TPL moves the court to exclude evidence of the co-pending ITC Investigation No. 337-TA-853. TPL points out that the ITC investigation involves different products and different claim constructions. Moreover, TPL argues, the ALJ’s initial determination at the ITC is not preclusive in this litigation. TPL makes a Rule 403 argument that the evidence of the co-pending ITC investigation will result in a significant danger of unfair prejudice, confusion of the issues, and misleading the jury, and also implicates considerations of undue delay and waste of time.

HTC counters that the ITC investigation, in particular the ALJ’s initial determination and the Staff Attorney’s positions, constitute objective evidence that HTC should be able to rely upon to overcome a charge of willful infringement under

For the Northern District of California

jurors from the "heart of Silicon Valley" will have a solid understanding of the technical and legal issues in this case and will be able to contextualize the precedential wake recent ITC decisions cast upon this district court action.

Although the court does agree that this district’s jury pool is quite capable, it cannot countenance the likely confusion that will result upon admission of evidence of a co-pending investigation at the ITC on this litigation.

TPL’s motion to exclude evidence of the co-pending ITC investigation is GRANTED.