In a recent order, Administrative Law Judge Bullock granted Respondents Fujifilm Holdings Corporation, Fujifilm Corporation, Fujifilm Holdings America Corporation, and Fujifilm Recording Media U.S.A., Inc. (collectively, “Fujifilm”) motion to strike Complainants Sony Corporation, Sony Storage Media Solutions, Sony Storage Media Manufacturing Corporation, Sony DADC US Inc., and Sony Latin America Inc. (collectively, “Sony”) amended and supplemental identification of accused products and to preclude Sony from adding such products to the investigation. Certain Magnetic Tape Cartridges and Components Thereof, Inv. 337-TA-1058, Order 14.
According to the Procedural Schedule, Sony’s final identification of accused products was due on August 8, 2017. Prior to the August 8, 2017 deadline, Sony specifically identified certain tape drives (i.e., LTO-4, LTO-5, and LTO6 tape drives) and “reserved the right to expand its allegations” to include additional tape drives. On October 20, 2017, Sony attempted to add LTO-7 tape drives as an accused product. Sony argued they were withholding accusations against the LTO-7 products pending the resolution of Sony’s preliminary injunction motion in a New York action and that addition of the LTO-7 products after denial of the motion was appropriate because Sony had “reserved the right to expand its allegations” in its identification of accused products and that the newly accused products fell within the parameters and scope of the investigation.
While the ALJ agreed that the newly identified accused products did fall within the scope of the investigation, he concluded that “[w]hether the LTO-7 products fall within the scope of this Investigation, however, has no bearing on Sony’s obligation to follow the Ground Rules and Procedural Schedule governing this Investigation.” According to the ALJ, the Procedural Schedule required Sony to serve its Final Identification of Accused Products on August 8, 2017. Sony complied with that obligation and identified the LTO-4, LTO-5, and LTO-6 products but did not identify the LTO-7 products. While Sony’s reservation of the right to expand its allegations to later add the LTO-7 products may have put Fujifilm on notice that Sony may seek to add the LTO-7 products, ALJ Bullock concluded that “it does not in any way alter or otherwise relieve Sony of its obligations to abide by, much less unilaterally alter, the Procedural Schedule and Ground Rules of this Investigation.”
Because Sony did not seek modification of the Procedural Schedule or show good cause for a modification to the procedural schedule, ALJ Bullock granted Fuljifilm’s motion to (i) strike Sony’s Amended and Supplemental Identification of Accused Products and (ii) preclude Sony from adding the LTO-7 products as an accused product.
The fast pace of Section 337 proceedings often favors complainants who take the time to organize their case before filing and ALJ Bullock’s order shows that this fast pace often requires strict adherence to the Procedural Schedule in the Investigation. Accordingly, parties seeking to act outside of the procedural schedule should carefully consider whether to seek modification of that schedule if necessary to their interests.