Hopefully it formats ... 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. 1 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 Anne Goalwin, Acting Director David O. Lloyd, Supervisory Attorney R. Whitney Winston, Investigative Attorney OFFICE OF UNFAIR IMPORT INVESTIGATIONS U.S. International Trade Commission