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[helensu]

Generality, the complaint filed by patentee can be simply stated. However, can D move for MORE DEFINITE STATEMENT regarding the accused products?

I am told that the answer is NO, but I would like to have comfirmation from others, like you. Also, it's said that different state courts have different rules governing this issue (WHEN to identify the accused products). It range from 6 months in CA to 3 months in Texas. Right?

What can D do especially when the technology described in the patent related to a component of the finished product sold by D? Suppliers of that component refuse to talk on the basis that they have NO IDEA about which products are being accused and WHICH of their customers are being attacked???!!!!

Also, in this situation, if D falis to obtain its own competent non-infringement opinion (because it should be the suppliers doing this), the chance of getting treble damage?

What if D relies on the opinion of its suppliers?

Thanks.

[davidlaw69]

Although motions for a more definite statement are generally disfavored on the ground that the information can be obtained through discovery, you can still bring them, and they occasionally win. See, e.g., Agilent Technologies, Inc. v. Micromuse, Inc., 2004 WL  2346152 (S.D.N.Y.  Oct. 19, 2004) ("Although motions pursuant to Rule 12(e) are generally disfavored where prompt resort to discovery may provide an adequate means for ascertaining relevant facts, see id., courts have considered Rule 12(e) relief appropriate in patent infringement cases where a plaintiff has failed to identify any allegedly infringing product or products. See, e.g., In re Papst Licensing GmbH Patent Litig., Nos. MDL 1298 & 99 Civ. 3118, 2001 WL 179926, at *2 (E.D.La. Feb. 22, 2001) (concluding that the plaintiff's complaint must be amended to specifically identify which of the defendant's products are alleged to have infringed the plaintiff's patents)..."

The Federal Circuit recently issued an opinion that an adverse inference that legal opinion was or would have been unfavorable should not be drawn from a defendant's invocation of attorney-client or work product privileges, or from such defendant's failure to consult with counsel, for purpose of determining whether infringement was "willful."  Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. Dana Corp., 383 F.3d 1337 (Fed. Cir. 2004).

David L. Finger, www.delawgroup.com

[helensu]

Dear David,

Thanks for your update. How to keep up with the recent court decisions like those you cited above?

Besides moving for Rule 12(e) or waiting for discovery, what else can D do to have P specify the accused products? The initial disclosure does not require P to identify the accused products. It's easy for D to file answer to deny most and agree few allegations in P's complaint. But subsequently, discovery begins with interrogatories, request for doc production... throwing out everywhere (also means atty fees start accruing sharply).

As I said, D's product is alleged to be infringing because of a key component, which D never purchases direcly from supplier, but purchases the complete set from a manufacturer abroad. I understand that D can still be liable for infringement, but HOW to get the final responsible person to jump out and take the lead in defense with all costs to be borne by it?

Thanks.

[davidlaw69]

The only other option I can think of is send a letter to counsel for p, asking them to disclose, and state that if they decline to disclose voluntarily, you will file a motion for a more complete statement and request attorney's fees for bad faith refusal to disclose.

Does the Complaint identify the patent(s) at issue?  If it does, look at the patent (if it is not attached to the Complaint, it is available online from the website of the PTO).  That might give you some clue.

David L. Finger, www.delawgroup.com