Special Master Bechtle: Motion to supplement infringement contentions GRANTED
In Xpoint Technologies, Inc. v. Toshiba Corp., et al., C.A. 09-628-SLR (D. Del. Apr. 8, 2011), Special Master Bechtle recently order plaintiff to supplement its infringement contentions, following the well-settled practice in this District that a plaintiff must specifically identify what products are accused in response to a properly served contention interrogatory. Plaintiff had previously refused to update its claim charts because it needed time to analyze recent discovery and confer with its experts. Id. at 3. Special Master Bechtle noted that “Toshiba is entitled to know what Toshiba products are contended by Xpoint to be infringement of Xpoint’s patents.” Id. If Xpoint has already specifically identified which Toshiba products are at issue in the litigation, “it should say so[, and if] it has not made those contentions yet, it should, and it should do so now.” Id. at 4. Special Master Bechtle also found that while plaintiff had an obligation to respond to Toshiba’s contention interrogatory with what products infringe and what claims and claim elements are infringed, plaintiff’s precise theory of infringement is “left to another day when the plaintiff includes in it’s expert reports and exert discovery the reasons, opinions and theories whey the identified productions and components of the defendant infringe on the patent or patents of the plaintiff.” Id. at 5.