Case 1:10-cv-00258-SLR-MPT Document 267 Filed 04/11/12 Page 1 of 5 PageID #: 3552
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`::
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`::
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`: C. A. No. 10-258-SLR/MPT
`:
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`::
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`:
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`MOBILEMEDIA IDEAS LLC,
`
`v.
`
`APPLE INC.,
`
`Plaintiff,
`
`Defendant.
`
`MEMORANDUM ORDER
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`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,
`
`Inc. (“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
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`patents, Apple contends any “Accused Products” must be identified in any order. It
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`maintains to purportedly avoid improperly shifting the burden to Apple to identify and
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`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
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`running the specific versions of the software. MMI argues it identified in its original
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`infringement contentions, served over a year ago, those “Accused Products,” such as
`
`1 D.I. 214.
`2 D.I. 210 at 1.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELAWARE
`
`::
`
`::
`
`: C. A. No. 10-258-SLR/MPT
`:
`
`::
`
`:
`
`MOBILEMEDIA IDEAS LLC,
`
`v.
`
`APPLE INC.,
`
`Plaintiff,
`
`Defendant.
`
`MEMORANDUM ORDER
`
`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,
`
`Inc. (“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
`
`1 D.I. 214.
`2 D.I. 210 at 1.
`
`
`
`Case 1:10-cv-00258-SLR-MPT Document 267 Filed 04/11/12 Page 2 of 5 PageID #: 3553
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`iPhone 3G, iPhone 3GS, iPhone 4, iPod touch, ipad 2 without any limitation based on
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`the specific versions of the software used in those products. Rather, MMI identified the
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`accused features and functionality. It notes the iOS 4.3 source code was finally
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`produced by Apple in October 2011. Importantly, MMI points to correspondence from
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`Apple’s counsel agreeing on September 21, 2011 to produce “all relevant source code,”
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`defined as “the Apple source code that relates to (1) the accused functionality and
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`features identified in [MMI’s infringement contentions] and (2) the functionality and
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`features of the accused products on which Apple relies for its non-infringement
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`arguments.”3 Apple does not dispute MMI’s representation of the September 2011
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`correspondence. MMI’s concern is Apple will later claim MMI failed to review certain
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`source code which was not previously produced.
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`The dispute relating to the source code has involved at least three
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`teleconferences beginning with the November 21, 2011 teleconference.4 Subsequently,
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`during a telephone conference on December 22, 2011, MMI again requested to limit the
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`source code to what had been produced. The arguments by the parties during the
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`November and December 2011 teleconferences emphasized the functionality and
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`features of the “Accused Products,” as being the commercial products identified herein
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`rather than the particular iOS or operating system. After the parties presented their
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`arguments, the court essentially granted MMI’s request and directed the parties to work
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`out the language of the stipulation.5
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`3 Emphasis added by the court.
`4 D.I. 205
`5 December 21, 2011 Tr. at 37-40.
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`2
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`
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`Case 1:10-cv-00258-SLR-MPT Document 267 Filed 04/11/12 Page 3 of 5 PageID #: 3554
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`The parties were unable to reach any agreement regarding a stipulation on
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`limiting the source code, which lead to a flurry of letters and another teleconference on
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`March 2, 2012. For the first time, the court learned at least Apple did not view the
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`“Accused Products” as being those products identified by MMI in its infringement
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`contentions, but rather the operating systems related the accused features and
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`functionality. Prior to that time the court had understood the accused products accepted
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`by the parties as those identified by MMI in its infringement contentions, including the
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`accused features and function. Apple maintained it could not agree to the final proposal
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`by MMI that iOS 4.3 is an appropriate representative product. In light of the purported
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`“confusion” regarding the accused products, Apple proposed to produce all source code
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`for the various operating systems applicable to the accused commercial products
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`identified for the time involved.6 Accordingly, such production would involve at least two
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`months of review time by MMI’s experts at tremendous cost for the amount of source
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`code Apple proposed to produce (that is, millions of lines of source code). At the time of
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`the March 2012 teleconference, the parties were completing their exchange of expert
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`reports. The close of expert discovery is now May 4, 2012.
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`As a result of the discussions with and representations made by counsel, the
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`court expressed its concern and disbelief regarding the alleged confusion as to what
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`constitutes the accused products, particularly in light of the focus of the prior
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`teleconferences on features and function and Apple’s emphasis in the September 2011
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`correspondence (before production of any source code) on features and functionality in
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`6 See March 2, 2012 Transcript.
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`3
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`
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`Case 1:10-cv-00258-SLR-MPT Document 267 Filed 04/11/12 Page 4 of 5 PageID #: 3555
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`relation to the accused products as referenced in MMI’s infringement contentions.
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`At the conclusion of the March 2 teleconference, the court ordered the parties to
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`produce their respective proposed stipulations. From the court’s view, MMI’s focus is
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`on the source code actually produced and reviewed by its experts as noted in
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`paragraph 1, leaving Apple the option to rely on other source code recently produced
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`from iOS 4.2, iOS 3.1 and iOS 2.2 as noted in paragraph 2. Apple’s proposal combines
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`the source code produced in October with that source code produced thereafter in the
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`December 2011 time frame providing both parties may rely on all source code produced
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`to date for determining liability. MMI’s proposal appears to separate the source code
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`produced in the October time frame from that code produced thereafter, requiring Apple
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`to identify the source code it intends to rely on from the later production. Should that
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`occur, then MMI may chose to rely on that source code for determining liability. The
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`court understands the limitation to paragraph 1 in the MMI proposal reflects that its
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`expert reports were looming at that time and puts the onus on Apple to first identify
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`whether it intends to rely on the later produced source code in support of its position.
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`Therefore,
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`IT IS ORDERED that MMI’s final proposed order (D.I. 215) is granted with the
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`following addition to paragraph 2. “Should MMI rely on that Apple Source Code for the
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`purposes of determining liability of that accused functionality, it shall provide a
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`supplemental opinion to Apple limited to that Apple Source Code from its previously
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`identified expert(s) including the bases and reasons for that opinion consistent with Fed.
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`R. Civ. P. 26(2)(B) on or before May 1, 2012.”
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`IT IS FURTHER ORDERED that MMI shall provide an Order for review and
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`4
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`Case 1:10-cv-00258-SLR-MPT Document 267 Filed 04/11/12 Page 5 of 5 PageID #: 3556
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`signature by the Court consistent with the provisions herein.
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`April 11, 2012
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`/s/ Mary Pat Thynge
`United States Magistrate Judge
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`5
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