Nonparty's Compilation of Prior Art Protected by Work Product Doctrine

The ALJ denied respondents' motion to certify for judicial enforcement its prior art subpoena to two nonparties whom complainants sued for infringement of the same patents in district court because the documents sought were protected attorney work product. "⁠[Nonparty] represents in its opposition that the prior art at issue 'was developed by [its] counsel because of' the district court litigation. [Respondent] speculates that [nonparty] may have also identified prior art 'outside the contours' of the district court case. [Respondent's] speculation, however, is groundless. . . . Such a compilation of prior art is protected under the work-product doctrine, even if the references themselves are publicly available. . . . [P]rotecting the mental impressions and thought processes of an attorney from disclosure is not the only interest protected by the work-product doctrine. The work-product doctrine also seeks to prevent attorneys from relying 'on wits borrowed from the adversary' instead of relying on their own efforts and professional judgment."

LED Lighting Devices, LED Power Supplies, and Components Thereof, 337-TA-1081 (ITC March 13, 2018, Order) (Lord, ALJ)