While Plaintiff identified certain products
in its Complaint, that did not limit Plaintiff’s infringement contentions. Indeed, Plaintiff
stated in its Complaint that the accused products would “include but are not limited to”
the listed products. (Dkt. No. 1, Complaint, ¶¶ 14, 23, 34 (emphasis added).) Thus,
Apple could not know which of its product families, much less which specific products
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At the very least, the Court should order Plaintiff to withdraw from its PICs all
Apple products other than the identified laptops. Alternatively, the Court should order
Plaintiff to serve supplemental claim charts with a representative product from each of the
other accused Apple product families – iPod, iPod Touch, iPad, and iPhone – assuming
that Plaintiff has any non-frivolous and non-futile infringement contentions for those
products. See Raylon, 700 F.3d at 1368.
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Although Plaintiff identified in its claim charts the elements of the accused Apple
laptops that allegedly meet the “removable, interchangeable” limitation in claim 33 of the
’774 patent, (Ex. 2, PICs, at 3; Ex. 8, ’774 patent claim charts, at 21), Plaintiff now
disavows those claim charts, and argues that Apple should not have relied on them.
(Oppn. at 9-10.) Plaintiff also now argues—for the first time—that this limitation is not
really a limitation and that it was included in the PIC claim charts merely because the
words appear in the claim. (Id.) However, Plaintiff included this limitation in its claim
charts and Apple can—indeed must—rely on those claim charts. Plaintiff cannot avoid its
own contentions simply because they confirm that the accused Apple computers cannot
infringe the ’774 patent under even the broadest claim construction.
Plaintiff’s new argument that the “removable, interchangeable” limitation is not
relevant is also contrary to its prior arguments regarding this limitation.
