Richards Layton & Finger

Chief Judge Stark Denies Motion to Strike Infringement Contentions

March 6, 2018

In Wi-LAN Inc. v. VIZIO, Inc., No. 15-788-LPS (D. Del. Jan. 26, 2018), and related action, Chief Judge Stark denied the defendants’ motion to strike the plaintiff’s final infringement contentions. The defendants argued that the contentions did not explain how the excerpts of source code from the accused products related to the limitations of the asserted claims.

The Court found that the contentions, which included diagrams of the accused products’ allegedly infringing functionality and identified sections in the source code to show how the accused products practiced each limitation of each asserted claim, gave sufficient notice of the plaintiff’s infringement theories.

Because the defendants argued that some source code excerpts were difficult to read, Chief Judge Stark ordered the plaintiff to serve encrypted, electronic copies of the infringement contentions, but stated that such copies would not count as new evidence or impermissible amendment.

Key Point: According to Chief Judge Stark, infringement contentions should go beyond the “mere language” of the asserted patent in providing notice of the patentee’s infringement theories, but need not prove the patentee’s case.