ORDER GRANTING-IN-PART MOTIONS TO STRIKE AND DENYING MOTIONS TO COMPEL

PAUL S. GREWAL, United States Magistrate Judge.

In each of these two related cases, Defendants move to strike Plaintiffs' infringement contentions1 and Plaintiffs move to compel Defendants to produce discovery arising from those contentions.2 At issue is whether Plaintiffs' contentions meet the requirements of Patent L.R. 3-1 and whether Plaintiffs properly accuse "instrumentalities" — Patent Local Rules-speak for products — that were never made, sold, used or imported, or released before the expiration of the patents-in-suit. Because Plaintiffs' contentions are insufficient and improperly accuse instrumentalities that could not possibly infringe, the court GRANTS Defendants' motions to strike by ordering Plaintiff to supplement the contentions and DENIES Plaintiffs' motions to compel.

I.

Rule 3-1(c) of the Patent Local Rules states that a patentee must provide "[a] chart identifying specifically where each limitation of each asserted claim is found within each Accused Instrumentality."3 A plaintiff violates this rule where it fails to "provide reasonable notice to the defendant why the plaintiff believes it has a `reasonable chance of proving infringement.'"4 The infringement contentions must be sufficient to raise a "reasonable inference that all the accused products infringe."5 A plaintiff cannot satisfy its Rule 3-1 obligations with "nothing more than a conclusion based `on information and belief' that something exists or occurs."6

"A patentee is not require[d] to provide a claim chart for each accused product if the chart provided is representative of [charts for] the other accused products."7 If a patentee elects to proceed by charting certain products as representative of others, "Rule 3-1... requires Plaintiff to articulate how the accused products share the same, or substantially the same infringing [qualities] with any other product or with the... `representative' product[]."8

Once a plaintiff has served adequate charts, Patent L.R. 3-4(a) requires a defendant to produce "[s]ource code, specifications, schematics, flow charts, artwork, formulas, or other documentation sufficient to show the operation of any aspects or elements of an Accused Instrumentality identified by the patent claimant in its Patent L.R. 3-1(c) chart."9

Three years ago Plaintiffs filed these suits, alleging Defendants infringed three patents: U.S. Patent Nos. 5,809,336, 5,440,749 and 5,530,890.10 The patents generally concern the design and operation of microprocessors that are incorporated into a variety of consumer electronics products. The patents-in-suit issued from a common application filed August 3, 1989, by inventors Charles Moore and Russell Fish, III.11 The '336 patent has been the subject of six ex parte reexamination challenges before the United States Patent and Trademark Office, leading to the issuance of two reexamination certificates, the first on December 15, 2009, and the second on November 23, 2010.12 The '890 patent has been the subject of its own reexamination challenge, which led the issuance of a reexamination certificate dated March 1, 2011.13

These cases — and others — are related to a patent case Plaintiffs tried against HTC before the undersigned involving some of the same microprocessors14 and the same infringement theory from the same expert — Vojin Oklobdzija — as Plaintiffs now proceed under against Defendants.15

The court stayed the present cases pending the resolution of an International Trade Commission Section 337 investigation. The investigation considered whether Defendants and others infringed one of the patents disputed here, the '336 patent.16 In the ITC proceeding, Plaintiffs submitted an expert report from Oklobdzija setting forth his opinion that all modern, advanced microprocessors (including Defendants') operate in the same manner with respect to features relevant to the '336 patent claims at issue in this case.17 Oklobdzija reiterated this same opinion at the ITC hearing, where, as before, he was subject to cross-examination. On September 6, 2013, the Administrative Law Judge issued an initial determination that Samsung and LG's products did not infringe.18 On February 19, 2014, the full Commission issued a notice affirming the ALJ's non-infringement findings, determining there was no violation by Samsung or LG, and terminating the investigation. Plaintiffs did not appeal.

After lifting the stay, the court held a case management conference for these related cases in November 2014, in which it extended Plaintiffs' deadline to file its Rule 3-1 infringement contentions until January 20, 2015.19 Discovery commenced, and on January 20, 2015 Plaintiffs served their infringement contentions, accusing approximately 800 Samsung and 437 LG instrumentalities of infringing each of the asserted claims of each of the '336, '749 and '890 Patents.20 Plaintiffs' infringement contentions consist of: (1) a short cover pleading;21 (2) a separate attachment referred to as "Exhibit A" which purports to list accused instrumentalities from different Defendants22 and (3) three claim charts, one for each patent-in-suit.23 The charts refer to microprocessors for the accused instrumentalities in large groups, organized by manufacturer, but identify only certain specific microprocessors for only certain specific instrumentalities.24

Citing what they view as substantial deficiencies in Plaintiffs' disclosure, Defendants refused to produce discovery or technical documents sufficient to show the operation of all of the accused instrumentalities identified in Plaintiffs' infringement contentions25 except for those specific microprocessors disclosed.26 The parties met and conferred,27 but having reached impasse, proceeded to file the instant motions.

Defendants request that the court strike Plaintiffs' infringement contentions in their entirety for failure to comply with Patent L.R. 3-1.28 Samsung alternatively requests an order (a) compelling amended contentions limited only to Samsung products previously identified in Table A.4 of Exhibit that include one of the identified microprocessors: Qualcomm's MSM7227, MSM8660 and MSM8960; TI's OMAP4430, OMAP4460, OMAP4470 and OMAP3621; or Samsung's S3C6410; (b) requiring Plaintiffs to identify specifically where each limitation of each asserted claim is found within each accused Samsung instrumentality, including, at a minimum, providing a separate claim chart for each of these eight identified microprocessors within the accused products; (c) excluding any instrumentality for which Plaintiffs do not have a good faith basis to believe infringement occurred in the United States during the life of the patent of which it is accused of infringing and (d) confirming that all other instrumentalities not containing these eight microprocessors (whether identified in Table A.4 of Exhibit A or otherwise) are excluded from the scope of this case for all purposes, including discovery, liability, damages and injunctive relief.29

Also in the alternative, LG requests that the court compel Plaintiffs to submit infringement contentions that: (a) are limited to the accused LG instrumentalities that were previously identified in Table A.6 of Exhibit A and that include one of the disclosed microprocessors: Qualcomm's MSM8960, MSM8660, MSM8260 and MSM7227 or TI's OMAP4430, OMAP4460 and OMAP4470; (b) identify specifically where each limitation of each asserted claim is found within each accused LG product, including, at a minimum, providing a separate claim chart for each of the above seven identified microprocessors and (c) exclude all other instrumentalities (identified in Table A.6 of Exhibit A or otherwise) from the scope of this case for all purposes.30

Plaintiffs request an order pursuant to Fed.R.Civ.P. 37(a) compelling Defendants to produce within five business days: (a) discovery related to technical issues in response to Plaintiffs' second set of request for production Nos. 6-12; (b) discovery related to damages in response to Plaintiffs' second set of requests for production No. 4 and (c) discovery from the ITC proceeding in response to Plaintiffs' first set of request for production Nos. 1-3.31

II.

This court has jurisdiction under 28 U.S.C. §§ 1331 and 1338. The presiding judge referred these related cases to the undersigned for all pretrial management.32

III.

Plaintiffs' infringement contentions fall well short of this district's requirements. The court explains each of three key deficiencies in turn.

First, Plaintiffs' contentions do not properly specify "where each limitation of each asserted claim is found within each Accused Instrumentality."33 Plaintiffs say their contentions specifically identify each accused instrumentality by name and model number, along with specific accused microprocessors contained in each accused instrumentality to the extent possible.34 In support, Plaintiffs cite to thousands of pages of user manuals, Wikipedia and testimony from their technical expert Oklobdzija.35

The problem is with Plaintiffs' caveat "to the extent possible." Plaintiffs admit they did not even determine whether some accused instrumentalities in fact include any accused microprocessor,36 and that they specifically examined only a few.37 The contentions do not address any product individually on a limitation-by-limitation basis, and none of the accused instrumentalities are charted through an entire claim or against each limitation of each asserted claim.38 Instead, the contentions include a single claim chart for each patent that refers generically to "each Accused Product" and "each Accused Microprocessor."39 Considering that the whole point of the Local Rule is to give notice to accused infringers of where within their instrumentalities they allegedly infringe, this is insufficient.

Plaintiffs say the claim limitations apply to all of the accused microprocessors, such that Plaintiffs completely charted the microprocessors.40 They say they specifically identified the location and implementation of oscillators on the accused microprocessors.41 They also say they provided concrete examples of technologies that satisfy the claim limitations of the "off-chip clock" and "I/O interface" and other structural limitations42 For the '890 and '749 patents, Plaintiffs say they make use of available literature regarding ARM architectures generally, and the charts themselves analyze documents specific to the accused microprocessors43

But ARM microprocessors are a large family of processing cores developed over the last thirty years. Even the subset of ARM processing cores allegedly found in the accused instrumentalities contains several different design generations and different members within those generations. Plaintiffs do not provide any contentions regarding any of the relevant characteristics of these different ARM processors.44 This undifferentiated treatment throughout its infringement contentions is not sufficiently clear.

Plaintiffs also urge that the charted accused microprocessors are representative of other microprocessors contained in the accused products.45 They contend they have met their burden to show that all of the listed accused products share the same infringing qualities of the representative accused microprocessors referenced in the claim charts.46 Plaintiffs provide a footnote stating the infringement is based on the operation and implementation of their microprocessors, and give examples of this operation and implementation47

But Plaintiffs' "representative product" approach is deficient. Plaintiffs simply state that the operation and implementation of the seven and eight processors is "representative of the operation of the processors in each of the Accused Products" in Tables A.4 and A.6, "on information and belief."48 Plaintiffs have not shown how the listed products share the same allegedly infringing qualities as those for the seven and eight processors referenced in the (deficient) claim charts.49 The listed products contain dozens of different makes and models of processors. And while some of the products are made by Qualcomm, Texas Instruments and Samsung, this alone does not render them "representative" of the two or three models identified in the claim charts.50 Many of the products in the tables do not identify any processor whatsoever, and many more include processors from manufacturers such as Zoran, Motorola, Marvell, STMicroelectronics, STEricsson and Nvidia, not mentioned anywhere in the claim charts.51 Plaintiffs must either chart these processors or demonstrate how they are substantially similar to the allegedly representative processors for purposes of each asserted claim.

Plaintiffs may be right that Defendants' claims of confusion are dubious given the ITC and HTC proceedings, or that Defendants know well Plaintiffs' position that all modem, advanced microprocessors share the same infringing qualities relevant to the `336 patent.52 But the Rules do not give Plaintiffs an out simply because an accused infringer has other ways of understanding their infringement contentions. Focusing on the contentions themselves, Plaintiffs clearly have not provided enough information to permit a reasonable inference that all accused products infringe in these related cases, which they must do for their contentions to stand.

Second, Plaintiffs' contentions provide only conclusory allegations. Plaintiffs argue their contentions are based on far more than an unsupported conclusion based "on information and belief."53 This is because their contentions are based on Oklobdzija's analysis, "publicly available information" of Defendants and of third parties on all modern microprocessors, "reasonable conclusions" and specific analysis of several accused products and their accused microprocessors.54 The Patent Local Rules do not "require the disclosure of specific evidence [or] require a plaintiff to prove its infringement case."55

But reliance on "information and belief," Wikipedia, legal conclusions and cursory analysis56 rather than evidence to establish specific claim limitations and representativeness does not comport with Patent L.R. 3-1.57 Plaintiffs' contention that they rely on public understandings of microprocessors as a whole is inapposite because to do so their infringement contentions would have to be based upon "industry standards," and they are not.58

Plaintiffs also contend the '336 claim charts for elements 6.d and '890 element 12.b do not rely upon conclusory statements such that a person having ordinary skill in the art would not understand the infringement contentions. Plaintiffs say the '336 chart identifies the representative infringing structure, the operation of accused instrumentalities and how accused microprocessors of accused instrumentalities perform the recited limitations, and the '890 chart includes a diagram and links to literature.59 This, to Plaintiffs, puts Defendants on reasonable notice of Plaintiffs' reasonable chance of proving infringement.60

But a bare assertion that a PHOSITA could locate the element in the accused instrumentality, without more evidence, does not comply with Rule 3-1.61 Concluding that a PHOSITA could locate the element — as Plaintiffs do — does not "provide reasonable notice to the defendant why the plaintiff believes it has a `reasonable chance of proving infringement.'"62 Plaintiffs cannot wait for discovery before complying with their obligations under Rule 3-1; they must perform an analysis of information reasonably available to it, and disclose what instrumentality in each individual accused product allegedly practices each limitation of every asserted claim.63

Third, without explanation, Plaintiffs improperly accuse hundreds of instrumentalities of infringing, even though they either were never made, sold, used or imported in the United States; or they were released after the expiration of the '749 and '890 Patents. "Whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent."64 The '749 patent expired on August 8, 2012, and the '890 patent expired on June 25, 2013.65

At least 208 of the 437 accused LG products LG has never made, sold, used or imported into the United States.66 Publicly available information shows many accused products were not released until after the '890 and '749 patents expired.67 Plaintiffs say they believe the products would have been used, sold or offered for sale to carriers or at trade shows or submitted to the FCC before the patents expired, and Defendants are in the best position to verify the earliest possible date of infringement associated with the accused products.68 Plaintiffs claim they were diligent by only identifying accused products that could have infringed on a date prior to the expiration of Patent Nos. '749 and '890.69

Plaintiffs' attempt to shift the burden to Defendants to identify which of the accused products post-dated the expiration of the patents is improper,70 and Plaintiffs' listing of hundreds of products with no explanation does not show diligence.

IV.

Plaintiffs' infringement contentions are plainly deficient. As for what exactly to do about that, while Defendants argue they will be unfairly prejudiced if Plaintiffs are allowed to amend beyond the seven or eight charted processors, the court is persuaded that a nondispositive order requiring supplementation strikes the right balance. "Where appropriate, courts treat a motion to strike as a motion to compel amendment to include additional information infringement contentions."71

Plaintiffs have 14 days to amend their infringement contentions to comply with Patent L.R. 3-1. Plaintiffs must identify specifically where each limitation of each asserted claim is found within each accused instrumentality, including, at a minimum, providing a separate claim chart for each accused microprocessor. Plaintiffs must exclude any product for which Plaintiffs cannot show a good faith basis to believe infringement occurred in the United States during the life of the patent of which it is accused of infringing. Because "[c]ourts in this district generally do not order defendants to proceed with discovery in patent cases until the plaintiff provides infringement contentions that comply with Patent L.R. 3-1,"72 Plaintiffs' motion to compel is DENIED.

SO ORDERED.