Infringement Contentions: Fair Notice?

Some respondents at the ITC have taken advantage of using infringement contentions as a procedural tool to deny patent owners from getting their day in court. In some investigations, respondents have gone so far as to delay their own production of discovery until after the infringement contention deadline, then claim lack of fair notice when the patent owner uses the late discovery in its expert report. This gamesmanship, and its potential repercussions, adds dimensions of procedural complexity to representing patent owners at the ITC.

ALJ Elliot's recent decision in Certain Touch-Controlled Mobile Devices (Inv. No. 337-TA-1162) may tip the balance away from respondents trying to use infringement contentions as a vehicle to unduly restrict patent owners and more in favor of the gatekeeper function originally intended. In this case, ALJ Elliot denied Amazon, Dell, HP, Lenovo, Microsoft, Motorola, and Samsung's (collectively, "Respondents") motion to strike portions of