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ALJ Pender

ALJ Pender Sets Procedural Schedule In Certain Wireless Communication Devices, Portable Music And Data Processing Devices (337-TA-745)

By Eric Schweibenz
|
Nov
01
Further to our August 10, 2011 post, on November 1, 2011, ALJ Thomas B. Pender issued Order No. 24 in Certain Wireless Communication Devices, Portable Music And Data Processing Devices, Computers and Components Thereof(Inv. No. 337-TA-745).

According to the Order, ALJ Pender determined that the technology tutorial, pre-hearing conference and evidentiary hearing will commence on December 8, 2011.  ALJ Pender further determined that an initial determination on any violation of Section 337 is due on April 23, 2012 and the target date for completing this investigation is August 23, 2012.
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ALJ Pender Grants Motion To Compel In Certain Light-Emitting Diodes (337-TA-785)

By Eric Schweibenz
|
Nov
08
On November 4, 2011, ALJ Thomas B. Pender issued Order No. 15:  Granting Samsung LED Co., Ltd.’s Motion To Compel Domestic Industry From Complainant OSRAM in Certain Light-Emitting Diodes and Products Containing the Same(Inv. No. 337-TA-785).

According to the Order, Respondent Samsung LED Co., Ltd. (“SLED”) filed a motion to compel Complainant OSRAM AG ( “OSRAM”) to produce complete responses to SLED’s discovery requests regarding domestic industry.  In support of the motion, SLED argued that OSRAM should have had this information before it filed its complaint, and noted that OSRAM was obligated to respond within ten days after service of the requests pursuant to Commission Rule 210.30 and Ground Rule 4.4.3.  SLED also argued that it has been prejudiced by the delay because of the reduction in available time for third party discovery.  OSRAM opposed the motion, stating that it agreed to produce non-privileged documents relating to domestic industry and will substantially complete the production by November 15, 2011.  OSRAM also asserted that its complaint already provided significant domestic industry information, and, in light of these facts, argued that SLED’s motion to compel is moot.
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ALJ Pender Grants-In-Part Motions To Compel In Certain Light-Emitting Diodes (337-TA-785)

By Eric Schweibenz
|
Nov
11
On November 9, 2011, ALJ Thomas B. Pender issued Order Nos. 16 and 17 granting-in-part Complainant OSRAM AG’s (“OSRAM”) motions to compel Respondents to supplement interrogatory responses and produce documents in Certain Light-Emitting Diodes and Products Containing the Same (Inv. No. 337-TA-785).

According to Order No. 16, OSRAM sought an order compelling Respondents LG Electronics, Inc., LG Innotek Co., Ltd., LG Electronics U.S.A., Inc., and LG Innotek U.S.A., Inc. (collectively, “LG”) to supplement certain interrogatory responses, produce technical documents identified by OSRAM, and respond to certain document requests because LG “has neither provided substantive responses to OSRAM’s interrogatories seeking basic information, e.g., sales, distribution, and importation, nor produced the technical documents central to OSRAM’s infringement claims.”  LG opposed the motion, asserting that the breadth of OSRAM’s discovery requests are “staggering” (i.e., 120 claims from seven patents), that LG has already promised to provide responses, that LG has produced over 40,000 pages of documents to date, that OSRAM has not explained what discovery requests are deficient, and that OSRAM served overly broad requests, or requests not reasonably calculated to lead to the discovery of relevant evidence.  Having reviewed the parties’ motion papers, ALJ Pender ordered OSRAM to serve LG with “a simple, but thoughtful analysis, by interrogatory and document request, explaining why LG’s responses-to-date are deficient/absent and explaining what it is looking for,” and also to explain why what OSRAM is looking for will lead to the discovery of admissible evidence.  The ALJ ordered LG to specifically respond to OSRAM’s analysis and/or respond fully to OSRAM’s discovery requests, and to diligently provide supplemental discovery responses as required by the Commission’s rules.  With respect to OSRAM’s Interrogatory No. 20, ALJ Pender determined that LG need not comply “unless and until the unlikely event OSRAM can explain to my satisfaction how information regarding the internal allocation of income and expense for LED Products sold by LG can lead to the discovery of admissible evidence.”
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ALJ Pender Orders Parties To Submit Executive Summary Of Pre-Hearing Briefs In Certain Wireless Communication Devices, Portable Music And Data Processing Devices (337-TA-745)

By Eric Schweibenz
|
Nov
30
On November 28, 2011, ALJ Thomas B. Pender issued Order No. 27 in Certain Wireless Communication Devices, Portable Music And Data Processing Devices, Computers and Components Thereof (Inv. No. 337-TA-745).

According to the Order, ALJ Pender ordered Complainant Motorola Mobility, Inc. (“Motorola”) and Respondent Apple, Inc. (“Apple”) to file on or before December 1, 2011, an executive summary of their pre-hearing briefs not to exceed 50 pages.  In the Order, ALJ Pender noted that Motorola and Apple each filed a pre-hearing brief in excess of 800 pages.  ALJ Pender further noted that “[i]t seems difficult to comprehend how the parties can expect to prove the arguments set forth in such breathtakingly large briefs [during a six-day hearing] … or expect that I can review and make sense of the over 1600 pages of briefs (not including the supporting documents) in preparation for the upcoming hearing. ”
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ALJ Pender Denies Motion for Summary Determination In Certain Vaginal Ring Birth Control Devices (337-TA-768)

By Eric Schweibenz
|
Dec
21
On December 19, 2011, ALJ Thomas B. Pender issued the public version of Order No. 24 (dated November 19, 2011) in Certain Vaginal Ring Birth Control Devices (Inv. No. 337-TA-768).  The order denied a motion for summary determination filed by Respondents Merck & Co., Inc., Schering Plough Corp., Organon USA, Inc., N.V. Organon, Wal-Mart Stores, Inc., CVS Pharmacy, Inc., and Walgreen Co. (“Respondents”) that Complainant Femina Pharma, Inc. (“Femina”) failed to meet the domestic industry requirement of Section 337.

The investigation is based on a complaint filed by Femina alleging violation of Section 337 in the importation into the U.S. and sale of certain vaginal ring birth control devices.  See our February 28, 2011 post for more details.
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ALJ Pender Rules On Motion To Quash Subpoena In Certain Vaginal Ring Birth Control Devices (337-TA-768)

By Eric Schweibenz
|
Dec
22
On December 19, 2011, ALJ Thomas B. Pender issued Order No. 27 (dated December 16, 2011) in Certain Vaginal Ring Birth Control Devices (Inv. No. 337-TA-768).  In the Order, ALJ Pender granted-in-part Respondents Merck & Co., Inc., Schering-Plough Corporation, Organon USA, Inc., and N.V. Organon’s (collectively, “Merck”) motion to quash subpoenas ad testificandum and duces tecum directed to Dr. Marilyn Jerome, a non-testifying witness retained by Merck.

According to the Order, Merck explained that, although it had previously identified Dr. Jerome as a testifying expert and served an expert report containing her opinions, Merck has since re-designated Dr. Jerome as a non-testifying expert and, thus, under Federal Rule of Civil Procedure 26(b)(4)(D), her testimony and materials are shielded from discovery.  Further, Merck argued that, because Dr. Jerome is not a Rule 35 expert witness as defined by Rule 26(b)(4)(D)(i), and because Complainant Femina Pharma (“Femina”) cannot show “exceptional circumstances under which it is impracticable for [Femina] to obtain facts or opinions on the same subject by other means,” neither exception to Rule 26(b)(4)(D) applies.
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ALJ Pender Sets Target Date In Certain Computing Devices With Associated Instruction Sets And Software (337-TA-812)

By Eric Schweibenz
|
Jan
04
Further to our November 9, 2011 post, on December 29, 2011, ALJ Thomas B. Pender issued Order No. 3 in Certain Computing Devices With Associated Instruction Sets And Software (Inv. No. 337-TA-812).

In the Order, ALJ Pender set March 14, 2013 as the target date for completing the investigation (which is sixteen months after institution of the investigation).  ALJ Pender also noted that the initial determination on alleged violation is due on November 9, 2012. 
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ALJ Pender Sets Target Date In Certain Automotive GPS Navigation Systems (337-TA-814)

By Eric Schweibenz
|
Jan
10
Further to our November 21, 2011 post, on January 6, 2012, ALJ Thomas B. Pender issued Order No. 3 in Certain Automotive GPS Navigation Systems, Components Thereof, and Products Containing Same (Inv. No. 337-TA-814).

In the Order, ALJ Pender set March 23, 2013 as the target date for completing the investigation (which is sixteen months after institution of the investigation).  ALJ Pender also noted that the initial determination on alleged violation is due on November 23, 2012.  Further, ALJ Pender determined that the evidentiary hearing will commence on August 10, 2012.
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ALJ Pender Grants Joint Motion To Terminate Investigation In Certain Liquid Crystal Display Devices (337-TA-782)

By Eric Schweibenz
|
Jan
12
On January 9, 2012, ALJ Thomas B. Pender issued Order No. 10 in Certain Liquid Crystal Display Devices and Products Containing the Same(Inv. No. 337-TA-782).

In the Order, ALJ Rogers granted a joint motion filed by Complainant Samsung Electronics Co., Ltd. (“Samsung”) and Respondents AU Optronics Corporation (“AUO”), Acer America Corp. and Acer Inc. (collectively “Acer”), BenQ America Corp. and BenQ Corp. (collectively, “BenQ”), and Sanyo Electric Co., Ltd. and Sanyo Manufacturing Corp. (collectively, “Sanyo”) to terminate the investigation based on a settlement agreement between Samsung and AUO.  The Order further notes that while Acer, BenQ and Sanyo are not parties to the settlement agreement between Samsung and AUO, “their inclusion in this investigation was premised solely on the alleged incorporation of the formerly unlicensed AUO LCD devices into their respective products.”  After reviewing the confidential and non-confidential versions of the agreement, ALJ Pender granted the joint motion.
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ALJ Pender Denies Motion to Extend Fact Discovery In Certain Wireless Communication Devices And Systems (337-TA-775)

By Eric Schweibenz
|
Jan
19
On January 18, 2012, ALJ Thomas B. Pender issued the public version of Order No. 19 (dated January 6, 2012) in Certain Wireless Communication Devices and Systems, Components Thereof, and Products Containing Same(337-TA-775).  The Order denied Complainant Linex Technologies, Inc.’s (“Linex”) motion to extend the deadline for completion of fact discovery from November 30, 2011 until December 23, 2011.

By way of background, the investigation is based on a May 6, 2011 complaint filed by Linex alleging violation of Section 337 in the importation into the U.S. and sale of certain products and components that infringe U.S. Patent Nos. 6,757,322 and RE42,219.  See our May 10, 2011 post for more details.
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ALJ Pender Denies Motion To Compel In Certain Wireless Communication Devices And Systems (337-TA-775)

By Eric Schweibenz
|
Jan
24
On January 19, 2012, ALJ Thomas B. Pender issued Order No. 20 in Certain Wireless Communication Devices and Systems, Components Thereof, and Products Containing Same (337-TA-775) denying Respondents Apple, Inc., Hewlett-Packard Company, Aruba Networks, Inc., Meru Networks, and Ruckus Wireless’s (collectively, “Respondents”) motion to compel the production of documents improperly withheld by Complainant Linex Technologies, Inc. (“Linex”) on the basis of privilege.

By way of background, the investigation is based on a complaint filed by Linex on May 6, 2011 alleging violation of Section 337 in the importation into the U.S. and sale of certain products and components that infringe U.S. Patent Nos. 6,757,322 and RE42,219.  See our May 10, 2011 post for more details.
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ALJ Pender Denies Motion To Compel In Certain Wireless Communication Devices And Systems (337-TA-775)

By Eric Schweibenz
|
Jan
27
On January 20, 2012 ALJ Thomas B. Pender issued Order No. 21 in Certain Wireless Communication Devices and Systems, Components Thereof, and Products Containing Same(337-TA-775) denying Respondents Apple Inc., Hewlett-Packard Company, Aruba Networks, Inc., Meru Networks, and Ruckus Wireless’s (collectively, “Respondents”) motion to compel the production of documents and testimony from Complainant Linex Technologies, Inc. (“Linex”).

By way of background, the investigation is based on a May 6, 2011 complaint filed by Linex alleging violation of Section 337 in the importation into the U.S. and sale of certain products and components that infringe U.S. Patent Nos. 6,757,322 and RE42,219.  See our May 10, 2011 post for more details.
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ALJ Pender Grants Motion To Terminate Investigation In Certain Vaginal Ring Birth Control Devices (337-TA-768)

By Eric Schweibenz
|
Jan
27
On January 20, 2012, ALJ Thomas B. Pender issued Order No. 30 in Certain Vaginal Ring Birth Control Devices(Inv. No. 337-TA-768). 

According to the Order, Complainant Femina Pharma Inc. (“Femina”) moved to terminate the investigation based on withdrawal of the complaint under Commission Rule 210.21(a)(1).  Respondents Merck & Co., Inc., Schering Plough Corporation, Organon Inc., and N.V. Organon and the Commission Investigate Staff did not oppose the motion.  Because Femina filed its motion prior to the evidentiary hearing and there were no extraordinary circumstances to justify denying of the motion, ALJ Pender issued an Initial Determination granting the motion.
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ALJ Pender Sets Procedural Schedule In Certain Automotive GPS Navigation Systems (337-TA-814)

By Eric Schweibenz
|
Feb
13
Further to our November 21, 2011 and January 10, 2012 posts, on February 9, 2012, ALJ Thomas B. Pender issued Order No. 4 in Certain Automotive GPS Navigation Systems, Components Thereof, and Products Containing Same (Inv. No. 337-TA-814).

In the Order, ALJ Pender set the procedural schedule for the investigation and included provisions for the early exchange of claim construction terms and proposed constructions.  ALJ Pender further indicated that the evidentiary hearing will commence on August 10, 2012, any final initial determination will issue no later than November 23, 2012, and the target date for completion of the investigation is March 23, 2013 (which is approximately 16 months after institution of the investigation).
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ALJ Pender Denies Motion To Compel Production Of Documents In Certain Electronic Digital Media Devices (337-TA-796)

By Eric Schweibenz
|
Feb
16
On February 14, 2012, ALJ Thomas B. Pender issued Order No. 13 in Certain Electronic Digital Media Devices And Components Thereof (Inv. No. 337-TA-796).

In the Order, ALJ Pender denied Complainant Apple Inc.’s (“Apple”) motion to compel Respondents to substantially complete production of technical documents relevant to Apple’s allegations of infringement by December 16, 2011.  According to the Order, Apple sought the requested relief because Respondents refused to exchange technical documents before December 31, 2011, as proposed by Apple, and provided no reason for the delay. 
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ALJ Pender Reschedules Markman Hearing And Places Limits On Number Of Claim Terms In Certain Electronic Devices With Communication Capabilities (337-TA-808)

By Eric Schweibenz
|
Mar
09
On March 8, 2012, ALJ Thomas B. Pender issued Order No. 9 in Certain Electronic Devices With Communication Capabilities, Components Thereof, and Related Software(Inv. No. 337-TA-808).

According to the Order, ALJ Pender rescheduled the Markman hearing and it will now take place on April 26-27, 2012.
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ALJ Pender Denies Motion To Quash Subpoenas Or Impose Costs In Certain Electronic Devices With Communication Capabilities (337-TA-808)

By Eric Schweibenz
|
Mar
15
On March 12, 2012 ALJ Thomas B. Pender issued Order No. 10 in Certain Electronic Devices With Communication Capabilities, Components Thereof, and Related Software(Inv. No. 337-TA-808).  In the Order, ALJ Pender denied non-party Openwave Systems, Inc.’s motion to quash subpoenas duces tecumand ad testificandumor to impose costs on Respondent Apple Inc., but granted Openwave’s request to limit the subpoenas’ scope.

Openwave argued that (1) the subpoenas imposed an unreasonable burden on them, (2) the subpoenas ignored Ground Rule 2.2 which requires subpoenas to accommodate the time for filing a motion to quash, and (3) costs for responding should be shifted to Apple because the requests are unduly burdensome and complex.  Apple and the Commission Investigative Staff opposed the motion.
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ALJ Pender Denies Motion To Disqualify Expert In Certain Light-Emitting Diodes (337-TA-785)

By Eric Schweibenz
|
Mar
21
On March 12, 2012, ALJ Thomas B. Pender issued the public version of Order No. 21 (dated February 28, 2012) denying Respondent Samsung LED Co., Ltd’s (“Samsung”) motion to disqualify Complainant OSRAM AG’s (“OSRAM”) expert witness and bar his access to confidential information in Certain Light-Emitting Diodes and Products Containing the Same (Inv. No. 337-TA-785).

According to the Order, Samsung’s motion was based on, inter alia, OSRAM’s expert’s involvement with “RPI’s Lighting Research Center, of which OSRAM is a member,” and the expert’s “consulting and professional relationship with OSRAM and RPI’s Partners Program.”  OSRAM responded that Samsung’s argument was “purely speculative.”
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ALJ Pender Sets Target Date In Certain Dimmable Compact Fluorescent Lamps (337-TA-830)

By Eric Schweibenz
|
Apr
16
Further to our February 23, 2012 post, on April 11, 2012, ALJ Thomas B. Pender issued Order No. 4 in Certain Dimmable Compact Fluorescent Lamps and Products Containing Same(Inv. No. 337-TA-830).

According to the Order, ALJ Pender set June 27, 2013 as the target date (which is approximately 16 months after institution of the investigation).  ALJ Pender further indicated that the initial determination on alleged violation shall be due on February 27, 2013.
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ALJ Pender Sets Procedural Schedule In Certain Silicon Microphone Packages (337-TA-825)

By Eric Schweibenz
|
Apr
17
On April 17, 2012, ALJ Thomas B. Pender issued Order No. 4 in Certain Silicon Microphone Packages and Products Containing Same (Inv. No. 337-TA-825).

In the Order, ALJ Pender set the procedural schedule for the investigation and included provisions for the early exchange of claim construction terms and proposed constructions.  ALJ Pender further indicated that the evidentiary hearing will commence on September 24, 2012, any final initial determination will issue no later than January 11, 2013, and the target date for completion of the investigation is May 13, 2013.
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The opinions, commentary and characterizations provided to this online forum by the authors and moderators are provided for encouraging discussion, thought and debate on important ITC issues. These postings are in no way representative of the opinions of the Oblon firm, or its clients, but rather the personal views of the individual authors.