Magistrate Judge Burke recent issued a memorandum order addressing the scope of discovery into a defendant’s products that are not “specifically-accused products.” Judge Burke reached slightly different conclusions with respect to different sets of asserted patents. For one set of patents, Judge Burke agreed with the Defendant’s arguments that the Plaintiff’s infringement contentions do not provide “sufficiently particularized information, so as to allow it to assess which non-specifically-accused products have the same attributes as the specifically-accused product . . . e.g., how they would be ‘reasonably similar’ to the accused products at issue.” Because of this lack of information about similarity, Judge Burke denied Plaintiff’s request for discovery “about non-specifically-accused products that allegedly infringe these two patents” but stated that Plaintiff could renew the request if “in the future, Plaintiffs provide greater specificity to Defendant as to what characteristics an unaccused product would have such that it would satisfy these limitations.” Tessera, Inc., et al. v. Broadcom Corp., C.A. No. 16-380-LPS-CJB, Memo. Or. at 1-2 (D. Del. June 16, 2017).
With respect to a separate set of asserted patents, Judge Burke was “not necessarily convinced that (as Defendant suggests) Defendant does not have enough information to understand which of its unaccused products share ‘the same or reasonably similar circuitry[,]’ as the two specifically-accused products.” However, there were “over 100 discrete products” at issue, and Judge Burke found that not only did he lack “information as to whether, in fact, all or any such products do in fact share the same relevant circuity” but also the record evidence “indicates that Defendant would face a significant burden were it required to prepare the relevant schematics for review and/or to assess whether the relevant circuit’s design is the same or similar to the accused design.” Again, however, Judge Burke indicated that the outcome might be different if “Plaintiffs’ request had been targeted toward a smaller number of specifically-unaccused products, or if Plaintiffs had information that called into question the magnitude of the burden that Defendant says it would face.” Id. at 2-3.