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Judge Sue L. Robinson: Careful When Responding to Contention Interrogatories

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In analyzing the summary judgment motions of the parties in Kenexa Brassring Inc. v. Taleo Corp., Judge Robinson needed to address whether the groups of accused products “function in the same manner for purposes of infringement.” C.A. No. 07-521-SLR, Memo. Op., at 9 (D. Del. Nov. 18, 2010). The defendants responded to a contention interrogatory asking why “each” product did not infringe by referring to the products “collectively” and did not explain how any product functioned differently from the other. Id. at 6. The 30(b)(6) designees also testified that they could not think of any distinguishing features between the products. Id. at 6-7. The Court found that defendants “cannot group their products together when asked whether they differ, then turn around and claim that plaintiff has failed to meet its burden of showing that they operate in the same way.” Id. at 10-11.

Kenexa Brassring Inc. v. Taleo Corp., C.A. No. 07-521-SLR, Memo. Op., at 9 (D. Del. Nov. 18, 2010).

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