UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

IN RE P AP ST L ICENSING G MBH & CO. K G LITIGATION Misc. Ac tion No. 07-493 (RM C) 1 MDL Doc ket No. 1880 Thi s Docum ent Re lates To: P apst Licensin g Gm bH & Co. KG v. Sam sun g Techwi n Co., Civ. No. 07-2088 (D.D .C.)

OP INION REGA RDING SAMSUNG ’S MOTION FOR SUM MARYJUDG MENT OF NONINF RING EMENT AS TO WRONG F ULLY ACCUSED P RODUCTS Papst L icensingGmbH & Co. KG broug ht suit aga inst S amsungTec hwin Co., L td., and SamsungOpto-Elec tronics America, Inc., for alleg ed infring ement of Pate nt Nos. 6,470,399 and 6,895,449. De fenda nts seek summary

judgme nt of noninfring ement on for ty

seven a ccuse d products that De fenda nts assert they

never made, use d, sold, offer ed, or imported in/into t he United States. The e ight- pag e motion has occ asioned a bliz zard of pape r but none 2 that eff ectively challeng es De fenda

nts’ sworn af

fidavits. In an ef

fort to avoid summary judgme nt, Papst claims indirect infring ement by inducement but that cla im was not sufficiently

This Multi District L itigation cur rently consists of First and Sec ond Wave Cases c urre ntly 1 pendingin this Dist rict. The “ First Wave Case s” ar e: 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-cv- 2088; Hewlett Pack ard Co. v. Papst , 08-cv- 865; and Papst v. Nikon Corp ., 08-cv- 985. The “ Second Wave Case s” ar e: Papst v. Canon , 08-cv- 1406; Papst v. Eastman Kodak, 08-cv- 1407; Papst v. Sanyo , 09-cv- 530. This motion i s just one piece of a much lar g er Multi District L itigation by which Papst claims 2 that numerous manuf

actur ers of

digital c amer as in the United States violate its Patents.prese rved in its final infring ement conte ntions and will not be heard now . Papst also argues that

it needs discover

y , but nothing on which it see ks discovery would ref

ute the hig hly

confide ntial sales re cords that De fenda nts alrea dy

have sha red w ith Papst. S ummary judgme nt of noninfring ement as to the f orty -seve n products will be g rante d to Defe ndants.

I. F ACTS This suit has a long pr ocedur al history . In J une 2007, Papst broug ht suit aga inst Kore a-ba sed SamsungTec hwin Company (Tec hwin) and its U.S. subsidiary , Samsung O ptoElectronic s America , Inc. (O pto-Electr onics) (c ollectively , Def endants). Papst complained that

3 Def endants infr inge d U.S. Patent Nos. 6,470,399 and 6,895,449 (the Pate nts) by “making , using, offe ringto sell or selling w ithin the United States and/or importing into the United States . . . digital c amer as” c overe d by the Patents. See Papst Licensing GmbH &Co. KG v. Samsung Techwin Co. (

Papst v. Techwin) , Civ. No. 07-2088 (D.D.C.), Compl. [Dkt. 3-1] ¶¶ 9, 17. Papst also alleg ed that De fenda nts “ac tively

induced other s and/or contr ibuted to the infring ement” of the Patents. Id . ¶¶ 10, 18.

The Multi District L itigation Panel tra nsfer red the case into this Multi Dist rict L itigation (MDL ). See id. , MDL Transf er O rder [Dkt. 1] . In September 2008, the Court held a three -day Markman hear ing. There afte r, the Court re ndere d its claims construction opinion and 4 order

. SeeModified Claims Const ruction Op. [Dkt. 336] ; Modified Orde r [Dkt. 337] (re placing Papst origina lly

filed suit in feder al district court in California. See Papst Li censing Gm bH & 3 Co. KG v. Samsung Techwin Co ., No. 07-4249 (C.D. Calif.) . The Centra l District of California court then tra

nsfer red the case to the District of Ne w J erse y . See Papst Li censing Gm bH &Co. KG v. Samsung Techwin Co. , 07-4940 (D.N .J .). Pursuant to Markman v . W estview Instrume nts, Inc. , 517 U.S. 370 (1996), the Court is requir ed 4 to construe the c ontested cla ims of the patents bef ore a jury can de termine whe ther the a ccuse d products infring e. Thus a c laims construction hea ringis often ca lled a Markman hear ing. -2-orig inal claims construc tion Op. [ Dkt. 312] and Order [Dkt. 313] ). In Fe bruar

y 2009, afte r the c laims construction hea ringbut before the claims construction ruling , Tec hwin transfe rre d its digital camera business to Samsung Dig ital I mag ing Company , which in turn merg ed its digital c amer a business into Korea -base d Samsung Electronic s Company

L td. on April 1, 2010. Be fore Tec hwin’s transf er to SamsungDig ital 5 Imag ing Company , co-D efe ndant Opto-Elec tronics purc hased dig ital camer as made by Tec hwin and Opto-Ele ctronics sold these c amer as in the United States. SeeMot. for Summ. J . Reg arding Wrongf ully Acc used Products [Dkt. 448] , Ex . 2 (F irst L ee D ecl.) ¶ 2; Resp. to Surreply [Dkt. 495], Ex . 8 (Second L ee D ecl.) ¶ 2.

A y ear and a ha lf afte r Tec hwin spun-off its dig ital camer a business, in Octobe r 2010, Papst moved for lea ve to file a

first amende d complaint, seekingto add as de fenda nts in Papst v. Techwin , the following : Samsung Elec tronics Company L td. and its U.S. subsi diaries, Samsung Ele ctronics Ame rica , Inc. and SamsungTelec ommunications America , L L C. (all three collectively , Samsung Ele ctronics Entities). The Court denied the motion to amend bec ause it was untimely

and bec ause it would complica te and de lay

the litigation ag ainst Defe ndants. See 6 Op. [Dkt. 424] ; Order

[Dkt. 425]

. There afte r, the Court orde red Papst to file fina l asserte d infring ement cla ims and contentions (F inal Contentions) in compliance with deta iled require ments. SeeMot. for Sanctions [Dkt. 388] , Ex . A (Tr . of Aug . 31, 2010 Hea ring ); Six th Prac. & Pro. Order (Six th PPO) [ Dkt. 372]. I n J anuar y 2011, Papst filed Final Contentions, but beca use Papst failed to

After the merg er, SamsungDig ital I mag ing Company cea sed to existas a se parate entity

. 5 Whil e Papst has not filed a separ ate suit ag ainst the Samsung E lectronic s Entities in this 6 district, the rec ord does not indicate whether Papst has filed suit ag ainst them in another f orum. -3-follow the direc t orders of the Court, the Court order ed sanc tions. SeeFinal Contentions [Dkt. 416]; Sanctions Op. [Dkt. 429] ; Sanctions Order [Dkt. 430] . In the Sanctions Orde r, the Court barr ed Papst “fr om advanc ing a ny arguments for infr inge ment . . . that are not set forth specific ally

and explicitly ” in the F inal Contentions. SeeSanctions Order [Dkt. 430] at 2. In its Final Contentions, Papst also attempted to advanc e cla ims ag ainst the Samsung E lectronic s Entities that are not

part of this MDL . In the Sanctions Orde r, the Court struck a ll contentions that asser t claims ag ainst the Samsung E lectronic s Entities. Id

. II. LEGAL STANDARD Under Rule 56 of the F eder al Rules of Civil P roce dure, summar y judgme nt shall be g rante d “if the mova

nt shows that there is no g enuine dispute a s to any materia l fac t and the movant is entitled to judgment as a matter of la

w.” F ed. R. Civ. P. 56(a); accord Ande rson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986). More over, summar y judgme nt is properly

g rante d ag ainst a par

ty who “a fter a dequate time for discove ry and upon motion . . . fails to make a showingsufficie nt to establish the exi stence of an e lement essential to that par ty ’s ca se, and on which that par

ty will bear the burden of

proof a t trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). In rulingon a motion for summary judgme nt, the court must drawall justifiable infere nces in the nonmovingparty ’s favor. Anderson , 477 U.S. at 255. A nonmoving pa rty , howeve r, must establish more than “ the mere exis tence of a sc intill a of e vidence ” in support of its posit ion. Id. at 252. The nonmovingparty must pointout specific f acts showingthat there is a g enuine issue f

or trial. Celotex , 477 U.S. at 324. In addition, the nonmoving pa rty may not rely solely on alleg ations or conc lusory statements. Gree ne v. D alton , 164 F.3d 671, 675 ( D.C. Cir. 1999). Rather , the nonmoving pa rty must present spec ific fa cts that would ena ble a r easona

ble -4-jury

to find in its favor. Id. at 675. I f the e vidence “is mere ly colora ble, or is not signific antly probative, summar

y judgme nt may

be g rante d.” Anderson , 477 U.S. at 249-50 (c itations omitted). Papst seeks additional discover y under F eder al Rule of Civil P roce dure 56( d), which provide s:

I f a nonmova

nt shows by

aff idavit or dec laration that, for spec ified rea sons, it cannot prese nt fac ts essential to justify its opposit ion, the cour t may : (1) de fer consideringthe motion or deny it; (2) a llow time to obtain affidavits or dec larations or to take discovery ; or (3) issue a

ny other a ppropriate order

. Fe d. R. Civ. P . 56(d). “ The nonmovingparty bear s the burden of

identifying the fac ts to be discovere d that would cre ate a triable issue a

nd the re asons why

the par ty cannot pr oduce those fac ts in opposit ion to the motion. The nonmoving par ty must show a rea sonable ba sis to sugg est that discovery

would reve al triable issues of fac t.” Scott-Blanton v. Unive rsal Ci ty Studios Prods. LL P , 246 F.R.D. 344, 347 (D .D.C. 2007), aff’d 308 Fe d. App’x 452 (D.C. Cir. 2009). A g ener alized, speculative r equest for more discove ry

is insufficient; a re quest for more discovery must show that “further specificdiscovery will defeat a summary

judgme nt motion.” Estate of Parsons v. Palestinian Auth ., 715 F. Supp. 2d 27, 35 (D.D .C. 2010), aff’d , No. 10-7085, 2011 WL3528749 (D.C. Cir. Aug . 12, 2011). III. ANALYSIS

In its Final Contentions, P apst ac cused D efe ndants and the SamsungElectronic s Entities of infring ement, pointing to ove r 350 “Samsung ” produc ts. Si nce the Samsung

-5-Electronic s Entities are not par ties in this M DL , espec ially afte r this Court barre d their untimely addition, Defe ndants asked Papst to withdraw its contentions reg ardingcer tain alleg ed “Samsung ” produc ts that the Samsung Ele ctronics Entities may have ma de, used, sold, off ere d for sa le, or imported ( “made /sold”) in/into the United States, but that were not made /sold in t he United States by Defendants . Papst partially complied but continues to ac cuse f orty -seve n products that De fenda

nts assert ar e wr ong fully

acc used. 7 For ty of the produc ts at issue wer e made /sold in t he United States by a Samsung 8 Entity but not by

these De fenda

nts (Non-Te chwin Products): AQ 100 HZ 50W SL 30 SL 620 TL 210 CL65 i80 SL 35 SL 630 TL 229 CL 80 NX10 SL 40 SL 720 TL 225 HZ 10W PL 200 SL 420 SL 820 TL 240 HZ 15W PL 90 SL 50 TL 100 TL 320 HZ 25W SL 102 SL 502 TL 105 TL 350 HZ 30W SL 105 SL K600 TL 110 TL 500 HZ 35W SL 202 SL 605 TL 205 TL 90 Seven of the products at issue wer e not made/sold in the United States (N on-U.S. Products): 9

Def endants a dvise that their produc ts covere d by the summary

judgme nt motions filed jointly 7 with the First Wave Came ra Ma nufac turers ( e.g ., Mots. for Summ. J . [Dkts. 447, 449, 450, 451, 452,) ar e limited to Techwin/Opto-Ele ctronics pr oducts and do not include the forty -seve n products at issue he re. Mot. for Summ. J . Reg ardingWrongf ully Acc used Products at 2 n.2. Papst acc used these f

orty products of infringe ment in the Final Contentions. SeeFinal 8 Contentions (Part I I I ) at 82-84, 89- 91, 111-17, 133-37, 158- 63, 170-72, 187-94, 205- 06, 214-17. Papst also acc used these se ven produc ts of infring ement in the F inal Contentions. S ee F inal 9 Contentions (Part I I I ) at 82-84, 89- 91, 111-117, 133-37. 158- 163, 170-72, 187-94, 205- 06, 214- 17. -6-Dig imax A4

Dig imax A40 Dig imax A403 Dig imax D85 L 83T S1030 S830 The Non- Tec hwin Products toge ther with Non-U .S. Products are c ollectively ref err ed to as the “F orty -Seven A ccuse d Products.”

Sang -Yoon L ee, a

Tec hwin Senior Manag er dur ing the rele vant time period, descr ibed the re lationship between Te chwin and O pto-Electr onics. Mr. L ee ma de four critica l points: (1) Te chwin is a South Korea n publicly trade d company

which spun off its digital c amer a business into a new , separ ate publicly trade d company , Samsung D igital Imag ing Company , on Fe bruar y 1, 2009. First L ee D ecl.¶ 1. (2) Opto- Electronic s is a wholly -owne d subsidiary of Tec hwin located in the United States. Prior to the spin-off, Opto-E lectronic s sold in the United States digital ca mera s that were made by Tec hwin. Id . ¶ 2; Second L ee D ecl. ¶ 2. (3) In his First Dec laration, Mr. L ee r efe rre d to Techw in and OptoElectronic s collectively

as “STW.” Fir st L ee D ecl. ¶ 2. (4) The forty

Non-Te chwin Products and the seven N on-U.S. Products wer e neve r made /sold by “STW,” i.e., wer e not eve r made/sold by

either Te chwin or O pto-Electr onics. Id . ¶¶ 6–17; Second L ee D ecl. ¶

¶ 6–7. Papst opposes summary

judgme nt. First, Papst argues that it has a va lid claim of

-7-infring ement by inducement a g ainst Defe ndants with reg ard to the F orty -Seven A ccuse d Products. See Samsung Techwin , Civ. No. 07-2088, Compl. ¶¶ 10-18. Second, Papst conte nds there is sufficient cir cumstantial evidenc e that the F orty -Seven A ccuse d Products wer e made /sold here by Def endants, that such e vidence is sufficient to cr eate a g enuine issue of materia l fac t, and that Papst is entitl ed to more discove ry to prove it. 1 0 A. Inf ringem ent by Ind ucem ent In order to induce infring ement, ther e must be an a ct of dire ct infring ement and proof that a

defe ndant “knowing ly

induced infr inge ment with the intent to encoura g e the infring ement.” DSU Me d. Corp. v. JMS Co. Ltd. , 471 F.3d 1293, 1304 ( Fe d. Cir. 2006). “A person induce s infring ement under [35 U.S .C.] § 271(b) by

actively and knowing ly

aidingand abettinganother ’s direc t infring ement.” C.R. Bard, Inc. v . Advanc ed Cardiovascular Sys. Inc

. , 911 F.2d 670, 675 ( Fe d. Cir. 1990). Althoug h Papst contends that Def endants induce d the Samsung Ele ctronics Entities to infring e the Patents, Papst has not pre serve d this claim in li g ht of the Sanc tions Order. The Sanctions Order arose from a Court manda te that Papst revise its orig inal infring ement conte ntions, as Papst had filed them bef ore the Markman decision. The Court and the par

ties discussed the nee d for f inal contentions from Papst at a disc overy status confe renc e in August 2010. The Court chastised Papst for failingto propose foc used discover y and orde red Papst to def

ine its asserted c laims and infring ement conte ntions in l ight of the claims construction:

In response to motions for summary judgme nt filed by

Def endants a nd by the other Came ra 1 0 Manufa cture rs, Papst filed motions for Rule 56(d) discove ry . SeeMot. for Discove ry [Dkt. 479] (addr essingTec hwin and Opto-Ele ctronics spe cifica lly at 33-36); Opp. [Dkt. 472] (Papst seeks discovery in oppositi on to the Motion for Summary J udg ment Reg ardingWrongf ully Acc used Products). -8-Isaid focuse d discovery and what Ig ot was a shotgun shell. I mean, e very

thing. I do not consider that f

ocused a nd Idon’t think that it fulfills m y

obligation to get this done quickly and with the least expense possible under the circ umstances. So what I think we ne ed to start with is the conc ept that Papst filed infring ement contentions . . . and ha sn’t chang ed them, hasn’ t indicated it wants to chang e them, hasn’ t indicated it plans or nee ds to chang e them but now say s [i t] need[s] a ton of discovery . I ’m not sure that a ll of y our conte ntions can stand in light of the claims construc tion decision which I

appre ciate you don’t like, it’s okay . But nobody knows what they ’re fig hting a bout now. Nobody

can te ll and y ou don’t want to tell them, and we ’re not going to do it that way . I mean, you’re the plaintiff. You have alleg ations, y ou need to sa y what they are . So the first thing is I ’m g oing to dire ct Papst to ref ile its claims contentions, its i nfring ement conte ntions. . . . File that, then we’ ll know what we’ re a rguing a bout. Only

then ca n we figure out what discovery is really neede d. Tr. of Aug . 31, 2010 Hea ringat 18-19. The Court further direc ted, “you have g ot to bring your infring ement conte ntions up to date. People have to know what they ’re litigatingabout. And only when you do can you then say okay , this is t he discove ry we ne ed for

these re asons.” Id . at 32. The Court told Papst that its asser ted claims and infr inge ment contentions nee ded to be c lear cut: First you have to de cide wha t y our infring ement conte ntions are. Only when you know what, what camer a you’re asser ting [i nfring es] what claim and f or what rea son[,] can you possibly figure out what discovery y ou might nee d that y ou don’t alre ady have. Id . at 33-34. As a re sult of the status confe renc e, the Court issued its Six th Practice and Procedur e Or der ( PPO) requiringPapst to file final contentions with specific ity as to ea ch alleg ed infring er, e ach a lleg ed infring ing pr oduct, and e ach Pate nt Claim allege dly infring ed. The Six th PPO provided: 2. No later than Octobe r 13, 2010, Papst shall file its Final

-9-Disclosure of Asserte d Claims and Infring ement Contentions. Separately

for e ach opposingparty , this Final Disclosure sha ll contain the f

ollowing infor

mation: a. Ea ch cla im of eac h patent in suit that is allege dly infring ed by

eac h opposing pa

rty , including f

or ea ch cla im the applicable statutory subsections of 35 U.S.C. § 271 asserte d; b. Separately

for e ach a sserted c laim, eac h acc used appa ratus, product, de vice, pr ocess, method, a ct or other instrumentality (“A ccuse d Instrumentality ”) of eac h opposing pa

rty of which Papst is awar e. This identification shall be as spec ific as possible. Ea ch product, de vice, a

nd appar atus shall be identified by name or model number, if known. E ach me thod or proce ss shall be identified by

name, if known or by

any product, de vice or appar atus which, whe n used, alleg edly results in the prac tice of the claimed method or

proce ss; c. A c hart identify

ing spe cifica lly

wher e ea ch limitation of eac h asser ted claim is found within eac h Acc used I nstrumentality , including f

or ea ch limitation that such party contends is g overne d by 35 U.S.C. § 112(6), the identity of the struc ture(s) , act( s), or materia l(s) in the Ac cused I nstrumentality

that perf orms the claimed f unction. d. For each c laim which is all eged to hav e bee n indirectly infringed, an identifi cation 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 direc t infri ngeme nt is based on joint acts of multiple parties, the role of each suc h party in the direct infringement must be desc ribed. e. Whether e ach limitation of ea ch asse rted c laim is alleg ed to be literally prese nt or prese nt under the doc trine of e quivalents in the Acc used Instrumentality ; and f. F or any

patent that cla ims priority to an ea rlier a pplication, the priority date to which e ach a sserted c laim alleg edly is entitled. Six th PP O ¶ 2 (a dopting pr ovisions of Rule 3-1 (N.D. Cal. Patent L ocal Rules)) (empha sis added reg ardinginfring ement by inducement)

.

-10-The Six th PP O adopted the require ments set forth in Northe rn District of

California Patent Rule 3-1 be cause that Rule was designed to “make the par ties more ef

ficient, to streamline the litig ation proce ss, and to articulate with specific ity the claims and the ory

of a plaintiff’s infring ement cla ims.” Bende r v. Micre l, Inc. , Civ. No. 09-1144, 2010 WL520513, at *2 (N.D. Cal. F eb. 6, 2010). Rule 3- 1 was intende d to preve nt case s from “stag g er[ing] for months withoutclea

r direc tion” by

“foc using discove ry

on building pre cise fina l infring ement or invalidity contentions and na

rrowingissues for Markman , summary judgme nt trial, and beyond.” Connectel, LLC v. Cisco Sys ., Inc ., 391 F. Supp. 2d 526, 527 (E.D. T ex. 2005). Via the languag e of Rule 3-1, the Court re quired Papst to “cr y stalliz e its theory

of the c ase a

nd patent cla ims.” 1 1 See InterTrust Tech. Corp. v. Microsoft Corp ., Civ. No. 01-1640, 2003 WL23120174, at *3 (N.D. Cal. De c. 1, 2003) ( char acte rizing Rule 3-1). I n sum, the Court ordere d Papst to file contentions that comported w ith the Court’s claims constructions and that we re suf ficiently prec ise and de tailed for the purpose of streamliningthis already protrac ted litigation. Papst filed Final Contentions, but they wer e vague and uninf

ormative. Thr oug h its ex perie nced pa

tent lawyers, Papst blatantly disreg arde d the Six th PP O. The Court took Papst to task for obfusc atingits infringe ment theories, f inding that Papst had done so intentionally as part of its strate g y

to ext end this liti g ation excessively , since Papst’s business is litigation: Instead of c ry stalliz ing its asse rted c laims and infring ement contentions in this case, Papst’s F inal Contentions int entionally obfuscate Papst’s infring ement theories. As this Court has previously

noted, Papst is in the business of liti g ation.

A plaintiff in the Nor

thern District of Ca lifornia is expected to ar ticulate its infring ement 1 1 contentions no later tha

n 14 day s after

the initial case ma

nag ement conf

ere nce, a much ea rlier stag e than wa s require d in this MDL . N.D. Cal. Patent Rule 3-1. Papst was r equire d to cry stalliz e its theory

only afte r cla ims construction.

-11-Papst is a Germa n company

that produce s no products; it acquire s patents on produc ts or methods alleg edly invented by

others and the n sear ches the world for patents it might cha lleng e for infring ement. At one of

the first status confe renc es of the MDL , when the Court que ried whe ther this was old-f ashioned “ claim-jumping ,” counse l for Papst readily

ag ree d that it had been c alled wor se. Of c ourse, this is a per fec tly lawful a nd respe ctable business. But it undersc ores that the busine ss of Papst is litigat ion , not invention or production. L itigation is the business model wher eby Papst, when suc cessf

ul, achieve s royalty

pay ments from others. As is clea

r fr om this record, the threa t of litigation alone of

ten ac hieves royalty

pay ments. Mem. Op. [Dkt. 86] . Whil e the thre at of litigation alone often achie ves royalty

pay ments, the threat of neve r-e nding disc overy can induc e eve n larg er r oy alty pay ments. Fra

nkly , this appear s to be Papst’s strate g y

in this case. The Final Contentions are purposef ully vague; they

wer e dra fted to fur

ther Papst’s intention to eng ag e in protra cted a

nd expensive liti g ation. Sanctions Op. at 7-8.

In addition to concea ling its infring ement theor ies, Papst purposely disreg arde d the Modified Claims Construction Opinion and Order . The Sanc tions Opinion ex plained:

[T] he F inal Contentions additionally lack the r equisite specif

icity beca use they repe atedly

reiter ate Papst’s ve rsion of pre viously reje cted c laims constructions and then a dvance theories ba sed on such re jected c onstructions. See, e .g. , Final Contentions at 33 (asse rtingthat “sec ond connec ting de vice” means a device for interfa cingand not “a

phy sical plugor socke t for per mitti nga user rea dily to attach a

nd detac h . . .” as c onstrued by the Court). In this same ve in, Papst also attempts to i ncorpor ate a nd rea ssert its orig inal contentions filed May 28, 2008, befor e cla ims construction. Id . at 2. Such an a pproac h bespea

ks a total lack of respe ct for Court or ders a nd the timely

resolution of this case , but it is consist ent with Papst’s approa ch fr om the beg inning. 1 2 See, e .g. , Mem. Op. [Dkt. 82] (sanc tioning Papst for f ailure to c omply

with a direc t discovery 1 2 order), modified in part byMem. Op. [Dkt. 123] . Notably , Papst filed a petition for writ of -12-Id . at 10. Papst’s failure to properly detail its infring ement cla ims was not an innocent e rror ; it was pa rt of a c alculate d strategy . For this astounding and br ash fa ilure to follow cour t orders, the Court imposed a

rea sonable sanc tion ag ainst Papst—requiringPapst “to live with its Final Contentions as they stand without further modific ation.” Sanctions Op. at 7. Thus, the Court barre d Papst from modifying the Final Contentions and bar red Papst fr om advanc ing a ny arguments for infring ement (or

ag ainst claims of noninfring ement) that either (1) are not based solely on this Court’s constructions of the Pate nts or (2) a re not a lrea dy

set forth spec ifically

and explicitly

in the Fina l Contentions. SeeSanctions Order at 2. In this contex t, the Court considers Papst’s induce d-infring ement conte ntions ag ainst Defe ndants to asce rtain whe ther they are specific and explicit enough to survive the Court’s sanction. They

are not. Papst’s Final Contentions assert induce d-infring ement by mere ly makingthis conclusory

statement: Papst further a sserts that ea ch of the se De fenda nts also is li able under 35 U .S.C. § 271(b) for a ctively inducingusers of the acc used products to direc tly

infring e the a sserted c laims in the U.S., and thus is li able f

or infring ement by

inducement. Papst also asse rts that eac h of these D efe ndants also [is] liable under 35 U.S.C. § 271(b) f or ac tively

inducingtheir own a ffiliates a nd/or related entities and/or third-pa

rties to sell infring ing pr oducts in the U.S., and thus [is ] l iable for

inducement by

infring ement. Final Contentions at 3. These alleg ations fail to meet the leve l of specif icity demande d by

the Six th PP O, espe cially

para g raph 2( d), which r equire d Papst to set forth “[f]or each c laim which is alleg ed to have been indire ctly infring ed, an ide ntification of any direc t infring ement and a

mandamus, seeDkt. 167, and the F eder al Circuit denied the pe tition. In re Papst Licensing GmbH &Co. KG , Misc. No. 877, 314 Fe d. App’x 295, 2008 W L5691048 (F ed. Cir. Aug . 5, 2008). -13-descr iption of the acts of the alleg ed indirec t infring er that contribute to or ar e inducing that direc t infring ement. Insofar as alleg ed dire ct infring ement is based on joint ac ts of multipl e parties, the r ole of e ach suc h party in the direc t infring ement must be desc ribed.” Papst’s vague and conc lusory

contentions reg ardinginfring ement by inducement in no wa

y satisfy the level of specific ity

that the Court require d, and thus Papst has waive d the claim ag ainst Defe ndants for infring ement by

inducement. B. Alleged Ge nui ne Issue of F act and Motion for Rule 56(d) Discover y Papst argues that it should be allowed “ some discover y . . . to track down the actua l fac ts beca

use . . . the . . . story

keeps c hang ing w ith respec t to these 47 models of Samsung products.” SeeMot. for Discove ry at 34. Papst also attacks the decla ration of Mr. L ee be cause , in part, Mr. L ee stated the “le g al conc lusion” that Defe ndants neve r made /sold the Forty -Seven Acc used Products in the United States, and Papst wa nts to review e very

Tec hwin and eve ry Opto-Elec tronics document that Mr. L ee r eviewe d befor e he submitted his decla rations. See Reply [Dkt. 491] at 1–2. In order to sort out the “cha

ng ing story” and de termine if Mr. L ee’ s First and Sec ond Dec larations are c redible, Papst re quests (1) a Rule 30(b)(6) deposition of a corpor ate r epre sentative of both De fenda nts conce rningthe manufa cture and sale of the F orty

Seven Ac cused Produc ts; (2) the identity of the Samsungdepar

tment and company

that authore d User Ma nuals for the se produc ts; (3) the identity of the Samsungdepar

tment and company

that authore d and maintains the Samsungwebsites which of fer drivers a nd other support ove r the Interne t for these products; (4) the knowledg e of D efe ndants as to wher e and to whom these products would be sold; and ( 5) the fa cts underly ing D efe ndants’ alleg ed indirec t induced infring ement. SeeMot. for Discove ry [Dkt. 479] at 34–36. The pa rties have met numerous times and c ounsel for D efe ndants tried to provide

-14-convincinginformation that neither of De fenda

nts has made/sold any

of the F orty -Seven Acc used Products in the United States. Papst rema ins unconvinced. Papst does not c ontest that Def endants have shar ed conf idential proprieta

ry information with Papst on importation and sales in the United States and that such inf ormation does not include a ny sales of the For

ty -Seven Acc used Products. Instead, Papst complains that Samsunghas not produce d any documents such as sales r ece ipts, invoi ces, c orre spondence , or ema ils that demonstrate how the F orty -Seven Acc used Products re ache d the United States or that de monstrate De fenda nts knew the produc ts would rea ch the United States. Mot. for Discover y [Dkt. 479] at 36. Papst’s demand that De fenda nts produce U .S. import and sales information fr om corpor ate e ntities, which are not parties to this suit, cannot foresta ll summ ary judgme nt. Sales by any other “ Samsung” aff

iliate would not prove infr inge ment of the Patents by theseDef endants, and Papst has wa ived its claim to infring ement by inducement. Thus, the que stion devolves to whether Papst has enoug h information to support a g ood faith belief that the immediate Def endants—Te chwin and O pto-Electr onics—might ha ve infring ed the Patents through the making /selling of a

ny of the F orty -Seven A ccuse d Products. First, Papst urg es the Court to g ive Mr. L ee’ s decla rations no weight reg arding Def endants’ liability

beca use they have not pr ovided or identified the business rec ords he revie wed pr ior to makinghis declar ations. Papst concludes that De fenda nts’ summary

judgme nt motion “should be denied be cause it is notsupported by any competent e vidence .” Papst Surreply [Dkt. 493] at 6. The a

rgument is unavailing . Mr. L ee’ s decla rations constitute competent e vidence of the matter s of which he decla res. Me rely

claimingthat the Fir st and Second L ee D ecla

rations ar e inac cura

te or incor

rec t is not sufficient. “A pa rty may not defe at a proper ly supported motion for summary judgme nt merely

by raisingg ener alized questions as to

-15-the cr edibility of the movant’s a ffiants.” Robinson v. Cheney , 876 F.2d 152, 162 ( D.C. Cir. 1989). 1 3 Papst also presents a veheme nt argument that Opto-Elec tronics is not entitled to summary judgme nt beca

use Mr. L ee’ s decla

ration addr esses only

Tec hwin and does not e ven

asser t that Opto-Electr onics neve r made /sold the Forty -Seven A ccuse d Products in the United States. SeePapst Surreply [Dkt. 493] at 1. The a

rgument repr esents a c omplete misrere prese ntation of Mr. L ee’ s first decla ration. Mr. L ee ma de it clea r that he r efe rre d to both Tec hwin and Opto-Ele ctronics c ollectively as “STW.” SeeFirst L ee D ecl. ¶ 2. He a lso explained that Opto-Electr onics was a Tec hwin subsidiary

which sold dig ital camer as made by Tec hwin in the United States. Id. Thus, his refe renc es to “Te chwin” inc luded Opto-Elec tronics and his revie w of Te chwin re cords r evea led which model c amer as Tec hwin sold to OptoElectronic s for fur

ther sale in the United States. The a rgument that Mr. L ee’ s decla rations fa iled to addre ss Opto-Electr onics is totally meritless. Papst further a

rgues extensively

that Def endants have bee n inconsistent in their position reg ardingthe ac cused pr oducts and that this somehow shows that questions of mater ial fac t remain ope n for discove ry . Def endants re spond that they supplemented their disc overy over the y ear s that this case ha s been pe nding a nd that they

have ne ver c hang ed their position on the For ty -Seven A ccuse d Products. To show the alleg ed inconsistency , Papst notes:

Papst moved to strike the Second L ee D ecla ration, asse rtingerr oneously that it was untimely , 1 3 lacke d foundation, and c ontained hea rsay . Mot. to S trike [Dkt. 497] . The Sec ond L ee Dec laration is deemed timely as it bolstered De fenda

nts’ orig inal position and addresse d new matters Papst raise d. Fur ther, the Sec ond Dec lara

tion was based on Mr . L ee’ s persona l knowledg e, includinghis familiarity with Defe ndants’ produc ts and sales history , and his revie w of business re cords includingsales re cords. Sec ond L ee D ecl. ¶ ¶ 3, 8. The motion to strike will be denie d. -16-(1) De fenda nts’ second se t of Answer s to I nterrog atories a dded 23 came ra mode ls that were not mentioned in their first set. Surre ply [Dkt. 493] at 3. (2) De fenda

nts’ third set of Answe rs to Interrog atories a dded 7 more c amer as not in their first or se cond set of a nswers. Id . at 4. (3) De fenda

nts told P apst that model i80 was not sold in the U.S. but then later a sserted tha t it is not a Tec hwin model. Id. (4) De fenda

nts told P apst that models i50 and i70 wer e not sold in the United States but now list them as still at issue. Id. at 4. Of these came ra mode ls, only the i80 is amongthe For

ty -Seven A ccuse d Products immediately at issue. The Court finds no re levant inconsistency . Papst sees “inc onsistency” in Def endants’ supple mental interrog atory answe rs which a dded ca

mera models beca

use, alleg edly , those models might have been me ntioned ear lier. Papst’s def inition of inconsist ency

is highly questionable. A matter is inconsistent with another whe n it is i ncompatible or c ontradictory

. There is no inconsistency here , but merely

the addition of ca

mera models without any subtraction. De fenda

nts can be deeme d to have be en “inc onsistent” only with reg ard to one

came ra mode l, the i80. Whi le Def endants orig inally

told Papst t he i80 was not sold in the United States, they

now state that it may

have be en sold in the United States by others but it is not a Tec hwin product a

nd was not made /sold here by these De fenda

nts. SeeSecond L ee D ecl. ¶ 5-6. The diff ere nce is not mater ial to the critica l issue: the i80 should notbe an a ccuse d product beca use neither

of these D efe ndants eve r made /sold the i80 model in t he United States. Fur thermore , Papst contends that it should be permitted discover y beca use circ umstantial evidence shows that the For ty -Seven A ccuse d Products wer e in fa ct made/sold in the United States by

these De fenda

nts. The circ umstantial evidence on which Papst relies

-17-includes the followingfac ts: (1) user ma nuals for the forty

Non-Te chwin Products list OptoElectronic ’s name a

nd addre ss; (2) user ma

nuals for the seven N on-U.S. Products include a decla ration of c ompliance with the U.S. F eder al Communications Com mission requirements; and (3) the www.samsung .com website of fer s individuals in t he United States the a bility to download drivers a nd user manua ls for the F orty -Seven A ccuse d Products. Mr. L ee e x plained these anomalies, notingthat the depa rtment responsible f

or cr eatinguser manua ls sometimes does not know wher e the pr oducts will be sold. First L ee D ecl. ¶ 19. The user

manuals for

the Non-U .S. Products list m ultiple Samsung af filiates from a

round the wor ld, reg ardle ss of wher e the pr oducts

are actua lly

sold. Id . Wit h reg ard to F CC compliance dec laration, this only indicates that Tec hwin desig ned ca

mera s for c ompliance with the standa rds of multiple countries, includingthe United States. I t is not proof that any of the seve n came ras wa s sold here. F urther, the international we bsite offe ringdrivers a nd manuals to individuals located in the United States does not indicate that the products we re ma de/sold here by these De fenda

nts, only that it is possible that some residents in the United States may have suc h came ras. To defe at Def

endants’ motion for summar y judgme nt and demonstrate a g enuine issue of fa ct, Papst must show more than a sc intill a of e vidence in support of its posit ion. See Anderson , 477 U.S. at 252. Papst has failed in this reg ard. I f the e vidence “is mere ly colora ble, or is not significa

ntly probative, summar

y judgme nt may

be grante d.” Id. at 249-50 (c itations omitted). On its Rul e 56(d) motion, P apst bea rs the burde n of (1) identifying the specific fac ts to be discove red that would cre ate a triable issue a

nd (2) showinga re asonable basis to sugg est that discovery would reve al triable issues of fac t as to these De fenda

nts. Scott-Blanton , 246 F.R.D. at 347; Estate of Parsons , 715 F. Supp. 2d at 35. The circ umstantial evidence on which Papst relies is not probative of whe ther these Def endants, c ontrary

to their confide ntial business recor ds and

-18-sworn stateme nts, made/sold the For ty -Seven A ccuse d Products in the United States. Papst has not raised a

g enuine issue of

materia l fac t nor has it shown that more discove ry would help it do

so. IV. CONCLUSION

As explained above, the motion for summary judgme nt reg ardingwrong fully

acc used produc ts filed by Samsung Te chwin Co. and SamsungOpto-Elec tronics America, Inc. [Dkt. 448] will be g rante d. Papst’s motion for Rule 56(d) discove ry [Dkt. 479] will be denied in part, insofa

r as it re lates to the motion for summary judgme nt filed by

Def endants. The F orty

1 4 Seven Ac cused Produc ts will be stricken fr om Papst’s Final Contentions [ Dkt. 416]. P apst’s motion to s trike the Sec ond L ee D ecla ration [Dkt. 497] will be denied. A me morializi ngOrde r

acc ompanies this Opinion.

Date: Nove mber 20, 2012 /s/ ROSEMARY M. COL L YER United States District J udg e

Papst’s motion for discovery otherwise r emains pending

. 1 4 -19-