IN RE: PAPST LICENSING DIGITAL CAMERA PATENT LITIGATION - MDL 1880

Filing 536

MEMORANDUM AND OPINION regarding Table 15 Devices. Signed by Judge Rosemary M. Collyer on 7/1/2013. (KD)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
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IN RE PAPST LICENSING GMBH & CO. KG )
LITIGATION
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Misc. Action No. 07-493 (RMC)
This document relates to
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MDL No. 1880
ALL CASES
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__________________________________________)
OPINION RE: CAMERA MANUFACTURERS’ MOTION FOR SUMMARY
JUDGMENT OF NONINFRINGEMENT REGARDING DEVICES IDENTIFIED IN
TABLE 15
Papst Licensing GmbH & Co. KG, a German company, sues multiple
manufacturers of digital cameras for alleged infringement of two patents owned by Papst: U.S.
Patent Number 6,470,399 (399 Patent) and U.S. Patent Number 6,895,449 (449 Patent). The
Camera Manufacturers 1 have moved for summary judgment of noninfringement with respect to
the devices listed in Table 15 of Papst Final Infringement Contentions. Because Papst has not
alleged infringement with regard to these devices with the required specificity, the motion will
be granted.
1

This Multi District Litigation (MDL) currently consists of First and Second Wave Cases. The
“First Wave Cases” are: Fujifilm Corp. v. Papst, 07-cv-1118; Matsushita Elec. Indus. Co., Ltd. v.
Papst, 07-cv-1222; Papst v. Olympus Corp., 07-cv-2086; Papst v. Samsung Techwin Co., 07-cv2088; Hewlett-Packard Co. v. Papst, 08-cv-865; and Papst v. Nikon Corp., 08-cv-985. The
“Second Wave Cases” currently are: Papst v. Canon, 08-cv-1406; Papst v. Eastman Kodak, 08cv-1407; Papst v. Sanyo, 09-cv-530. The Camera Manufacturers seeking summary judgment
here are parties in the First Wave Cases; they are: Fujifilm Corporation; Fujifilm U.S.A., Inc.;
Fujifilm Japan; Matsushita Electric Industrial Co., Ltd.; Victor Company of Japan, Ltd.;
Olympus Corporation; Olympus Imaging America Inc.; Samsung Techwin Co., Ltd.; Samsung
Opto-Electronics America, Inc.; Panasonic Corporation of North America; JVC Company of
America; Hewlett-Packard Company (HP); Nikon Corporation; and Nikon, Inc. Papst’s
infringement contentions against HP have been stricken and discovery has been stayed.
1

I. FACTS 2
The invention at issue is a “Flexible Interface for Communication Between a Host
and an Analog I/O Device Connected to the Interface Regardless of the Type of the I/O Device.”
399 Patent, Title; 449 Patent, Title. Michael Tasler invented and patented the “interface device”
and later sold the Patents to Papst. The invention was never produced or used.
The “interface device” is designed to provide data transfer between a data
transmit/receive device and a computer without the need for special software; this is
accomplished by telling the computer that the interface device is a transmit/receive device
already known to the computer (and for which the computer already has drivers, i.e., software),
regardless of what kind of data transmit/receive device actually is attached to the interface
device. 399 Patent, Abstract; 449 Patent, Abstract; see also 399 Patent 5:67 & 6:1-22; 449 Patent
4:66-67 & 5:1-22. 3 By directing the computer to communicate using customary software already
in the computer, the interface device can fulfill its purpose––to provide “communication between
a host device and a data transmit/receive device whose use is host device-independent and which
delivers a high data transfer rate.” 399 Patent 3:24-27; 449 Patent 3:20-23 (same).
Papst alleges that certain accused devices manufactured and/or sold by the
Camera Manufacturers are “interface devices” that infringe Claims 1-3, 5, 7, 11, and 14-15 of the
399 Patent and Claims 1-2, 6-9, 12-13, and 15-18 of the 449 Patent. The accused products
include digital cameras, camcorders, and digital voice recorders. 4 Specifically, Papst’s Final
2

This motion is one of eight filed by the Camera Manufacturers. In the interest of timely
disposition of all, the Court does not recite the full background and assumes familiarity with its
prior rulings. See, e.g., Modified Claims Construction Op. [Dkt. 336]; Sanctions Op. [Dkt. 429].
3

The Patents are cited by a column number, then colon, then the line number.

4

Papst was not granted leave to add cell phones and MP3 players to this litigation. See
Sanctions Op. at 12.
2

Infringement Contentions assert that (1) the Mass Storage Class (MSC) accused devices listed in
Table 12 infringe the 399 Patent; (2) the MSC accused devices listed in Table 13 infringe the 449
Patent; and (3) the Picture Transfer Protocol (PTP) accused devices listed in Table 14 infringe
the 399 Patent. See Final Infringement Contentions (FICs) [Dkt. 416], Tables 12 & 13 & Table
14. 5
Papst also expressly noted that it lacked sufficient information to allege that other
devices infringe, setting forth a list of such products on Table 15, titled “Devices likely to be
MSC Capable, PTP Capable, or both.” FICs at 307-13 (Table 15). With regard to Table 15, the
Final Infringement Contentions (FICs) assert:
Papst has not received adequate discovery for Papst to determine if
the devices in Table 15 are MSC Capable Devices, PTP Capable
Devices, or both. Papst asserts that a reasonable opportunity for
discovery is likely to show evidentiary support that these devices
are either MSC Capable Devices, PTP Capable Devices, or both.
To the extent that the devices are MSC Capable Devices, Papst
asserts that a reasonable opportunity for discovery is likely to show
evidentiary support that they infringe Claims 1, 2, 3, 5, 7, 11, 14,
and 15 of the 399 patent, and Claims 1, 2, 6, 7, 8, 9, 12, 13, 15, 16,
17, and 18 of the 449 patent, literally and/or under the doctrine of
equivalents. To the extent that the devices are PTP Capable
Devices, Papst asserts that a reasonable opportunity for discovery
is likely to show evidentiary support that they infringe Claims 1, 3,
5, 11, and 14 of the 449 patent, literally and/or under the doctrine
of equivalents. To the extent that the devices are not MSC
Capable Devices or PTP Capable Devices, Papst asserts that a
reasonable opportunity for discovery is likely to show evidentiary
support that they may infringe Claims 1, 2, 3, 5, 7, 11, 14, and 15
of the 399 patent, and Claims 1, 2, 3, 6, 7, 8, 9, 11, 12, 13, 14, 15,
16, 17, and 18 of the 449 patent, literally and/or under the doctrine
of equivalents. Papst reserves the right to revise or update these
5

PTP and MSC relate to how a device is recognized by a computer. When a user connects an
accused device to a computer, depending on the mode setting for the device, the computer will
recognize the device as a PTP device or as a MSC device. Some accused products are alleged to
operate in both MSC mode and PTP mode. See, e.g., FICs, Table 12 (asserting that Fujifilm
model V10 is MSC-capable); id., Table 14 (asserting that Fujifilm model V10 is PTP-capable).
3

contentions upon receipt of sufficient further relevant discovery
from the [Camera Manufacturers].
FICs at 307. In sum, Papst made no specific allegations against the Table 15 products; it alleged
only that discovery would likely show evidentiary support that these products are MSC and/or
PTP devices.
The Camera Manufacturers seek summary judgment of noninfringement because
Papst has not alleged infringement with any specificity whatsoever with regard to the devices set
forth in Table 15, and the Court’s Sanctions Opinion and Order prohibit Papst from modifying its
FICs. See Mot. for Summ. J. Re Table 15 Devices [Dkt. 447]; Reply [Dkt. 505].
The Sanctions Opinion and Order, issued on February 8, 2011, required Papst to
file infringement contentions with specificity. See Sanctions Op. [Dkt. 429]; Sanctions Order
[Dkt. 430]. The Sanctions Order arose from Papst’s failure to follow Court orders. The Court
mandated that Papst revise its original infringement contentions, as Papst had filed them before
the Court construed the Patents. See Claims Constr. Op. [Dkt. 336] (interpreting the claims in
the Patents). The Court and the parties discussed the need for final contentions from Papst at a
discovery status conference in August 2010. The Court chastised Papst for failing to propose
focused discovery and ordered Papst to define its asserted claims and infringement contentions in
light of the claims construction:
I said focused discovery and what I got was a shotgun shell. I
mean, everything. I do not consider that focused and I don=t think
that it fulfills my obligation to get this done quickly and with the
least expense possible under the circumstances. So what I think
we need to start with is the concept that Papst filed infringement
contentions . . . and hasn’t changed them, hasn’t indicated it wants
to change them, hasn’t indicated it plans or needs to change them
but now says [it] need[s] a ton of discovery. I’m not sure that all
of your contentions can stand in light of the claims construction
decision which I appreciate you don’t like, it’s okay. But nobody
knows what they’re fighting about now. Nobody can tell and you
don’t want to tell them, and we’re not going to do it that way. I
4

mean, you’re the plaintiff. You have allegations, you need to say
what they are. So the first thing is I’m going to direct Papst to
refile its claims contentions, its infringement contentions. . . . File
that, then we’ll know what we’re arguing about. Only then can we
figure out what discovery is really needed.
See Mot. for Sanctions [Dkt. 388], Ex. A (Tr. of Aug. 31, 2010 Hearing) at 18-19.
The Court further directed, “you have got to bring your infringement contentions up to date.
People have to know what they’re litigating about. And only when you do can you then say
okay, this is the discovery we need for these reasons.” Id. at 32. The Court told Papst that its
asserted claims and infringement contentions needed to be clear cut:
First you have to decide what your infringement contentions are.
Only when you know what, what camera you’re asserting
[infringes] what claim and for what reason[,] can you possibly
figure out what discovery you might need that you don=t already
have.
Id. at 33-34.
As a result of the status conference, the Court issued its Sixth Practice and
Procedure Order (PPO) requiring Papst to file final contentions with specificity as to each
alleged infringer, each alleged infringing product, and each Patent Claim allegedly infringed.
The Sixth PPO provided:
2. No later than October 13, 2010, Papst shall file its Final
Disclosure of Asserted Claims and Infringement Contentions.
Separately for each opposing party, this Final Disclosure shall
contain the following information:
a. Each claim of each patent in suit that is allegedly infringed by
each opposing party, including for each claim the applicable
statutory subsections of 35 U.S.C. § 271 asserted;
b. Separately for each asserted claim, each accused apparatus,
product, device, process, method, act or other instrumentality
(“Accused Instrumentality”) of each opposing party of which
Papst is aware. This identification shall be as specific as possible.
Each product, device, and apparatus shall be identified by name or
model number, if known. Each method or process shall be
5

identified by name, if known or by any product, device or
apparatus which, when used, allegedly results in the practice of the
claimed method or process;
c. A chart identifying specifically where each limitation of each
asserted claim is found within each Accused Instrumentality,
including for each limitation that such party contends is governed
by 35 U.S.C. § 112(6), the identity of the structure(s), act(s), or
material(s) in the Accused Instrumentality that performs the
claimed function.
d. For each claim which is alleged to have been indirectly
infringed, an identification of any direct infringement and a
description of the acts of the alleged indirect infringer that
contribute to or are inducing that direct infringement. Insofar as
alleged direct infringement is based on joint acts of multiple
parties, the role of each such party in the direct infringement must
be described;
e. Whether each limitation of each asserted claim is alleged to be
literally present or present under the doctrine of equivalents in the
Accused Instrumentality; and
f. For any patent that claims priority to an earlier application, the
priority date to which each asserted claim allegedly is entitled.
Sixth PPO [Dkt. 372] & 2 (adopting provisions of Rule 3-1 (N.D. Cal. Patent Local Rules))
(emphasis added).
The Sixth PPO adopted the requirements set forth in Northern District of
California Patent Rule 3-1 because that Rule was designed to “make the parties more efficient, to
streamline the litigation process, and to articulate with specificity the claims and theory of a
plaintiff’s infringement claims.” Bender v. Micrel Inc., Civ. No. 09-1144, 2010 WL 520513, at
*2 (N.D. Cal. Feb. 6, 2010). Rule 3-1 was intended to prevent cases from “stagger[ing] for
months without clear direction” by “focusing discovery on building precise final infringement or
invalidity contentions and narrowing issues for Markman, summary judgment trial, and beyond.”
Connectel, LLC v. Cisco Sys., Inc., 391 F. Supp. 2d 526, 527 (E.D. Tex. 2005). Via the language

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of Rule 3-1, the Court required Papst to “crystallize its theory of the case and patent claims.” 6
See InterTrust Tech. Corp. v. Microsoft Corp., Civ. No. 01-1640, 2003 WL 23120174, at *3
(N.D. Cal. Dec. 1, 2003) (characterizing Rule 3-1). In sum, the Court ordered Papst to file
contentions that comported with the Court’s claims constructions and that were sufficiently
precise and detailed for the purpose of streamlining this already protracted litigation.
Papst filed Final Infringement Contentions, see FICs [Dkt. 416], but many
contentions remained vague and uninformative. Through its experienced patent lawyers, Papst
blatantly disregarded the Sixth PPO. The Court took Papst to task for obfuscating its
infringement theories, finding that Papst had done so intentionally as part of its strategy to extend
this litigation excessively, since Papst’s business is litigation:
Instead of crystallizing its asserted claims and infringement
contentions in this case, Papst’s Final [Infringement] Contentions
intentionally obfuscate Papst’s infringement theories. As this
Court has previously noted, Papst is in the business of litigation.
Papst is a German company that produces no
products; it acquires patents on products or methods
allegedly invented by others and then searches the
world for patents it might challenge for
infringement. At one of the first status conferences
of the MDL, when the Court queried whether this
was old-fashioned “claim-jumping,” counsel for
Papst readily agreed that it had been called worse.
Of course, this is a perfectly lawful and respectable
business. But it underscores that the business of
Papst is litigation, not invention or production.
Litigation is the business model whereby Papst,
when successful, achieves royalty payments from
others. As is clear from this record, the threat of
litigation alone often achieves royalty payments.
6

A plaintiff in the Northern District of California is expected to articulate its infringement
contentions no later than 14 days after the initial case management conference, a much earlier
stage than was required in this MDL. N.D. Cal. Patent Rule 3-1. Papst was required to
crystallize its theories only after claims construction.
7

Mem. Op. [Dkt. 86]. While the threat of litigation alone often
achieves royalty payments, the threat of never-ending discovery
can induce even larger royalty payments. Frankly, this appears to
be Papst’s strategy in this case. The Final [Infringement]
Contentions are purposefully vague; they were drafted to further
Papst’s intention to engage in protracted and expensive litigation.
Sanctions Op. at 7-8.
In addition to concealing its infringement theories, Papst purposely disregarded
the Modified Claims Construction Opinion and Order. The Sanctions Opinion explained:
[T]he Final [Infringement] Contentions additionally lack the
requisite specificity because they repeatedly reiterate Papst’s
version of previously rejected claims constructions and then
advance theories based on such rejected constructions. See, e.g.,
[FICs] at 33 (asserting that “second connecting device” means a
device for interfacing and not “a physical plug or socket for
permitting a user readily to attach and detach . . .” as construed by
the Court). In this same vein, Papst also attempts to incorporate
and reassert its original contentions filed May 28, 2008, before
claims construction. Id. at 2. Such an approach bespeaks a total
lack of respect for Court orders and the timely resolution of this
case, but it is consistent with Papst’s approach from the
beginning. 7
Id. at 10. Papst’s failure to properly detail its infringement claims was not an innocent error; it
was part of a calculated strategy.
For this astounding and brash failure to follow court orders, the Court imposed a
reasonable sanction against PapstCrequiring Papst “to live with its Final [Infringement]
Contentions as they stand without further modification.” Sanctions Op. at 7. Thus, the Court
barred Papst from modifying the FICs and barred Papst from advancing any arguments for

7

See, e.g., Mem. Op. [Dkt. 82] (sanctioning Papst for failure to comply with a direct discovery
order), modified in part by Mem. Op. [Dkt. 123]. Notably, Papst filed a petition for writ of
mandamus, see Dkt. 167, and the Federal Circuit denied the petition. In re Papst Licensing
GmbH & Co. KG, Misc. No. 877, 314 F. App’x 295 (Fed. Cir. 2008).
8

infringement (or against claims of noninfringement) that either (1) are not based solely on this
Court’s constructions of the Patents or (2) are not already set forth specifically and explicitly in
the FICs. See Sanctions Order at 2. Further, although Papst claimed that it “reserved the right”
to accuse more products of infringement, the Court found that this claim was imprecise and
limitless and that it violated the Court’s orders. Sanctions Op. at 12.
Papst opposes the Camera Manufacturers’ motion for summary judgment
regarding the Table 15 products and seeks further discovery. See Opp’n [Dkt. 471]; Mot. for
Rule 56(d) Discovery [Dkt. 479].
II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall
be granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). On summary judgment, the burden on a moving
party who does not bear the ultimate burden of proof in the case may be satisfied by making an
initial showing that there is an absence of evidence to support the nonmoving party’s case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). This burden “may be discharged by
‘showing’––that is, pointing out to the district court––that there is an absence of evidence to
support the nonmoving party’s case.” Id.
The burden then shifts to the nonmovant to demonstrate the existence of a
genuine issue of material fact. The nonmovant may not rest on mere allegations or denials, but
must instead by affidavit or otherwise, present specific facts showing that there is a genuine issue
for trial. See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324; see also Greene v. Dalton, 164
F.3d 671, 675 (D.C. Cir. 1999) (nonmovant must present specific facts that would enable a
reasonable jury to find in its favor).
9

In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor. Anderson, 477 U.S. at 255. A nonmoving party,
however, must establish more than “[t]he mere existence of a scintilla of evidence” in support of
its position. Id. at 252. In addition, if the evidence “is merely colorable, or is not significantly
probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations
omitted). Summary judgment is properly granted against a party who “after adequate time for
discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex, 477 U.S. at 322.
Summary judgment can be granted in a patent case if there is no dispute over the
structure of the accused products, at which point the question of infringement “collapses” into
the question of claim construction and may be resolved by the court. Desper Prods., Inc. v.
QSound Labs, Inc., 157 F.3d 1325, 1332-33 (Fed. Cir. 1998). The burden of proving
infringement rests on the patent holder. Welker Bearing Co. v. PHD, Inc., 550 F.3d 1090, 1095
(Fed. Cir. 2008). Thus, on summary judgment the Camera Manufacturers bear the burden of
making an initial showing that there is an absence of evidence to support Papst’s claim of
infringement, and Papst bears the burden of presenting specific facts showing that there is a
genuine issue for trial.
III. ANALYSIS
The Camera Manufacturers seek a judgment of noninfringement as to the Table
15 products. Papst complains that (1) it has insufficient information to assert specific
infringement contentions as to the Table 15 devices; (2) the Camera Manufacturers should be
required to provide discovery as to the mode of communication (MSC, PTP, or other) of the

10

Table 15 devices; and (3) Papst should be permitted to supplement its contentions or, at least, the
Court should decline to enter judgment regarding the Table 15 products so that Papst can sue on
those items later.
At its core, Papst’s argument seeks reconsideration of the Sanctions Opinion and
Order. But Papst fails to meet the standard for reconsideration. See Singh v. George Wash.
Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (reconsideration may be permitted when a court
patently misunderstood a party, made a decision outside the adversarial issues presented, made
an error not of reasoning but of apprehension, or where there has been a controlling or significant
change in the law or facts). Papst has not alleged, let alone shown, that the Court patently
misunderstood a party, made a decision outside the issues presented, made an error of
apprehension, or that a controlling or significant change in the law or facts occurred.
Furthermore, a cursory read of the Sanctions Opinion and Order reveals that the
Court did not simply “exclude” the Table 15 devices from this litigation, as Papst wishes it had,
for the purpose of permitting Papst to amend its infringement contentions or to bring a new
lawsuit against those devices. Papst was sanctioned for its failure to comply with Court orders,
and the sanction requires Papst “to live with its Final [Infringement] Contentions as they stand
without further modification.” Sanctions Op. at 7. The Court expressly “barred [Papst] from
modifying its Final [Infringement] Contentions” and “barred [Papst] from advancing any
arguments for infringement, or against the Camera Manufacturers’ claims of noninfringement,
that are not set forth specifically and explicitly in the Final [Infringement] Contentions.” Id. at
12; Sanctions Order at 2. To permit amendment of the Final Infringement Contentions against
the Table 15 devices or future suit against the Table 15 devices would more than undermine the
sanction, it would negate it.

11

Papst contends that it does not know whether the products listed in Table 15
communicate with a host computer in MSC mode and/or PTP mode or whether they use another
mode of communication altogether, 8 and that it should be permitted to seek discovery of this
information, which (Papst alleges) is within the exclusive control of the Camera Manufacturers.
Papst moves for discovery under Federal Rule of Civil Procedure 56(d). 9 See Mot. for 56(d)
Disc. [Dkt. 479]; Reply [Dkt. 515]. On a Rule 56(d) motion, “[t]he non-moving party bears the
burden of identifying the facts to be discovered that would create a triable issue and the reasons
why the party cannot produce those facts in opposition to the motion.” Scott-Blanton v.
8

Papst insists that the devices listed in Table 15 infringe the Patents even if they are not MSC or
PTP capable:
If there were another capability besides MSC and PTP for these
cameras –– and Papst doubts that there is one because no
documents have mentioned such a third way of communicating
with the host device –– it, too, would likely infringe because of the
similarity in functions of the Table 15 products to the functions of
products listed in the other tables. Papst would need discovery
from the [Camera Manufacturers] about any such heretofore
unmentioned capability in order to determine the matter of
infringement.
Opp’n [Dkt. 471] at 2 n.2. Papst, however, alleged infringement only by products that operate in
MSC and/or PTP mode. It is too late for Papst to assert a new theory of infringement. See
Sanctions Order at 2.
9

Rule 56(d) provides:
If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition,
the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take
discovery; or
(3) issue any other appropriate order.

Fed. R. Civ. P. 56(d).
12

Universal City Studios Prods. LLLP, 246 F.R.D. 344, 347 (D.D.C. 2007), aff=d 308 F. App’x 452
(D.C. Cir. 2009).
Papst’s claim that it was “unable” to make specific allegations against the Table
15 devices is belied by (1) the fact that Papst made specific allegations against the numerous
MSC and PTP devices listed in Tables 12, 13, and 14 of the Final Infringement Contentions; and
(2) prior to the date that Papst filed the FICs (January 21, 2011), the Camera Manufacturers
expressly identified in interrogatory responses many Table 15 products that have MSC and/or
PTP functionality. See, e.g., Reply, Ex. A [Dkt. 505-1] (Sept 29, 2008 Matsushita/Panasonic 2d
Supp. Resp. to 2d Revised Interrog.) at 13 10 (informing Papst that models NV-GS120GC, NVGS200GC, NV-GS300, NV-GS30EN, NV-GS3EN, NV-GS5EN (listed in Table 15 at 310) are
MSC and/or PTP capable); Ex. B [Dkt. 505-1] (June 12, 2008 Fujifilm Resp. to 2d Revised
Interrog.) at 26 (revealing that the FinePix Z5R camera (listed in Table 15 at 308) as “category
3,” i.e. PTP capable); Ex. C (Sept. 29, 2008 Victor/JVC 2d Supp. Resp. to 2d Revised Interrog.)
at 34, 37 (specifying that models GC-A33, GZ-MG435, GZ-MG465 (listed in Table 15 at 309)
are MSC and/or PTP capable).
Further, Papst’s assertion that the information regarding whether the accused
devices operate in MSC and/or PTP mode is in the exclusive control of the Camera
Manufacturers is undermined by the wealth of information publically available on the Internet.
For example, Papst asserts that it has insufficient information to determine the functionality of
the Nikon D3s camera and listed this model in Table 15. FICs at 310. The Nikon website,
however, shows that the D3s camera can communicate in MSC and PTP modes. See
http://support.nikonusa.com/app/answers/detail/a_id/4613 (last viewed June 19, 2013).
10

Citations to the Camera Manufacturers’ Reply Exhibits are to the page numbers in the ECF
header.
13

User manuals either produced by the Camera Manufacturers in discovery or
available on the Internet also reveal whether a product can operate in MSC and/or PTP mode.
Papst alleges that it does not have adequate information to determine the communication mode
of the Nikon L100 camera. See Table 15 at 310. However, the user manual for the Nikon L100,
available on Nikon’s website, 11 indicates that this model uses PTP data transfer protocol. See
Ex. E [Dkt. 505-1] (Nikon Coolpix L100 User Manual Specifications) at 44. User manuals for
all of the Panasonic and JVC products sold in the United States and listed in Table 15 have been
produced in discovery or are accessible online. See Reply at 7-8 (citing
http://service.us.panasonic.com/operman/ (last viewed June 19, 2013) and http://books.jvc.com/
(last viewed June 19, 2013)). Thus, Papst could have read the user manual for the Panasonic
DMC-FZ100, listed on Table 15 at 309, and determined that this product can use the MSC or
PTP communication protocol. Ex. G [Dkt. 505-1] (excerpt of DMC-FZ100 User Manual) at 59.
Papst could have reviewed the user manual for the JVC model GZ-HD3US, listed on Table 15 at
509, which explains that the camera can be connected to a computer in MSC mode. Ex. H [Dkt.
505-1] (excerpt of GZ-HD3US User Manual) at 62. Papst also could have tested the accused
products by simply attaching them to a computer. See Locke Decl. [Dkt. 193-3] ¶ 24-25
(explaining that computers can detect the attachment of MSC and still image capture (PTP)
devices); Papst Tutorial Slides [Dkt. 215] at 20 (depicting the typical computer screen message
that appears when a camera is attached, which states “Found New Hardware – USB Mass
Storage Device”).
Papst has made infringement allegations against the products listed in Table 15
without any factual basis whatsoever. Papst claims that it could not have determined whether
11

See https://support.nikonusa.com/app/answers/detail/a_id/16311/~/user’s-manual---coolpixl100 (last viewed June 19, 2013).
14

those devices were MSC and/or PTP capable, but this claim is made without evidentiary support
and in the face of substantial evidence to the contrary. Papst’s failure to make precise allegations
against the Table 15 products is not excused.
Having made only bald allegations against the Table 15 devices, Papst cannot
demonstrate the existence of a genuine issue of material fact with regard to infringement,
Celotex, 477 U.S. at 324, nor can Papst present specific facts that would enable a reasonable jury
to find in its favor. See Greene, 164 F.3d at 675. Papst cannot save itself now by ignoring the
Court’s sanctions and demanding imprecise discovery, much of it unnecessary. Accordingly,
summary judgment will be granted in favor of the Camera Manufacturers with regard to the
accused devices set forth in Table 15.
IV. CONCLUSION
The Camera Manufacturers’ motion for summary judgment of noninfringement
with respect to devices identified in Table 15 [Dkt. 447] will be granted, and Papst’s motion for
further discovery [Dkt. 479] will be denied with regard to the Table 15 products. 12 Summary
judgment of noninfringement will be granted in favor of the Camera Manufacturers with respect
to the Table 15 devices. A memorializing Order accompanies this Opinion.

Date: July 1, 2013

/s/
ROSEMARY M. COLLYER
United States District Judge

12

Papst moved to file a surreply in opposition to the Camera Manufacturers’ motion for
summary judgment with respect to Table 15 devices. See Mot. for Leave to File Surreply [Dkt.
509]. Because surreplies are disfavored in this District and because the Camera Manufacturers’
Reply [Dkt. 505] did not raise new issues, Papst’s motion to file a surreply will be denied. See
Crummey v. Social Sec. Admin., 794 F. Supp. 2d 46, 62 (D.D.C. 2011).
15