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TQ Delta, LLC v. Adtran, Inc.

United States District Court, D. Delaware

July 3, 2018

TQ DELTA, LLC, Plaintiff,
v.
ADTRAN, INC., Defendant. ADTRAN, INC., Plaintiff,
v.
TQ DELTA, LLC, Defendant.

          MEMORANDUM ORDER

         Presently before me is Plaintiffs Motion for Reconsideration of the Court's May 21, 2018 Memorandum Opinion regarding Defendant's Motion for Summary Judgment on the License Issue (D.I. 414) and related briefing (D.I. 428, 438-l).[1]

         For the reasons that follow, IT IS HEREBY ORDERED THAT Plaintiffs Motion for Leave to File a Reply Brief in Support of its Motion for Reconsideration (D.I. 438) is GRANTED; and Plaintiffs Motion for Reconsideration (D.I. 414) is DENIED, as to the new evidence, and GRANTED, as to the May 21, 2018 Memorandum Opinion. (D.I. 398). Plaintiffs Motion is also DENIED, as to overbreadth, because there is nothing to reconsider. As Defendant notes, "The Court's ruling says nothing about Broadcom chips, and does not suggest or imply that those chips are licensed," and Defendant "does not contend that the Broadcom chips are licensed under the Lantiq/Aware license." (D.I. 428 at 10).

         I. Legal Standard

         The purpose of a motion for reconsideration is to "correct manifest errors of law or fact or to present newly discovered evidence." Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). "A proper Rule 59(e) motion . . . must rely on one of three grounds: (1) an intervening change in law; (2) the availability of new evidence; or (3) the need to correct clear error of law or prevent manifest injustice." Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010).

         II. New Information

         Plaintiff argues, "Newly discovered evidence indicates . .. that the Accused Products that use a Lantiq chipset, use an unlicensed Adtran-created chip to provide the core DSL bonding functionality claimed by the Family 2 patents." (D.I. 414 at 1-2).

         In a September 1, 2016 response to Plaintiffs request to produce source code, Defendant stated, "Source Code directed to 'DSL functionality' is chip-level Source Code" that should "be obtained from such third party xDSL chip manufacturers[.]" (D.I. 415 at ¶¶ 28-29). Similarly, in a September 29, 2015 response to Plaintiffs Interrogatory No. 2, which asked Defendant, "For each Accused Product, state and explain with particularity each reason why Defendant contends that such Accused Product does not infringe .. .," Defendant stated,

Further, [Plaintiffs] allegations regarding infringement of the Patents-in-Suit . . . are directed towards internal structures, methods, processes, functions, and capabilities of DSL transceivers, which are not designed or manufactured by [Defendant] and the internal structures, methods, processes, functions, and capabilities of which are not known or largely not known by [Defendant].

(D.I. 415 at ¶ 25) (emphasis omitted). Additionally, in its September 2015 non-infringement contentions for claim 17 of the '881 patent, Defendant asserted that Defendant "ha[d] no information in its possession, custody, or control regarding whether [the 'plurality of bonded transceivers'] limitation is met by any accused ... product." (Id. at ¶ 26).

         On February 26, 2018, Plaintiffs counsel asked Defendant's counsel, "whether [Defendant] will produce, in accordance with the provisions of the Protective Order, the requested source code." (D.I. 415 at ¶ 30). The parties then held a meet and confer on March 7, 2018, where Defendant informed Plaintiff for the first time that Defendant had in its possession Defendant-created source code "related to the DSL bonding functionality of the Accused Products." (Id. at ¶ 32).

         "On May 8, 2018, [Defendant] produced a listing of code required by the Protective Order that identified over 100 source code files." (D.I. 414 at 3 (citing D.I. 415 at ¶ 41)). As a result, Plaintiff argues that it only learned on May 11, 2018, that Plaintiff "created its own code to perform the accused DSL bonding functions."[2] (D.I. 414 at 3 (citing D.I. 416 at ¶ 6)). More specifically, Plaintiff says it learned that "ADTRAN-created source code is used to program a field programmable gate array ('FPGA') chip to provide 'DSL bonding' capability," and "[n]either the FPGA nor the DSL Bonding Code used to program is made or sold by Lantiq." (Id.). Plaintiff argues that this information means Defendant's "Accused Products are not 'licensed' to at least the Family 2 patents." (D.I. 414 at 3).

         However, Defendant argues that Plaintiff "first hinted at" its theory "more than two years ago in May 2016" by asserting that the Accused Products were licensed "only to the extent" that the "functionality [is] provided by such Lantiq chipset." (D.I. 428 at 2) (emphasis omitted). Thus, says Defendant, Plaintiff waived the argument that the Family 2 patents are not licensed because the Lantiq chips do not provide the infringing functionality. (Id.). Defendant also argues, "Since March 2015, [Defendant] has produced numerous documents showing that its products perform bonding with the involvement of FPGAs." (D.I. 428 at 3 (citing D.I. 431-1, Exh. 3; D.I. 431-2, Exh. 4-8)). Defendant does not argue that these documents show FPGAs programmed with Defendant-created source code. (See generally D.I. 428).[3]'[4]

         Plaintiff does not account for the nearly-18-month gap between Defendant's September 1, 2016 communication, and Plaintiffs February 26, 2018 communication asserting for the first time that Defendant's response was deficient. Even though Plaintiff did not receive access to the "new evidence" until May 8, 2018, that delay is primarily the result of Plaintiff's own actions.[5] The time to claim that Plaintiffs relevant discovery production has not been provided is before the Court rules, not after. I will therefore DENY Plaintiffs Motion for Reconsideration (D.I. 414), as to the "new evidence."[6]

         III. May 21 Summary ...


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