IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`CASE NO. 2:12-cv-05680-AB
`
`HON. ANITA B. BRODY
`
`JURY DEMAND
`
`))))))))))))
`
`DESTINATION MATERNITY
`CORPORATION,
`
`Plaintiff,
`
`v.
`
`TARGET CORPORATION, CHEROKEE
`INC., and ELIZABETH LANGE LLC,
`
`Defendants.
`
`PLAINTIFF DESTINATION MATERNITY CORPORATION’S
`OBJECTIONS AND RESPONSES TO DEFENDANT’S
`FIRST SET OF INTERROGATORIES
`
`Plaintiff, Destination Maternity Corporation (“DMC”), by and through its attorneys,
`
`pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure and the local Civil Rules of
`
`the United States District Court for the Eastern District of Pennsylvania, hereby sets forth its
`
`objections and responses to the First Set of Interrogatories from Defendant Target Corporation
`
`(“Target”) to DMC (“Interrogatories”).
`
`GENERAL OBJECTIONS TO INTERROGATORIES
`
`1.
`
`DMC objects
`
`to the Constructions, Definitions and Instructions
`
`to the
`
`Interrogatories to the extent they attempt to impose obligations extending beyond those imposed
`
`or authorized by the Federal Rules of Civil Procedure or this Court’s Local Rules.
`
`2.
`
`DMC objects to each and every interrogatory to the extent it attempts to impose
`
`obligations extending beyond those imposed or authorized by the Federal Rules of Civil
`
`Procedure or this Court’s Local Rules.
`
`3.
`
`These responses represent DMC’s good faith effort
`
`to respond based on
`
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`information available at this time. DMC’s investigation of this matter is continuing, and DMC
`
`specifically reserves the right
`
`to amend, supplement, correct, or clarify its responses in
`
`accordance with the Federal Rules of Civil Procedure and this Court’s Local Rules.
`
`4.
`
`DMC objects to each and every interrogatory to the extent
`
`that
`
`it seeks
`
`information or documents that are neither relevant to the subject matter of this action nor
`
`reasonably calculated to lead to the discovery of admissible evidence.
`
`5.
`
`DMC objects each and every interrogatory to the extent that it seeks information
`
`protected, privileged,
`
`immune or otherwise exempt from discovery by the attorney-client
`
`privilege, the attorney-work-product doctrine, joint defense privilege, or any other applicable
`
`privilege. Nothing contained in the responses below is intended to be, nor should be considered,
`
`a waiver of any attorney-client privilege or work-product doctrine, right of privacy, or any other
`
`applicable privilege or doctrine.
`
`6.
`
`DMC objects to each and every interrogatory to the extent
`
`that
`
`it seeks
`
`information not within DMC’s possession, custody, and/or control.
`
`7.
`
`DMC objects to each and every interrogatory to the extent that it is overly broad,
`
`unduly burdensome, vague, and/or ambiguous.
`
`8.
`
`DMC objects to each and every interrogatory to the extent
`
`that
`
`it seeks
`
`information to which Target has equal or superior access, or information that is a matter of
`
`public record.
`
`9.
`
`DMC objects to each and every interrogatory to the extent
`
`that
`
`it seeks
`
`information to which DMC is under an obligation to third parties not to disclose.
`
`10.
`
`DMC objects to each and every interrogatory to the extent
`
`that
`
`it seeks
`
`information or documents that are confidential, proprietary, and/or competitively sensitive. To
`
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`EX. 1016 - Page 2
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`the extent that any interrogatory seeks documents or information that contain or constitute
`
`confidential, proprietary, or trade secret information, DMC shall only produce such information
`
`or documents pursuant to the terms of an appropriate protective order.
`
`11.
`
`DMC objects to each and every interrogatory to the extent
`
`that
`
`it seeks
`
`information or documents protected from disclosure by non-disclosure
`
`agreements,
`
`confidentiality agreements, protective orders, joint-defense agreements, or similar agreements
`
`and documents, or would violate the privacy rights of persons not parties to this action.
`
`12.
`
`DMC objects to these interrogatories to the extent they are compound and contain
`
`multiple subparts that count separately toward the total number of individual interrogatories
`
`allowed to Target.
`
`13.
`
`DMC objects to each and every interrogatory to the extent that it is misleading,
`
`presumes the existence of facts not in evidence, or attempts to mischaracterize the evidence.
`
`14.
`
`DMC objects to each and every interrogatory to the extent
`
`that
`
`it seeks
`
`information for time periods beyond those relevant to the issues in this lawsuit.
`
`15.
`
`DMC objects to Target’s definitions of “Relate to,” “Related to,” “Relating to,”
`
`“in Relation to,” “Relate,” and “Related” because, as defined, such terms render each request
`
`overly broad, vague and ambiguous.
`
`16.
`
`DMC objects to Target’s definition of “Destination Maternity Corporation,”
`
`“DMC,” “Plaintiff,” “You,” “Your,” and “Yours” as vague, ambiguous, and overbroad, and
`
`inconsistent with the Federal Rules of Civil Procedure; and DMC further objects to the extent that
`
`it incorporates individuals and entities that are separate and distinct from the DMC parties named
`
`to this suit.
`
`17.
`
`The fact that DMC has responded to part or all of any particular interrogatory is
`
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`EX. 1016 - Page 3
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`not intended and shall not be construed as a waiver by DMC of any part of any objection to such
`
`an interrogatory. DMC’s agreement to furnish any information or identify documents in
`
`response to any interrogatory shall not be deemed to constitute an admission as to the relevance,
`
`competency, materiality or admissibility of any document or information sought or produced,
`
`and reserves all rights with respect thereto.
`
`18.
`
`DMC incorporates each of these General Objections into its responses to each of
`
`Target’s Interrogatories, whether or not each such General Objection is expressly referred to in
`
`DMC’s response to a specific interrogatory
`
`I.
`
`INTERROGATORIES
`
`INTERROGATORY NO. 1
`Identify and describe in detail the dates, All persons
`involved with, and All Documents supporting the first conception, the first reduction to practice,
`any diligence between the first conception and the first reduction to practice, the first private use,
`the first public use, and the first sale of the subject matter of each of the Asserted Claims in the
`Patents-in-Suit.
`
`Response to Interrogatory No. 1:
`
`In addition to its General Objections, DMC objects to this Interrogatory as compound and
`
`containing multiple discrete subparts. DMC further objects to this Interrogatory as overly broad,
`
`unduly burdensome and seeking information that is neither relevant to any claim or defense in
`
`this action nor reasonably calculated to lead to the discovery of admissible evidence. DMC
`
`further objects on the grounds that it calls for legal determinations and seeks information
`
`protected by the attorney-client privilege and/or work product doctrine. Subject to and without
`
`waiving any of the foregoing objections, DMC responds as follows:
`
`Lisa A. Hendrickson, James H. Gardner, and Richard Adelman conceived of the
`
`invention of the Patents-in-Suit. On May 31, 2007, U.S. Patent No. 7,814,575 (the “’575
`
`Patent”) was filed.
`
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`EX. 1016 - Page 4
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`In addition, and pursuant to Federal Rule of Civil Procedure 33(d), DMC will produce
`
`relevant, responsive, non-privileged non-work product documents in its possession, custody, and
`
`control that can be located with reasonable diligence. DMC will supplement this response to
`
`specify such records in sufficient detail at the time of its document production.
`
`INTERROGATORY NO. 2
`Identify and describe in detail the dates, All persons
`involved with, and All Documents supporting (by Bates number) of All use(s), sale(s), offer(s)
`for sale, knowledge, description(s), invention(s), event(s), occurrence(s), circumstance(s), and
`Any other activities Relating to the subject matter of the Patents-in-Suit or Any Pertinent
`Maternity Product(s) or other product embodying or practicing Any claim of the Patents-in-Suit,
`which took place or occurred prior to May 31, 2007 (the filing date of U.S. Patent Application
`No. 11/756,242), whether or not Any such activities took place within the U.S., including, but
`not limited to, the dates of Any such activities, the type of Any such activities (e.g., use(s),
`sale(s), offer(s) for sale, knowledge, description(s), invention(s), etc.), Any system(s), product(s),
`and/or service(s) involved in Any such activities, and the names of All Persons involved in Any
`such activities.
`
`Response to Interrogatory No. 2:
`
`In addition to its General Objections, DMC objects to this Interrogatory as compound and
`
`containing multiple discrete subparts. DMC further objects to this Interrogatory as overly broad,
`
`unduly burdensome and seeking information that is neither relevant to any claim or defense in
`
`this action nor reasonably calculated to lead to the discovery of admissible evidence. DMC
`
`further objects on the grounds that it calls for legal determinations and seeks information
`
`protected by the attorney-client privilege and/or work product doctrine. Subject to and without
`
`waiving any of the foregoing objections, DMC responds as follows:
`
`Pursuant
`
`to Federal Rule of Civil Procedure 33(d), DMC will produce relevant,
`
`responsive, non-privileged non-work product documents in its possession, custody, and control
`
`that can be located with reasonable diligence.
`
`DMC will supplement this response to specify
`
`such records in sufficient detail at the time of its document production.
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`EX. 1016 - Page 5
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`

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`INTERROGATORY NO. 3
`For each claim of the Patents-in-Suit You allege is
`infringed by Target, Identify and describe in detail All Pertinent Maternity Product(s) or other
`product(s) developed, manufactured, imported, sold, offered for sale, or licensed by DMC that
`DMC alleges embodies or practices the claim including, without
`limitation, all models,
`prototypes, and modifications, including the name and version number of the product, the date it
`was first made public in any way, and the claim embodied.
`
`Response to Interrogatory No. 3:
`
`In addition to its General Objections, DMC objects to this Interrogatory as compound and
`
`containing multiple discrete subparts. DMC further objects on the grounds that it calls for legal
`
`determinations and seeks information protected by the attorney-client privilege and/or work
`
`product doctrine. Subject to and without waiving any of the foregoing objections, DMC
`
`responds as follows:
`
`DMC’s products that embody the Patents-in-Suit are sold under various brand names, all
`
`of which include the branded feature Secret Fit Belly®. DMC does not license the Patents-in-
`
`Suit.
`
`In addition, and pursuant to Federal Rule of Civil Procedure 33(d), DMC will produce
`
`relevant, responsive, non-privileged non-work product documents in its possession, custody, and
`
`control that can be located with reasonable diligence. DMC will supplement this response to
`
`specify such records in sufficient detail at the time of its document production.
`
`INTERROGATORY NO. 4
`Identify and describe in detail (by name, title, model or
`tracking number, trade name, trademark, or other objective indicia) All Accused Product(s).
`
`Response to Interrogatory No. 4:
`
`In addition to its General Objections, DMC objects to this Interrogatory as compound and
`
`containing multiple discrete subparts. DMC further objects on the grounds that it calls for legal
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`EX. 1016 - Page 6
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`determinations and seeks information protected by the attorney-client privilege and/or work
`
`product doctrine. DMC further objects as being premature on the grounds that it may call for
`
`expert testimony and require discovery from the defendants. DMC further objects to this
`
`Interrogatory to the extent it seeks information from persons or entities that are separate and
`
`distinct from DMC and over whom DMC exercises no control. Subject to and without waiving
`
`any of the foregoing objections, DMC responds as follows:
`
`DMC’s infringement contentions provide all information known to DMC regarding
`
`Target’s infringing products. The following are infringing Target products currently known to
`
`DMC:
`
` Liz Lange® for Target® Maternity Beige Band Bootcut Jeans Kalena Blue
`o http://www.target.com/p/liz-lange-for-target-maternity-beige-band-
`bootcut-jeans-kalena-blue/-/A-14173765
`o Online Item #: 14171094
`o Store Item Number (DPCI): 243-29-3367
`o SKU#: 14171087
`o UPC #: 492432933696
` Liz Lange® for Target® Maternity Blue Band Bootcut Jeans Kalena Blue
`o http://m.target.com/p/liz-lange-for-target-maternity-blue-band-bootcut-
`jeans-kalena-blue/-/A-14173764
`o Store Item Number (DPCI): 029-07-0743
`o SKU#: 14170942
`o UPC #: 490290707435
` Liz Lange® for Target® Maternity Straight-Leg Pants Light Peet
`o http://www.target.com/p/liz-lange-for-target-maternity-straight-leg-pants-
`light-peet/-/A-14138500
`o Store Item Number (DPCI): 029-07-0082
`o SKU#: 14138496
`o UPC#: 490290700825
` Liz Lange® for Target® Maternity Extended-Sizes Flare Jeans - Standard Blue
`Wash
`o http://www.target.com/p/liz-lange-for-target-maternity-extended-sizes-
`flare-jeans-standard-blue-wash/-/A-13771641
`o Store Item Number (DPCI): 029-07-0832
`o SKU#: 13728830
`o UPC#: 490290708326
` Liz Lange® for Target® Maternity Extended-Sizes Pants (Black)
`
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`EX. 1016 - Page 7
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`o http://www.target.com/p/liz-lange-for-target-maternity-extended-sizes-
`pants-black/-/A-13634126
`o Store Item Number (DPCI): 029-07-1142
`o SKU#: 13547634
`o UPC#: 490290711425
` Liz Lange® for Target® Maternity Denim Crop Pants (Green and Denim Blue)
`o http://www.target.com/p/liz-lange-for-target-maternity-denim-crop-pants-
`assorted-colors/-/A-14342907
`o Store Item Number (DPCI): 029-07-0247
`o SKU#: 14326640
`o UPC#: 490290702478
` Liz Lange® for Target® Maternity Dark Denim Shorts
`o http://www.target.com/p/liz-lange-for-target-maternity-dark-denim-shorts-
`blue/-/A-14329422
`o Store Item Number (DPCI): 029-07-0043
`o SKU#: 14326649
`o UPC#: 490290700436
` Liz Lange® for Target® Maternity Bootcut Pants (Black)
`o http://www.target.com/p/liz-lange-for-target-maternity-bootcut-pants-
`black/-/A-14143005
`o Store Item Number (DPCI): 029-07-0094
`o SKU#: 14143003
`o UPC#: 490290700948
` Liz Lange® for Target® Maternity Bootcut Pants (Brown Pinstripe)
`o http://www.target.com/p/liz-lange-for-target-maternity-bootcut-pants-
`brown-pinstripe/-/A-14143051
` Liz Lange® for Target® Maternity Trouser Pants (Gray)
`o http://www.target.com/p/liz-lange-for-target-maternity-trouser-pants-
`gray/-/A-14342792
`o Store Item Number (DPCI): 029-07-0160
`o SKU#: 14340399
`o UPC#: 490290701600
` Liz Lange® for Target® Maternity Extended-Sizes Jeans – Medium Blue
`o http://www.target.com/p/liz-lange-for-target-maternity-extended-sizes-
`bootcut-jeans-blue/-/A-13189095
`o ASIN: B00415ZH62
`o Catalog #: 12973264
` Liz Lange® for Target® Maternity Straight-Leg Dress Pants – Black
`o http://www.target.com/p/Liz-Lange-for-Target-Maternity-Straight-Leg-
`Dress-Pants-Black/-/A-13336614
` No longer available online
` Liz Lange® for Target® Maternity Extended Sizes Boot-Cut Denim Jeans –Blue
`(Beige Band)
`o ASIN: B004CENGY2
`o Catalog #: 13197264
`
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`EX. 1016 - Page 8
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`

`

` Liz Lange® for Target® Maternity Extended Sizes Cropped Jeans – Blue
`o http://www.target.com/p/liz-lange-for-target-maternity-extended-sizes-
`cropped-jeans-blue/-/A-13197263
` No longer available online
` Liz Lange® for Target® Maternity 3-in-1 Extended-Sizes Pants – Ebony
`o ASIN: B003OGB9LQ
`o Catalog #: 12719699
` Liz Lange® for Target® Maternity Ponte Extended-Sizes Pant – Ebony
`o UPC: 0490290707831
`
`Although colors may have been identified above, all colors of each style are included.
`
`Discovery is ongoing and DMC reserves its right to supplement its response to this
`
`Interrogatory at a later date.
`
`INTERROGATORY NO. 5
`and
`facts
`all
`detail
`in
`describe
`and
`Identify
`circumstances regarding how and when DMC first became aware of the Accused Product(s),
`Target’s alleged infringement of the Patents-in-Suit, and the reasons why DMC did not file suit
`against Target until October 4, 2012.
`
`Response to Interrogatory No. 5:
`
`In addition to its General Objections, DMC objects to this Interrogatory as compound and
`
`containing multiple discrete subparts. DMC further objects to this Interrogatory as overly broad,
`
`unduly burdensome and seeking information that is neither relevant to any claim or defense in
`
`this action nor reasonably calculated to lead to the discovery of admissible evidence. DMC
`
`further objects on the grounds that it calls for legal determinations and seeks information
`
`protected by the attorney-client privilege and/or work product doctrine. Subject to and without
`
`waiving any of the foregoing objections, DMC responds as follows:
`
`In a letter dated June 26, 2009, DMC informed Target
`
`that DMC owned Patent
`
`Application Nos. 11/756,242 (the "'242 Application") and 12/117,004 (the "'004 Application”).
`
`DMC also provided Target with copies of the published '242 Application and '004 Application.
`
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`Target Corporation
`EX. 1016 - Page 9
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`

`

`In a letter dated February 22, 2011, DMC informed Target that the '242 Application
`
`issued as the '575 Patent. DMC also informed Target that the '004 Application was granted a
`
`Notice of Allowance from the PTO and that DMC paid the issue fee. DMC provided Target with
`
`a copy of the '575 Patent and the allowed claims of the '004 Application.
`
`In a letter dated February 25, 2011, Target responded to DMC requesting additional
`
`information.
`
`In a letter dated March 16, 2011, counsel for DMC provided Target with additional
`
`information including a claim chart and Target website print-outs showing some of the garment
`
`bottoms in question. The claim charts specifically compared each claim element of the DMC
`
`patents to the identified Target garment bottoms. The identified garment bottoms in question
`
`were several Liz Lange® for Target® maternity pants.
`
`Counsel for Target and counsel for DMC exchanged further correspondence without
`
`resolution.
`
`On June 15, 2011, United States Patent No. RE 43,531 (the "'531 Patent") for "Belly
`
`Covering Garment" was filed. The ‘531 Patent issued on July 24, 2012. The '531 Patent is a
`
`reissue of the '575 Patent.
`
`Also on June 15, 2011, United States Patent No. RE 43,563 (the "'563 Patent") for "Belly
`
`Covering Garment" was filed. The ‘563 Patent issued on August 7, 2012. The '563 Patent is a
`
`reissue of U.S. Patent No. 7,900,276 (the “'276 Patent”).
`
`Several months later, on October 4, 2012, DMC filed suit against Target.
`
`INTERROGATORY NO. 6
`Separately for each of the Accused Product(s), Identify
`and describe in detail All Pertinent Maternity Product(s) or other product(s) of DMC that DMC
`contends competes with (or has competed with or could compete with) each such Accused
`Product.
`
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`EX. 1016 - Page 10
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`Response to Interrogatory No. 6:
`
`In addition to its General Objections, DMC objects to this Interrogatory as compound and
`
`containing multiple discrete subparts. DMC further objects to this Interrogatory as overly broad,
`
`unduly burdensome and seeking information that is neither relevant to any claim or defense in
`
`this action nor reasonably calculated to lead to the discovery of admissible evidence. DMC
`
`further objects on the grounds that it calls for legal determinations and seeks information
`
`protected by the attorney-client privilege and/or work product doctrine. Subject to and without
`
`waiving any of the foregoing objections, DMC responds as follows:
`
`DMC’s Secret Fit Belly® brand products compete with Target’s infringing products. See
`
`DMC’s Response to Interrogatory No. 3 above for more information on DMC’s Secret Fit
`
`Belly® brand products.
`
`Discovery is ongoing and DMC reserves its right to supplement its response to this
`
`Interrogatory at a later date.
`
`INTERROGATORY NO. 7
`Identify the earliest priority date to which You believe
`the Patents-in-Suit are entitled and set forth the complete factual and legal bases for why the
`Patents-in-Suit are entitled to such priority date.
`
`Response to Interrogatory No. 7:
`
`In addition to its General Objections, DMC objects to this Interrogatory as compound and
`
`containing multiple discrete subparts. DMC further objects on the grounds that it calls for legal
`
`determinations and seeks information protected by the attorney-client privilege and/or work
`
`product doctrine. Subject to and without waiving any of the foregoing objections, DMC
`
`responds as follows:
`
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`EX. 1016 - Page 11
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`The Patents-in-Suit are entitled to a priority date at least as early as the filing date of the
`
`‘575 Patent, which is May 31, 2007.
`
`INTERROGATORY NO. 8
`for DMC’s
`if any,
`the bases,
`Describe in detail
`allegation that “Defendants’
`infringement has irreparably injured DMC” as asserted in
`paragraphs 55 and 62 of DMC’s Complaint.
`
`Response to Interrogatory No. 8:
`
`In addition to its General Objections, DMC objects to this Interrogatory on the grounds
`
`that it calls for legal determinations and seeks information protected by the attorney-client
`
`privilege and/or work product doctrine. Subject to and without waiving any of the foregoing
`
`objections, DMC responds as follows:
`
`The bases for DMC’s allegation that “Defendants’ infringement has irreparably injured
`
`DMC” as asserted in paragraphs 55 and 62 of DMC’s Complaint include the fact that the
`
`infringing products, sales of which are driven by their infringing features, compete directly with
`
`core DMC products that practice the invention of the Patents-in-Suit, resulting in a loss of market
`
`share to DMC.
`
`Discovery is ongoing and DMC reserves its right to supplement its response to this
`
`Interrogatory at a later date.
`
`INTERROGATORY NO. 9
`Identify and describe in detail the amount of monetary
`damages to which DMC claims to be entitled from Target and the method(s) used to calculate
`such amount(s), including a list of each and every factor supporting this methodology and All
`evidence supporting each and every such factor, the specific lost profits and/or reasonable
`royalty rate to which DMC claims it is entitled, and a description of the facts and analysis in
`support of DMC’s claims, identifying all bases for addressing each of the applicable Panduit
`factors, Georgia-Pacific factors, or other factors You believe are pertinent to determining the
`amount of monetary damages to which DMC claims to be entitled from Target.
`
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`

`

`Response to Interrogatory No. 9:
`
`In addition to its General Objections, DMC objects to this Interrogatory as compound and
`
`containing multiple discrete subparts. DMC further objects to this Interrogatory as overly broad,
`
`unduly burdensome and seeking information that is neither relevant to any claim or defense in
`
`this action nor reasonably calculated to lead to the discovery of admissible evidence.. DMC
`
`further objects to DMC’s use of
`
`the phrases “each and every factor supporting this
`
`methodology,” “All evidence supporting each and every such factor,” and “other factors You
`
`believe are pertinent” on the grounds that they are vague, ambiguous, and seek information that
`
`is not reasonably calculated to lead to the discovery of admissible evidence. DMC further
`
`objects on the grounds that it calls for legal determinations and seeks information protected by
`
`the attorney-client privilege and/or work product doctrine and as being premature on the grounds
`
`that it calls for expert testimony and will require discovery from the defendants. DMC further
`
`objects to the Interrogatory to the extent it purports to mischaracterize the law of patent damages
`
`by seeking information outside the scope of what is required under the law. DMC further objects
`
`to this Interrogatory on the grounds that it prematurely seeks expert opinion or testimony.
`
`Subject to and without waiving any of the foregoing objections, DMC responds as follows:
`
`DMC will provide an expert report on damages pursuant to the Court's Scheduling Order.
`
`INTERROGATORY NO. 10
`facts
`Identify and describe in complete detail All
`Relating to the contentions in paragraph 42 of Your Complaint, in which You allege that
`“Defendants’ infringement has been, and continues to be, willful and deliberate” including, but
`not limited to, the date on which you allege that Target first had knowledge or notice of the
`Patents-in-Suit, the means or medium through which Target gained any such alleged knowledge
`or notice, the identities of the Target employees or representatives to whom any such alleged
`knowledge or notice was conveyed, and Any other facts Relating to the contentions in paragraph
`42 of Your Complaint; and produce All Documents, Things, and ESI Relating to the subject
`matter of this interrogatory and/or Your response hereto.
`
`EAST\55521867.2
`
`- 13 -
`
`Target Corporation
`EX. 1016 - Page 13
`
`

`

`Response to Interrogatory No. 10:
`
`In addition to its General Objections, DMC objects to this Interrogatory as compound and
`
`containing multiple discrete subparts. DMC further objects on the grounds that it calls for legal
`
`determinations and seeks information protected by the attorney-client privilege and/or work
`
`product doctrine. Subject to and without waiving any of the foregoing objections, DMC
`
`responds as follows:
`
`In a letter dated June 26, 2009, DMC informed Target
`
`that DMC owned Patent
`
`Application Nos. 11/756,242 (the "'242 Application") and 12/117,004 (the "'004 Application”).
`
`DMC also provided Target with copies of the published '242 Application and '004 Application.
`
`In a letter dated February 22, 2011, DMC informed Target that the '242 Application
`
`issued as the '575 Patent. DMC also informed Target that the '004 Application was granted a
`
`Notice of Allowance from the PTO and that DMC paid the issue fee. DMC provided Target with
`
`a copy of the '575 Patent and the allowed claims of the '004 Application.
`
`Direct correspondence with Target included Michael J. Kroll, Senior Intellectual Property
`
`Counsel at Target, and Jennifer L. Hinrichs, Senior Claims Paralegal at Target.
`
`Although Target had actual notice at least as early as June 26, 2009, it continued and
`
`continues to infringe the Patents-in-Suit.
`
`See DMC’s Response to Interrogatory No. 5 above for more information.
`
`Discovery is ongoing and DMC reserves its right to supplement its response to this
`
`Interrogatory at a later date.
`
`INTERROGATORY NO. 11
`Separately, for each product identified in Interrogatory
`No. 3, state the number of units manufactured, number of units sold, average sale price, dollar
`sales, all costs associated with each product, profits associated with each product, and revenue
`associated with each product, on a monthly basis from each product’s date of first sale to the
`present.
`
`- 14 -
`
`EAST\55521867.2
`
`Target Corporation
`EX. 1016 - Page 14
`
`

`

`Response to Interrogatory No. 11:
`
`In addition to its General Objections, DMC objects to this Interrogatory as compound and
`
`containing multiple discrete subparts. Subject to and without waiving any of the foregoing
`
`objections, DMC responds as follows:
`
`Pursuant
`
`to Federal Rule of Civil Procedure 33(d), DMC will produce relevant,
`
`responsive, non-privileged non-work product documents in its possession, custody, and control
`
`that can be located with reasonable diligence. DMC will supplement this response to specify
`
`such records in sufficient detail at the time of its document production.
`
`INTERROGATORY NO. 12 Describe in detail all facts and circumstances regarding
`DMC’s marking of any Pertinent Maternity Product(s) or other product(s) or material(s) of DMC
`with any of the patent numbers for the Patents-in-Suit, whether pursuant to 35 U.S.C. § 287 or
`otherwise, including the products or materials that are so marked, the entire language used to
`identify the marking, where the marking can be found on any such products or materials, and the
`date when such marking began, as well as all subsequent versions of the marking.
`
`Response to Interrogatory No. 12:
`
`In addition to its General Objections, DMC objects to this Interrogatory as compound and
`
`containing multiple discrete subparts. DMC further objects to this Interrogatory as overly broad,
`
`unduly burdensome and seeking information that is neither relevant to any claim or defense in
`
`this action nor reasonably calculated to lead to the discovery of admissible evidence. DMC
`
`further objects on the grounds that it calls for legal determinations and seeks information
`
`protected by the attorney-client privilege and/or work product doctrine. Subject to and without
`
`waiving any of the foregoing objections, DMC responds as follows:
`
`DMC marks its Secret Fit Belly® products with patent numbers on a tag attached to the
`
`product. DMC also lists patent numbers on website on main Secret Fit Belly® webpage
`- 15 -
`
`EAST\55521867.2
`
`Target Corporation
`EX. 1016 - Page 15
`
`

`

`http://www.motherhood.com/maternity/secret-fit-belly.asp and Secret Fit Belly® products
`
`webpage.
`
`INTERROGATORY NO. 13
`For each claim of the Patents-in-Suit You allege is
`infringed by Target, Identify and describe in detail Any secondary considerations or other
`objective evidence of nonobviousness (e.g., commercial success, long-felt-but-unsolved needs,
`the failure of others, etc.) that You contend supports or evidences Any nonobviousness of each
`such claim.
`
`Response to Interrogatory No. 13:
`
`In addition to its General Objections, DMC objects to this Interrogatory as compound and
`
`containing multiple discrete subparts. DMC further objects on the grounds that it calls for legal
`
`determinations and seeks information protected by the attorney-client privilege and/or work
`
`product doctrine. DMC further objects to this Interrogatory on the grounds that it prematurely
`
`seeks expert opinion or testimony. DMC will provide its invalidity rebuttal positions, including
`
`contentions related to secondary considerations of non-obviousness, in response to relevant
`
`Target invalidity contentions. Subject to and without waiving any of the foregoing objections,
`
`DMC responds as follows:
`
`The secondary considerations that evidences nonobviousness include commercial
`
`success, long-felt-but-unsolved needs, and copying by competitors. For example, various DMC
`
`competitors, including Target, copied and sold the design embodied in the Patents-in-Suit.
`
`INTERROGATORY NO. 14
`Identify and describe in complete detail All U.S. and
`Foreign publications, patents, patent applications, inventions by a Third Party, uses, sales or
`offers of sale, and disclosures including, but not limited to, Any U.S. or Foreign technical papers,
`product specifications, product manuals, design drawings, and product catalogs that have been
`considered by, or that have been brought to the attention of, DMC, Any owner, assignee, or
`licensee of Any of the Patents-in-Suit, or Any U.S. or Foreign patent agent or attorney acting on
`behalf of DMC or Any owner, assignee, or licensee of Any of the Patents-in-Suit, as being
`possible or actual Prior Art to one or more of the Patents-in-Suit; and produce All Documents,
`Things, and ESI Relating to the subject matter of this interrogatory and/or Your response hereto.
`- 16 -
`
`EAST\55521867.2
`
`Target Corporation
`EX. 1016 - Page 16
`
`

`

`Response to Interrogatory No. 14:
`
`In addition to its General Objections, DMC objects to this Interrogatory as compound and
`
`containing multiple discrete subparts. DMC further objects to this Interrogatory as overly broad,
`
`unduly burdensome and seeking information that is neither relevant to any claim or defense in
`
`this action nor reasonably calculated to lead to the discovery of admissible evidence. DMC
`
`further objects on the grounds that it calls for legal determinations and seeks information
`
`protected by the attorney-client privilege and/or work product doctrine. Subject to and without
`
`waiving any of the foregoing objections, DMC responds as follows:
`
`Patent Ref.
`Title
`No.
`Vein stripper
`3045676
`Maternity garment
`3045678
`Maternity clothing garment
`4280229
`Maternity garment
`4506390
`Maternity insert panel for jeans
`5946730
`Invisible stretch garment
`6311333
`Maternity garment
`20040210987
`20060010571 Maternity garment with double waistband
`design
`
`Inventor
`Slaten
`Geimer
`Stein
`Stern
`Blair
`Batra
`Carney
`
`Oakley
`
`
`
`
`
`InvisiBelly™ Jeans, Trade Literature, Feb. 26, 2008,
`1 in the Oven's
`http://wwvv.1intheoven.com/index.php?p=product&id=88&parent=26&is—
`print—version=true.
`International Search Report and Written Opinion dated Aug. 18, 2008 in
`PCT