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Message: ITC Staff's Combined Response to Summary Determination
COMMISSION INVESTIGATIVE STAFF’S COMBINED RESPONSE TO
RESPONDENTS’ MOTIONS FOR LEAVE TO FILE THEIR MOTIONS FOR
SUMMARY DETERMINATION
OF NONINFRINGEMENT OF U.S. PATENT NO.
5,809,336 AFTER THE PROCEDURAL SCHEDULE DEADLINE
(MOT. DOCKET NOS. 853-027 & 853-029)
The Commission Investigative Staff (“Staff”) hereby responds to the April 4, 2013
motions of Respondents Acer Inc. and Acer America Corporation (collectively, “Acer”);
Amazon.com, Inc. (“Amazon”); Barnes & Noble, Inc. (“B&N”); Garmin Ltd., Garmin
International, Inc. and Garmin USA, Inc. (collectively, “Garmin”); HTC Corporation and HTC
America, Inc. (collectively, “HTC”); Huawei Technologies Co., Ltd., Huawei Device Co., Ltd.,
Huawei Device USA Inc., and Futurewei Technologies, Inc. (collectively, “Huawei”); Kyocera
Corporation and Kyocera Communications, Inc. (collectively, “Kyocera”); LG Electronics, Inc.
and LG Electronics U.S.A., Inc. (collectively, “LG”); Novatel Wireless, Inc. (“Novatel
Wireless”); Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. (collectively,
“Samsung”) and ZTE Corporation & ZTE (USA) Inc. (collectively, “ZTE”), (collectively,
“Moving Respondents”),1 seeking leaving to file motions for summary determination of
1 All respondents join in these motions except for Nintendo Co., Ltd. and Nintendo of America,
Inc.
noninfringement after the March 22, 2013 summary determination deadline set forth in Order
No. 15 (January 9, 2013).
Pursuant to the Procedural Schedule, motions for summary determination were due
March 22, 2013, five days before the exchange of initial expert reports. Order No. 15 (January 9,
2013). In their interrogatory responses, Complainants indicated that, for purposes of proving
infringement, they would rely upon “additional claim charts and/or infringement evidence
presented by its expert, Vojin Oklobdzija, Ph.D., in conjunction with his expert reports.” (Mot.
Exh. B; Mot. Memo. at 3). But although Complainants had been aware of the Staff’s and
Respondents’ proposed constructions since at least December 21, 2013, Complainants’ expert
did not address those constructions in his initial expert report. (Mot. Memo. at 4). Respondents
contend that this unexpected failure to address these important infringement issues constitutes
good cause to grant leave to accept their motions for summary determination. The Staff agrees.
In the Staff’s view, it appeared that the anticipated expert testimony regarding infringement
under the Staff’s and Respondents’ proposed constructions would have left a material issue of
fact in dispute that would have precluded Respondents from seeking summary determination of
noninfringement. However, as Dr. Oklobdzija did not address the Staff’s or Respondents’
proposed constructions of the “entire oscillator” limitations, the Staff is of the view that cause
exists for Respondents to proceed with their motions for summary determination.
For the foregoing reasons, Respondents’ motions for leave should be granted.
Respectfully submitted,
/s/ R. Whitney Winston
4 Recommendations
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Apr 16, 2013 04:48PM
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