat panel display device," because LPL’s proposed construction may
encompass ViewSonic’s proposed construction. (See Mot. at 2.) Obviously, this argument
depends on and can only be answered after Your Honor issues the claim construction order.
Moreover, ViewSonic asserts that Request 128 defines "flat panel display device" as "an LCD
module or plasma display panel," such that any ambiguities pertaining to LPL’s modules or
panels are resolved. (Mot. at 1.) However, the actual text of Request 128 does not define "flat
panel display device" as a module or panel; rather, it lists panels, modules and "field emission
device[s]" as examples of flat panel display devices. (See Ex. 4 at 3.) In fact, LPL specifically
objected to ViewSonic’s effort to define "flat panel display device" before the claim construction
process has run its course. (See id. at 4.) ViewSonic’s argument is also flawed because the
parties’ proposed constructions do not limit Your Honor’s eventual determination, as Your
Honor is free to adopt a construction that does not necessarily follow those proposed by the
parties. See Phillips v. AWH Corp., 415 F.3d 1303, 1312-14 (Fed. Cir. 2005). ViewSonic’s
assertion incorrectly oversimplifies the claim construction process and directly conflicts with
Your Honor’s prior ruling. (See, eg., D.I. 306.)
The recent KSR decision does not apply. (See Mot. at 3 (citing KSR Int ’l C0. v. T elejlex
Inc., __ S.Ct. ____, 2007 WL 1237837 (2007).) KSR involved a summary judgment ruling made
after the trial court reviewed all of the evidence. In contrast, this is a discovery dispute that
depends on Your Honor’s forthcoming claim constructions. The standard for deciding any
obviousness defense is not at issue and need not be addressed now. Rather, Your Honor’s
rulings protect the parties from having to produce burdensome discovery that may become
totally irrelevant after the claim construction process concludes. (See, e.g., Ex. 2 at 10:2-8.)
For the foregoing reasons, ViewSonic’s Motion should be denied or, in the alternative,
any resolution should wait until the claim construction process concludes.
Respectfully submitted, ,
meéw/jéaf
Richard D. Kirk (rk0922)
cc: Counsel as shown on the attached certificate
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CERTIFICATE OF SERVICE
The undersigned counsel certifies that, on May 9, 2007, he electronically filed the
foregoing document with the Clerk of the Court using CM/ECF, which will send
automatic notihcation ofthe 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 to the above counsel on May 9, 2007, and will be sent by hand on
May 9, 2007, and were sent by email on May 9, 2007, and will be sent by first class mail
on May 9, 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 (rk922)
Richard D. Kirk
5714474

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