Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-00343-JJF Document 654 Filed 05/08/2007 Page 1 of 2
ri CONNOLLY BOVEZ LODGE 8c HUTZ LLP
Arronwavs AT LAW
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The Nemours Building
1007 North Orange St.
P.0. Box 2207
. Wilmington, DE 19899
gayes D' Hélsman nas.; (302) ess 9141
a ner FAX: (302) ess 5614
TEL (302) 888_6216 WEB: WWW.Cblh.COm
swuxu. [email protected]
May 8, 2007
Via Email and Hand-Delivery
The Honorable Vincent J. Poppiti
Blank Rome LLP
1201 Market Street, Suite 800
Wilmington, DE 19801
Re: LG.Philq2s LCD C0., Ltd v. ViewSonic et al., USDC, D. Del., No. 04-343-JJF
DM 31-1: ViewSonic’s Motion to Compel Sales Summaries for 1998-1999
Dear Special Master Poppiti:
Pursuant to the guidance provided during the May 4, 2007 hearing, ViewSonic
Corporation ("ViewSonic") moves to compel Plaintiff ("LPL”) to produce sales summaries
for the period 1998-1999. This discovery is responsive to Request fog Production ("RFP")
Nos. 122 and 124 and Interrogatory ("ROG”) Nos. 31, 33, 36 and 37.
RFPs 122 and 124 and ROGs 31 and 33 seek monthly and annual sales and
resultant gross and net profits, by country and model, for LPL’s sales since 1998 of flat
panel display devices and rear mountable flat panel display devices. ROGs 36 and 37 seek
monthly and annual sales and resultant gross and net profits since 1998, by country and
model, for LPL’s sales of flat panel display devices that can be affixed to, on or within any
other structure at or near the comers, or not at or near the corners, respectively, of the flat
panel display device. The requested sales summaries clearly come with these requests, and
there is no real dispute that the requested sales summaries are relevant for a reasonable
royalty investigation, and are needed to properly evaluate the commercial success of the
alleged invention, one of the factors considered in invalidity (obviousness) analyses.
During the parties’ discussions regarding ViewSonic’s discovery requests directed
to LPL’s newly asserted claims, ViewSonic thought a resolution had been reached
regarding sales summaries. See Exs. 17-18.3 Specifically, ViewSonic agreed to accept
sales summaries for 1998-1999 with the same format and breakdown provided by LPL in
1 This motion complements ViewSonic’s May 2, 2007, motion (DM 31) and falls within the scope of clean-
up issues allowed by the Special Master during last week’s May 4 hearing. Thus, ViewSonic has used the
same "DM" number, with an extension "—l". Except for new Exhibits 25-27, the exhibits referenced herein
were provided with ViewSonic’s May 2 motion. New Exhibits 25-27 continue the exhibit numbering format
used ViewSonic’s May 2 motion.
2 The subject RFPs are found in Ex. 1 to ViewSonic’s May 2, 2007, 7.1.1 Certification, and the subject ROGs
are found in Exs. 3 and 4. LPL’s responses are respectively found at Exs. 6, 8 and 9.
3 For details on the negotiations regarding LPL’s sales summaries, see Exs. 17, 18, 19 and 19.1 to
ViewSonic’s May 2, 2007, 7.1.1 Certification, and Exs. 25-26 submitted herewith.
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Case 1 :04-cv-00343-JJF Document 654 Filed 05/08/2007 Page 2 of 2
V ONNOLLY Bova LODGE at Hurz LLP
C ATTORNEYS AT LAW
The Honorable Vincent J. Poppiti
May 8, 2007
Page 2
its 2006 sales summaries. See Ex. 17. However, LPL thereafter indicated that it would {
only provide stunmaries without cost and/or profit information, alleging that, because of
changes to its accounting and/or software systems, LPL lacked access to cost and profit
information for its sales during 1998-1999. See Exs. 19, 19-1.
ViewSonic asked LPL to clarify whether the requested cost and profit data or
information is difficult to access or simply no longer exists, and, assuming the data still
exists, offered to consider a cost-sharing or cost-shifting arrangement for the retrieval of
LPL’s cost and profit information if the expenditures required to retrieve the information
were unduly excessive. See Exs. 25-26. At this writing, LPL has not responded to
ViewSonic’s request for clarification.
As LPL has produced sales summaries, including profit and cost information, for
the period 2000-2006, the only real dispute remaining between the parties on the issue of
LPL’s sales summaries is whether LPL will produce cost and profit information in sales
summaries for 1998-1999. lt is undisputed that cost and profit information is relevant for
any reasonable royalty calculus, and to properly evaluate the commercial success of the
alleged invention, one of the factors considered in invalidity (obviousness) analyses.
Based on the parties’ discussions, ViewSonic infers that LPL no longer has easy
access to cost and profit information for 1997 and 1998. However, easy access is not
required to compel LPL to provide the requested information. ViewSonic asks Your Honor
to compel LPL to produce sales summaries for 1997 and 1998 with the same breakdown
provided in LPL’s 2006 summaries.
In the unlikely event that the cost and profit information for 1998-1999 no longer
exists, ViewSonic is willing to accept sales stunmaries, by country and model, related to
LPL’s sales of flat panel display devices (i.e., LCD modules or plasma display panels),
with a binding representation that cost and profit information no longer exists for the
relevant period.
Based on the foregoing, ViewSonic requests that LPL be compelled to produce
monthly and annual sales and resultant gross and net profits, by country and model, for
LPL’s sales of flat panel display devices for 1998-1999. t
Respectfully submitted,
/s/ James D. Heisman
James D. Heisman
cc: Counsel of record

t

Case 1:04-cv-00343-JJF

Document 654

Filed 05/08/2007

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Case 1:04-cv-00343-JJF

Document 654

Filed 05/08/2007

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