Summary Judgment of Noninfringement Premature Prior to Close of Discovery

The court denied as premature under FRCP 56(d) plaintiff's motion for summary judgment that its accused products, other than three representative products in defendant's infringement contentions, did not infringe defendant's computer memory patents. "[Defendant] is entitled to avail itself of the remainder of the discovery period, and of expert discovery, prior to responding to such a motion. That [defendant] has not previously moved to compel further discovery from [plaintiff] is irrelevant, because [defendant] may still do so, several discovery requests remain outstanding, and [plaintiff] remains under the obligation to supplement its discovery. Moreover, expert discovery, which has not yet begun, will likely bear on the question of representativeness and will include substantial discovery relevant to [defendant's] infringement contentions. Until discovery is closed, the Court cannot enter judgment against [defendant] for failure to marshal evidence that is still subject to ongoing discovery."

ASUS Computer International v. Round Rock Research, LLC, 3-12-cv-02099 (CAND October 8, 2013, Order) (Tigar, J.)