Infringement Contentions Must “Address Each Product Separately” – Grouping by Functionality is Insufficient

The court granted defendants' motion to strike plaintiff's preliminary infringement contentions. "Plaintiff argues that it has sufficiently identified the accused instrumentalities because it has provided a description and there is no requirement that the identification must be by name and model number. Plaintiff has identified the accused functionality and identified exemplars of the products, and argues that this is sufficient . . . However, Plaintiff must address each product separately, and identifying products by functionality is not sufficient. . . . Plaintiff’s general list of products by category or functionality is insufficient, and Plaintiff must provide a list of accused products. . . . Although representative claim charts may be used in the appropriate case, Plaintiff has the burden of establishing that the products in the claim charts are representative of all of the accused products. Here, the products appear to differ from each other or at least fall into two or more different categories."

Vigilos LLC v. Sling Media Inc., et. al., 4-11-cv-04117 (CAND July 12, 2012, Order) (Laporte, M.J.).