ALJ Denies Pierces of Privilege Based on Inconsistent Inventor Declarations

May 26, 2016—Administrative Law Judge David P. Shaw of the United States International Trade Commission denied Respondents’, Elekta AB, Elekta Ltd., Elekta Inc., Elekta Holdings U.S., Inc., Elekta Instrument (Shanghai) Limited, and Elekta Bejing Medical Systems Co. Ltd., motion to compel discovery of inventor declarations that Complainants, Varian Medical Systems, Inc. and Varian Medical Systems International AG, withheld as privileged. The ITC action pertains to U.S. Patent Nos. 7,945, 021 (“Multi-mode cone beam CT radiotherapy simulator and treatment machine with a flat panel imager”); 8,116,430 (“Multi-mode cone beam CT radiotherapy simulator and treatment machine with a flat panel imager”); 8,867,703 (“Multi-mode cone beam CT radiotherapy simulator and treatment machine with a flat panel imager”); 8,696,538 (“Methods and apparatus for the planning and delivery of radiation treatments”); 7,880,154 (“Methods and apparatus for the planning and delivery of radiation treatments”); and 7,906,770 (“Methods and apparatus for the planning and delivery of radiation treatments”), directed at treatment methods and apparatuses for radiation. The motion arose from the filing of inconsistent inventor declarations. ALJ Shaw ultimately concluded that Respondents failed to meet the high threshold to show both intent and materiality required for piercing attorney-client privilege, and thus he denied the motion to compel discovery. This proceeding remains pending and is captioned, Radiotherapy Systems and Treatment Planning Software, and Components Thereof, ITC-337-TA-968.

By: H. Rachael Million-Perez

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