June 25, 2012
Previously published on June 22, 2012
On June 20, 2012, ALJ E. James Gildea issued Order No. 51 in Certain Dynamic Random Access Memory and NAND Flash Memory Devices and Products Containing Same (Inv. No. 337-TA-803). By way of background, this investigation is based on a July 12, 2011 complaint filed on behalf of Intellectual Ventures Management, LLC, Invention Investment Fund I, L.P., Invention Investment Fund II, LLC, Intellectual Ventures I LLC, and Intellectual Ventures II LLC (collectively, “IV”), against several manufacturers, distributors, and retailers of DRAM and NAND Flash memory devices for alleged infringement of U.S. Patent Nos. 5,654,932; 5,963,481; 5,982,696; 5,500,819; and 5,687,132. According to the Order, the respondents filed a motion seeking leave to amend their notice of prior art to add two additional references. The respondents argued that the two newly identified references were discovered after discovery was produced by a nonparty, Toshiba America Electronic Components, Inc. (“Toshiba”). IV opposed respondents’ motion and argued that no good cause was shown, particularly since respondents failed to explain a period of four months when they failed to take any step to enforce the subpoena directed to Toshiba. ALJ Gildea denied respondents’ motion here since insufficient action was taken to press nonparty Toshiba in connection with respondents’ subpoena. Specifically, the nonparty subpoena was served on Toshiba in October 2011, but respondents did not take action until February 2012. In the interim, the December 2, 2011 deadline to file the notice of prior art passed. According to ALJ Gildea, the “only reason for the failure to timely identify these [pertinent] references was Respondents’ own delay.”
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