E-NUMERATE SOLUTIONS, INC. v. United States

In the United States Court of Federal Claims

No. 19-859C

(Filed: February 26, 2026)

)

E-NUMERATE SOLUTIONS, INC., )

et al., )

)

Plaintiffs, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

Sean T. O’Kelly, O’Kelly & O’Rourke, LLC, Wilmington, Delaware, for Plaintiff. With him

on the briefs was Gerard M. O’Rourke.

Shahar Harel, Commercial Litigation Branch, Civil Division, United States Department of

Justice, Washington, D.C., for Defendant. With him on the briefs were Brett A. Shumate,

Assistant Attorney General, and Scott Bolden, Director. Of counsel was Andrew Curran,

United States Department of Justice, Washington, D.C.

OPINION AND ORDER

SOLOMSON, Chief Judge.

This case began in 2019 when Plaintiffs, e-Numerate Solutions, Inc., et al., (“e-

Numerate”), filed their initial complaint alleging that Defendant, the United States,1

infringed seven of e-Numerate’s patents. ECF No. 1. Six years, four complaints, and

1 Although the named defendant in this Court is always the United States, see Double Lion Uchet

Express Tr. v. United States, 149 Fed. Cl. 415, 420 (2020); Rule 10(a) of the Rules of the United States

Court of Federal Claims (“RCFC”), e-Numerate specifically accuses the following government

agencies of infringement: the Securities and Exchange Commission (“SEC”), the Federal Deposit

Insurance Corporation (“FDIC”), the Federal Financial Institutions Examining Council (“FFIEC”),

the United States Department of the Treasury (“USDOT” or “Treasury”), the Office of

Management and Budget (“OMB”), the Federal Energy Regulatory Commission (“FERC”) and

the United States Department of Energy (“DOE”). ECF No. 142 at 2.

three judges 2 later, the parties remain embroiled in various discovery disputes. Before

this Court now are the following motions: (1) the government’s motion to amend its

invalidity contentions; (2) the government’s motion to preclude access to confidential

information; (3) e-Numerate’s motion to compel interrogatory responses; and (4) the

government’s cross-motions to compel interrogatory responses and to strike

infringement contentions. This Court held oral argument on the pending motions on

January 15, 2026. ECF No. 208 (“Tr.”). This Court addresses each motion in turn below.

I. BACKGROUND

This Court assumes familiarity with the protracted history of this litigation as set

forth in previous orders, see, e.g., ECF Nos. 109; 178, and thus provides only a basic

recitation of the pertinent facts.

In a nutshell, e-Numerate alleges that the government infringed seven patents

covering data processing systems employing a computer markup language used in

financial accounting, data browsing, data manipulation, and similar applications. ECF

No. 142. There are two patent families asserted in this case. One family consists of six of

the patents at issue — U.S. Patent Nos. 7,650,355 (“the ’355 Patent”), 8,185,816 (“the ’816

Patent”), 9,262,383 (“the ’383 Patent”), 9,262,384 (“the ’384 Patent”), 9,268,748 (“the ’748

Patent”), and 10,223,337 (“the ’337 Patent”) — and all address similar technology: “a

markup language . . . which allows numerical analysis routines to be written quickly,

cheaply, and in a form that is usable by a broad range of data documents[.]” ’355 Patent

at Abstract. The patents in this family all relate to the same provisional applications: No.

60/135,525, filed on May 21, 1999, and No. 60/183,152, filed on February 17, 2000. The

last patent — U.S. Patent Nos. 9,600,842 (“the ’842 Patent”) — is the lone member of the

second patent family and is directed to methods and systems that “allow users to

efficiently manipulate, analyze, and transmit eXtensible Business Reporting Language

(‘XBRL’) reports” and “to automatically build financial reports that are acceptable to

governing agencies such as the [Internal Revenue Service].” ’842 Patent at Abstract. 3 The

’842 Patent is related to Provisional Application No. 60/263,518, filed January 24, 2001.

2 This case was initially assigned to Judge Lydia Griggsby, ECF No. 2, later transferred to Judge

Ryan Holte, ECF No. 12, and was most recently transferred to the undersigned on April 14, 2025.

ECF No. 169.

3According to the Financial Standards Accounting Board (“FASB”), the “XBRL (eXtensible

Business Reporting Language) is the open international standard for digital business reporting.

XBRL is used to deliver human-readable financial statements in a machine-readable, structured

data format. Preparers using [Generally Accepted Accounting Principles] for publicly traded

2

Judge Holte issued two claim construction orders: one on March 22, 2023, ECF No.

109, and the other on February 29, 2024, ECF No. 116. Fact discovery began on April 1,

2024, with an August 5, 2024, deadline for the parties to exchange final infringement and

invalidity contentions. ECF No. 118 at 3. After those contentions were timely exchanged,

e-Numerate, on August 12, 2024, moved for leave to file a third amended complaint. ECF

No. 122. After a status conference, ECF No. 140, the Court granted e-Numerate’s motion,

ECF No. 141, and e-Numerate filed its third amended complaint on December 6, 2024.

ECF No. 142. Since that time, the parties have been engaged in discovery.

II. THE GOVERNMENT’S MOTION TO AMEND ITS INVALIDITY CONTENTIONS

On August 28, 2025, the government moved to amend its invalidity contentions.

ECF No. 181. 4 In particular, the government seeks to supplement its contentions with an

earlier version of a prior art reference that the government already identified in its

invalidity contentions provided to e-Numerate on August 5, 2024. Id. at 1. The

government already provided e-Numerate with the XBRL 1.0 Specification (July 31,

2000), 5 and charted that reference, in view of U.S. Patent No. 7,028,312 (“Merrick”), to

Claim 29 of the ’842 Patent. Id. Thus, the government argues, Claim 29 of the ’842 Patent

is invalid as obvious in light of those two references, pursuant to 35 U.S.C. § 103.

companies are required not only to create financial statements, but also to assign an XBRL tag to

every number, table, accounting policy, statement, and note.” See

https://www.fasb.org/page/PageContent?pageId=/staticpages/what-is-

xbrl.html&isstaticpage=true.

4 To be clear, the invalidity contentions have not been filed with this Court except as an exhibit to

other filings (e.g., the motions at issue). Essentially, the government seeks leave to serve new

invalidity contentions on e-Numerate, after the August 5, 2024, deadline has passed.

5 According to FASB, “XBRL is an [Extensible Markup Language (“XML”)] standard, which is

maintained by XBRL International, a non-profit consortium of approximately 600 member

organizations, companies, and government agencies around the world. It is available free of

license fees and is being used in more than 50 countries.”

https://www.fasb.org/page/PageContent?pageId=/staticpages/what-is-

xbrl.html&isstaticpage=true. The XBRL specifications at issue in this motion are documents

created by XBRL.org that facilitate uniform expression of information in financial reporting across

all industry users who adopt it. See ECF No. 181-1. XBRL specifications are “technical

specifications” that “form the basis of all XBRL implementations. These specifications set out

how to create and test the ‘metadata’ parts of XBRL[.]” https://specifications.xbrl.org/.

3

The government has now located the XBRL 0.9 Specification, and wishes to rely

upon it as another basis for invalidity. The 0.9 Specification — which is the prior version

of the XBRL 1.0 Specification — has, by definition, an earlier publication date than the 1.0

Specification. ECF No. 181 at 2. The government also asserts that the 0.9 Specification

discloses additional substantive technical details not found in the 1.0 Specification; the

government argues that such disclosures provide additional bases for its invalidity

arguments. Id. at 12-15.

e-Numerate opposes the motion arguing that the government was not diligent in

attempting to locate the reference and that e-Numerate would be prejudiced by a new set

of invalidity contentions at this stage in the litigation. ECF No. 185.

A. Legal Standard

The Rules of the U.S. Court of Federal Claims (“RCFC”) allow the modification of

a court-imposed schedule only “for good cause shown and with the judge’s consent.”

RCFC 16(b)(4). Our appellate court, the United States Court of Appeals for the Federal

Circuit, has held that diligence and prejudice are the relevant considerations in the “good

cause” inquiry. See O2 Micro Int’l Ltd. v. Monolithic Power Sys., 467 F.3d 1355, 1366-68

(Fed. Cir. 2006); MorphoTrust USA, LLC v. United States, 132 Fed. Cl. 419, 420 (2017)

(applying O2 Micro to the question of whether defendant could supplement its invalidity

contentions after the deadline).

In the context of amendments to contentions, the movant must first demonstrate

that its failure to locate and provide the relevant material should be excused because it

acted diligently during discovery. O2 Micro, 467 at 1366-68; Demodulation, Inc. v. United

States, 126 Fed. Cl. 499, 507 (2016). Courts routinely split this diligence requirement into

two prongs: (1) diligence in discovering the basis for the amendment; and (2) diligence in

seeking amendment once the basis for amendment has been discovered. See e.g.,

Champion Power Equip. Inc. v. Firman Power Equip. Inc., 2025 WL 3187101, at *7 (D. Ariz.

Nov. 14, 2025); Digital Ally, Inc. v. Taser Int’l, Inc., 2018 WL 1138283, at *4 (D. Kan. Mar. 2,

2018); In re Papst Licensing GMBH & Co. KG Pat. Litig., 279 F. Supp. 3d 28, 33 (D.D.C. 2017);

Verinata Health, Inc. v. Ariosa Diagnostics, Inc., 236 F. Supp. 3d 1110, 1113 (N.D. Cal. 2017).

To determine diligence in discovering the basis for the amendment this Court considers

whether there were “additional or unexpected results of discovery, along with the

possibility of unanticipated construction of claim terms according to the court’s claim

construction order.” Cellcast Tech., LLC v. United States, 2019 WL 5959571, at *5 (Fed. Cl.

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Oct. 30, 2019) (citing MorphoTrust, 132 Fed. Cl. at 421). Other courts also consider: “[t]he

reason for the delay, including whether it was within the reasonable control of the

movant.” Allure Energy, Inc. v. Nest Labs, Inc., 84 F. Supp. 3d 538, 541 (E.D. Tex. 2015)

(citing Computer Acceleration Corp. v. Microsoft Corp., 481 F. Supp. 2d 620, 625 (E.D. Tex.

2007)).

If the movant successfully demonstrates diligence, this Court then analyzes what,

if any, prejudice the non-moving party would suffer if the motion were granted. See

ACME Worldwide Enter., Inc. v. United States, 179 Fed. Cl. 303, 307 (2025). In assessing

prejudice, this Court considers several factors, including but not limited to, “whether the

non-moving party has been ‘genuinely surprised or harmed,’ whether discovery would

be reopened, ‘the effect of amendments on the construction of claim terms,’ and whether

experts have ‘staked out comprehensive positions with respect to claim construction.’”

Return Mail Inc. v. United States, 152 Fed. Cl. 455, 459 (2021) (quoting and citing cases,

including Kruse Tech. P’ship v. Volkswagen AG, 544 F. App’x 943, 953–54 (Fed. Cir. 2013);

Hitkansut LLC v. United States, 127 Fed. Cl. 101, 109 (2016); Cellcast Tech., 2019 WL 5959571,

at *5; and MorphoTrust, 132 Fed. Cl. at 421).

There are other sensible factors that courts have considered when determining if

good cause exists for leave to amend, including: “[t]he length of the delay and its impact

on judicial proceedings;” and “[t]he importance of the particular matter,” — or if the

amendment sought is “vital to the case[.]” Allure Energy, 84 F. Supp. 3d at 541. Finally,

courts also consider whether the amendment sought is “motivated by gamesmanship”

and whether “there is sufficient time left in the discovery period to allow for discovery

necessitated by the amendments.” Power Probe Grp. Inc. v. Innova Elect. Corp., 2021 WL

5280651, at *2 (D. Nev. Nov. 12, 2021); see also Eisai R&D Manag. Co. Ltd. v. Shilpa Medicare

Ltd., 656 F. Supp. 3d 515, 525 (D.N.J. 2023); Zardo Prod., Inc. v. Feit Elec. Co., 2020 WL

7380465, at *5-6 (C.D. Cal. Sept. 30, 2020); Digital Ally, 2018 WL 1138283, at *3.

B. The Government Was Diligent in Locating the XBRL 0.9 Specification

and Moving to Amend Its Invalidity Contentions

This Court agrees with the government that it was diligent in attempting to locate

the XBRL 0.9 Specification. First, the government began its search for this newly located

reference in October 2023 — even before fact discovery opened — when the government

asked the authors of the 0.9 Specification for any pre-1.0 versions of the XBRL

Specification. See ECF Nos. 181 at 17-18; 181-10. After this request failed to turn up any

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early versions of the XBRL Specification, the government turned to the CEO of XBRL

International, Inc., who likewise could not locate any extant copies of pre-1.0

Specifications. See ECF Nos. 181 at 18; 181-11. Finally, the government asserts that it

conducted extensive online research, including through the “Wayback Machine,” 6 all to

no avail. ECF No. 181 at 18. Until, of course, sometime in May 2025 when the government

managed to find the 0.9 Specification in an “archival capture of a website that hosted the

XBRL 0.9 Specification using the Wayback Machine.” Id. While this is hardly the all-

hands-on-deck hunt for evidence that one might expect from a party hoping to locate its

coup de grace, the government’s overall efforts to timely locate the 0.9 Specification —

while not maximal — were nevertheless sufficiently reasonable.

A party need not exhaust every possible discovery avenue to be considered

diligent. In re Papst Licensing GMBH & Co. KG Patent Litigation, 279 F. Supp. 3d 28, 35

(D.D.C. 2017) (“[A] showing of diligence does not require a showing of ‘perfect[ion].’”

(quoting Fujifilm Corp. v. Motorola Mobility LLC, 2014 WL 491745, at *4 (N.D. Cal. Feb. 5,

2014))). And that is especially true where, as here, the material or information in question

is hidden in peculiar ways. The 0.9 Specification was unavailable in physical form and

could not be located with a standard online search or by XBRL International’s own CEO.

This Court, and courts across the nation, have routinely found parties diligent where the

references in question could not be located via traditional methods of research or

discovery. See Cellcast Tech., 2019 WL 5959571, at *5-7 (finding the government diligent

in discovering documents that “were not stored in a readily searchable format”); see also

Kroy IP Holdings, LLC v. AutoZone, Inc., 2014 WL 7463099, at *5 (E.D. Tex. Dec. 30, 2014)

(Bryson, J.); Prism Tech., LLC v. AT&T Mobility, LLC, 2014 WL 656794, at *1-2 (D. Neb. Feb.

19, 2014); Yodlee, Inc. v. CashEdge, Inc., 2007 WL 1454259, at *2 (N.D. Cal. May 17, 2007).

Relatedly, the government was meticulous in searching for prior art generally and

in preparing its invalidity contentions. The preliminary contentions were thousands of

pages long consisting of sixty-five claim charts using thirty-five prior art references. ECF

No. 181 at 17-18. This further demonstrates that the government’s failure to locate the 0.9

Specification was not due to indifference, or worse, a self-induced torpor, but rather was

due to the unusually obscure location of the reference. Karl Storz Endoscopy-Am., Inc. v.

6 The Wayback Machine is an initiative of the Internet Archive, a 501(c)(3) non-profit, focused on

building a digital library of Internet sites and other cultural artifacts in digital form. The Internet

Archive’s Wayback Machine is a digital archive of the World Wide Web, which allows users to

view captures of past versions of websites as they existed on specific dates in the past, even if

those websites no longer exist on the live web. See https://web.archive.org/.

6

Stryker Crop., 2016 WL 2855260, at *5 (N.D. Cal. May 13, 2016) (“[Defendant’s] initial

invalidity contentions themselves belie a finding that its search was not diligent: they

included over 500 prior art references among the 31 claim charts and 400 additional pages

of analysis addressing [plaintiff’s] claims.”); Illumina Inc. v. BGI Genomics Co., Ltd., 2021

WL 1022865, at *3–*5 (N.D. Cal. Mar. 17, 2021) (finding that defendant’s thorough and

comprehensive invalidity contentions — charting twenty-nine different prior art

references and including thousands of pages of analysis — was considerable evidence

that defendant was diligent).

And although e-Numerate itself was able to locate an online version quickly, ECF

No. 185 at 6-7, one party’s unique ability to probe the bowels of the internet does not

necessarily demonstrate a lack of diligence of those less attune to the gastrointestinal

workings of the online universe. Besides, the relevant question is not whether it was

technically possible to discover the information earlier but whether the party seeking to

update its contentions was reasonably diligent in attempting to find the information at

issue. When viewing all the government’s uncontested research efforts, this Court finds

that the government exercised sufficient diligence in attempting to locate the XBRL 0.9

Specification.

The government was also diligent in moving for the amendment once it located

the XBRL 0.9 Specification and recognized its importance to the case. The government

managed to find the 0.9 Specification sometime in May 2025 and within a month had

verified it, updated its claim charts, and produced the reference and those charts to e-

Numerate. ECF No. 181 at 14; ECF No. 181-6. And only a short time later, on July 18,

2025, the government met and conferred with e-Numerate, in an effort to avoid filing a

motion with this Court. The government’s quick turnaround once it found the 0.9

Specification — especially given the fully charted reference provided to e-Numerate — is

more than enough to demonstrate the requisite diligence.

C. Amending the Invalidity Contentions Would Not Prejudice

e-Numerate

Turning to the prejudice prong, e-Numerate’s only complaint seems to be that it

reduced its number of asserted claims in reliance upon the government’s previous

invalidity theories the government now seeks to update. ECF No. 185 at 8. But e-

Numerate’s assertion, standing alone, is a non-sequitur; e-Numerate does not suggest

what it would have done differently had the government provided the XBRL 0.9

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Specification to e-Numerate sooner. Id. To demonstrate prejudice, e-Numerate would

need to show a nexus between the amendment sought and the harm inflicted. See Glaukos

Corp. v. Ivantis, Inc., 2019 WL 8348322, at *5 (C.D. Cal. May 20, 2019) (finding no prejudice

because plaintiff only generally complained that “the overall strategy and dynamics of

the case will be altered,” but could not “point to wasted discovery efforts, delays in the

case schedule, a need to alter its own substantive positions, or any other specific examples

of prejudice”). In other words, e-Numerate must demonstrate that its narrowing of its

asserted claims would have differed had the 0.9 Specification been part of the

government’s original invalidity contentions. e-Numerate has not done that, nor can it

even point to one claim that it would have switched in or out, had e-Numerate been made

aware of the new prior art reference earlier in this case. Indeed, during oral argument,

this Court pressed counsel for e-Numerate on this point but e-Numerate was unable to

identify a single claim — dropped or asserted — that it would have kept or jettisoned.

See Tr. at 10:3-10.

There can be no prejudice without an assertion of actual or even possible harm.

Considering that discovery is still ongoing, that e-Numerate could not have been

surprised because it knew that the government was searching for earlier versions of the

1.0 Specification, and that the new invalidity contentions have no bearing on claim

construction terms or arguments, this Court finds that e-Numerate will not be prejudiced

by permitting the government to update its invalidity contentions to include the XBRL

0.9 Specification. See Kinglite Holdings Inc. v. Micro-Star Int’l Co., 2015 WL 6437836, at *4

(C.D. Cal. Oct. 16, 2015) (“[R]eceipt of the proposed amended contentions two months

prior to the fact discovery cut-off provided [plaintiffs] with ample time to react.” (internal

quotations omitted)); Glaukos, 2019 WL 8348322, at *5 (allowing amendments because

they “essentially expand on existing contentions”).

In fact, if prejudice exists here, the government is the party that would be most

significantly burdened were it not permitted to amend its contentions. Recall that this

Court previously allowed e-Numerate to amend its complaint after final invalidity

contentions were due and exchanged. ECF No. 141. And, indeed, in discussing the

proposed third amended complaint during the status conference, ECF No. 144, the

government voiced the concern that it might need to “reevaluate [its] invalidity positions

and [its] invalidity contentions” if new allegations of infringement were raised. Id. at

23:1-10; see also id. at 24:5-8; 89:15-20; 91:6-11. While the government does not assert that

e-Numerate’s infringement position has changed such that the 0.9 Specification was once

irrelevant but has now gained importance, fairness nevertheless dictates that if one party

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gets an extra substantive bite at the apple, the opposing party should as well. Put

differently, e-Numerate cannot complain about the government’s new position, when e-

Numerate itself was permitted to change its theory of the case via the filing of a new

complaint.

The remaining factors likewise favor the government. First, as to the length of the

delay and its potential impact on judicial proceedings, this Court notes that fact discovery

is still ongoing and expert discovery has not yet begun. Thus, the government’s request

to amend the intermediate discovery deadline to exchange contentions would hardly

impact judicial proceedings at all; at worst, granting the government’s motion would

only slightly impact the current discovery schedule. This factor weighs in favor of the

government.

Second, turning to the importance of the amendment to the movant, the XBRL 0.9

Specification is potentially vital to the government’s case. Most obviously, the XBRL 1.0

Specification, published on July 31, 2000, cannot be used to invalidate the ’748 Patent

because the ’748 Patent has an effective priority date of, at the latest, May 18, 2000. The

0.9 Specification, however, was published on April 4, 2000, which means it can potentially

be used to invalidate the ’748 Patent. 7 Additionally, the government points to the fact

that the 1.0 Specification was charted in combination with another reference, while the

0.9 Specification requires no other secondary reference to invalidate the relevant patents

because it contains substantive disclosures not found in later versions. See ECF No. 181

at 13-14 (explaining that the 0.9 Specification, as opposed to the 1.0 Specification, contains,

inter alia, a “definition of the ‘rollup’ element” and “also includes a discussion of an

auditing application” that improves the invalidity argument with respect to the

“validation of a calculation involving data values” element in, for instance, the ’842

7 As mentioned above, the ’748 Patent — along with each of the rest of the ’355 Patent family —

provides, on the face of the patent, that it is related to Provisional Applications No. 60/183,152,

filed on February 17, 2000, and No. 60/135,525, filed on May 21, 1999. The government asserted

that the 0.9 Specification, with its April 4, 2000, publication date, could effectively be used to

invalidate the ’748 Patent. ECF No. 181 at 13. e-Numerate did not dispute this in its response

brief, but this Court is left uncertain as to precisely how the 0.9 Specification anticipates patents

related to the earlier-filed provisional applications. e-Numerate’s failure to raise this argument

during this discovery dispute — assuming this Court is correct in comparing dates — does not

constitute a permanent waiver. If and when the government asserts invalidity based on the 0.9

Specification, e-Numerate is not precluded from arguing that the ’748 Patent specifically — and

the ’355 Patent family, generally — may indeed claim priority to the related provisional

applications.

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Patent); see also ECF No. 181-6 at 11-16 (claim chart comparing the 0.9 Specification against

the ’842 Patent). This factor also weighs in the government’s favor.

Finally, e-Numerate does not accuse the government of acting in bad faith or of

somehow engaging in gamesmanship. The government may have been less proficient

than e-Numerate at locating hard-to-find documents on the internet. But that charge does

not dissuade this Court from finding that good cause exists to grant the government’s

motion for leave to revise its invalidity contentions.

Accordingly, the government’s motion for leave to amend its invalidity

contentions is GRANTED. This Court is not unsympathetic, however, to e-Numerate’s

position. If e-Numerate determines that the government’s disclosure of the XBRL 0.9

Specification (as a basis for an invalidity argument) requires e-Numerate to swap in

previously dropped patent claims, e-Numerate shall file an appropriate motion.

Unfortunately, that comes with a risk that the government will then want to reassess the

newly asserted claims and be forced to file various discovery motions in response. At

some point, this Court will call an end to the amendment ping-pong and each party will

have to live with what is on file or has been exchanged.

III. THE GOVERNMENT’S MOTION TO PRECLUDE E-NUMERATE’S PARTY

REPRESENTATIVE AND POTENTIAL TECHNICAL CONSULTANT FROM

ACCESSING COMPETITION SENSITIVE AND PROPRIETARY INFORMATION

On February 27, 2025, the government filed a motion to preclude Mr. Russell Davis

— e-Numerate’s cofounder, chief technology officer, named inventor of the asserted

patents, and proposed technical consultant — from accessing certain putatively

confidential documents. ECF No. 158. This Court held oral arguments on the

government’s motion, ECF No. 175, and issued an order denying the government’s

motion without prejudice because, at that point, it had failed to demonstrate how “the

information e-Numerate seeks to share with [Mr. Davis] would cause the government

concrete harm.” ECF No. 178 at 6. But the Court “h[e]ld off rendering a final decision as

to whether Mr. Davis should be precluded from accessing the Confidential Discovery

Information” until after the government took Mr. Davis’s deposition. Id. The Court

instructed that the government could then “refile any objection to Mr. Davis’s accessing

the Confidential Discovery Information.” Id. And, indeed, on September 2, 2025,

following Mr. Davis’s deposition, the government once again moved to preclude him

from accessing certain information, albeit with some significant differences from the

earlier motion. ECF No. 183. Rather than the broad effort to bar Mr. Davis from accessing

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the entirety of the government’s production, the government now seeks to protect only a

small portion of it. Id. at 5-6.

A. Legal Standard

In general, this Court may, for good cause, “issue an order to protect a party or

person from annoyance, embarrassment, oppression, or undue burden or expense,

including . . . requiring that a trade secret or other confidential research, development, or

commercial information not be revealed or be revealed only in a specified way.” RCFC

26(c)(1)(G). This Court has followed the United States Supreme Court’s instruction that

while “there is no absolute privilege for trade secrets and similar confidential

information,” a court should typically issue a protective order to shield a producing party

from competitive harm. Hitkansut LLC v. United States, 111 Fed. Cl. 228, 237 (2013)

(quoting Fed. Open Mkt. Comm. of Fed. Rsrv. Sys. v. Merrill, 443 U.S. 340, 362 (1979)). Before

this Court issues a protective order, however, “[t]he party resisting discovery must first

establish that the information sought is a trade secret or other confidential information

under [RCFC 26(c)(1)] and demonstrate that its disclosure might be harmful.” Hitkansut,

111 Fed. Cl. at 238. Once the opposing party has made such a showing, “the burden then

shifts to the party seeking discovery to establish that the disclosure of trade secrets or

other confidential information is relevant and necessary to the action.” Id. Ultimately,

“[t]he court must balance the need for the trade secrets or other confidential information

against the claim of injury resulting from disclosure.” Id.

B. The Putatively Confidential Information at Issue

There are two buckets of possibly confidential materials at issue. First, there is a

group of documents that, according to the government, contain confidential financial

information, including third-party contracting and pricing information related to the

development and maintenance of the accused systems. The government argues that

access to this information would give Mr. Davis — who leads procurement efforts for

another company — a competitive advantage when pursuing government contracts in

the future. ECF No. 183 at 5-7.

The second group of materials at issue relates to technical information associated

with the accused systems, including source code. ECF No. 183 at 7-8. The government

does not dispute that Mr. Davis — as a named inventor of the asserted patents and a

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technical expert — is well situated to determine e-Numerate’s infringement positions. 8

Thus, the government does not oppose Mr. Davis viewing this second group of material

per se, but instead argues that he must submit to a one-year patent prosecution bar related

to the technology at issue in this case. If Mr. Davis were to agree to such a bar, or if this

Court were to order one, this case can proceed with Mr. Davis’s accessing the source code

in question. The patent prosecution bar would ostensibly preclude Mr. Davis from

profiting (at least before the United States Patent and Trademark Office (“PTO”)) from

any technical insight gained by having viewed the government’s proprietary, and

arguably novel, source code.

After the government’s motion was briefed, the parties agreed to allow Mr. Davis

to begin viewing the source code after he signed an interim patent prosecution bar. See

Tr. at 19:16 — 20:19. The parties agreed that this Court’s resolution of the motion would

either dissolve the interim prosecution bar or convert it into a permanent one. Id. 9

1. The Financial and Competition-Sensitive Information

The government’s motion seeks to preclude Mr. Davis from accessing confidential

business materials including third-party contracting and pricing information. ECF No.

183 at 5. According to the government, access to this information would provide

prospective bidders on government contracts insight into how potential competitors

approach the contracting process, including how they price specific line-items. Id. And

because Mr. Davis “leads procurement efforts” in his current position as a member of the

“executive” and “leadership” teams at his current firm, Econometrica, access to this

sensitive information would give Mr. Davis an improper advantage against his

competitors. Id. The government thus proposes to review the material it has already

produced and redesignate any documents that fall under this business information

category as “HIGHLY CONFIDENTIAL — COMPETITION SENSITIVE.” ECF No. 183-

8 Although this Court refers to Mr. Davis as a “technical expert,” we do so colloquially in the

sense that Mr. Davis — as inventor of the asserted patents — is proficient in the scientific area

related to data entry technology and particularly the source code associated with that technology.

This Court does not intend to suggest, however — particularly not at this juncture — that

Mr. Davis will serve (or be admitted) as e-Numerate’s actual testifying expert in this case. Indeed,

this Court asked e-Numerate’s counsel during oral argument whether e-Numerate would seek to

qualify Mr. Davis as an expert in this case at trial, and counsel responded that a different expert

would testify. See Tr. at 21:1-23.

9 At oral argument, this Court and the parties referenced an email to the undersigned’s law clerk.

The email — which is not in the record — attached a copy of the interim patent prosecution bar.

12

1 at 5. Mr. Davis could then have access to the entirety of the production except the

supposedly few documents that would be so designated. ECF No. 183 at 2-3.

This Court has recognized that “competitive harm may result when the person

accessing the proprietary information is involved in competitive decision-making.” Ross-

Hime Designs, Inc. v. United States, 109 Fed. Cl. 725, 731 (2013) (citing U.S. Steel Corp. v.

United States, 730 F.2d 1465, 1468 (Fed. Cir. 1984)). In U.S. Steel, the Federal Circuit

defined “competitive decision-making” as “advice and participation in any or all of [a

business’s] decisions (pricing, product design, etc.) made in light of similar or

corresponding information about a competitor.” 730 F.2d at 1468 n.3. There is no real

dispute here that Mr. Davis is involved in competitive decision-making for Econometrica

and that genuinely sensitive material might provide him an unfair advantage in the realm

of government contracting. This Court must therefore assess: (1) whether there is likely

any sensitive material to which Mr. Davis would have access; (2) what competitive harm

the material might pose to future contracting processes; and (3) whether e-Numerate may

nevertheless show that there is a need for Mr. Davis to access it.

Addressing the last question first, e-Numerate touts Mr. Davis as a “super

qualified” technical expert because he is “the most knowledgeable” person with respect

to “code [that] is very confusing[.]” Tr. at 21:7-17. But e-Numerate admits that Mr. Davis

will not be asked to provide testimony about damages, should we get that far. See Tr. at

28:2-8 (“The Court: What does he need this information for now? He’s not a damages

expert. . . . e-Numerate’s Counsel: No. Right. So, okay, he does — he doesn’t

necessarily[.]”). Accordingly, this Court has a difficult time imagining how or why

Mr. Davis’s accessing business information could be necessary (or even helpful) to e-

Numerate’s case. And, indeed, e-Numerate does not suggest in its response brief that

there is any need — pressing or otherwise — for Mr. Davis to access this material. See

ECF No. 186 at 4-6.

Instead, e-Numerate dedicates its brief to arguing that the government has not

shown how it would be harmed. ECF No. 186. e-Numerate presents three primary

arguments in support of its position. e-Numerate argues that, just as was the case with

respect to the government’s earlier motion that this Court denied, the government once

again can point only to speculative harm, but cannot show evidence of concrete harm. Id.

at 5. e-Numerate further complains that the contract and pricing information at issue is

many years old and stale; hence, no competitive advantage could be gained by accessing

it. Id.; see also Tr. at 30:14 — 31:6. Finally, e-Numerate asserts that multiple government

13

agencies have deemed Mr. Davis trustworthy on previous occasions, so the government

cannot now be concerned that he will misuse any proprietary information illicitly

obtained. ECF No. 186 at 5.

This Court rejects all three of e-Numerate’s arguments.

First, e-Numerate misunderstands the moving party’s burden when seeking a

protective order. Protective orders, as a rule, are prophylactic enterprises. See Ross-Hime

Designs, 109 Fed. Cl. at 731. A party must only show that access to its proprietary

information might cause actual harm, and a court then weighs the possibility and severity

of such harm against the need of the opposing party to access the offending material. In

re Violation of Rule 28(D), 635 F.3d 1352, 1357 (Fed. Cir. 2011) (“[T]he courts have not given

trade secrets automatic and complete immunity against disclosure, but have in each

case weighed their claim to privacy against the need for disclosure . . . .” (quoting Fed. R.

Civ. P. 26(c) advisory committee’s note to 1970 amendment)); Brown Bag Software v.

Symantec Corp., 960 F.2d 1465, 1470 (9th Cir. 1992) (“[W]e must balance the risk to

[defendant] of inadvertent disclosure of trade secrets to competitors against the risk to

[plaintiff] that protection of [defendant’s] trade secrets impaired prosecution of

[plaintiff’s] claims.”).

In this case, the government is correct that line-item pricing on government

contracts is information that can be used to gain an advantage against competing

government contractors. PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 520, n* (2010)

(“[T]echnical or other details from the parties’ proposals — such as contract line-

item pricing — clearly constitute competition-sensitive information, the disclosure of

which would allow a party’s competitors to gain an unfair advantage in future

competitions.”). That is why this sort of detailed information is almost never public and

almost always subject to strict protective orders designed to prevent decision-makers

from accessing this sort of proprietary information. See id.; see also Albertson’s LLC v.

Amazon Retail LLC, 2024 WL 5657657, at *5 (W.D. Wash. Jan. 5, 2024) (requiring party to

produce itemization of completed construction work with “redact[ed] line-item

pricing”).

As opposed to the government’s earlier motion that sought to preclude Mr. Davis

from reviewing the entirety of the government’s document production, the government

now targets only a subset of documents and has provided sufficient evidence that those

documents contain competition-sensitive information such that access should be

14

restricted. In sum, this Court concludes that the government has satisfied its initial

burden to demonstrate the potential harm if the competition-sensitive information in

question is left unprotected.

Second, while some of the documents and contracts the government points to as

competition sensitive are older, other documents that were produced are more recent. See

Tr. at 33:11-19. In fact, some of the contracts are still being performed. Id. Armed with

all the current and recent contracts from dozens of agencies contained in the production,

there is little question that Mr. Davis may obtain a competitive advantage over other

potential bidders were he to have access to the non-public information that is the subject

of the government’s motion.

That said, this Court makes clear that it is not operating under any assumptions

regarding Mr. Davis’s ethics generally or about his likelihood to abuse any proprietary

information. Other agencies may acknowledge that Mr. Davis is the most trustworthy

and upstanding contractor with whom the government does business. But, as Judge

Lettow observed in Hitkanust, even if this Court accepted that Mr. Davis “would make a

conscious and sustained effort to comply with the terms of the protective order, the

fallibility of the human brain is paramount. It is simply impossible for a human being to

segregate or ‘unlearn,’ certain pieces of knowledge.” 111 Fed. Cl. at 239; see also In re

Deutsche Bank Trust Co Americas, 605 F.3d 1373, 1378 (Fed. Cir. 2010) (“[E]ven the most

rigorous efforts . . . to preserve confidentiality” may fail because “‘it is very difficult for

the human mind to compartmentalize and selectively suppress information once learned,

no matter how well-intentioned the effort may be to do so.’” (quoting FTC v. Exxon Corp.,

636 F.2d 1336, 1350 (D.C. Cir. 1980))). Thus, any security clearances or access to

information the government may have previously provided to Mr. Davis are irrelevant;

access to the competition-sensitive information in this case may well furnish Mr. Davis

with knowledge that the Court cannot expect him to magically segregate and protect in

his brain.

Accordingly, because the government has made a credible showing that the

information it seeks to protect is competition-sensitive and that there is a significant

chance of harm if accessed by Mr. Davis — and because e-Numerate cannot show that it

is necessary for Mr. Davis to have access to that information — the government’s motion

to preclude access and to amend the protective order is GRANTED. Within twenty-one

days of the issuance of this order, the government shall redesignate selected documents,

maintaining the same Bates number as in the original production, as HIGHLY

15

CONFIDENTIAL — COMPETITION SENSEITIVE. Mr. Davis shall have access to all

material not designated with the additional COMPETITION SENSITIVE label.

Thereafter, as discussed with the parties during oral argument, e-Numerate will

have an opportunity to move for access to any documents it believes are erroneously

designated. See Tr. at 37:16-21. If e-Numerate prevails on any such motion to compel,

this Court will be inclined to award e-Numerate costs and attorney’s fees associated with

the motion, consistent with RCFC 37(b). See id. at 37:22 — 38:19 (this Court’s warning the

government about the likely consequences of over-protecting documents). This approach

will hopefully provide reasonable incentives for all parties to act in good faith; the

government can — as it should — protect the competitive procurement process of future

government contracting, while e-Numerate should be able to access the necessary

documents for its case. 10

2. The Source Code and Patent Prosecution Bar

The second tranche of material relevant to this motion is documents of a technical

nature, primarily the source code that government agencies allegedly employ in

infringing e-Numerate’s patents. With regard to this material, the government proposes

that Mr. Davis submit to a one-year patent prosecution bar — covering the subject matter

of the accused systems — in lieu of the government’s seeking to completely deny

Mr. Davis all access to the code at issue. ECF No. 183 at 7-8.

In general, a patent prosecution bar becomes necessary when a decision-maker

requires access to proprietary information in a pending case but could use the

information to later gain an unfair advantage before the PTO. See In re Deutsche Bank, 605

F.3d at 1381 (holding that a patent prosecution bar may be appropriate where a standard

protective order cannot sufficiently protect against the “risk presented by the disclosure

of proprietary competitive information”); see also Ross-Hime Designs, 109 Fed. Cl. at 741-

10 At oral argument, e-Numerate voiced a separate concern: that various swaths of documents

that are not business-related — to which Mr. Davis should have access — would be erroneously

redesignated, which would precipitate yet further discovery disputes. See Tr. at 34:11 — 35:12.

This argument, while not frivolous, is not properly weighed under the applicable standard of

review. It is not relevant to the harm incurred by the divulgence of proprietary information nor

is it relevant to the ability of the party seeking discovery to effectively prosecute its case. It is

merely a concern that granting the motion will lead to unwarranted delays and additional

discovery-related motions. This Court is sympathetic to this concern. This Court hopes that its

approach to resolving the pending motion will avoid the consequences that e-Numerate fears.

16

43. In the patent context, this most often arises when a litigating lawyer also assists clients

in patent prosecution. In re Deutsche Bank, 605 F.3d at 1378-81. But imposing a

prosecution bar on inventor-presidents — like Mr. Davis — is not a foreign concept to

this Court. See Ross-Hime Designs, 109 Fed. Cl. at 741-45; Standard Space Platforms Corp. v.

United States, 35 Fed. Cl. 505, 508-09 (1996). As this Court discussed at length in Ross-

Hime Designs, the same logic that applies to patent attorneys — proprietary competitive

information in their hands can be used before the PTO later — applies equally to an

inventor-president. 109 Fed. Cl. at 741-45 (finding that disclosing proprietary

information to a company president who was “actively involved in pursuing patents”

posed a “risk that [the president] may inadvertently misuse confidential information”

and ultimately precluding the company president’s access to the confidential

information); see also Standard Space Platforms, 35 Fed. Cl. at 508-09.

As a threshold matter, a court imposing a patent prosecution bar must be satisfied

that the kind of information in question “is relevant to the preparation and prosecution

of patent applications before the PTO.” In re Deutsche Bank, 605 F.3d at 1381. Then, the

“party seeking imposition of a patent prosecution bar must show that the information

designated to trigger the bar, the scope of activities prohibited by the bar, the duration of

the bar, and the subject matter covered by the bar reasonably reflect the risk presented by

the disclosure of proprietary competitive information.” Id. This Court then balances the

risk the movant identifies against the potential “harm in barring the [non-movant’s]

company’s officer from full participation in the litigation.” Ross-Hime Designs, 109 Fed.

Cl. at 743. “In balancing these conflicting interests[,] the [trial] court has broad discretion

to determine what degree of protection is required.” Deutsche Bank, 605 F.3d at 1380.

The source code at issue in this motion is an integral component in the creation

and implementation of the patented technology. Indeed, for software patents, the source

code — while not itself patentable pursuant to 35 U.S.C. § 101 — is the blueprint that

outlines how the patent is enabled and practiced. See Thales Visionix, Inc. v. United States,

149 Fed. Cl. 38, 48 (2020) (discussing the importance of source code to infringement claims

involving software patents). This case is no different. The proprietary government

source code can potentially be used, for instance, to improve “numerical analysis

routines,” ’355 Patent at Abstract, and to more “efficiently manipulate, analyze, and

transmit [XBRL] reports.” ’842 Patent at Abstract. This Court therefore finds that the

source code at issue easily bypasses the threshold barrier of patent prosecution relevancy.

17

The government credibly argues that a one-year patent prosecution bar, covering

only the relevant technology, is a reasonable prerequisite restriction for Mr. Davis to

obtain access to the source code. e-Numerate itself asserts that Mr. Davis is an expert in

data entry and validation technology and proficient in the “very confusing” source code

at issue — code that is understood by few others. Tr. at 21:7-17. Accordingly, e-Numerate

does not and cannot dispute the real possibility that Mr. Davis’s access to proprietary

source code may be used advantageously before the PTO. Instead, e-Numerate insists

that Mr. Davis has no currently pending patent applications and that his current role at

Econometrica does not consist of system development. ECF No. 186 at 7-8. But this does

not preclude the potential for Mr. Davis to misuse any government source code to which

he is permitted access. If anything, e-Numerate’s assertion militates against the notion

that a one-year patent prosecution bar would cause e-Numerate any harm. In other

words, taking e-Numerate at its word, the fact that Mr. Davis has no patents pending, or

in development, suggests that a one-year prosecution bar would be harmless. At oral

argument, this Court repeatedly questioned counsel for e-Numerate on the issue, but he

could not describe how Mr. Davis could possibly be impaired by the imposition of the

bar. See Tr. at 23:14 — 24:16 (“The Court: . . . I just asked you what the harm is and you

said, in effect, [‘]none[‘] . . . [so] I don’t really understand. What are you giving away? [e-

Numerate’s Counsel]: Just a restriction on him at some point in the future, but there — I

agree, Your Honor.”).

Because Mr. Davis could use the government’s proprietary source code to his

advantage in proceedings before the PTO and because Mr. Davis will not incur any harm

due to a one-year patent prosecution bar, this Court GRANTS the government’s motion,

effectively converting the interim patent prosecution bar that the parties already executed

into a one-year bar supplementing the existing protective order.

IV. E-NUMERATE’S MOTION TO COMPEL

On September 25, 2025, e-Numerate moved to compel responses from the

government to seven interrogatories that e-Numerate argues the government had either

refused to answer entirely or to which the government had provided incomplete

responses. ECF No. 188. The government then supplemented some of its interrogatory

responses and thus argued, in its response brief, that e-Numerate’s motion had been

rendered moot. ECF No. 196 at 1. e-Numerate filed its reply brief on November 14, 2025,

maintaining that its motion was not moot for all but one of the seven interrogatories at

issue. ECF No. 204.

18

The six disputed interrogatories are split into three distinct subgroups.

Interrogatories Nos. 1-3 deal with the agency systems and components that validate

XBRL filings. ECF No. 188 at 6-9. Interrogatory No. 4 asks the government to identify

systems and components that transform numerical values in XBRL filings. Id. at 9-10.

And Interrogatories No. 5 and No. 6 ask the government, respectively, to describe the

factual and legal bases for each of its affirmative defenses and to provide claim charts

that articulate the government’s noninfringement positions. Id. at 10-11. This Court

addresses each subgroup in turn.

A. Interrogatories Nos. 1-3

Interrogatory No. 1 asks the government to identify all systems from all accused

agencies that validate XBRL filings. ECF No. 188 at 6. Interrogatories No. 2 and No. 3

build on this request and, respectively, ask the government to identify the documents

(presumably within the requested production) and the sections of source code that

perform various aspects of the validation of the XBRL filings. Id. at 7-9.

e-Numerate’s asserts in its motion to compel that, in response to Interrogatory

No. 1, the government failed to respond as to FDIC/FFIEC. ECF No. 188 at 6. For

Interrogatories No. 2 and No. 3, e-Numerate accused the government of only providing

responses regarding the SEC but not as to all the other agencies accused of infringement.

Id. at 7-9. Following e-Numerate’s motion, the government supplemented its answer to

Interrogatory No. 1 as to the FDIC/FFIEC, and its answers to Interrogatories No. 2 and

No. 3 as to all the remaining agencies except for USDOT/OMB. 11 ECF No. 196 at 5-7. In

opposing the motion to compel, the government asserts that there is a valid reason for its

supposed omission. Id. The government maintains — as it has since it provided its initial

interrogatory responses to e-Numerate on June 28, 2024, ECF No. 205-1 at 8 — that

USDOT and OMB do not receive XBRL filings. ECF No. 196 at 5-7. Rather, the filings

that e-Numerate identified at some point as potentially infringing were comma-

11 The Court does not understand why these two agencies are grouped in this way. Indeed, at

oral argument the Court inquired as to “why do[es e-Numerate] link the two, by the way? Those

are two separate agencies. One is a cabinet agency, and OMB sits in the Executive Office of the

President.” Tr. at 41:12-15. e-Numerate responded that it was unsure but offered that after

scheduled depositions it would hopefully become clear at which of these two agencies XBRL files

are validated. Id. at 41:16 — 42:5. For now at least, the Court will proceed, as both parties have,

assuming that either Treasury or OMB is responsible for some data processing validation that

might give rise to possible patent infringement claims.

19

separated-values (“CSV”) files that, in the government’s view, were not responsive to e-

Numerate’s interrogatories. 12 Id. Therefore, the government argues its responses to these

three interrogatories were complete, rendering e-Numerate’s motion moot (at least as to

these interrogatories). Id.

e-Numerate disputes that the government has sufficiently supplemented its

responses and, instead, asserts that the motion remains ripe for this Court’s resolution.

ECF No. 204 at 4-5. Specifically, e-Numerate posits, for the first time in its reply brief, that

the government’s answer to Interrogatory No. 1 was deficient because it failed to include

information from USDOT/OMB. Id. e-Numerate contends that USDOT/OMB’s use of

CSV filings may constitute infringement under the doctrine of equivalents and that the

government cannot avoid responding based on a noninfringement defense. Id.

Regarding Interrogatories No. 2 and No. 3, e-Numerate presses substantially the same

complaint: that the government must provide responses as to USDOT/OMB because

CSV files might infringe pursuant to the doctrine of equivalents. Id.

e-Numerate’s position is puzzling, at the very least. First, e-Numerate’s initial

motion sought to compel a supplementary response to Interrogatory No. 1 solely about

“the FDIC/FFIEC.” ECF No. 188 at 6. Then, once the government supplied that very

information, e-Numerate attempts a bait-and-switch, seeking, for the first time in its reply

brief, information from USDOT/OMB. Of course, a party cannot, in its reply brief, move

to compel information not requested in its opening motion. Novosteel SA v. United States,

284 F.3d 1261, 1274 (Fed. Cir. 2002) (“Raising the issue for the first time in a reply brief

does not suffice; reply briefs reply to arguments made in the response brief — they do

not provide the moving party with a new opportunity to present yet another issue for the

court’s consideration.”). When confronted with this very problem at oral argument, e-

Numerate attempted to gloss over this issue because e-Numerate had taken the

government’s initial interrogatory response — that there was nothing to produce from

USDOT/OMB because it did not validate any XBRL files — “at face value.” Tr. at 40:19.

According to e-Numerate, only after the government’s opposition brief — regarding the

government’s answers to Interrogatories No. 2 and No. 3 — did e-Numerate realize that

the reason the government did not supply USDOT/OMB data was because the

government viewed CSV files as not infringing e-Numerate’s patents. Id. at 40:17- 41:6.

12 See https://www.loc.gov/preservation/digital/formats/fdd/fdd000323.shtml (discussing

CSV files).

20

The record critically undermines e-Numerate’s version of events. More than a

year ago, the government informed e-Numerate that the government’s answer to

Interrogatory No. 1 was complete because USDOT/OMB performed validation using

CSV and not XBRL. See ECF No. 205-1 at 8 (“The Department of Treasury has never

received XBRL filings . . . [i]nstead, it receives CSV files.”). Thus, e-Numerate has known

for over a year — or at least could have known, had it read the government’s responses

carefully — that the government would not provide interrogatory responses related to

CSV files because it viewed CSV filings as not capable of infringing e-Numerate’s patents.

In sum, e-Numerate is approximately 454 days late 13 and one proper motion to compel

short.

Perhaps more important, e-Numerate’s entire theory of the burdens of discovery

is warped. As discussed more fully below regarding Interrogatory No. 4, it is not the

government’s job to interpret interrogatories as broadly as possible to accommodate all

conceivable but as of yet unasserted infringement theories that the plaintiff might later

concoct (i.e., under the doctrine of equivalents). If e-Numerate wanted information from

USDOT/OMB because e-Numerate thought the CSV files might constitute infringement,

e-Numerate’s should have served a targeted interrogatory expressly asking about how

USDOT/OMB processes CSV files. e-Numerate cannot ask for all XBRL information, and

then be surprised when all it receives from the government is XBRL information.

Accordingly, e-Numerate’s motion to compel supplementary responses to

Interrogatory Nos. 1-3 is DENIED.

B. Interrogatory No. 4

e-Numerate’s Interrogatory No. 4 requests that the government “identify all

systems and components thereof that are capable of transforming numerical values in

XBRL filings” and produce related information regarding the agency’s use of the

identified systems and the frequency of the transformations. ECF No. 188 at 9. The

government, in its initial answer to that interrogatory, understood “capable of

transforming numerical values in XBRL filings” to mean “transforming numerical values

in an XBRL file into different numerical values in a XBRL file.” ECF No. 205-1 at 23. With

13This Court has calculated 454 as the number of days between June 28, 2024, when the

government first informed e-Numerate that it was withholding interrogatory responses as to

USDOT because it validates only CSV files and not XBRL files, ECF No. 205-1, and

September 25, 2025, when e-Numerate filed its motion to compel, ECF No. 188.

21

this understanding in place, the government asserted that the SEC and FERC/DOE do

not perform any such transformations and that the government’s answer to this

interrogatory was complete. Id. at 24. Just as e-Numerate did for the first three

interrogatories, it complains that the government cannot evade discovery requests by

making noninfringement arguments to itself and then answer an interrogatory based on

a jaundiced view of a viable infringement theory. ECF No. 188 at 9-10.

e-Numerate also harps on earlier proceedings before Judge Holte, who

supposedly allowed e-Numerate to file a third amended complaint specifically to allow

e-Numerate to advance its doctrine of equivalents theory of infringement. See ECF No.

188 at 9 (asserting that Judge Holte granted e-Numerate’s motion to file a third amended

complaint to “assert infringement by the SEC analytical systems”); ECF No. 204 at 5-6. e-

Numerate insists that whatever transformation occurs in the SEC’s database, e-Numerate

“explicitly argued that this could infringe the ’816 and ’383 Patents under the doctrine of

equivalents, and the Court agreed.” ECF No. 188 at 10.14 Thus, e-Numerate maintains

that the government must further supplement its answer to Interrogatory No. 4 with

SEC’s information to account for e-Numerate’s doctrine of equivalents theory. Id.15

The Court’s analysis of Interrogatories Nos. 1-3 applies with equal force to

Interrogatory No. 4. e-Numerate cannot ask the government to do its work and

hypothesize what “transforming numerical values in XBRL filings” might mean under

14 e-Numerate did not provide a citation for this proposition and the Court cannot locate any

source that supports it. Judge Holte and the parties did discuss a doctrine of equivalents theory

regarding the ’816 and ’383 Patents, ECF No. 144 at 27, but it was not quite the same theory e-

Numerate now advances: that the transformation of XBRL filings need not be in XBRL format so

long as some transformation takes place. See id. (e-Numerate arguing that “there’s a potential

equivalence issue as to whether a database representation of a markup document is equivalent to

a markup document”). In any event, Judge Holde did not agree — during oral argument or in

his subsequent order — to any of e-Numerate’s theories of infringement, or any specific

equivalents theory. And he certainly nowhere concluded that the government must adopt some

unspecified equivalents theory e-Numerate never supplies in its interrogatories or infringement

contentions. e-Numerate has exaggerated the reach of Judge Holte’s previous order. There is no

requirement for the government to assume an undescribed doctrine of equivalents when

responding to e-Numerate’s discovery requests.

15 This Court’s conclusion regarding the SEC applies to FERC/DOE as well, although it is not at

all clear that e-Numerate has preserved the issue. That is because e-Numerate, in its motion,

focuses on the government’s failure to provide information from the SEC in response to

Interrogatory No. 4, and mentions FERC/DOE only in passing. ECF No. 188 at 9-10. And e-

Numerate does not even mention FERC/DOE in its reply brief. ECF No. 204 at 5-6.

22

an unspecified doctrine of equivalents theory. Furthermore, e-Numerate similarly knew

the government’s position regarding the SEC (and FERC/DOE) in June of 2024 when the

government provided e-Numerate with the government’s interrogatory responses. ECF

No. 205-1 at 23-24. e-Numerate had ample time to serve a targeted interrogatory that

asked specifically for the transformations that occurs in those agencies’ systems, whether

in XBRL format or otherwise.

Moreover, e-Numerate’s assertion that this Court’s authorization to file a third

amended complaint somehow proves that e-Numerate is entitled to additional

interrogatory responses — based on various doctrine of equivalents theories — is tenuous

at best. To review: e-Numerate, in its second amended complaint, included a single

boilerplate sentence asserting infringement under the doctrine of equivalents that

sufficiently preserved its right to assert the doctrine at trial. ECF No. 53 at 45. Much later,

e-Numerate moved for leave to file a third amended complaint and to compel documents

relating to the accused SEC system. ECF Nos. 122; 123. During oral argument on those

two motions, Judge Holte did discuss a doctrine of equivalents theory with e-Numerate,

but that discussion centered around the SEC’s “analytical systems” and Interrogatory No.

7, which is not at issue in this motion. See ECF No. 144 at 27:4 — 30:23. Judge Holte then

granted leave to file a third amended complaint and granted the motion to compel,

ordering the government to respond to various interrogatories after e-Numerate

“modif[ies] and refine[s] [its] discovery requests . . . to be more targeted to request for the

readily available documents, such as representative versions of the SEC analytical

systems at issue.” ECF No. 141 at 3.

But rather than heed Judge Holte’s order and proceed in a targeted manner, e-

Numerate simply repeated the identical boilerplate language in the third amended

complaint (from the second amended complaint). See ECF No. 142 at 54. And e-

Numerate never narrowed or refined the broadly worded (and vague) interrogatories

that precipitated the current discovery dispute. If e-Numerate believed that the SEC

transformations (or, for that matter, the CSV files at issue in Interrogatories No. 1-3)

infringed under the doctrine of equivalents, e-Numerate could have asserted that theory

at any time — for instance, in the complaint, in infringement contentions, or in the

interrogatories themselves. Instead, e-Numerate chose to proceed with a broad,

unspecified infringement theory, and is now effectively demanding that the government

do e-Numerate’s job of narrowing and fine-tuning those theories.

23

To make matters worse, e-Numerate is simply incorrect about its discussion with

Judge Holte and his subsequent order. Judge Holte never approved any specific doctrine

of equivalents theory during oral argument, let alone the ones advanced by e-Numerate

in this motion. That is probably why the phrase “doctrine of equivalents” never appears

in his order. See ECF No. 141. At most, e-Numerate can argue that Judge Holte did not

dismiss an equivalents theory and that, in granting leave for e-Numerate to file a third

amended complaint, Judge Holte provided e-Numerate with the opportunity to assert

specific infringement theories “explicit[ly] within the scope of the case.” ECF No. 144 at

31 (emphasis added). But e-Numerate did not do so. After having the opportunity to

assert a specific doctrine of equivalents theory, but failing to do so, e-Numerate cannot

characterize Judge Holte’s order — which, again, does not contain the phrase “doctrine

of equivalents” — as an endorsement of e-Numerate’s interpretation of the

interrogatories or as supporting its motion to compel.

But all this is beside the point. e-Numerate’s entire argument, as discussed above

regarding Interrogatories Nos. 1-3, is erroneous. Even had the government not already

supplied e-Numerate with the government’s view of SEC transformations a year ago, and

even had Judge Holte expressly discussed the doctrine of equivalents in his December 6,

2024, order, ECF No. 141, e-Numerate would still not be able to demand that the

government account for every possible (undisclosed) doctrine of equivalents argument

in its interrogatory responses. In other words, the government does not have the

responsibility during discovery to imagine every possible transformation method on the

off chance that e-Numerate might consider it infringement under the doctrine of

equivalents. Indeed, e-Numerate’s view of the law would require defendants in patent

cases to dream up every conceivable infringement theory on behalf of the plaintiff and

then supply the plaintiff with the corresponding discovery. That cannot be correct. If a

plaintiff wants discovery responses regarding a theory of infringement that rests upon

the doctrine of equivalents, the plaintiff must pose pointed, targeted interrogatories that

make that theory clear. At a minimum, such a rule makes sense because it places the

onus for precision on the plaintiff — the party which best understands what information

it seeks and, thus, is the least cost avoider for later discovery disputes of this nature.

Accordingly, e-Numerate’s motion to compel the government’s further response

to Interrogatory No. 4 is DENIED.

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C. Interrogatories No. 5 and No. 6

Interrogatory No. 5 requests that the government describe the factual and legal

basis for each affirmative defense that the government plans to assert and to identify any

witnesses knowledgeable about those defenses. ECF No. 188 at 10. Interrogatory No. 6

requests that the government provide claim charts laying out its noninfringement

positions for each asserted claim. Id. at 11. The dispute as to these interrogatories is a

relatively narrow one. That is because the government appears to acknowledge that

contention interrogatories are, in general, proper. ECF No. 196 at 10-11 (citing cases that

deny contention interrogatories as being overbroad or premature); ECF No. 205-1 at 25-

28; see also O2 Micro, 467 F.3d at 1365 (observing that contention interrogatories can be

“useful in narrowing and sharpening the issues, which is a major purpose of discovery,”

because they allow parties to “pin down . . . theories of liability [and] theories of defense,

thus confining discovery and trial preparation to information that is pertinent to the

theories of the case” (citing Hickman v. Taylor, 329 U.S. 495, 501, (1947))). The government

thus disputes only the breadth of e-Numerate’s request and the timing — that it is still

too early to stake out with certainty the contours of its entire defense and trial strategy.

ECF No. 196 at 10-11. That is especially true, according to the government, with respect

to Interrogatory No. 6 because e-Numerate’s infringement contentions fail in multiple

respects to put the government on notice of e-Numerate’s infringement position. Id. at

11-12. The government cannot rationally determine its noninfringement arguments

before e-Numerate concretely lays out its infringement arguments. Id. As discussed

below, this issue is the basis for the government’s cross-motion to strike particular

infringement contentions. Id. at 15-19.

This Court, for the most part, agrees with the government on both counts. Our

system of discovery is designed so that a party does not face a “trial by ambush.” Ideal

Innovations, Inc. v. United States, 167 Fed. Cl. 314, 344 (2023). But that does not mean that

parties must disclose each and every argument, sub-argument, and how it plans to use

particular documents and witnesses. Aldapa v. Fowler Packing Company Inc., 310 F.R.D.

583, 591 (E.D. Cal. 2015) (“Parties are not tasked with laying out every jot and tittle of

their evidentiary case in response to interrogatories. Contention interrogatories should

not require a party to provide the equivalent of a narrative account of its case, including

every evidentiary fact, details of testimony of supporting witnesses, and the contents of

supporting documents.” (quoting Lucero v. Valdez, 240 F.R.D. 591, 594 (D.N.M. 2007))). A

party is certainly not expected to have fully developed its trial defense strategy before

expert discovery even begins. Hitkansut, 127 Fed. Cl. at 108 n.4 (“There is substantial

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reason to believe that the early . . . filing of sets of contention interrogatories that

systematically track all the allegations in an opposing party’s pleadings . . . can be used

to impose great burdens on opponents, and can generate a great deal of

counterproductive friction between parties and counsel.” (quoting In re Convergent Tech.

Sec. Litig., 108 F.R.D. 328, 337-38 (N.D. Cal. 1985))). On the other hand, as this Court

warned the government during oral argument, delaying responses to these

interrogatories comes with a risk: if the government presents a novel defense or

noninfringement theory late in discovery — and particularly after depositions have been

taken — this Court may well grant e-Numerate leave to engage in yet further discovery

as needed, possibly at the expense of the government. Tr. 83:1 — 85:12.

Because fact discovery will continue for many more months, the Court finds that

it is too early to compel the government to respond to these contention interrogatories at

this time. Accordingly, e-Numerate’s motion to compel supplementary responses to

Interrogatories No. 5 and No. 6 is DENIED. As discussed during oral argument,

however, and as agreed to by the parties, the government shall provide updated,

complete, and final responses to Interrogatories No. 5 and No. 6 no later than thirty days

prior to the close of fact discovery. Tr. at 85:1-12; 89:6-11. If the government materially

changes its affirmative defenses or noninfringement positions, this Court may allow e-

Numerate to conduct further depositions or engage in further discovery as needed. The

Court, in the interest of justice and consistent with RCFC 37(b), may impose costs and

attorney’s fees on the government for any such additional discovery that may be

required.

V. THE GOVERNMENT’S CROSS-MOTION TO ORDER SUPPLEMENTATION OF E-

NUMERATE’S RESPONSES TO THE GOVERNMENT’S INTERROGATORIES

On October 20, 2025, the government moved to compel supplementation of e-

Numerate’s interrogatory responses. ECF No. 196 at 13. The government complained

that e-Numerate’s responses were deficient in two ways: (1) the responses were not

verified by an officer or agent of e-Numerate; and (2) that, in violation of RCFC 33(d)(1),

e-Numerate did not specify, in sufficient detail, where publicly available documents were

located. Id. e-Numerate then supplemented its responses with the required verifications

and various documents mooting the first alleged deficiency and most of the second

alleged deficiency. ECF No. 204 at 7; ECF No. 205 at 6. The only dispute that remains

relates to e-Numerate’s responses that include bare references to the Wayback Machine

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without providing precise website links (known as Uniform Resource Locators (“URLs”))

or dates of the webpage captures. ECF No. 205 at 6-7.

The Court agrees with the government that e-Numerate’s conduct is improper.

The government cannot be expected to hunt through Wayback Machine website captures

to find e-Numerate’s responsive information. That is particularly true where e-Numerate

knows the specific location. A responding party must provide exactly what RCFC

33(d)(1) requires: the whereabouts of “records that must be reviewed, in sufficient detail

to enable the interrogating party to locate and identify them as readily as the responding

party could.” RCFC 33(d)(1).

Accordingly, the Court DENIES, AS MOOT, IN PART and GRANTS IN PART

the government’s motion to compel. Within fourteen days of the issuance of this order,

e-Numerate shall identify precisely where the government can find the Wayback

Machine captures e-Numerate references in its interrogatory responses.

VI. THE GOVERNMENT’S CROSS-MOTION TO STRIKE E-NUMERATE’S

INFRINGEMENT CONTENTIONS

On October 20, 2025, the government moved to strike portions of e-Numerate’s

infringement contentions that the government deemed insufficient. ECF No. 196 at 15-

19. The government complains that, in three respects, e-Numerate’s infringement

contentions fail to give the government notice regarding e-Numerate’s precise

infringement theory. Id. First, the government argues that e-Numerate fails to identify

how any government agency might satisfy the “application including a network

browser” element in Claim 1 of the ’748 Patent. ECF No. 196 at 15-16. Instead, according

to the government, e-Numerate simply directs the government to agency uses of publicly

available websites but does not further explain how the use of a website alone is an

“application including a network browser.” Id. Second, the government asserts that e-

Numerate fails to identify a “computer-readable Extensible Markup Language (“XML”)-

compliant data document” as required by Claim 1 of the ’748 Patent and Claim 29 of the

’842 Patent. Id. at 16-17. Instead, e-Numerate points to various applications but does not

specifically identify an XML-compliant data document that would be covered by the

claims. Id. Finally, the government complains that e-Numerate does not specify the

source code that any agency used that would satisfy the limitations of various claims that

either explicitly or implicitly require “code.” Id. at 17-19 (discussing ’383 Patent at Claim

1; ’748 Patent at Claim 1).

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The Court concludes that striking e-Numerate’s contentions at this stage would be

premature and unfair. After all, the Court is now allowing the government itself to

amend its invalidity contentions. See supra, Part II. Moreover, e-Numerate’s failure to

properly identify specific source code is at least partly because Mr. Davis was not allowed

to inspect the source code until very recently. See supra, Part III. Similarly, the failure to

identify XML-compliant documents is potentially tied to e-Numerate’s doctrine of

equivalents theory regarding CSV files. See supra, Part IV. And indeed, during oral

argument, the government acknowledged that requiring e-Numerate to amend its

infringement contentions rather than strike them in their entirety would be the prudent

way to proceed. See Tr. at 106:13-17 (government counsel’s agreeing that there would be

no prejudice to the government if e-Numerate were allowed to update the contentions as

to “the specific source code”). Accordingly, this Court will permit e-Numerate to amend

its infringement contentions rather than imposing a harsher penalty.

This Court also determines that e-Numerate’s failure to identify the source code

upon which so many of the infringement claims rely is, indeed, unacceptable. The

government is entitled to know which specific section(s) of source code will be at issue at

trial. Accordingly, the Court GRANTS IN PART the motion to strike with respect to the

source code citations insofar as e-Numerate is required to amend the infringement

contentions. Within seven days of the issuance of this order, the government shall

provide e-Numerate with a complete list of all references to source code within e-

Numerate’s infringement contentions that the government deems insufficient. Within

twenty-one days of receiving that list, e-Numerate shall provide the government with

proper citations to the identified source code.

On the other hand, e-Numerate’s vague references to websites that supposedly

satisfy the “application including a network browser” element — and its reference to

applications that may be literally (or equivalently) XML-compliant documents — are not

facially deficient. Accordingly, the Court DENIES IN PART the motion to strike with

respect to the “application including a network browser” and “XML-complaint data

document” elements. Nevertheless, this Court cautions e-Numerate that it will not be

permitted to develop new and surprising infringement theories at trial or in response to

a motion for summary judgment. Thus, e-Numerate may well want to take advantage of

this opportunity to amend its infringement contentions to address the areas about which

the government complains. Should e-Numerate choose to exercise this option, e-

Numerate shall have twenty-eight days to serve amended infringement contentions.

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VII. CONCLUSION

The government’s motion to amend its invalidity contentions is GRANTED. The

government’s motion to redesignate a portion of its production as competition-sensitive

and to impose a one-year patent prosecution bar on Mr. Russell Davis is GRANTED. e-

Numerate’s motion to compel supplementary responses is DENIED. The government’s

motion to compel supplementary responses is DENIED, AS MOOT, IN PART and

GRANTED IN PART. The government’s motion to strike e-Numerate’s infringement

contentions is DENIED IN PART and GRANTED IN PART insofar as e-Numerate is

required to amend its infringement contentions as ordered supra. Finally, as agreed to by

both parties at oral argument, and to facilitate compliance with this order, the discovery

schedule is amended such that the close of fact discovery is extended to June 5, 2026. On

or before May 22, 2026, the parties shall file a joint status report proposing a schedule for

expert discovery.

IT IS SO ORDERED.

s/Matthew H. Solomson

Matthew H. Solomson

Chief Judge

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