October 30, 2013
EON CORP. IP HOLDINGS LLC, Plaintiff,
FLO TV INCORPORATED, et al., Defendants.
RICHARD G. ANDREWS, District Judge.
Before the Court are objections to two ruling and recommendations (R&R) of the Special Master. The first R&R (D.I. 549) resolved a dispute about Sprint's discovery responses. Briefing relating to these objections has been completed. (D.I. 560, 563, 571-74). The objections are only to a limited portion of the R&R, relating to particular Apple products. ( See D.I. 560 at 12) ("iOS, Android, and the enumerated video applications"). The second R&R (D.I. 579) resolved a motion to strike portions of Plaintiffs expert report regarding the same subject as the discovery dispute, again limited to particular Apple products. (D.I. 564, 565). Further objections and arguments on the motion to strike have been submitted. (D.I. 587, 596-98, 607).
Both disputes stem from the fact that Plaintiff did not in any meaningful and timely way accuse the Apple products of being infringing products. It is undisputed that in the first three iterations of accused products, they were not included. Plaintiff does not argue that the fourth iteration sufficed to add them in. Rather, Plaintiff argues that reference to iOS and Android in infringement contentions was sufficient to make them accused products. Defendants counter that the references were fleeting and offered nothing in terms of claim analysis that would suggest that they were accused products.
In my opinion, I do not think the passing references to iOS and Android in the infringement contentions, which did not include any charting of how iOS or Android might infringe, suffice under the facts of this case to have made them accused products,  and I do not think that any opinions about them in Plaintiffs expert's report will be admissible at trial, and I therefore exclude them.
In view of the above, and considering the issues de novo, the Court ADOPTS the two rulings of the Special Master (D.I. 549 & 579), and therefore RESOLVES the motion to strike (D.I. 564) as indicated in the Special Master's R&R.
IT IS SO ORDERED.