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MOORE U.S.A. INC. v. THE STANDARD REGISTER COMPANY

September 18, 2001

MOORE U.S.A. INC., AND TOPPAN FORMS CO., LTD., PLAINTIFFS,
v.
THE STANDARD REGISTER COMPANY, DEFENDANT.



The opinion of the court was delivered by: John T. Curtin, United States District Judge

INTRODUCTION

Presently before the court in this patent infringement suit is Motion 16 or Item 237, which is SRC's motion to reconsider the court's oral discovery order of September 2000. The court heard oral argument on August 8, 2001.

BACKGROUND

In August 2000, the court ruled that SRC was entitled to discovery of information relating to Moore's research regarding pressure sensitive adhesives, as well as pressure seal adhesives.

In light of the fact that SRC asserts invalidity of the `128 patent as an affirmative defense, discovery of Moore's work on other pressure-sensitive adhesives appears reasonably calculated to lead to the discovery of admissible evidence. As such, the court grants SRC's motion to the extent that it calls for production of certain documents relating to Moore's pressure-sensitive and pressure-seal adhesives.
Item 193, p. 6 (emphasis added). Moore interpreted the August 2000 order as not requiring it to produce information relating to research that had taken place after December 25, 1987, which was the date of the "priority application" that was filed in Japan for what Moore claims ultimately became the `128 adhesive. Item 237, Exh. J. On August 10, 2000, Moore advised SRC of this interpretation. Subsequently, Moore agreed to produce responsive information up to the date of the `128 patent's being issued in 1990.

On September 13, 2000, SRC deposed Dr. David Rice, who is a Moore research scientist. During the deposition, counsel for SRC attempted to question Dr. Rice regarding Moore's research efforts — as to both pressure sensitive and pressure seal adhesives — that had taken place after the `128 patent was issued in 1990. Moore's counsel objected to this line of questioning and directed his witness not to answer. The court was contacted by telephone. A record was made of the argument and decision. The court sustained Moore's objection:

The Court: Well, Mr. Enos, I suppose that as in any other industry that the engineers and chemists at Moore are always searching, and I suppose your company does the same thing, to try to improve their product. But really does that have anything to do with a patent that was issued in 1990?
Let me do this, so you can continue. I think that the objection to the question is appropriate.

Item 237, Exh. A, p. 178. The court invited SRC to file a written motion if it still believed that it was entitled to the information. Id. at 179. On December 8, 2000, SRC filed the present motion and requested relief from the court's oral order of September 13, 2000. Item 237.

DISCUSSION

SRC seeks discovery of information and documents relating to Moore's "recent" research and development efforts in the areas of pressure sensitive adhesives and pressure seal adhesives. "By `recent,' SRC means all research conducted by Moore since the issuance of the `128 patent." Item 237, p. 3 n. 7. It bears repeating that the technology of pressure seal adhesives is a subset of the pressure sensitive adhesive technology. Therefore, all pressure seal adhesives are pressure sensitive adhesives, but not all pressure sensitive adhesives are pressure seal adhesives.

As indicated supra, SRC demands two categories of documents and information: (1) those relating to Moore's "recent" research regarding pressure seal adhesives, specifically, Moore's efforts to design an "alternative" to the adhesive embodied by the `128 patent ("the `128 adhesive") and (2) those relating to Moore's ...


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