From that document filed 3/26: Please note that I did not copy all of the prior art references listed

AFFIRMATIVE DEFENSES

ZTE asserts the following affirmative and other defenses. Fact discovery is closed and

expert discovery is ongoing at the time of this Response. Accordingly, under 19 U.S.C. §§

210.14(b) and 210.14(c), ZTE reserves the right to seek to amend, modify, and/or expand these

defenses and to take further positions as discovery proceeds in this Investigation.

First Affirmative Defense:

Non-Infringement

i. ZTE does not directly or indirectly infringe any valid and enforceable claim of the

’336 Patent, and has never done so. ZTE does not practice any asserted claims of the ’336

Patent, and has never done so. ZTE does not contribute to or induce any third party infringement

of any valid and enforceable claim of the ’336 Patent, and has never done so.

ii. ZTE’s accused products further do not infringe because they have substantial noninfringing

uses. For example and without limitation, the Accused Products are capable of

operating without being connected to a peripheral device via a USB interface.

iii. Numerous asserted claims are method claims directed to the use of a peripheral

device connected to the Accused Products via a USB interface, and Respondents do not practice such claimed methods.

iv. In addition, ZTE incorporates by reference its contention interrogatory responses

served on February 15, 2013

Second Affirmative Defense:

Invalidity

v. The asserted claims of the ’336 Patent are invalid for failure to meet the

conditions of patentability set forth in 35 U.S.C. §§ 101, 102, 103, and/or 112.

vi. Based on information and belief, and subject to further discovery, the asserted

claims of the '336 Patent are invalid under 35 U.S.C. §§ 102 and/or 103, based on at least the

prior art references cited by the examiner during prosecution of the '336 Patent and related

applications; prior art references disclosed during prosecution of those applications; prior art

references disclosed during reexamination of those applications; and/or including one or more of

the following prior art references, taken alone or in combination:

vii. All asserted claims of the ’336 patent are invalid for failure to comply with the

requirements of 35 U.S.C. § 112 due to lack of written description, failure to particularly point

out and distinctly claim the subject matter which is regarded as the alleged invention, failure to

set forth the best mode contemplated by the inventors for carrying out the alleged invention,

and/or failure to set forth a written description sufficient to enable any person skilled in the art to

make and use the alleged invention. For example, at least the following limitations of claim 1 of

the ’336 Patent are indefinite, not enabled, and/or lack adequate written description: “a single

integrated circuit including a central processing unit and an entire ring oscillator variable speed

system clock in said single integrated circuit and connected to said central processing unit for

clocking said central processing unit”; “a processing frequency capability of said central processing unit and a speed of said ring oscillator variable speed system clock varying together

due to said manufacturing variations and due to at least operating voltage and temperature of said processing unit and a speed of said ring oscillator variable speed system clock varying together

due to said manufacturing variations and due to at least operating voltage and temperature of said single integrated circuit”; and “a second clock independent of said ring oscillator variable speed

system clock connected to said input/output interface.”

viii. In addition, ZTE incorporates by reference Respondents’ Notice of Prior Art,

served November 16, 2012, and its contention interrogatory responses served January 25, 2013.

Third Affirmative Defense:

Lack of Unfair Act

ix. ZTE has committed no unfair acts.

Fourth Affirmative Defense:

Lack of Domestic Industry

x. Complainants have not adequately alleged and cannot prove the existence of a domestic industry in connection with the ’336 Patent, as required by §§ 1337(a)(2) and

1337(a)(3), or such that a domestic industry is in the process of being established.

xi. In addition, ZTE incorporates by reference its contention interrogatory responses

served on February 15, 2013.

Fifth Affirmative Defense:

Prosecution Laches

xii. Complainants’ claims are barred in whole or in part by delay in prosecuting the

patent applications that matured into the ’336 Patent.

xiii. The ’336 Patent has a purported filing date of more than ten years before the date

Complainant requested this Investigation.

xiv. Complainant, based on its representations that the ’336 Patent claims benefit

under 35 U.S.C. § 120 to an application filed in 1989, could have claimed the subject matter now

recited in the asserted claims of the ’336 Patent at any time since the purported effective filing

date of the ’336 Patent

Sixth Affirmative Defense:

Prosecution History Estoppel

xv. By reason of acts, admissions, and statements before the USPTO made by or on

behalf of applicants for the ’336 Patent during prosecution of the patent application that matured

into the ’336 Patent, and during the ex parte reexaminations of the ’336 Patent, Complainants are

estopped from claiming ZTE infringes the ’336 Patent.

Seventh Affirmative Defense:

Lack of Standing

xvi. Upon information and belief, Complainants lack standing to assert their claims of

infringement of the ’336 Patent. On information and belief, Complainants do not own the ’336

Patent and/or at least one co-owner of this patent has not been joined as a complainant in this

Investigation. Accordingly, Complainants lack standing to assert their claims of infringement

and the ITC lacks subject matter jurisdiction over the Investigation.

CONCLUSION

ZTE respectfully requests that the Commission determine and direct that: (i) ZTE has not

violated 19 U.S.C. § 1337; (ii) ZTE has not infringed any claim of the ’336 Patent; (iii) the ’336

Patent is invalid and/or unenforceable; (iv) there is no protectable domestic industry in the ’336

Patent; (v) Complainants’ request for an exclusion order and a cease and desist order directed to

ZTE be denied; and (vi) ZTE is entitled to such other and further relief as deemed just and proper

under the law.

Dated: March 14, 2013