By Eric Schweibenz
On April 26, 2010, ALJ E. James Gildea issued Order No. 8:  Denying Complainants’ Motion to Reconsider Order Setting Markman Hearing and Revised Procedural Schedule in Certain Electronic Devices, Including Mobile Phones, Portable Music Players, And Computers (Inv. No. 337-TA-701).

By way of background, Complainants Nokia Corporation and Nokia Inc. (collectively, "Nokia") asserted over fifty claims of seven patents against Respondent Apple Inc. (“Apple”) in this Investigation.  ALJ Gildea decided that “an early Markman hearing would assist in streamlining the issues for the evidentiary hearing and final initial determination in this Investigation.” And “[t]o accommodate the parties' concerns about scheduling, the target date and schedule were extended by two months.”  See our April 8, 2010 post for more details.

On April 13, 2010, Nokia filed a motion for reconsideration of the schedule set forth in Order No. 7, expressing, “concern that it will be prejudiced because there will be ‘two more months for Apple to continue to infringe upon Nokia's technology in the marketplace.’”  Order No. 8 noted Apple’s opposition to Nokia’s motion, which in turn argued “that if Nokia were truly concerned about daily prejudice, it would not have delayed 1.5-5 years after the asserted patents issued to file its Complaint against Apple.”  The Office of Unfair Import Investigations also opposed Nokia’s motion to reconsider, submitting that a Markman hearing within the 16 month procedural schedule originally set in Order No. 3, “is unworkable and could put Apple at a disadvantage.”

ALJ Gildea noted that although “Nokia has raised a valid concern,” namely, “that this Investigation should be conducted expeditiously,” Nokia determined “the scope and complexity of this Investigation” when it “chose to assert quite a large number of patent claims.”  ALJ Gildea further stated that he “has the discretion to shape the direction of the proceedings, and here has determined that an early resolution of claim construction issues would reduce the likelihood of further delays toward the end of the Investigation,” and that “the extended schedule provides some time for Commission review of a Markman decision, if any, prior to the hearing.”

Finally, with respect to Nokia’s argument that it will be prejudiced by a two month extension, ALJ Gildea held that “Nokia has not attached any evidence to support its assertion,” and “Nokia did not choose to seek temporary relief in its Complaint, as a party generally does when facing severe prejudice from infringing activity.”