ALJ Rogers Denies Motion For Reconsideration Or For Leave To Apply For Interlocutory Review In Certain Light-Emitting Diodes (337-TA-802)
On May 21, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 15 in Certain Light-Emitting Diodes and Products Containing Same (Inv. No. 337-TA-802). In the Order, ALJ Rogers denied Complainants LG Electronics, Inc. and LG Innotek Co. Ltd.’s (collectively, “LG”) motion for leave to apply for interlocutory review of Order No. 14 or, alternatively, for reconsideration of Order No. 14.
By way of background, on March 23, 2012, LG responded to Respondents OSRAM AG, OSRAM Opto Semiconductors GmbH, and OSRAM Sylvania, Inc.’s (collectively, “OSRAM”) contention interrogatory concerning domestic industry by identifying a particular light-emitting diode (LED) as the product that practices U.S. Patent Nos. 6,841,802 (the ‘802 patent), 7,649,210 (the ‘210 patent), and 7,956,364 (the ‘364 patent). On April 11, 2012, LG supplemented its interrogatory response and identified three new LEDs as products that practice the ‘802, ‘210, and ‘364 patents. On April 16, 2012, LG notified OSRAM that it was no longer relying on the LED that it had originally identified on March 23, 2012. On April 23, 2012, OSRAM moved to exclude LG’s April 11, 2012 supplemental response. On May 10, 2012, ALJ Rogers issued Order No. 14, granting OSRAM’s motion to exclude. In that Order, the ALJ found that OSRAM’s stated intention to assert an invalidity argument based on LG’s originally-identified LED did not constitute “information thereafter acquired” that would allow for proper supplementation with new domestic industry products under Commission Rule 210.27(c)(1). See our May 24, 2012 post for more details.
According to Order No. 15, LG argued that Order No. 14 was premised on an erroneous interpretation of Commission Rule 210.27(c)(1). In particular, LG argued that the rule only addresses circumstances where a party has a duty to supplement, but says nothing about when a party may voluntarily supplement. According to LG, nothing in the rule prevents a party from supplementing an interrogatory response to reflect an evolving legal theory or a change in legal contentions. LG further argued that ALJ Rogers’s interpretation of Rule 210.27(c)(1) “would dramatically alter ITC practice” because parties would be stripped of their ability to routinely supplement discovery responses even though those supplements are not precipitated by after-acquired information. LG therefore argued that reconsideration of Order No. 14 was appropriate due to an alleged clear error of law. Alternatively, LG requested leave to immediately appeal Order No. 14 to the Commission.
After considering the arguments, ALJ Rogers determined to deny LG’s motion for reconsideration or for leave to apply for interlocutory review. ALJ Rogers stated that “LG clearly failed to adequately prepare its domestic industry case, as it attempted to switch its contentions during fact discovery after OSRAM raised a potential invalidity defense.” Moreover, “[a] well prepared and diligent complainant would have considered this issue before filing the complaint and asserted products that do not raise the problem that LG now faces.” ALJ Rogers disagreed with LG’s argument that Rule 210.27(c)(1) does not control situations where a party voluntarily chooses to supplement in order to change its position on an issue. The ALJ explained that his interpretation of Rule 210.27(c)(1) as set forth in Order No. 14 has been consistent throughout his time at the ITC, and that he could find no clear error in his application of the Rule. Accordingly, ALJ Rogers denied LG’s motion for reconsideration. With respect to LG’s request for leave to apply for interlocutory review, ALJ Rogers similarly found that his ruling regarding the application of Rule 210.27(c) did not present a “controlling question of law or policy as to which there is substantial ground for difference of opinion” that would warrant interlocutory review. ALJ Rogers noted that LG had cited no decision from the Commission or an ALJ that took a different view of supplementation and Rule 210.27(c). Further, the ALJ found that LG had failed to demonstrate that an immediate appeal from Order No. 14 might materially advance the ultimate completion of the investigation or that subsequent review would be an inadequate remedy. Accordingly, ALJ Rogers denied LG’s request for leave to apply for interlocutory review.