In an opinion Monday, resolving “the latest in a long, tedious series of discovery disputes,” Judge Hellerstein chided a patent plaintiff, Intellectual Ventures, for having disclosed infringement contentions that were “discursive, disorganized, and, at times, confusing” and for repeatedly shifting positions about what it believed was the infringing conduct of the defendant, JP Morgan:
Intellectual Ventures has demonstrated a disturbing pattern of casting a wide net of claims and allegations, resulting in significant discovery costs and delays, only to withdraw certain claims when it confirms what it should have learned prior to bringing the claims in the first place — that they lack any basis in fact. Further, counsel for Intellectual Ventures appears to have been less than forthright with the Court when explaining its purported factual basis for its infringement claims. This sort of gamesmanship and discovery abuse is precisely what Rule 11 seeks to prevent. Strict adherence to Rule 11 is particularly important in patent litigation, where discovery costs can be substantial. Because Intellectual Ventures listed accused products for which it likely had no “objectively reasonable” basis for believing infringed the ’574 Patent, and apparently represented the contrary position to the Court, a sanction in the amount of discovery costs incurred by JPMC related to the withdrawn accused products may be appropriate. In the interest of efficiency, however, the Court declines to impose such costs at this stage of the litigation. JPMC may file a comprehensive motion for such sanctions following the close of all discovery. Further gamesmanship on the part of Intellectual Ventures will not be tolerated.