Champion Power Equipment Incorporated v. Firman Power Equipment Incorporated

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Champion Power Equipment Incorporated,
Plaintiff,
v.
Firman Power Equipment Incorporated,
Defendant.
No. CV-23-02371-PHX-DWL
ORDER
This is a patent infringement action between two direct competitors, Champion
Power Equipment Incorporated (“Champion”) and Firman Power Equipment Incorporated
(“Firman”). Now pending before the Court is Firman’s motion to compel compliant
amended infringement contentions. (Doc. 288.) For the reasons that follow, the motion is
denied.
RELEVANT BACKGROUND
On November 10, 2023, Champion initiated this action. (Doc. 1.)
On March 29, 2024, Champion filed an amended complaint asserting that Firman
infringed 13 of its patents for multi-fuel generators (“the Asserted Patents”). (Doc. 24.)
On April 24, 2024, the Court issued the case management order (“CMO”). (Doc.
33.) “Because this case includes a claim of patent infringement,” the CMO “require[d] the
parties to provide certain patent-specific disclosures and abide by certain patent-specific
deadlines.” (Id. ¶ 5.) Paragraph 5 of the CMO sets forth the procedure for “a party
claiming patent infringement” to serve a “Disclosure of Asserted Claims and Infringement
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Contentions” and details what information those infringement contentions must contain.
(Id. ¶ 5(A)(1)-(8).) Paragraph 5 also explains that amendment of contentions “may be
made only by order of the Court upon a timely showing of good cause.” (Id. ¶ 5(C).) The
CMO also sets forth a procedure for claim construction. (Id. ¶ 5(D)-(J).)
On June 21, 2024, Champion “served its [Initial] Infringement Contentions,
asserting 130 claims” (“Initial Infringement Contentions”). (Doc. 288-1 at 2 ¶ 2. See also
id. at 4-142 [excerpts of Champion’s Initial Infringement Contentions].)
On June 10, 2026, after full briefing (Docs. 155, 171, 175), various post-briefing
stipulations (Docs. 261, 265), a tentative order (Doc. 267), and a Markman hearing (Doc.
270), the Court issued an order construing the disputed terms and phrases in the Asserted
Patents (“the Claim Construction Order”). (Doc. 280.)
As relevant here, the Claim Construction Order construed the term “selector switch”
as “a movable part that enables access to selection of either the first fuel source or the
second fuel source and prevents selection of both fuel sources at the same time.” (Id. at
36.) The Court specifically explained that “the selector switch is never described—in the
patent specification or the claims—as itself performing the fuel selection. Rather, it is
consistently described as permitting or enabling selection of one fuel source by preventing
or inhibiting selection of the other fuel source.” (Id. at 30.) The Court also emphasized
that “the selector switch permits access to selection of a fuel source but does not itself
perform the selection.” (Id. at 31.)
Additionally, the Court construed the term “selectively control” as “mechanically
permit or prevent fuel flow . . . .” (Id. at 87-88.) The Court explained that “every time
‘selectively control’ is used in the claims, the ‘mechanical fuel valve’ is described as
‘selectively controlling.’” (Id. at 83.) The Court accepted Firman’s proposal to include
the adverb “mechanically” before the phrase “permit or prevent fuel flow” “to clarify that
it is the mechanical fuel valve performing the selective control of fuel flow, and not the
mechanical fuel valve indirectly impacting fuel flow by triggering an electrical valve which
itself performs the selective controlling of fuel flow.” (Id. at 85.) The Court emphasized
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that “the claims and the specification are unequivocal that the mechanical fuel valve is what
selectively controls fuel flow” and that “[n]owhere do the patents suggest that the
mechanical fuel valve triggers some other electrical valve which itself performs the
selective control of fuel flow.” (Id. at 85-86.)
On June 16, 2026, “the parties agreed that Champion would provide its proposed
amended disclosure of asserted claims and infringement contentions . . . applying the
Court’s claim constructions, after which Firman would provide its proposed responsive
patent contentions.” (Doc. 284 ¶ 2.)
On June 26, 2026, “Champion provided Firman its proposed amended infringement
contentions.” (Id. ¶ 3.)
On July 10, 2026, the parties filed a “Stipulation and Joint Motion re Amended
Infringement Contentions.” (See generally id.) In the stipulation, Firman did not oppose
Champion’s request to amend its infringement contentions for good cause based on the
Claim Construction Order. (Id. ¶ 3.) The stipulation further explained that “[t]he parties
now disagree whether Champion’s proposed amendments apply the Court’s claim
constructions”; that “Firman provided Champion its portion of a joint discovery dispute
statement seeking to compel amended infringement contentions that apply to the Court’s
claim constructions”; and that “Champion objected to the use of the discovery dispute
statement, arguing that the issue is not a discovery dispute and should instead be resolved
via ordinary motion practice.” (Id. ¶ 4.) The stipulation requested: “(1) That Champion
be granted leave to amend its infringement contentions as proposed, without Firman
agreeing such amendments comply with the Court’s claim constructions”; (2) “That Firman
be granted leave to file a motion to compel compliant amendments seven (7) days from
entry of this stipulation, without Champion agreeing this dispute is properly characterized
as a discovery dispute”; (3) “That Firman serve its proposed responsive noninfringement,
unenforceability, and invalidity contentions 14 days after either (i) Champion serves
updated amended infringement contentions (for which the parties agree there would be
good cause) following the Court’s resolution of Firman’s motion to compel, or (ii) the
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Court holds no such updates are required”; and (4) “That fact discovery shall close 90 days
after the Court rules on Firman’s motion to compel.” (Id. ¶ 6.)
On July 13, 2026, the Court granted the stipulation. (Doc. 285.)
On July 15, 2026, Champion served its amended infringement contentions
(“Amended Infringement Contentions”). (Doc. 288-1 at 2 ¶ 5. See also id. at 143-287
[excerpts of Champion’s Amended Infringement Contentions].)
On July 20, 2026, Firman filed the pending motion to compel amended infringement
contentions. (Doc. 288.) The motion is now fully briefed. (Docs. 292, 295, 305
[surreply].)1
DISCUSSION
I. The Parties’ Arguments
Firman argues that “[t]he Court should compel Champion to amend its infringement
contentions so that they comply with the Court’s Claim Construction Order because its
position on 88 of the 125 remaining claims ignores and distorts that order.” (Doc. 288 at
2.) Specifically, Firman argues that “[e]ach of those 88 claims contain one of two claim
terms the Court construed: ‘selector switch’ and ‘selectively control,’” “[t]he Claim
Construction Order squarely rejected the interpretation of those two terms that Champion’s
[I]nitial [I]nfringement [C]ontentions applied,” yet Champion’s Amended Infringement
Contentions continue to “maintain the positions the Court rejected.” (Id.) As for the term
“selector switch,” Firman emphasizes that the Claim Construction Order “conclude[d] that
the selector switch is never described—in the patent specification or the claims—as itself
performing the fuel selection” and held that “[t]o the extent Champion is attempting to
argue that . . . the selector switch is itself performing the fuel selection . . . , that argument
is without merit.” (Id. at 4, citing Doc. 280 at 30-31.) Firman argues that Champion’s
Amended Infringement Contentions “continue to map ‘selector switch’ to Firman’s
rotatable dial,” and although “Champion deleted the sentence [from its Initial Infringement
1 The parties’ requests for oral argument are denied because the issues are fully
briefed and argument would not aid the decisional process. See LRCiv 7.2(f).
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Contentions] admitting that what it accuses as the selector switch ‘controls which fuel
source is selected,’” Champion “did not alter its admission for how the accused switch
functions.” (Id. at 5.) In a nutshell, Firman argues that Champion’s Amended Infringement
Contentions fail to accurately apply the Court’s claim constructions because those
contentions accuse Firman’s rotatable dial of infringing Champion’s “selector switch,”
even though Champion purportedly admits that Firman’s rotatable dial itself performs the
fuel selection. (Id. See also id. at 9 [“[Champion’s] amendments still maintain a mapping
to a component that itself performs the selection. Champion’s contentions therefore fail to
apply the Court’s construction. By Champion’s own admission, Firman’s rotatable dial
itself selects the fuel, and thus cannot satisfy the Court’s construction.”].) Additionally,
Firman asserts that Champion’s Amended Infringement Contentions now contend that fuel
selection “does not occur until ‘the dual fuel generator starts and fuel begins to flow to the
engine’” and argues that this contention “is disingenuous” and “renders the [C]ourt’s
construction a nullity because in any generator, fuel is inherently not flowing when the
engine is off.” (Id. at 10.) As for the term “selectively control,” Firman emphasizes that
the Claim Construction Order held “that what ‘selectively controls fuel flow’ is the
‘mechanical fuel valve’” and further held “that it is the mechanical fuel valve performing
the selective control of fuel flow, and not the mechanical fuel valve indirectly impacting
fuel flow by triggering an electrical valve which itself performs the selective controlling of
fuel flow.’” (Id. at 7, quoting Doc. 280 at 84-85.) Firman argues that “Champion’s
Amended Infringement Contentions continue to argue the mechanical fuel valve
selectively controls the LPG fuel because when the rotatable dial rotates the mechanical
fuel valve, a tab on the dial also triggers a switch that electronically activates a solenoid to
control the LPG fuel flow,” and that “Champion made just one change: it added the phase
[sic] ‘a mechanical portion’ when describing the functionality of the electronic LPG
solenoid,” “[s]uch that the contentions now state that a ‘mechanical portion of the LPG
solenoid [opens] and allow[s] LPG to flow.’” (Id. at 8, citation omitted.) In a nutshell,
Firman argues that Champion’s Amended Infringement Contentions fail to accurately
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apply the Court’s claim constructions because those contentions rely on an infringement
theory based on a solenoid valve (as opposed to a mechanical valve) selectively controlling
fuel flow—and that Champion tries to end run the Claim Construction Order by arguing
that it is a “mechanical portion” of that solenoid valve that does the selective controlling.
(Id. See also id. at 10-11, citations omitted [“[Champion’s] amendments still map the term
to an electric valve (i.e., an LPG solenoid valve) that performs the selective control, when
triggered by electrical switches on the rotatable dial . . . [and] Champion’s sole amendment
simply states what is inherent in an electronic valve’s operations—that a mechanical
portion moves in response to the electric signal . . . [b]ut this does not change the fact that
the electronic LPG solenoid valve is not the mechanical gasoline valve Champion identifies
as controlling the gasoline fuel source.”].) Firman argues that “[a]s the patentee, Champion
has an obligation to continually assess the soundness of pending infringement claims,
especially after an adverse claim construction and must withdraw baseless infringement
claims precluded by the claim construction rulings,” but “Champion continues to maintain
the same infringement positions as if the adverse claim construction did not occur.” (Id. at
9, cleaned up.) Firman argues that “[c]ourts routinely award fees against patentees that
continue down this path of ignoring claim construction orders and unnecessarily
prolonging or maintaining an expanded scope of the lawsuit by persisting with baseless
infringement positions,” and “[a]lthough Section 285 of the Patent Act permits Firman to
recover fees at the end of this lawsuit, the Patent Act does not require Firman to stand by
idly while fees needlessly multiple.” (Id. at 11-12.) Firman argues that “[b]ecause
Champion’s infringement contentions inform the scope of remaining fact and expert
discovery, Champion’s pursuit of infringement contentions that have become objectively
baseless following the Claim Construction Order improperly denies Firman and the Court
the intended benefits of the Markman process in streamlining litigation and narrowing
issues for trial,” and “[f]orcing the parties to litigate more than three times the number of
claims truly in dispute wastes party and judicial resources.” (Id. at 12.)
In response, Champion argues that Firman’s motion “is procedurally inappropriate
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and substantively untenable.” (Doc. 292 at 1.) Champion argues that Firman’s “Motion
asks the Court, without citing any case, statute, or other authority, to ‘compel compliance’
with the Court’s Claim Construction Order.” (Id.) Champion emphasizes that it “amended
its infringement contentions to address the” Claim Construction Order, and although
“Firman may disagree that its products infringe Champion’s patents, . . . that disagreement
is a question for the fact finder to resolve on a full record that includes expert testimony.”
(Id. at 1-2.) As for the term “selectively control,” Champion argues that its Amended
Infringement Contentions “specifically addressed the Court’s construction of ‘selectively
control’ to address the ‘mechanically’ adverb” because it added the phrase “a mechanical
portion of” throughout its claims to “clarify that the different valves ‘mechanically permit
or prevent fuel flow,’ consistent with the [Claim Construction] Order.” (Id. at 3-4.) As for
the term “selector switch,” Champion argues that its “amendments are also consistent with
the Court’s construction of” this term, and Champion argues that it added the following
phrase to address the “enables” portion of the Court’s construction: “To avoid any
uncertainty, the claims do not require fuel to be actually flowing to the engine; the claims,
as construed by the Court, merely require that the selector switch ‘enable access to a
selection of one of the first fuel flow and the second fuel flow.’” (Id. at 5-6, citation
omitted.) Next, Champion argues that Firman’s motion is procedurally improper because
it “does not identify any authority under which the Motion is brought. There is no reference
to Rule 37. There is no reference to Rule 26. There is no reference to Rule 11. And there
is certainly no reference to Rule 56.” (Id. at 6.) Champion argues that “[t]his leaves [it] to
speculate as to any basis or authority Firman believes the Court has to grant Firman’s relief,
and therefore Champion must guess at what standard of review or legal analysis should
apply” and that “[t]he Court should deny Firman’s motion outright for this reason.” (Id.)
Champion argues that “Firman’s factual disagreement with Champion’s amended
infringement contentions . . . does not make them baseless,” and “[m]oreover, this case is
not at the procedural posture at which the Court would be making any ‘exceptional’ case
determination . . . for an award of attorneys’ fees under 35 U.S.C. § 285.” (Id.) Champion
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argues that § 285 applies when there is a “prevailing party” and “after a substantive
resolution of the case,” “[b]ut this case is nowhere near consideration of an award of
attorneys’ fees under § 285 because this case has not been decided on the merits,” and
“Firman provides no authority authorizing the Court to consider the sufficiency of
Champion’s infringement contentions under 35 U.S.C. § 285 based on an eventual claim
for attorneys’ fees Firman might make at the end of the case.” (Id. at 7.) Next, Champion
argues that the caselaw cited by Firman “does not match the procedural posture of this
case.” (Id., cleaned up.) Champion also argues that “Firman’s present dispute concerns
whether Firman’s accused products infringe under the theories painstakingly disclosed in
Champion’s [A]mended [I]nfringement [C]ontentions” and that “Firman’s argument is
simply that Champion’s theory of how Firman’s products infringe the patents is incorrect
and therefore meritless, which is a disputed issue of fact inappropriate for resolution on a
procedurally unclear motion to compel.” (Id. at 8.) Champion argues that, “[i]ndeed, how
Firman’s products work is an issue of fact and expert testimony not amenable to resolution
at this stage of the case” because “[f]act discovery has not concluded,” “[e]xpert discovery
has not concluded,” and “[n]o expert reports have been produced.” (Id.) Champion argues
that “[i]t would be error for the Court to review Champion’s [A]mended [I]nfringement
[C]ontentions (which are not evidence) to determine whether Firman’s product infringe,”
“[y]et that is exactly what Firman is asking the Court to do: order Champion to dismiss
certain patent claims because Firman believes there is no possible way for Firman to
infringe those claims.” (Id. at 8-9.) Champion argues that “Firman is attempting to achieve
summary judgment without meeting its burden to show there is no genuine dispute of
material fact . . . [u]nder the guise of a motion regarding the sufficiency of infringement
contentions.” (Id. at 9.) Next, Champion argues that “[t]he substantive basis of Firman’s
Motion treats Champion’s [Initial Infringement Contentions] as substantive binding
admissions from which it cannot deviate,” but “Champion’s [I]nitial [I]nfringement
[C]ontentions are not evidentiary admissions and are no longer in effect” because
Champion’s Amended Infringement Contentions “are now operative.” (Id. at 10.)
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Champion also argues that “Firman’s approach to infringement contentions is contrary to
law and common sense” because “Champion’s infringement contentions contain
Champion’s theory of how Firman’s products infringe the patents” but “are not admissible
stipulated fact.” (Id.) Champion argues that “[i]f the Court were to grant Firman’s Motion,
there would be no foreseeable endpoint to Firman’s request” because “Firman will never
agree that its products infringe” and “will never agree that Champion’s infringement
contentions comply with the [Claim Construction] Order.” (Id. at 12.)
In reply, Firman argues that “[i]t is settled law that, after the Court provides its claim
construction rulings, the parties must use that claim construction during the rest of the
proceedings and cannot, without seeking reconsideration of the construction, offer theories
of infringement or invalidity that effectively seek to contradict the Court’s construction.”
(Doc. 295 at 1, cleaned up.) Firman argues that “Champion does not dispute that, under
this established principle, Champion must update its infringement contentions to conform
to the Court’s Claim Construction Order,” and thus, “[t]he only question is whether
Champion’s [A]mended [I]nfringement [C]ontentions contradict the Court’s
constructions.” (Id.) Firman argues that “[t]hey do” because “Champion’s current
mapping of 88 claims containing the terms ‘selector switch’ or ‘selectively control’ still
maintain positions that the Court expressly rejected.” (Id.) Firman argues that “[r]ather
than address the substance of Firman’s motion, Champion argues Firman’s motion is
procedurally inappropriate,” but “Champion is wrong.” (Id.) Firman reiterates that
“Champion has an undeniable obligation to amend its infringement contentions to comply
with the Court’s Claim Construction Order.” (Id. at 2, cleaned up.) Firman argues that In
re Papst Licensing GmBH & Co. KG Litig., 273 F.R.D. 339 (D.D.C. 2011), “is instructive”
because, there, “[t]he court . . . ordered the patentee to amend its contentions to conform
with the court’s claim constructions” but the patentee “served amended infringement
contentions that still included (a) renewal of its own claims constructions, already rejected
by the [c]ourt; (b) new phrases invented to avoid the requirements of the [c]ourt’s orders;
and (c) theories based on previously rejected claims constructions.” (Id. at 2-3, cleaned
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up.) Firman argues that the “court issued a stern warning, recognizing the patentee’s
approach bespeaks a total lack of respect for [c]ourt orders and timely resolution of this
case” and that, similarly, “Champion’s amended infringement contentions improperly
ignore the Court’s claim constructions and would defeat the purpose of claims construction
and exponentially increase the time and expense this litigation requires.” (Id. at 3, cleaned
up.) Next, Firman argues that “Champion does not meaningfully address (and therefore
effectively concedes) Firman’s analysis showing Champion’s non-compliance with the
Claim Construction Order,” and instead, Champion “cho[se] to cherry-pick examples of
changes it made in attempt to show it did something in response to the Claim Construction
Order,” “[b]ut Champion makes no attempt to explain how its limited changes bring its
contentions into compliance with the Court’s reasoning.” (Id.) Firman argues that
“[n]otably, Champion does not dispute that it continues to map both ‘selector switch’ and
‘selectively control’ to the same elements it accused before the Court construed those
terms.” (Id. at 4.) As for the term “selector switch,” Firman reiterates that “Champion
continues to map ‘selector switch’ to a rotatable dial that selects the fuel source.” (Id.)
Firman argues that “Champion’s sole argument for compliance is that the claims do not
require fuel to be actually flowing to the engine and thus selection does not occur until the
engine is started,” but this “‘starting the engine selects the fuel’ theory” is, like in In re
Papst, “a new phrase, invented by [Champion] to avoid the requirements of the Court’s
orders.” (Id. at 4-5, cleaned up.) Firman argues that “[r]elying on a newly invented
phrase—that selection does not begin until the engine is started—renders the court’s claim
construction a nullity and represents an improper attempt to reassert its original contentions
filed before claims construction,” and like in In re Papst, “bespeaks a total lack of respect
for Court orders and the timely resolution of this case.” (Id. at 5, cleaned up.) As for the
term “selectively control,” Firman notes that “Champion argues it added the words
‘mechanically’ and ‘a mechanical portion of’ throughout to address the Court’s claim
construction,” but Firman argues that “[t]hese are meaningless changes given that
Champion’s Amended Infringement Contentions continue to take the position that the
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mechanical fuel valve selectively controls the LPG fuel because when the rotatable dial
rotates the mechanical fuel valve, a tab on the dial also triggers a switch that electronically
activates a solenoid to control the LPG fuel flow.” (Id., cleaned up.) Firman argues that
“[t]he Court’s claim constructions are ‘the law of the case,’ and Champion is not allowed
to offer theories of infringement that would render those constructions a nullity.” (Id. at
6.) Firman also argues that “[j]ust as Champion is barred from rearguing claim
construction or taking positions inconsistent with the Court’s construction, its counsel and
experts are likewise precluded from doing the same,” and “Champion cannot delay
resolution of this dispute on the hope that it can sneak in its preferred construction over the
[C]ourt’s construction under the guise of expert testimony.” (Id.) Last, Firman identifies
three reasons why Champion’s procedural objections lack merit. (Id. at 7.) First, Firman
argues that its request is “presented through a proper vehicle” because “the parties
stipulated to regular motion practice, which the Court granted” and its motion “was
presented properly according to the parties’ stipulation.” (Id.) Second, Firman argues that
its “motion does not seek premature relief” because it “is not asking the Court to determine
whether Firman infringes the patents.” (Id.) Firman argues that “the Court does not need
to determine whether Champion’s infringement theories actually cover Firman’s accused
products” and “need only determine whether Champion’s infringement theories are in
harmony with the Court’s Claim Construction Order.” (Id.) Firman argues that “[t]he
Court can reach the latter issue without determining whether Firman’s products infringe.”
(Id.) Firman also clarifies that it “does not seek sanctions or fees at this time, so
Champion’s discussion of what constitutes an ‘exceptional case’ under Section 285 is
irrelevant for present purposes.” (Id.) Third, Firman argues that “the Court has inherent
authority to enforce its orders, including the [CMO] requiring infringement contentions
and the Claim Construction Order precluding certain claim construction positions,” and
Firman reiterates that it “should not be required to continue to incur time and expense
defending against moving-target theories that lack a good faith basis and fail to comply
with the Court’s orders.” (Id. at 8.) Firman urges that “[t]he Court should act now and
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compel further amended infringement contentions so that discovery, expert reports,
dispositive motions, and trial (if needed) proceed on a coherent theory in harmony with the
Court’s claim constructions.” (Id.)
In surreply, Champion argues that “Firman’s new authorities and arguments, raised
for the first time in reply, do not support asking the Court to substantively evaluate
Champion’s [A]mended [I]nfringement [C]ontentions and compel further revision at this
stage” because “[e]ach new case arises from a materially different procedural posture, and
none supports the extraordinary relief Firman seeks.” (Doc. 305 at 2.) Champion argues
that the quotations from In re Papst cited in Firman’s reply were “taken out of context.”
(Id.) Champion argues that In re Papst is distinguishable because it “involved a motion
for sanctions for a patentee’s ‘complete disregard’ for the court’s claim construction order”
and that because In re Papst was decided on a “motion for sanctions under Rule 16 and
Rule 37,” it is “inapplicable to Firman’s requested relief” because “Firman’s motion is
neither brought under Rule 16 nor Rule 37.” (Id.) Champion also emphasizes that In re
Papst involved “a violation of that court’s Sixth [procedural order] requiring amended
contentions with the court-ordered information” and that “Papst failed to include the court-
ordered specifics and produced only generic claim charts referencing vague narrative
sections.” (Id., cleaned up.) Champion argues that its conduct is “[e]ntirely different from
Papst” because it “entered into a stipulation—granted by the court—to amend its
contentions for the sole purpose of complying with and addressing the Claim Construction
Order” and “Firman has not identified conduct approaching Papst’s blatant disregard for
court orders or showing an effort to prolong litigation.” (Id. at 3.) Champion argues that
Firman’s “own Motion acknowledges that Champion amended its contentions to include
the Court’s claim constructions—the conduct absent and admonished in [In re] Papst.”
(Id.) Next, Champion argues that B-K Lighting, Inc. v. Vision3 Lighting, 930 F. Supp. 2d
1102 (C.D. Cal. 2013), cited by Firman “to support its inherent authority argument,” “is
distinguishable” because that case “involved a motion for summary judgment where the
court used its inherent authority, Rule 37(c), and Rule 26(e)(1) to strike portions of expert
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testimony regarding untimely ‘new infringement claims,’” whereas here, “no expert
testimony is involved, let alone regarding ‘new infringement claims’ that were disclosed
after the close of discovery and without any amended infringement contentions.” (Id. at 3-
4, citations omitted.) Champion reiterates that “Firman is essentially requesting summary
judgment of noninfringement—the procedural posture in B-K Lighting—in an unsupported
Motion,” and “[t]here is no basis for the Court to grant that extraordinary relief at this
stage.” (Id. at 4.) Last, Champion argues that “Firman prematurely (and with no evidence)
suggests that Champion intends to ‘sneak in its preferred construction of the Court’s
construction under the guise of expert testimony.’” (Id., quoting Doc. 295 at 7.) Champion
argues that none of the cases cited by Firman, however, “supports relief at this pre-expert
report stage,” “[a]nd a court order cannot be based on a hypothetical future act, because
such an order would be an impermissible advisory opinion.” (Id.) Champion then proceeds
to seek to distinguish four cases cited by Firman. (Id. at 4-5.)
II. Analysis
A threshold (and ultimately dispositive) problem with Firman’s motion is that
Firman does not identify any rule of procedure or other source of authority that would
authorize the relief it seeks. True, some courts have held that infringement contentions are,
in essence, interrogatory responses and have thus suggested that a defendant may (at least
under certain circumstances) bring a motion to compel infringement contentions under
Rule 37.2 But Firman does not cite Rule 37 and that the Court is not, at any rate, persuaded
2 See, e.g., Star Envirotech, Inc. v. Redline Detection, LLC, 2014 WL 12593986, *1
(C.D. Cal. 2014) (“[Preliminary infringement contentions] are a ‘discovery device’
intended to streamline the discovery process by taking the place of a series of
interrogatories that defendants would likely have propounded. . . . Defendants argue that
Plaintiff’s [preliminary infringement contentions] are inadequate, as they fail to provide
the necessary support to justify Plaintiff’s infringement allegations. These arguments
attack the sufficiency of Plaintiff’s disclosures, and therefore are more appropriately made
in a discovery motion that complies with Local Rule 37.”) (cleaned up); Cal. Inst. of
Computer Assisted Surgery, Inc. v. Med-Surgical Servs., Inc., 2011 WL 4505239 (N.D.
Cal. 2011) (referring to infringement contentions under Patent Local Rule 3-1 as
“discovery mechanism[s] that take[] the place of a series of interrogatories that defendants
would likely have propounded had the patent local rules not provided for streamlined
discovery” and holding that “any motions filed under Patent Local Rule 3-1 are subject to
Rule 37”) (cleaned up); Samsung SDI Co., Ltd. v. Matsushita Elec. Indus. Co., Ltd., 2006
WL 5097360, *1-2 (C.D. Cal. 2006) (“[Infringement contentions] are essentially a
discovery device intended to streamline the discovery process by taking the place of a
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that a Rule 37(a) motion to compel would be a proper procedural mechanism for Firman
to raise this particular dispute. Under Rule 37(a)(1), “a party may move for an order
compelling disclosure or discovery.” Id. Rule 37(a)(3), in turn, identifies the “specific
motions” that may be brought Rule 37(a):
(3) Specific Motions.
(A) To Compel Disclosure. If a party fails to make a disclosure
required by Rule 26(a), any other party may move to compel
disclosure and for appropriate sanctions.
(B) To Compel a Discovery Response. A party seeking discovery
may move for an order compelling an answer, designation,
production, or inspection. This motion may be made if:
(i) a deponent fails to answer a question asked under Rule
30 or 31;
(ii) a corporation or other entity fails to make a designation
under Rule 30(b)6) or 31(a)(4);
(iii) a party fails to answer an interrogatory submitted under
Rule 33; or
(iv) a party fails to produce documents or fails to respond
that inspection will be permitted—or fails to permit
inspection—as requested under Rule 34.
(C) Related to a Deposition. When taking an oral deposition, the
party asking a question may complete or adjourn the
examination before moving for an order.
Id. Rule 37(a)(4) further explains:
(4) Evasive or Incomplete Disclosure, Answer, or Response. For
purposes of this subdivision (a), an evasive or incomplete disclosure,
answer, or response must be treated as a failure to disclose, answer, or
respond.
Id.
Even assuming that a motion to compel amended infringement contentions is a de
series of interrogatories that defendants would likely have propounded. . . . If the parties
continue to dispute the sufficiency of Plaintiff’s [infringement contentions], a discovery
motion compelling the disclosure of Plaintiff’s specific infringement theory and evidence
in support thereof, should be filed with the United States Magistrate Judge assigned to this
case.”) (cleaned up).
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facto motion to compel an interrogatory response, such a motion can only be brought under
Rule 37 when “a party fails to answer,” see Fed. R. Civ. P. 37(a)(3)(B)(iii), or when a party
provides an “evasive or incomplete . . . response,” see Fed. R. Civ. P. 37(a)(4). But Firman
does not argue that Champion failed to provide infringement contentions (or failed to
provide amended infringement contentions following the Claim Construction Order). Nor
does Firman argue that Champion’s Amended Infringement Contentions are “evasive or
incomplete.” Instead, Firman simply disagrees that Champion’s Amended Infringement
Contentions correctly apply the Court’s claim constructions. Under the plain language of
Rule 37(a), that is not a basis for moving to compel.
In Perfect Surgical Techniques, Inc. v. Olympus Am., Inc., 2014 WL 1095591 (N.D.
Cal. 2014), the plaintiff brought a patent infringement action and served initial
infringement contentions. Id. at *1. After the defendants “point[ed] out a number of
deficiencies in the contentions, . . . plaintiff served supplemental contentions.” Id. The
defendants “believed that the supplemental contentions contained many of the same
deficiencies as the original contentions, and requested further supplementation.” Id. After
the plaintiff refused to supplement again, the defendants filed a motion to strike, or in the
alternative, to compel amended contentions. Id. at *1, 3. At the hearing on this motion,
the court concluded that the “plaintiff had not met the standard of Local Rule 3-1” and
“granted the motion to strike with leave to amend.” Id. at *1.3 Thereafter, the plaintiff
“served its supplemental infringement contentions” and defendants contended “that the
supplemental contentions were still inadequate.” Id. at *2. After the plaintiff declined to
amend again, the defendant filed a second motion to strike. Id. The court “granted
defendants’ motion to strike without further leave to amend” as to three products and with
leave to amend as to one product. Id. Thereafter, the defendants moved for “fees/costs on
two different grounds: first, based on Federal Rule of Civil Procedure 37(a)(5)(A), and
second, based on Rule 37(b)(2)(C).” Id.
In addressing this motion, the court explained that Rule 37(a)(5)(A) applies when a
3 Firman has not moved to strike Champion’s Amended Infringement Contentions.
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motion compelling discovery is granted, whereas Rule 37(b)(2)(C) applies when a party
fails to comply with a court order. Id. at *3. As for the former provision, the court noted
“that Rule 37(a)(3) sets forth a number of specific instances in which a party may move for
an order compelling disclosure or discovery” and “that failure to provide adequate
infringement contentions is not specifically mentioned within Rule 37.” Id. The
defendants “seemingly concede[d] that failure to provide adequate infringement
contentions is not specifically mentioned within Rule 37, but they [nevertheless] argue[d]
that Patent Local Rule 3-14 is equivalent to a discovery device, and thus, any motion filed
under Patent Local Rule 3-1 is subject to Rule 37.” Id. (cleaned up). The defendants
“further argue[d] that Rule 37 does not provide an exhaustive list of motions subject to the
Rule.” Id. “The court decline[d] to adopt the approach advocated by defendants with
respect to Rule 37(a).” Id. Among other reasons, the court emphasized that “Rule 37(a)(3)
sets forth a list of ‘Specific Motions’ to which the rule applies, which does not include
motions to compel patent disclosures,” and further emphasized that “the language of the
Rule is specific in applying when a party ‘fails’ to answer an interrogatory (or make a
disclosure, etc.), but does not mention situations where there is a dispute as to the
sufficiency of an interrogatory response.” Id. “[I]n light of the precise language used in
Rule 37(a), the court decline[d] to apply the Rule” and denied “defendant’s motion to the
extent that it is premised on Rule 37(a).” Id.5 For the reasons explained above, the Court
is persuaded by this analysis of Rule 37(a).6
4 The CMO in this case is largely patterned after the Northern District of California’s
Patent Local Rule 3-1 for “Asserted Claims and Infringement Contentions.” (Compare
Doc. 33 ¶ 5(A)(1)-(8) with Patent LR 3-1 (N.D. Cal.)).
5 The Perfect Surgical Techniques court separately addressed whether to impose Rule
37(b) sanctions. Id.at *4. But here, Firman has made clear that it is not seeking sanctions
and does not cite Rule 37(b) anywhere in its briefing. (Doc. 295 at 7.) At any rate, Rule
37(b) appears inapplicable for other reasons. Rule 37(b)(2)(A) provides for sanctions
where a party “fails to obey an order to provide or permit discovery.” Id. Firman has not
argued that Champion violated the CMO. Nor has Firman argued that the Claim
Construction Order is “an order to provide or permit discovery” under Rule 37(b).
6 Because Firman does not cite Rule 37(c) or argue that the Court could compel
Champion to further amend its Amended Infringement Contentions under Rule 37(c), the
Court declines to sua sponte analyze the potential applicability of that provision under these
circumstances. Margolin v. Nat’l Ass’n of Imm. Judges, 608 U.S. 339, 342 (2026)
(“Federal courts adhere to the principle of party presentation. That principle—the rule that
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In a related vein, it is telling that Firman has not cited, and the Court has not located,
any case in which (1) a plaintiff amended its infringement contentions in response to the
issuance of a claim construction order, and (2) the court thereafter granted a motion to
compel further amended infringement contentions because the plaintiff’s amended
infringement contentions did not adequately apply the court’s claim constructions. The
absence of such authority, although not dispositive, speaks volumes. Indeed, Firman
largely relies on cases in which courts addressed requests for attorneys’ fees under 35
U.S.C. § 285—which provides that “[t]he court in exceptional cases may award reasonable
attorney fees to the prevailing party”—after the plaintiff pursued infringement claims that
contravened the court’s claim constructions. See, e.g., Taurus IP, LLC v. DaimlerChrysler
Corp., 726 F.3d 1306, 1328 (Fed. Cir. 2013); In re PersonalWeb Techs. LLC, 85 F.4th
1148, 1160 (Fed. Cir. 2023); Clinicomp Int’l, Inc. v. Cerner Corp., 2023 WL 1767008, *10
(S.D. Cal. 2023); Upaid Sys., Ltd. v. Card Concepts, Inc., 2022 WL 4482762, *3 (N.D. Ill.
2022); Datatern, Inc. v. MicroStrategy Inc., 2018 WL 2694458, *14-15 (D. Mass. 2018);
Cambrian Sci. Corp. v. Cox Commc’ns, Inc., 79 F. Supp. 3d 1111, 1115 (C.D. Cal. 2015).
Although the Court is sympathetic to Firman’s argument that it should not have to litigate
objectively baseless infringement claims, any motion premised on 35 U.S.C. § 285 is
premature at this stage.
In re Papst does not compel a different conclusion. There, “Papst filed its Asserted
Claims and Infringement Contentions pursuant to the [court’s second procedural order].”
273 F.R.D. at 341. Thereafter, “[t]he [c]ourt held a Markman hearing . . . and rendered its
final claims construction opinion and order.” Id. Following the issuance of the claim
construction order, the court “entered a Minute Order requiring the parties to ‘meet and
confer and jointly submit a focused discovery proposal and deadlines.’” Id. The court then
held a status conference to discuss the parties’ proposed discovery schedule, and “[a]t that
points not argued will not be considered—distinguishes our adversarial system of justice
from an inquisitorial one. Because courts are essentially passive instruments of
government, we rely on the parties to frame the issues for decision and decide only the
questions presented.”) (cleaned up).
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conference, the [c]ourt noted that Papst had failed to propose focused discovery as ordered
by the [c]ourt and ordered Papst to bring its asserted claims and infringement contentions
up-to-date in light of the Modified Order on claims construction.” Id. The court explained
that, following the issuance of the claim construction order, Papst had not changed its
infringement contentions, had not “indicated it wants to change them,” and had not
“indicated it plans or needs to change them,” and the court was concerned that not “all of
[Papst’s] contentions [could] stand in light of the claims construction decision.” Id.
Following that status conference, the court issued a sixth procedural order that “defined the
specificity required for Papst’s Final Contentions.” Id. at 341-42. Papst then “filed its
Final Contentions,” and “the Camera Manufacturers move[d] for sanctions” under Rules
16 and 37 “[b]ecause those Final Contentions fail[ed] to comply with the Sixth [procedural
order] and fail[ed] to satisfy the goal set out by the [c]ourt at the . . . status conference.”
Id. at 342.
The court held that “[a]n order imposing sanctions under Rules 16(f) and 37(b) may
be entered against a party who fails to comply with court ordered requirements for the
disclosure of infringement contentions.” Id. at 342-43 (citing O2 Micro Int’l Ltd. v.
Monolithic Power Sys., Inc., 467 F.3d 1355, 1363 (Fed. Cir. 2006)). The court found that
Papst’s final contentions “flouted the Court’s direct order” in its sixth procedural order and
at the status hearing. Id. at 343. Among other things, the court found that: (1) “Papst’s
Final Contentions intentionally obfuscate Papst’s infringement theories”; (2) “[t]he Final
Contentions are purposefully vague” and “drafted to further Papst’s intention to engage in
protracted and expensive litigation”; (3) Papst’s final contentions failed to provide a “chart
identifying specifically where each limitation of each asserted claim is found within each
Accused Instrumentality,” as required by the sixth procedural order; and (4) “Papst’s Final
Contentions [were] vague and nonspecific with regard to certain of the accused products”
and claimed that Papst “reserve[d] the right to accuse even more devices,” and “[s]uch
contentions violate the orders of the [c]ourt as stated in the [sixth procedural order] and at
the . . . hearing because they are imprecise and without limit.” Id. at 343-45 (cleaned up).
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The court also found that Papst’s final contentions used “a new phrase, invented by Papst
to avoid the requirements of the Court’s” claim construction order, and “lack[ed] the
requisite specificity because they repeatedly reiterate[d] Papst’s version of previously
rejected claims constructions and then advance[d] theories based on such rejected
constructions.” Id. at 344. As a “sanction for [Papst’s] blatant disregard of the Sixth
[procedural order] and the Court’s orders at the . . . hearing,” the Court, among other things,
“barred [Papst] from modifying its Final Contentions” and “from advancing any arguments
for infringement . . . that are not based solely on th[e] [c]ourt’s constructions of the
Patents.” Id. at 346.
In re Papst is distinguishable for several reasons. First, although the court there
“ordered Papst to bring its asserted claims and infringement contentions up-to-date in light
of the Modified Order on claims construction,” it did so because, following the issuance of
the claim construction order, Papst made no attempt whatsoever to amend its infringement
contentions to comply with that order. Id. at 341. Instead, it appears that Papst—which
the court acknowledged was “in the business of litigation”—had no intention of amending
its infringement contentions to comply with the claim construction order and sought broad
discovery based on its outdated infringement contentions. Id. at 341, 343. In contrast,
Champion voluntarily agreed to amend its infringement contentions with the express
purpose of conforming them to the Claim Construction Order. (Doc. 284.) Of course,
Firman disputes whether Champion’s Amended Infringement Contentions adequately
apply the Court’s claim constructions, but Champion’s conduct is still a far cry from
Papst’s conduct.
Second, the relief sought by the movants in In re Papst was the issuance of sanctions
under Rules 16 and 37(b). Id. at 342. Rule 16(f)(1)(C) permits a court to “issue any just
orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney
. . . fails to obey a scheduling or other pretrial order.” Id. But Firman has made clear that
it is not seeking sanctions (Doc. 295 at 7), nor has Firman identified any scheduling or
other order that was violated. For example, Firman has not argued that Champion’s
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Amended Infringement Contentions fail to include any of the “information” required by
paragraph 5 of the CMO. (Doc. 33 ¶ 5(A)(1)-(8).) As for the Claim Construction Order,
Firman has not cited any authority supporting that a claim construction order is a
“scheduling or other pretrial order” under Rule 16. Although the court in In re Papst
observed that Papst’s Final Contentions contravened the claim construction order, the court
independently concluded that Papst had violated its sixth procedural order in several
respects. Because a procedural order is a “scheduling or other pretrial order,” the
imposition of sanctions in In re Papst was consistent with Rule 16. In contrast, there has
been no violation of a “scheduling or other pretrial order” that might warrant the imposition
of Rule 16 sanctions here, and at any rate, Firman has expressly disavowed that it is seeking
sanctions.
Third, the court in In re Papst appears to have done the opposite of what Firman
requests in its motion to compel. Firman seeks an order compelling Champion to amend
its infringement contentions, whereas the court in In re Papst “barred [Papst] from
modifying its Final Contentions.” 273 F.R.D. at 346.7
To be sure, the court in In re Papst also “barred [Papst] from advancing any
arguments for infringement . . . that are not based solely on this Court’s constructions of
the Patents.” Id. To that end, the Court wishes to be perfectly clear: Champion will not be
allowed to advance any infringement theories in this case that contravene the Claim
Construction Order. Cf. Taurus IP, 726 F.3d at 1328 (“[A] party cannot assert baseless
7 Firman also argues that its motion “is presented through a proper vehicle” because
“the parties stipulated to regular motion practice” and its motion “was presented properly
according to the parties’ stipulation.” (Doc. 295 at 7.) But the parties’ stipulation expressly
provided that Firman could file its motion to compel “without Champion agreeing this
dispute is properly characterized as a discovery dispute.” (Doc. 284 ¶ 6.) Firman also
invokes the Court’s “inherent authority to enforce its orders” and cites In re Papst (which
is distinguishable for reasons explained in this order) and B-K Lighting. (Doc. 295 at 8.)
B-K Lighting is also distinguishable because, there, the court was deciding whether to
invoke its inherent authority to strike portions of B-K’s expert report based on “B-K’s
expert discuss[ing] new infringement claims that were not included in B-K’s preliminary
infringement contentions” and were asserted “after the patent claims ha[d] been construed
and discovery tailored to the theories presented in the initial infringement contentions ha[d]
closed.” 930 F. Supp. 2d at 1133-35. In contrast, discovery here is not closed and the
parties have not served expert reports.
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infringement claims and must continually assess the soundness of pending infringement
claims, especially after an adverse claim construction.”). The conclusion in this order that
Firman has not identified a valid procedural mechanism through which Champion may be
compelled to amend its Amended Infringement Contentions should not be viewed as a
determination that Champion’s Amended Infringement Contentions substantively comply
with the Court’s claim constructions.8
Champion is thus on notice that it proceeds at its own peril. To the extent Champion
seeks to rely on an infringement theory based on a “selector switch” that itself performs
the fuel selection, the Claim Construction Order was clear that Champion’s “selector
switch is never described—in the patent specification or the claims—as itself performing
the selection” but is rather “consistently described as permitting or enabling selection of
one fuel source by preventing or inhibiting selection of the other fuel source.” (Doc. 280
at 30, emphasis added.) And to the extent Champion seeks to rely on an infringement
theory based on the “selective control” of fuel flow being performed by something other
than a mechanical fuel valve—including to the extent Champion seeks to advance an
infringement theory based on “the mechanical fuel valve trigger[ing] some other electrical
valve which itself performs the selective control of fuel flow” (id. at 85-86)—the Claim
Construction Order was clear that the adverb “mechanically” was added to the Court’s
tentative construction “to clarify that it is the mechanical fuel valve performing the
selective control of fuel flow, and not the mechanical fuel valve indirectly impacting fuel
flow by triggering an electrical valve which itself performs the selective controlling of fuel
flow.” (Id. at 85, emphasis added.) Should Champion choose to advance infringement
theories in this case that contravene the Claim Construction Order, there may be
consequences down the line, including, but not necessarily limited to, exclusion of expert
testimony and/or an award of attorneys’ fees.
8 Firman’s reply brief cites several cases in which courts excluded expert testimony
that contravened a claim construction order and argues that Champion cannot “sneak in its
preferred construction over the court’s construction under the guise of expert testimony.”
(Doc. 295 at 7.) If, at a later stage of this case, Firman believes Champion’s experts’
opinions contravene the Claim Construction Order, Firman may seek appropriate relief.
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Accordingly,
IT IS ORDERED that Firman’s motion to compel compliant infringement
contentions (Doc. 288) is denied.
Dated this 17th day of September, 2026.
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