Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-00343-JJF Document 399 Filed O1/O9/2007 Page 1 of 3
Ric:i—iA1=t•r>s, LAY·ro1-1 & FINGER
A PROFESSEONAL. ASSOCIATION
ONE Rooney Soumna
920 Nonrrc Kiwis STREET
ANNE SHEA GAZA DIFIECT DIAL
WILMINGTON, DELAWARE l9B0| csozi eeaveae
{aca) as wz 700 °"`”`@RLF COM
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WWWt}’lLF“,.COM
January 9, 2007
BY E-MAIL & HAND DELIVERY
The Honorable Vincent J, Poppiti
BLANK ROME LLP
Chase Manhattan Center
1201 Market Street, Suite 800
Wilmington, DE l980l
Re: LG,P}1il'.ips LCD C0., Lid. v. ViewSonic Corp., et al., CA, No, O¢l—343—.l.lF
Dear Special Master Poppitii
Defendants Tatung Company and Tatung Company of America (collectively "Tatung")
agree with Viewsonic’s proposals for ameliorating some of the prejudice caused by LPI..’s
untimely assertion of new claims after the Mmlnucm process began. While fee shifting was
discussed as a means of ameliorating some of the prejudice and any additional costs associated
with LPl.’s tardy infringement contentions should be borne by LPL, fee shifting will not entirely
eliminate the prejudice to the Defendants for the reasons set forth below.
While Tatung generally agrees with Viewsonic’s proposals, Tatung believes that holding
two Mczrkmcm hearings, ire., keeping the hearing presently scheduled for early March 2007
which will address the bulk of the claim terms at issue and having a second hearing to address
the new claim terms, would be the better option because it would allow the parties to operate as
much as possible under the current schedule and retain the current trial date set for January 2008,
In addition, in light of the new claims asserted by LPL (as well as the newly accused
products) and Tatung’s need to re—evaluate its trial strategy due to these new contentions, Tatang
requires more time to decide whether to assert the advice of counsel defense, It would be
manifestly unfair for LPI, to unilaterally and tardily assert a number of new claims while at the
same time demand that the Tatung Defendants immediately identify all of their defenses,
including ones that implicate a waiver of the attorney client privilege, as discussed in more detail
in 'l`atung’s Opposition to LPi.’s Motion to Compel Discovery Regarding Advice of Counsel,
tiled on January 8, 2007, Therefore, if L,PL’s new claims are permitted, Tatung at a minimum
should be given more time to evaluate whether to assert the advice of counsel defense.
stri-:sIe224s~1

Case 1:04-cv-00343-JJF Document 399 Filed O1/O9/2007 Page 2 of 3
The Honorable Vincent J. Yoppiti
January 9, 2007
Page 2
l..PL’s tardy assertion of new claims has severely prejudiced Tatung and will significantly
disrupt the pretrial schedule upon which Tatung relied. The untimely claims involve nine
previously unasserted claims of the ‘64l l’atent and one previously unasserted claim of the ‘7l8
Patent. The new claims implicate all three accused Tatung products, at least one of which LPL
has had from the time it tiled suit in 2004. Eight of the ten new claims pertain to the Tatung
Ll7Al\/ITN, which was identified by LPI,. as an allegedly infringing product in the Complaint it
filed in 2004. The untimely claims include a number of new terms that the Court will have to
address in claim construction. None of these terms have been addressed in the opening claim
construction briefs the parties already filed in December 2006.
The previously unasserted claims are not based on any recent discovery by LPL or
disclosure by the Defendants, but relate to Tatung monitors that have been in Ll°L’s possession
tbr months or years. The untimely assertion of these claims was completely avoidable had LPI,
been diligent. Indeed, the absence of any reasonable explanation for the delay could lead to the
conclusion that the delay in disclosing the new claims was tactical. lf these untimely, previously
unasserted claims are allowed, Tatung will be prejudiced at least in the following respects:
1. Tatung’s defense strategy in this case was formulated based on the previously
disclosed claims of infringement. This effort included investigation of the disclosed claims and
prosecution history, risk assessment based on the disclosed claims, evaluation of non-
infringement of the disclosed claims, evaluation of prior art, evaluation of the validity of the
disclosed claims, and proposed claim constructions of terms in the disclosed claims.
.2. Tatung’s management approved stathng proposals and litigation budgets founded on
the defense strategy relating to the disclosed claims. Tatung allocated corporate resources
(including senior management employees) to address this litigation based on prior strategy that
did not anticipate ten newly asserted claims and potentially another round of claim construction
briefing.
3. Tatung’s attorneys implemented the defense strategy based on the disclosed claims,
including investigation, evaluation, pleading, discovery preparation, written and deposition
discovery, expert selection and preparation, and claims construction.
4. If the late claims are allowed, they will require a new investigation of the claims and
the intrinsic record and a reassessinent and implementation of the defense strategy. Because of
the Scheduling Order deadlines, this will require an accelerated effort involving increased
staffing. A new budget will have to be formulated, reviewed and approved. In short, the effort
that has been expended will have to be replicated with respect to the untimely claims, but on an
accelerated schedule.
at.1=1-3:02245-i

Case 1:04-cv-00343-JJF Document 399 Filed O1/O9/2007 Page 3 of 3
The Honorable Vincent J. Poppiti
January 9, 2007
Page 3
5. Significant new tasks will have to be undertaken, including an analysis of the new
claims, the intrinsic record, and prior art. Additional consultations with experts, the expansion of
their opinions to cover the previously undisclosed claims and the possible retention of additional
experts, additional research, another round of claims construction briefing and a supplemental or
delayed claims construction hearing potentially would be required. To maintain the existing trial
date, all of these tasks will have to be accomplished on an accelerated basis, requiring more
staffing and more costs.
6. ln order to address the new claims, existing noticed or scheduled proceedings will
have to be delayed or supplemented, including depositions, claims construction and conceivably
the trial. Written discovery that has been closed pursuant to the Scheduling Order may have to
be reopened, with attendant costs and potential abuse. Dispositive motions and trial will he
made more complex, difficult, time consuming and expensive in order to accommodate the
untimely claims.
Accordingly, requiring LPL to bear the costs associated with its late infringement
contentions and modifying the Scheduling Order as set forth above and in Viewsonic’s letter to
Your Honor are necessary in order to ameliorate some ofthe prejudice to the Defendants.
Respectfully,
bal-·z.,¤*`,rif·‘t@zF ir w&a—»»~.
Anne Shea Gaza c
(#4093)
ASG/afg
cc: Clerk ofthe Court (By Electronic Filing)
Richard Kirk, Esquire (via electronic mail)
Cormac T. Connor, Esquire (via electronic mail)
Lora Brzezynski, Esquire (via electronic mail)
Mark Krietzrnan, Esquire (via electronic mail)
Scott R. Miller, Esquire (via electronic mail)
Jeffrey B. Bove, Esquire (via electronic mail)
1ur1»:i1o22»ss-i

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