Magistrate Judge Henry Pitman
Plaintiff television networks’ copyright infringement allegations arose from Aereo Inc.’s service intercepting broadcast television signals and retransmitting them, over the Internet, to subscribers. Aereo blocked, as privileged, deposition of Kanojia and Lipowski—its chief executive and chief technology officers—about Aereo’s patent applications. On June 20, overruling Aereo’s objections, the court ordered Kanojia’s and Lipowski’s continued deposition. Addressing, in its discretion, the merits of Aereo’s arguments the court denied Aereo reconsideration. The patent applications were potentially relevant to issues as to what technology Aereo is actually using, as well as to issues of credibility and irreparable harm. Nor did questions about the extent to which the inventions claimed in the patent applications reflected Aereo’s actual system implicate patent strategy. Further, Aereo’s privilege argument failed. The attorney-client privilege does not protect underlying facts communicated to counsel. Further, as every patent applicant is legally required to declare, under penalty of perjury, that he had made the patent application or authorized its making, a patent application is the inventor’s own statement, not a privileged communication to counsel.
