MobileMedia Ideas LLC v. Apple Inc.
MEMORANDUM AND ORDER MMIs final proposed order (D.I. 215) is granted with the following addition to paragraph 2. Should MMI rely on that Apple Source Code for the purposes of determining liability of that accused functionality, it shall provide a supplemental opinion to Apple limited to that Apple Source Code from its previously identified expert(s) including the bases and reasons for that opinion consistent with Fed. R. Civ. P. 26(2)(B) on or before May 1, 2012. IT IS FURTHER ORDERED that MMI shall provide an Order for review and signature by the Court consistent with the provisions herein. Signed by Judge Mary Pat Thynge on 4/11/2012. (cak)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MOBILEMEDIA IDEAS LLC,
C. A. No. 10-258-SLR/MPT
Presently before the court is a proposed order filed by plaintiffs, MobileMedia
Ideas LLC (“MMI”) and objections and a counter proposed order by defendant, Apple,
The parties dispute the production of Apple’s source code relating to particular
features and functionality of its products.1 Apple argues MMI has not identified specific
versions of its software accused of infringement.2 Since the patents-in-suit are systems
patents, Apple contends any “Accused Products” must be identified in any order. It
maintains to purportedly avoid improperly shifting the burden to Apple to identify and
prove which products infringe, the accused products must be defined as including, for
each patent, the specific hardware devices identified in MMI’s infringement contentions
running the specific versions of the software. MMI argues it identified in its original
infringement contentions, served over a year ago, those “Accused Products,” such as
D.I. 210 at 1.
iPhone 3G, iPhone 3GS, iPhone 4, iPod touch, ipad 2 without any limitation based on
the specific versions of the software used in those products. Rather, MMI identified the
accused features and functionality. It notes the iOS 4.3 source code was finally
produced by Apple in October 2011. Importantly, MMI points to correspondence from
Apple’s counsel agreeing on September 21, 2011 to produce “all relevant source code,”
defined as “the Apple source code that relates to (1) the accused functionality and
features identified in [MMI’s infringement contentions] and (2) the functionality and
features of the accused products on which Apple relies for its non-infringement
arguments.”3 Apple does not dispute MMI’s representation of the September 2011
correspondence. MMI’s concern is Apple will later claim MMI failed to review certain
source code which was not previously produced.
The dispute relating to the source code has involved at least three
teleconferences beginning with the November 21, 2011 teleconference.4 Subsequently,
during a telephone conference on December 22, 2011, MMI again requested to limit the
source code to what had been produced. The arguments by the parties during the
November and December 2011 teleconferences emphasized the functionality and
features of the “Accused Products,” as being the commercial products identified herein
rather than the particular iOS or operating system. After the parties presented their
arguments, the court essentially granted MMI’s request and directed the parties to work
out the language of the stipulation.5
Emphasis added by the court.
December 21, 2011 Tr. at 37-40.
The parties were unable to reach any agreement regarding a stipulation on
limiting the source code, which lead to a flurry of letters and another teleconference on
March 2, 2012. For the first time, the court learned at least Apple did not view the
“Accused Products” as being those products identified by MMI in its infringement
contentions, but rather the operating systems related the accused features and
functionality. Prior to that time the court had understood the accused products accepted
by the parties as those identified by MMI in its infringement contentions, including the
accused features and function. Apple maintained it could not agree to the final proposal
by MMI that iOS 4.3 is an appropriate representative product. In light of the purported
“confusion” regarding the accused products, Apple proposed to produce all source code
for the various operating systems applicable to the accused commercial products
identified for the time involved.6 Accordingly, such production would involve at least two
months of review time by MMI’s experts at tremendous cost for the amount of source
code Apple proposed to produce (that is, millions of lines of source code). At the time of
the March 2012 teleconference, the parties were completing their exchange of expert
reports. The close of expert discovery is now May 4, 2012.
As a result of the discussions with and representations made by counsel, the
court expressed its concern and disbelief regarding the alleged confusion as to what
constitutes the accused products, particularly in light of the focus of the prior
teleconferences on features and function and Apple’s emphasis in the September 2011
correspondence (before production of any source code) on features and functionality in
See March 2, 2012 Transcript.
relation to the accused products as referenced in MMI’s infringement contentions.
At the conclusion of the March 2 teleconference, the court ordered the parties to
produce their respective proposed stipulations. From the court’s view, MMI’s focus is
on the source code actually produced and reviewed by its experts as noted in
paragraph 1, leaving Apple the option to rely on other source code recently produced
from iOS 4.2, iOS 3.1 and iOS 2.2 as noted in paragraph 2. Apple’s proposal combines
the source code produced in October with that source code produced thereafter in the
December 2011 time frame providing both parties may rely on all source code produced
to date for determining liability. MMI’s proposal appears to separate the source code
produced in the October time frame from that code produced thereafter, requiring Apple
to identify the source code it intends to rely on from the later production. Should that
occur, then MMI may chose to rely on that source code for determining liability. The
court understands the limitation to paragraph 1 in the MMI proposal reflects that its
expert reports were looming at that time and puts the onus on Apple to first identify
whether it intends to rely on the later produced source code in support of its position.
IT IS ORDERED that MMI’s final proposed order (D.I. 215) is granted with the
following addition to paragraph 2. “Should MMI rely on that Apple Source Code for the
purposes of determining liability of that accused functionality, it shall provide a
supplemental opinion to Apple limited to that Apple Source Code from its previously
identified expert(s) including the bases and reasons for that opinion consistent with Fed.
R. Civ. P. 26(2)(B) on or before May 1, 2012.”
IT IS FURTHER ORDERED that MMI shall provide an Order for review and
signature by the Court consistent with the provisions herein.
April 11, 2012
/s/ Mary Pat Thynge
United States Magistrate Judge