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Alacritech Inc. v. Centurylink, Inc.

United States District Court, E.D. Texas, Marshall Division

July 14, 2017

CENTURYLINK, INC., et al., Defendants.



         In this patent case, the Court will now consider Intel's Motion to Strike a Portion of Alacritech's Patent Rule 3-1 Infringement Contentions [Dkt. # 259]. After considering the parties' briefing and arguments of counsel, the Court will GRANT the motion IN PART.

         I. BACKGROUND

         The technology at issue concerns transferring and storing data within a network. Compl. ¶ 16. According to Alacritech, traditional methodologies wasted too much processing power performing brute-force processes for transfer and storage. Id. To address that waste, Alacritech developed the use of dedicated network interface controllers (NICs) to more efficiently handle the processing. Id. By offloading processing tasks to a dedicated NIC implementing the methodologies taught by the asserted patents, data transfer between devices is accelerated and the host CPUs retain more processing power to perform other more substantive tasks. Id.

         In June 2016, Alacritech sued Dell in Case No. 2:16-CV-00695, which was later consolidated with this action. Intel moved to intervene because many of Alacritech's infringement claims against Dell targeted networking technology supplied by Intel. Intel's Mot. to Intervene [Dkt. # 71] at 4. In fact, Alacritech specifically accuses certain Dell products of infringement based on their use of Intel NICs. Id.

         In December 2016, Alacritech served Intel with its original P.R. 3-1 Infringement Contentions. Intel's Motion [Dkt. # 259] at 1. Those contentions identified at least 90 products purporting to infringe 117 claims across 7 patents. Id. Alacritech, however, only charted a single Intel product for each patent-the 82599 controller. Id.

         As to the other 89 products, Alacritech alleged in footnotes they meet the same limitations. Id. At the time, Intel notified Alacritech this was not sufficient disclosure under the local patent rules, but Alacritech responded that charting a single product was enough. Id. (citing Letter from Counsel for Alacritech to Counsel for Intel (Feb. 28, 2017) [Dkt. # 259-2] at 7).

         Intel later provided Alacritech with interrogatory responses that detailed a number of differences between the 82599 controller and the uncharted products. Id. (citing Intel's Supp. Interrog. Resps. [Dkt. # 259-3]). Based on those responses, Alacritech removed some instrumentalities from the contentions and served amended contentions. Id. at 2. But according to Intel, the amended contentions are also insufficient. Id. at 1.

         To address those insufficiencies, Intel asks the Court to (1) strike the portions of Alacritech's amended contentions that refer to any products other than the products for which Alacritech has provided a claim chart; and (2) limit Alacritech's contentions to the only operating system Alacritech identified in its charts. Id. at 2-3.


         “The Patent Rules demonstrate high expectations as to plaintiffs' preparedness before bringing suit, requiring plaintiffs to disclose their preliminary infringement contentions before discovery has even begun.” Am. Video Graphics, L.P. v. Elec. Arts, Inc., 359 F.Supp.2d 558, 560 (E.D. Tex. 2005). “Plaintiffs are expected to rigorously analyze all publicly available information before bringing suit and must explain with great detail their theories of infringement.” Connectel, LLC v. Cisco Sys., Inc., 391 F.Supp.2d 526, 528 (E.D. Tex. 2005).

         Patent Rule 3-1 governs the initial explanation of a plaintiff's infringement theories. Under that rule, the plaintiff must specifically identify each accused product, process, or other instrumentality by name or model number. P.R. 3-1(b). The plaintiff must also provide a chart showing specifically where each element of each asserted claim is found within each accused instrumentality. P.R. 3-1(c). But “[i]nfringement contentions need not disclose ‘specific evidence nor do they require a plaintiff to prove its infringement case.'” Roy-G-BIV Corp. v. ABB Ltd., 63 F.Supp.3d 690, 698 (E.D. Tex. 2014) (quoting EON Corp. IP Holdings, LLC v. Sensus USA, Inc., No. 6:09-cv-116, 2010 WL 346218, at *2 (E.D. Tex. Jan. 21, 2010)).

         Some courts have excused plaintiffs from charting each instrumentality if the charts would be identical or if one instrumentality is sufficiently representative of others. See, e.g., UltimatePointer, LLC v. Nintendo Co., Ltd., , No. 6:11-CV-496, [Dkt. # 269] at 5 (E.D. Tex. May 28, 2013) (contemplating a plaintiff could designate and chart only an exemplar accused product if the plaintiff also provided an explanation of the technical and functional identity of the products represented); see also, e.g., Infineon Tech AG v. Volterra Semiconductor, No. C-11-6239, 2013 WL 5366131, at *4 (N.D. Cal. July 31, 2013) (holding a claim chart for a single product was adequately representative of all accused products when the plaintiff provided nearly 50 pages of analysis supporting its position); Implicit Networks Inc. v. Hewlett-Packard Co., No. 10-CV-3746 SI, 2011 WL 3954809 (N.D. Cal. Sept. 7, 2011) (approving use of a single claim chart to represent 120 products where patentee did not reverse engineer any products and instead relied primarily on citations to manuals and other documentation to explain characteristics of other accused products); Renesas Tech. Corp. v. Nanya Tech. Corp., No. C03-05709JFHRL, 2004 WL 2600466, at *4 (N.D. Cal. Nov. 10, 2004) (finding a patentee presented sufficient evidence to accuse 160 products in a single claim chart where patentee reverse engineered only 3 products and provided declarations in support of contentions that all products infringe). But even then, the contentions must be “reasonably precise and detailed to provide a defendant with adequate notice of the plaintiff's theories of infringement.” Roy-G-BIV Corp., 63 F.Supp.3d at 698 (internal citations omitted).

         “Striking infringement contentions is an extreme decision comparable to determining ‘whether evidence should be excluded for discovery violations.'” Eolas Tech. Inc. v., Inc., 6:15-cv-1038, 2016 WL 7666160, at *1 (E.D. Tex. Dec. 5, 2016) (quoting Computer Acceleration Corp. v. Microsoft Corp., 503 F.Supp.2d 819, 822 (E.D. Tex. 2007)). ...

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