EON Corp. IP Holdings LLC v. FLO TV Incorporated et al

Filing 617

ORDER ADOPTING 549 and 579 REPORT AND RECOMMENDATIONS of the Special Master, and therefore Resolved 564 Motion to Strike. Signed by Judge Richard G. Andrews on 10/30/2013. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
EON CORP. IP HOLDINGS LLC,
Plaintiff,
Civil Action No. 10-812-RGA

v.
FLO TV INCORPORATED, et al.,
Defendants.

ORDER
Before the Court are objections to two ruling and recommendations (R&R) of the Special
Master. The first R&R (D.I. 549) resolved a dispute about Sprint's discovery responses.
Briefing relating to these objections has been completed. (D.I. 560, 563, 571-74). The
objections are only to a limited portion of the R&R, relating to particular Apple 1 products. (See
D.I. 560 at 12) ("iOS, Android, and the enumerated video applications"). The second R&R (D.I.
579) resolved a motion to strike portions of Plaintiffs expert report regarding the same subject as
the discovery dispute, again limited to particular Apple products. (D.I. 564, 565). 2 Further
objections and arguments on the motion to strike have been submitted. (D.I. 587, 596-98, 607).
Both disputes stem from the fact that Plaintiff did not in any meaningful and timely way
accuse the Apple products of being infringing products. It is undisputed that in the first three

1

EON refers to "Apple products" but I think Android is a Google product.

2

Defendants Sprint and Simplexity have filed a limited objection to the second R&R.
(D.I. 597). Plaintiff did not respond to it. The substantive relief (in essence) the defendants seek
is at D.I. 597, p.1 0, n. 7. Defendants do not want to have to respond to the excluded evidence.
EON has not briefed it, which could be considered a waiver. More likely, EON does not want to
use up its credibility arguing a nonsensical position. In any event, since the issue does not seem
to have been joined, I will decline to enter the requested order.

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iterations of accused products, they were not included. 3 Plaintiff does not argue that the fourth
iteration sufficed to add them in. Rather, Plaintiff argues that reference to iOS and Android in
infringement contentions was sufficient to make them accused products. Defendants counter that
the references were fleeting and offered nothing in terms of claim analysis that would suggest
that they were accused products.
In my opinion, I do not think the passing references to iOS and Android in the
infringement contentions, which did not include any charting of how iOS or Android might
infringe, suffice under the facts of this case to have made them accused products, 4 and I do not
think that any opinions about them in Plaintiffs expert's report will be admissible at trial, and I
therefore exclude them.
In view ofthe above, and considering the issues de novo, the Court ADOPTS the two
rulings ofthe Special Master (D.I. 549 & 579), and therefore RESOLVES the motion to strike
(D.I. 564) as indicated in the Special Master's R&R.
IT IS SO ORDERED this

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2[: day of October 2013.

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3

I gather the accused products for defendant Sprint were described as "Sprint TV, Sprint
TV Premium Packages, Sprint Movies, Sprint Football Live, and NASCAR Sprint Cup Mobile."
D.I. 571, p. 2).
4

I do not think MobileMedia Ideas LLC v. Apple Inc., 2012 WL 123772 (D.Del. Apr. 11,
2012), is to the contrary.