By Eric SchweibenzOn April 17, 2017, Chief ALJ Charles E. Bullock issued a notice regarding certain evidentiary issues in Certain Mobile and Portable Electronic Devices Incorporating Haptics (Including Smartphones and Laptops) and Components Thereof (337-TA-1004/990).
By way of background, the 337-TA-990 Investigation was instituted based on a complaint filed by Immersion Corp. (“Immersion”) alleging violation of Section 337 by Apple Inc. (“Apple”), AT&T Inc. (“AT&T”), and AT&T Mobility LLC (“AT&T Mobility”) in the importation into the U.S. and sale of certain mobile electronic devices incorporating haptics (including smartphones and smartwatches) and components thereof that infringe one or more claims of U.S. Patent Nos. 8,773,356; 8,619,051; and 8,659,571. See our February 11, 2016 and March 25, 2016 posts for more details on the complaint and Notice of Investigation, respectively.
The 337-TA-1004 Investigation was instituted on June 6, 2016 based on a complaint filed by Immersion alleging violation of Section 337 by Apple and AT&T Mobility in the importation into the U.S. and sale of certain mobile and portable electronic devices incorporating haptics (including smartphones and laptops) and components thereof that infringe one or more claims of U.S. Patent Nos. 8,749,504; 7,808,488; 7,336,260; and 8,581,710. See our May 6, 2016 and June 10, 2016 posts for more details on the complaint and Notice of Investigation, respectively.
These investigations were consolidated to conserve the resources of the parties and the Commission given the overlap of parties, technology, patented subject matter, and legal issues. See our June 14, 2016 post for more details.
According to the notice, ALJ Bullock determined:
[i]n order to streamline the evidentiary hearing scheduled for April 27 - May 4, 2017, the parties are hereby advised of the undersigned's policies regarding the following issues:
• Claim charts: Claim charts are treated as demonstratives and do not come in as substantive evidence.
• Expert reports: Expert reports are not admissible as substantive evidence, but may be used for impeachment purposes.
• Discovery responses: A party's own responses are not admissible as substantive evidence nor can a party use its own discovery responses to rehabilitate one of its own witnesses.
• Declarations: Declarations do not come into evidence, but may be used for impeachment of the declarant.
• Deposition designations: Absent an agreement among the parties, deposition testimony only comes in as evidence if it falls within one of the exceptions set forth in Commission Rule 210.28(h) or is being used for impeachment purposes.
• Ground Rule 10.5.6: The subject matter of the expert witness's testimony need only be mentioned in either that witness's expert report or deposition testimony to be deemed sufficient and thus, in compliance with Ground Rule 10.5.6.