By Eric Schweibenz
On May 22, 2015, ALJ Thomas B. Pender issued Order No. 11 in Certain Wireless Headsets (Inv. No. 337-TA-943).

By way of background, this investigation is based on a December 8, 2014 complaint filed by One-E-Way, Inc. ("OEW") alleging violation of Section 337 in the importation into the U.S. and sale of certain wireless headsets that infringe one or more claims of U.S. Patent Nos. 7,865,258 and 8,131,391.  See our January 8, 2015 and January 14, 2015 posts for more details on the complaint and notice of investigation, respectively.

In Order No. 11, ALJ Pender denied Respondents' motion to strike certain portions of the supplemental declaration of OEW's expert, Joseph C. McAlexander III, P.E., finding the subject testimony constituted proper rebuttal and thus should not be stricken.  Specifically, ALJ Pender determined that the testimony in paragraphs 4-18 of Mr. McAlexander's supplemental declaration properly responded to the opinions of Respondents' expert regarding the intrinsic evidence and his opinion that "an ordinary artisan could not determine how much interference is permitted by the claims."  ALJ Pender further noted that Ground Rule 8.2 guides the parties' exchange of preliminary claim constructions and requires, among other things, that the parties simultaneously exchange proposed constructions.  Accordingly, at the time OEW filed its 8.2 preliminary claim constructions OEW could not have known the constructions Respondents would be proposing and thus Mr. McAlexander's testimony was properly characterized as rebuttal to Respondents' proposed construction (i.e., that the term is indefinite) and OEW was under no obligation to include such as part of its Ground Rule 8.2 preliminary claim constructions.