• ALJ Bullock Precludes Disclosure Of Confidential Business Information To Proposed Expert In Certain Products Containing Interactive Program Guide And Parental Control Technology (337-TA-820)
  • March 22, 2012 | Authors: Alexander B. Englehart; Eric W. Schweibenz
  • Law Firm: Oblon, Spivak, McClelland, Maier & Neustadt, L.L.P. - Alexandria Office
  • On March 19, 2012, Chief ALJ Charles E. Bullock issued Order No. 10 in Certain Products Containing Interactive Program Guide and Parental Control Technology (Inv. No. 337-TA-820).  In the Order, ALJ Bullock ruled that Complainants Rovi Corporation, Rovi Guides, Inc., United Video Properties, Inc., Gemstar Development Corporation, and Index Systems, Inc. (collectively, “Rovi”) are precluded from disclosing the confidential business information (“CBI”) of Respondent Vizio, Inc. (“Vizio”) to Rovi’s proposed expert Mr. Stephen D. Bristow.

    According to the Order, on February 28, 2012, Vizio submitted objections to the disclosure of its CBI to Mr. Bristow.  In the objections, Vizio argued that it would be improper for Mr. Bristow to access Vizio’s CBI because he is simultaneously participating as an expert in multiple reexamination proceedings regarding Rovi’s patents, one of which is an asserted patent in the instant ITC investigation, U.S. Patent No. 6,701,523 (the ‘523 patent).  In particular, Vizio contended that Mr. Bristow’s participation in the reexamination proceedings could create a potential for misuse of Vizio’s CBI as Rovi attempts to redefine the scope of the ‘523 patent and defend the validity of the ‘523 patent.

    In response, Rovi argued that Mr. Bristow should be permitted to receive Vizio’s CBI because he is not a competitive decision-maker for Rovi.  In particular, Rovi claimed that Mr. Bristow is a consulting expert, but is not a strategist, plays no role in decisions about Rovi’s business or patent portfolio, and does not draft patent applications or claims.  According to Rovi, the Protective Order in the instant ITC investigation is sufficient to prevent any misuse of confidential information.

    After considering the arguments, ALJ Bullock determined to preclude Mr. Bristow from receiving Vizio’s CBI.  In particular, ALJ Bullock found that while reexamination proceedings in general may not necessarily pose a substantial risk of inadvertent use of confidential information, one of the reexamination proceedings at issue specifically involves the ‘523 patent, which is an asserted patent in the instant investigation.  Thus, with respect to Mr. Bristow, ALJ Bullock found that there is indeed a legitimate risk of inadvertent use of confidential information learned in the investigation.  ALJ Bullock also found that any potential harm to Rovi was minimal given that the investigation is still in its early stages and, if necessary, Rovi has ample time to designate a new or additional expert.