By Eric Schweibenz
On April 23, 2009, ALJ Robert K. Rogers, Jr. issued Order No. 8 in Certain Electronic Devices Including Handheld Wireless Communications Devices (337-TA-673).  In the Order, ALJ Rogers granted the Commission Investigative Staff’s (the “Staff”) motion to consolidate investigation No. 337-TA-673 with investigation No. 337-TA-667.

Respondents Panasonic Corporation, Panasonic Corporation of America, and Panasonic Consumer Electronics Company (collectively “Panasonic”) and Palm, Inc. (“Palm”) from investigation No. 337-TA-667 opposed the motion.  Complainant Saxon Innovations, LLC (“Saxon”) (the complainant in both investigations) as well as respondents Nokia Corporation, Nokia Inc. (collectively “Nokia”), Research In Motion Ltd. and Research In Motion Corp. (collectively “RIM”) from investigation No. 337-TA-667 and respondents Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (collectively “Samsung”) from investigation No. 337-TA-673 did not oppose the motion. 

According to the Order, the Staff argued in support of its motion that because the legal and factual issues in the two investigations were extremely similar, consolidation would avoid redundant proceedings and conserve Commission resources.  Specifically, the two investigations involved the same complainant, the same domestic industry allegations, the same patents, the same asserted claims in the patents, the same ALJ, and the same Staff attorney.  Thus, consolidating the two investigations would avoid duplicative discovery and the need for two hearings at a time when “[t]he resources of the Commission and its Judges are fully committed.”  Nokia, RIM, and Samsung each made similar arguments in support of the Staff’s motion.

Panasonic and Palm opposed the motion because, as respondents in the earlier investigation (337-TA-667), they argued that they would be prejudiced by the extension of procedural deadlines and the increased complexity that would necessarily follow if their investigation were folded into the later investigation (337-TA-673).  Panasonic and Palm also argued that the Staff’s motion to consolidate was an “end run” attempt around Order No. 12 in 337-TA-667, where, as  indicated in our February 19 post, ALJ Rogers denied Saxon’s motion to amend its complaint to add Samsung as proposed respondents.

ALJ Rogers found the Staff’s arguments persuasive and granted the motion.  ALJ Rogers determined that any prejudice to Panasonic and Palm from the extension of procedural deadlines or the increase in complexity was outweighed by the significant efficiencies to be gained by avoiding two redundant investigations.  Moreover, a failure to consolidate the investigations would greatly prejudice Samsung because many critical issues common to both investigations (e.g., claim construction, invalidity, and domestic industry) would necessarily be resolved in the first investigation, thereby denying Samsung a chance to be heard on those issues.  Thus, according to ALJ Rogers, the best way to proceed was to grant the Staff’s motion and consolidate the two investigations.  Lastly, regarding the procedural schedule for the consolidated investigation, ALJ Rogers determined that “the fairest and most efficient approach is to set the schedule for the 673 investigation as a single schedule for all parties in the consolidated investigation.”