THE UNITED STATES INTERNATIONAL TRADE COMMISSION

Washington, D.C.

In the Matter of

CERTAIN WIRELESS CONSUMER

ELECTRONICS DEVICES AND

COMPONENTS THEREOF

Investigation No. 337-TA-853

RESPONDENTS' JOINT BRIEF

ON REMEDY, BONDING, AND THE PUBLIC INTEREST

PUBLIC VERSION

TABLE OF CONTENTS

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i

I. INTRODUCTION .............................................................................................................1

II. NO EXCLUSION ORDER SHOULD ISSUE ..................................................................3

A. Any exclusion order must be limited only to the accused product categories ......3

B. Any exclusion order should be explicit about the products and chips within the scope of any remedial order .............................................................................4

Any exclusion order should not cover products expressly found to be 1.noninfringing..............................................................................................4

Any exclusion order should not cover chips for which 2.Complainants failed to present evidence at the hearing .............................7

Any exclusion order should carve out ZTE and Huawei products 3.which the ALJ ruled to be outside of the investigation .............................8

C. Any exclusion order should not cover downstream products ................................9

Factor 1: The value of the accused components is low compared to 1.the value of the Respondents' downstream products ...............................10

Factor 2: That the downstream products are manufactured by 2.Respondents does not preclude an EPROMs analysis herein ..................11

Factor 3: Complainants will not receive any incremental benefit if 3.the Commission excludes Respondents' downstream products ...............12

Factor 4: Excluding downstream products will harm Respondents' 4.non-infringing activities ...........................................................................12

Factors 5 and 6: Excluding downstream products would harm 5.consumers and third parties, and Complainants have offered no evidence of an alternative supply of non-infringing products .................13

Factor 7: Respondents' products that do not contain an infringing 6.semiconductor chip will be improperly excluded ....................................14

Factor 8: There is no evidence Respondents will evade an order that 7.does not cover downstream products .......................................................14

Factor 9: Excluding downstream products would burden Customs ........15 8.

The RD's ruling on downstream products is inconsistent with other 9.ITC determinations ..................................................................................15

D. There should be exemptions to any limited exclusion order for repair, replacement, warranty and service contracts .......................................................16

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E. Any exclusion order should include a certification provision with Customs and a reasonable adjustment period .....................................................................17

III. COMPLAINANTS ARE NOT ENTITLED TO CEASE AND DESIST ORDERS ..........................................................................................................................18

A. The ALJ correctly recommended against the issuance of cease and desist orders....................................................................................................................19

B. Beyond failure of proof, the evidence demonstrates that there is no commercially significant inventory for many respondents ..................................20

ZTE ..........................................................................................................20 1.

LG ............................................................................................................20 2.

Huawei .....................................................................................................21 3.

Samsung ...................................................................................................22 4.

IV. NO BOND IS NECESSARY DURING THE PRESIDENTIAL REVIEW PERIOD...........................................................................................................22

A. The ALJ correctly recommended against the imposition of any bond ................22

B. There is no patented domestic industry product and thus no price difference .....24

V. A REMEDIAL ORDER WOULD BE HARMFUL TO THE PUBLIC INTEREST .......................................................................................................................25

A. A remedial order would have deleterious effects on United States consumers ...26

B. A remedial order would have deleterious effects on competitive conditions in the United States economy ..............................................................................30

1. Any remedial order would remove key market participants that provide the needed supply and competition in this space to drive innovation ................................................................................................30

2. Complainants have not demonstrated that they or their licensees can replace the articles at issue with like or directly competitive articles ......30

3. A remedial order would increase the asymmetric bargaining advantage of patent assertion entities ......................................................32

4. A remedial order in favor of a patent assertion entity would turn the purpose of section 337 on its head ...........................................................33

C. A remedial order would have no impact on U.S. production of articles that are like or directly competitive to those that are subject to investigation ............34

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D. A remedial order would harm the public health and welfare ...............................34

E. A remedial order in this investigation would be contrary to the public interest ..................................................................................................................35

VI. CONCLUSION ................................................................................................................36

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TABLE OF AUTHORITIES

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Cases

Apple Inc. v. Samsung Elecs. Co., Ltd.,

735 F.3d 1352 (Fed. Cir. 2013) ................................................................................................ 27

Apple Inc. v. Samsung Elecs. Co., Ltd.,

909 F. Supp. 2d 1147 (N.D. Cal. 2012) .................................................................................... 28

Broadcom Corp. v. Qualcomm Inc.,

2007 U.S. Dist. LEXIS 97647 (C.D. Cal. Dec. 31, 2007) ........................................................ 28

Certain Audiovisual Components and Products Containing Same,

Inv. No. 337-TA-837, Order No. 67 (Feb. 27, 2013) ................................................................. 5

Certain Baseband Processor Chips & Chipsets, Transmitter & Receiver (Radio) Chips, Power

Control Chips, & Prods. Containing the Same, Including Cellular Telephone Handsets,

Inv. No. 337-TA-543, Comm'n Op. (June 19, 2007) ...................................................... 8, 15, 18

Certain Baseband Processor Chips and Chipsets, Transmitter, & Receiver (Radio) Chips, Power

Control Chips, and Products Containing Same, Including Cellular Telephone Handsets,

Inv. No. 337-TA-543, Comm’n Det., 2011 WL 6121182 (October 2011) .............................. 22

Certain Coaxial Cable Connectors and Components Thereof and Products Containing Same,

Inv. No. 337-TA-650, Comm’n Op. (Apr. 14, 2010) ............................................................... 33

Certain Dimmable Compact Fluorescent Lamps,

Inv. No. 337-TA-830, Init. Determ., 2013 WL 1278074 (March 1, 2013) .............................. 24

Certain Display Controllers & Prods. Containing Same,

Inv. No. 337-TA-491/481, Comm’n Op., 2005 ITC LEXIS 901 (Feb. 4, 2005) ...................... 29

Certain Elec. Devices,

Inv. No. 337-TA-794, Comm'n Opinion (June 4, 2013)........................................................... 23

Certain Elec. Digital Media Devices & Components Thereof,

Inv. No. 337-TA-796, Ltd. Excl. Order (Aug. 9, 2013) ............................................................. 8

Certain Electronic Devices, Including Wireless Communications Devices, Portable Music and

Data Processing Devices, and Tablet Computers,

Inv. No. 337-TA-794, Comm’n Op., Dissenting Views of Commissioner Pinkert (July 5,

2013) ......................................................................................................................................... 29

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Certain Erasable Programmable Read-Only Memories, Components Thereof, Prods. Containing

Such Memories, & Processes for Making Such Memories,

Inv. No. 337-TA-276, Comm'n Op. (May 16, 1989) .................................... 9, 10, 11, 12, 15, 16

Certain Flash Memory Circuits and Products Containing Same,

Inv. No. 337-TA-382, 1997 WL 817778, Comm'n Op. (1997) .................................................. 6

Certain Integrated Circuits, Chipsets, & Prods. Containing Same, Including Television Sets,

Media Players & Cameras,

Inv. No. 337-TA-709, Init. Determ. (Apr. 4, 2011) .................................................................. 10

Certain Integrated Circuits,

Inv. No. 337-TA-786, Init. Determ. (July 12, 2012) ................................................................ 23

Certain Kinesiotherapy Devices,

Inv. No. 337-TA-823 (June 17, 2013) ...................................................................................... 23

Certain Light-Emitting Diodes & Prods. Containing the Same,

Inv. No. 337-TA-784, Rec. Determ. (July 23, 2012) ............................................................ 9, 16

Certain Liquid Crystal Display Modules, Prods. Containing Same, & Methods Using the Same,

Inv. No. 337-TA-634, Comm'n Op. (Nov. 24, 2009) ............................................................... 11

Certain Microprocessors, Components Thereof, & Prods. Containing Same,

Inv. No. 337-TA-781, Init. Determ. at 174-78 (Dec. 14, 2012) ............................................... 11

Certain Mobile Devices, Associated Software, & Components Thereof,

Inv. No. 337-TA-744, Comm'n Op. (June 5, 2012) .................................................................. 19

Certain NOR and NAND Flash Memory Devices & Prods. Containing Same,

Inv. No. 337-TA-560, Init. Determ. (June 1, 2007) ............................................................ 10, 11

Certain NOR and NAND Flash Memory Devices And Products Containing Same,

Inv. No. 337-TA-560, Order No. 38 (Nov. 17, 2006) ................................................................ 7

Certain Personal Data & Mobile Commc'ns Devices & Related Software,

Inv. No. 337-TA-710, Comm'n Op. (Dec. 29, 2011) .................................................... 16, 18, 26

Certain Portable Elec. Devices,

Inv. No. 337-TA-721, Init. Determ. (Oct. 17, 2011) ................................................................ 23

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Certain Power Supply Controllers and Prods. Containing Same,

Inv. No. 337-TA-541, Order No. 13 (Dec. 22, 2005) ................................................................. 8

Certain Power Supply Controllers,

Inv. No. 337-TA-541, Limited Exclusion Order (Aug. 11, 2006) .............................................. 9

Certain Rubber Antidegradants,

Inv. No. 337-TA-533, Comm'n Opinion (2006) ....................................................................... 24

Certain Rubber Antidegradants, Components Thereof, and Prods. Containing Same,

Inv. No. 337-TA-533, Init. Determ. (Feb. 17, 2006) .................................................................. 8

Certain Rubber Antidegradants, Components Thereof, and Products Containing Same,

Inv. No. 337-TA-533, Comm'n Op. (April 2008) ..................................................................... 22

Certain Semiconductor Chips with Minimized Package Size & Prods. Containing Same,

Inv. No. 337-TA-605, Comm'n Op. (June 3, 2009) .................................................................. 17

Certain Unified Communications Sys., Products Used With Such Sys., and Components Thereof,

Inv. No. 337-TA-598, USITC Pub. 4136, Init. Determ. (Mar. 2010)......................................... 6

Fuji Photo Film Co. Ltd. v. Int'l Trade Comm'n,

386 F.3d 1095 (Fed. Cir. 2004) ................................................................................................ 19

Mezzalingua v. Int'l Trade Comm'n,

660 F.3d 1322 (Fed. Cir. 2011) ................................................................................................ 34

Ricoh Co., Ltd. v. Quanta Computer, Inc.,

2010 U.S. Dist. LEXIS 38220 (W.D. Wis. Apr. 19, 2010) ...................................................... 28

Sundance, Inc. v. Demonte Fabricating Ltd.,

2007 U.S. Dist. LEXIS 158 (E.D. Mich. Jan. 4, 2007) ............................................................. 28

z4 Techs., Inc. v. Microsoft Corp.,

434 F. Supp. 2d 437 (E.D. Tex. 2006) ...................................................................................... 28

Statutes

19 U.S.C. § 1337(j)(3) .................................................................................................................. 22

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Other Authorities

H.R. Rep. No. 100-40 (1987) ........................................................................................................ 33

S. Rep. No. 100-71 (1987) ............................................................................................................ 33

S. Rep. No. 93-1298 (1974) .......................................................................................................... 25

U.S. Intell. Prop. Enforcement Coordinator, 2013 Joint Strategic Plan on Intell. Prop.

Enforcement at 17 (June 2013) ................................................................................................... 6

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viii

TABLE OF ABBREVIATIONS

'336 patent U.S. Patent No. 5,809,336, entitled "High Performance Microprocessor

Having Variable Speed Clock"

ALJ Administrative Law Judge

C&D

CPre.

Cease & Desist

Complainants' Initial Pre-Hearing Brief

CBr. Complainants' Initial Post-Hearing Brief

CRBr. Complainants' Reply Post-Hearing Brief

CDX Complainants' Demonstrative Exhibit

Complainants Complainants Phoenix Digital Solutions, Patriot Scientific Corporation and

Technology Properties Limited

CX Complainants' Exhibit

CXM Complainants' Markman Exhibit

ID Final Initial Determination, issued on September 6, 2013

JX Joint Exhibit

JXM Joint Markman Exhibit

MTr. Transcript of Markman Hearing

Incorporated

Pet.

Resp. Pre-Hrg.

Stat.

Complainants' Petition for Review of ID, filed on September 23, 2013

Respondents' Pre-Hearing Statement

RBr. Respondents' Initial Post-Hearing Brief

RRBr. Respondents' Reply Post-Hearing Brief

RDX Respondents' Demonstrative Exhibit

RD Recommended Determination, issued on September 6, 2013

Respondents1 Barnes & Noble, Inc. ("Barnes & Noble"); Garmin Ltd., Garmin

International, Inc. and Garmin USA, Inc. (collectively, "Garmin"); HTC

1 For purpose of this submission, "Respondents" do not include the respondents that have

recently been terminated from this investigation based on settlement. These terminated

respondents are: Acer Inc. and Acer America Corporation; Amazon.com, Inc.; Kyocera

Corporation and Kyocera Communications, Inc.

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Corporation & HTC America, Inc. (collectively, "HTC"); Huawei

Technologies Co., Ltd., Huawei Device Co., Ltd., Huawei Device USA

Inc., and Futurewei Technologies, Inc. (collectively, "Huawei"); LG

Electronics, Inc. and LG Electronics U.S.A., Inc. (collectively, "LG");

Nintendo Co., Ltd., and Nintendo of America Inc. (collectively,

"Nintendo"); Novatel Wireless, Inc. ("Novatel Wireless"); Samsung

Electronics Co., Ltd. and Samsung Electronics America, Inc. (collectively,

"Samsung"); and ZTE Corporation and ZTE (USA) Inc. (collectively,

"ZTE")

RPX Respondents' Physical Exhibit

RX Respondents' Exhibit

SBr. Staff's Initial Post-Hearing Brief

SRBr. Staff's Reply Post-Hearing Brief

TI Texas Instruments Inc.

Tr. Transcript of Pre-Hearing Conference and Hearing

Note: Unless otherwise noted, all emphases in this brief have been added.

PUBLIC VERSION

1

I. INTRODUCTION

At the outset, no remedial order should issue in this investigation because the Initial

Determination correctly found that none of the Respondents has violated Section 337, relying on

three separate and independent bases of noninfringement. As discussed in Respondents'

opposition to Complainants' petition for review and in the concurrently submitted response to the

Commission's Questions on review, there is no basis to disturb the ALJ's correct findings of

noninfringement.

Nonetheless, should the Commission determine to reverse each of these three separate

and independent noninfringement bases, it should, after considering the scope and impact of the

requested remedial orders on the public interest, decline to issue any relief. The breadth of the

relief requested by Complainants, particularly considering the virtually unlimited scope of

products and the vital roles Respondents serve in the U.S. market, would have prejudicial effects

on public health and welfare, competitive conditions in the United States, and U.S. consumers in

multiple industries including mobile phones and personal navigation devices. The public's

interests in this investigation far outweigh Complainants' interest in using an exclusion order to

extract payments from companies that contribute valuable products and services to U.S.

consumers.

Notwithstanding these considerations, if any relief is issued, the Commission should

tailor its remedial order to address the particular facts of this investigation. Specifically,

Complainants assert that the alleged infringement of the '336 patent occurs in a chip component

of the accused electronic devices. To the extent that any remedy is warranted, an order directed

at the infringing component would be specifically tailored to ameliorate the alleged

infringement. To the extent that Complainants request an exclusion order directed against any

Respondents' consumer electronic devices containing an infringing component, any such

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2

remedial determination should be made after full consideration of the impact of such

downstream product relief. To this end, when an EPROMs analysis is undertaken, the impact of

the requested remedial orders outweighs any benefit to the Complainants, and therefore

downstream relief should not be granted.

In addition, the exclusion order, if any, should be further limited to the categories of

products that were actually accused in this investigation to avoid a vague and unlimited order

that would have the potential to ensnare device categories that were never envisioned to be part

of this investigation, let alone discussed, accused, or adjudicated. Based on the facts already

determined in this investigation, any remedial order must be explicit about the products and

chips within its scope to avoid covering products found to be noninfringing, to avoid re-

capturing chips expressly found not to infringe by the ALJ and the Commission, and

to avoid entangling the ZTE and Huawei products specifically exempted from this investigation.

Finally, Respondents also request that any limited exclusion order include an adjustment period,

a certification provision, and an exemption to allow Respondents to fulfill existing consumer

contractual expectations including repair, replacement, warranty and service agreements.

With respect to cease and desist orders, there is nothing in the record to support a finding

that such relief is warranted. Because Complainants are not practicing entities, they have no

product to sell and consequently will not lose any sales to Respondents' products that might

already be located in the United States. As the ALJ properly found, Complainants did not

present any evidence of inventory, much less commercially significant inventory, to justify a

cease and desist order. In fact, Complainants affirmatively stipulated that many Respondents do

not maintain any inventory in this country, including . Although the

Investigative Attorney pointed to one Respondent's possession of products , the

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ALJ correctly found that this is insufficient to demonstrate that the Respondent

maintains or has stockpiled a commercially significant inventory so as to justify a cease and

desist order. Accordingly, Complainants failed to meet their burden of showing the need for any

cease and desist orders and none should issue.

The same is true for the amount of bond during the Presidential review period. As the

ALJ found, Complainants failed to present any evidence justifying the imposition of a bond.

Complainants presented no evidence regarding any pricing competitive advantage between any

allegedly licensed domestic industry product and the alleged infringing imported product, or

even a reasonable royalty. Accordingly, because Complainants will receive no benefit from any

exclusion order (as they are not practicing entities and have no products to sell), the Commission

should not impose any bond, let alone the 100% bond that Complainants requested.

II. NO EXCLUSION ORDER SHOULD ISSUE

Complainants have failed to establish a violation of Section 337 and therefore are not

entitled to any remedy. Nevertheless, Complainants, which are a collection of patent assertion

entities that will not gain any direct benefit from an importation ban, demand that the

Commission issue a broad exclusion order that bars a significant portion of smartphones,

personal computers, tablets, wireless hotspots, portable handheld gaming devices, and navigation

devices from the U.S. market. Should there be a finding of violation, the Commission should

narrowly tailor any remedial order to the circumstances of this investigation for the following

reasons and for the benefit of the U.S. public.

A. Any exclusion order must be limited only to the accused product categories

At the hearing, Complainants limited their infringement allegations and evidence by each

Respondent to the following categories of products:

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4

Respondent Accused Product Categories Exemplary Record Citations

Barnes & Noble E-readers and tablet computers RDX-4.30C; RDX-4.31C; RDX-1024C;

Tr. (Subramanian) 1137:10-24

Garmin Navigation Devices RDX-4.32C; RDX-4.33C; RDX-1025C;

Tr. (Subramanian) 1137:25-1138:15

HTC Smartphones and tablet

computers

RDX-4.19C; RDX-4.20C; RDX-1026C;

Tr. (Subramanian) 1132:23-1133:23

Huawei Smartphones and tablet

computers

RDX-4.21C; RDX-1027C; Tr.

(Subramanian) 1133:24-1134:12

LG Smartphones and mobile

phones

RDX-4.23C; RDX-4.24C; RDX-1029C;

Tr. (Subramanian) 1135:7-1135:21

Nintendo Portable handheld gaming

devices

RDX-4.34C; RDX-4.35C; RDX-1030C;

Tr. (Subramanian) 1138:16-1139:4

Novatel Wireless Wireless mobile hotspots RDX-4.28C; RDX-1031C; Tr.

(Subramanian) 1136:20- 1137:1

Samsung Smartphones RDX-4.25C; RDX-1032C; Tr.

(Subramanian) 1135:22-1136:2

ZTE

Smartphones, mobile phones,

mobile hotspots, USB modems,

and wireless home phones

RDX-4.26C; RDX-4.27C; RDX-1033C;

Tr. (Subramanian) 1136:3-1136:19

Although Respondents make other types of products, Complainants failed to present any

evidence at the hearing on any product categories outside of those listed above (e.g., televisions,

servers, digital cameras, etc.). Accordingly, these other product categories, which were not at

issue during the hearing, are beyond the scope of this investigation. In this light, the

Commission should limit its remedy, if any, to the specific categories of products alleged to

infringe by each Respondent and at least as discussed below in Parts II.B.-E., infra at pp. 4-17.

B. Any exclusion order should be explicit about the products and chips within the scope of any remedial order

Any exclusion order should not cover products expressly found to be 1.noninfringing

Any remedy should be limited only to products containing semiconductor chips for which

Complainants offered infringement evidence. This need for specificity is particularly important

in this investigation. Complainants accused, but failed to present evidence at the hearing with

respect to, hundreds of Garmin, HTC, Huawei, LG, Nintendo, Samsung, and ZTE accused

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products. [RBr. at Att. B & C (listing products accused by Complainants for which there is no

evidence).] Complainants failed to withdraw their allegations against these products and

continued to accuse them at the hearing, but offered no infringement evidence as to these

products.2 In contrast, Respondents, affirmatively addressed these products at the hearing

through their noninfringement expert Dr. Subramanian.

In this light, the ALJ expressly found that the products listed in Attachments B and C of

Respondents' opening post-hearing brief do not infringe the asserted claims:

The Administrative Law Judge agrees and finds that, insofar as the

products listed in Attachments B and C of Respondents' opening brief, the

evidence in this Investigation is not sufficient to show that any of them

infringes any of the asserted claims of the '336 patent. For Complainants to

respond to Respondents' specific identification of products for which there was no

evidence produced with a general statement that their initial brief adduced

evidence of infringement by Accused Products listed in Exhibit A of their brief,

which is simply a listing of the Accused Products, is not sufficient. Complainants,

who retain the burden of proof, must identify evidence that specifically proves,

preponderately, that an Accused Product satisfies all the limitations of at least one

asserted claim before there can be a finding of infringement, or provide such

proof by way of clearly supported representative products.

[ID at 284-285.] Complainants did not seek review of this noninfringement decision, [see

generally Pet.], and this finding of noninfringement became the Commission's determination

when the Commission declined to review this issue. [Nov. 25, 2013 Notice of Partial Review.]

Under these circumstances, any remedial order must exempt these specific products

found to be noninfringing. Cf. Certain Audiovisual Components and Products Containing Same,

Inv. No. 337-TA-837, Order No. 67 (Feb. 27, 2013) (initial determination granting summary

determination of non-infringement for products that were accused, but where Complainants

failed to offer any infringement evidence), unreviewed by Comm'n Notice (March 27, 2013);

2 This is not a situation in which the Complainants have withdrawn their infringement

allegations, such that the products are no longer part of the investigation.

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Certain Flash Memory Circuits and Products Containing Same, Inv. No. 337-TA-382, 1997 WL

817778, Comm'n Op. at 22-25 (1997) (ruling that it was an error for ALJ not to make a finding

that Respondents' products did not infringe asserted patents where products were accused,

Complainant failed to "unequivocally state that [Complainant] was withdrawing its allegation

with respect to the [accused products]," and there was a failure of proof on those products); see

also Certain Unified Communications Systems, Products Used With Such Systems, And

Components Thereof, Inv. No. 337-TA-598, USITC Pub. 4136, Init. Determ. at 188-189 (Mar.

2010) (unreviewed in relevant part) (finding that Respondent's accused products did not infringe

where Complainant's expert offered no opinion as to whether the accused products infringed and

Respondent's expert offered a noninfringement opinion).

Specifically enumerating and exempting from a remedial order those products found to

be noninfringing would fairly permit Respondents to continue importing these noninfringing

products, advance the U.S. Government's strategic plan, and facilitate Customs and Border

Protection's enforcement of any exclusion order by providing greater clarity and more

predictability about the scope of any remedy.3 See U.S. Intell. Prop. Enforcement Coordinator,

2013 Joint Strategic Plan on Intell. Prop. Enforcement at 17 (June 2013). Without this clarity,

Complainants could misuse a vague remedial order to cover chips and products which were

never at issue at the hearing or which were already deemed to be noninfringing. Consequently,

any exclusion order in this investigation should explicitly carve out these noninfringing products

from the scope of the remedial order.

3 Although the ALJ recommended against a deviation from the Commission's standard

practice with respect to exclusion orders, [RD at 7], Respondents respectfully submit that the

particular facts in this investigation justify a minor departure from this practice in order to

promote substantive fairness and administrative efficiency as discussed herein.

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Any exclusion order should not cover chips for which 2.Complainants failed to present evidence at the hearing

Because Complainants failed to seek adequate discovery from , the ALJ ruled

that there is no infringement for chips whose internal architecture is unknown. [ID at

118-119 (referring to chips identified on page 88 of the ID).] The chips deemed to be

noninfringing are:

[ID at 88.]

In its November 25, 2013 Notice of Partial Review, the Commission expressly

"determined not to review the ID's finding that Complainants have failed to satisfy their burden

of proof with respect to infringement of claims 6 and 13" for "the accused products listed at page

88 of the ID and products containing these chips." [Nov. 25, 2013 Notice of Part. Review at 3-

4.] In light of the Commission's determination of noninfringement for these chips, any remedial

order should expressly carve them, and any product containing these chips, out of the scope of

any exclusion order.

Such a carve out is consistent with past cases where the Commission has carved out non-

accused products from the scope of exclusion orders, based on a Complainant's representations

regarding the scope of the investigation. See Certain NOR and NAND Flash Memory Devices

and Products Containing Same, Inv. No. 337-TA-560, Order No. 38 at 7 (Nov. 17, 2006)

(terminating certain non-accused products from the investigation to give "certainty regarding

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whether these products will be covered by an exclusion order"); Certain Rubber Antidegradants,

Components Thereof, and Prods. Containing Same, Inv. No. 337-TA-533, Init. Determ. at 96-97,

n.32 (Apr. 25, 2006); Certain Power Supply Controllers and Prods. Containing Same, Inv. No.

337-TA-541, Order No. 13 (Dec. 22, 2005); see also Certain Elec. Digital Media Devices &

Components Thereof, Inv. No. 337-TA-796, Ltd. Excl. Order at ¶ 4 (Aug. 9, 2013) (explicitly

listing products found to be non-infringing and thus not subject to exclusion order).

Any exclusion order should carve out ZTE and Huawei products 3.which the ALJ ruled to be outside of the investigation

An exclusion order, if any, should also carve out the ZTE and Huawei products for which

Complainants withdrew their infringement allegations in light of the ALJ's Order No. 35. The

ZTE products which should be subject to this carve-out are: N9500 (Flash), N9120 (Avid4G),

N9100, F555/P671A91 (Aspect), and X501 (Groove). The Huawei products which should be

carved out are: Huawei Verge (M570) and Huawei Pillar (M615/C6070). These seven products

were not subject to infringement allegations, were not addressed during the hearing, and are not

subject to this investigation's final determination. [See Order No. 54 at 4.]

Complainants made the deliberate choice not to substantively accuse these ZTE and

Huawei products in their infringement accusations. In past investigations, where the

Complainant chose not to accuse certain products, the Commission has affirmatively found that

those products are beyond the scope of any remedy. See Certain Baseband Processors, Inv. No.

337-TA-543, Comm'n Op., 2007 ITC LEXIS 621, at *286 (June 19, 2007) (additional and

dissenting views of Chairman Pearson and Comm'r Pinkert) ("The Commission's longstanding

policy, however, is to grant relief no broader than that requested by the complainant. . . where the

complainant has proposed relief narrower than a general exclusion, the Commission has used the

complainant's proposed relief as a starting point for its analysis."); Certain Power Supply

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Controllers, Inv. No. 337-TA-541, Ltd. Excl. Order at 3 (Aug. 11, 2006).

The same analysis should apply here. Complainants should not receive a remedy on

products expressly excluded from this investigation for which Complainants failed to present any

evidence of infringement. Accordingly, these ZTE products and Huawei products should be

carved out of any remedy that may result in this investigation. Such a carve-out should be

implemented by specific language in an exclusion order, see, e.g., Certain Power Supply

Controllers, Inv. No. 337-TA-541, Limited Exclusion Order at 3 (Aug. 11, 2006) ("In

accordance with [complainant's] withdrawal of infringement allegations against certain of SO's

products, the provisions of this Order shall not apply to [enumerated product models]"), or, at a

minimum, by a clear statement in the Commission's Opinion that such products are beyond the

scope of any exclusion order.

C. Any exclusion order should not cover downstream products

Complainants assert that Respondents incorporate allegedly infringing semiconductor

chips into their respective accused products. Complainants' infringement allegations are entirely

based upon the use of semiconductor chips incorporated into Respondents' products, with these

accused semiconductor chips being components of larger computer systems, mobile phones, and

other devices identified by Complainants. Consequently, Respondents' accused products are

"downstream" products within the meaning of Certain Erasable Programmable Read-Only

Memories, Components Thereof, Prods. Containing Such Memories, & Processes for Making

Such Memories, Inv. No. 337-TA-276, Comm'n Op. (May 16, 1989) ("EPROMs").

On balance, the factors set forth in EPROMs weigh heavily against ordering exclusion of

Respondents' downstream products. See EPROMs at 125-126; Certain Light-Emitting Diodes &

Prods. Containing the Same, Inv. No. 337-TA-784, Rec. Determ. at 2-9 (July 23, 2012); Certain

Integrated Circuits, Chipsets, & Prods. Containing Same, Including Television Sets, Media

PUBLIC VERSION

10

Players & Cameras, Inv. No. 337-TA-709, Init. Determ. at 93-94 (Apr. 4, 2011).

Factor 1: The value of the accused components is low compared to the 1.value of the Respondents' downstream products

At the hearing, Respondents demonstrated that the value of the patented technology is

quantitatively and qualitatively insignificant compared to the value of the downstream products,

thus weighing against exclusion of Respondents' downstream products. EPROMs, Comm'n Op.

at 125-126; Certain NOR and NAND Flash Memory Devices & Prods. Containing Same, Inv.

No. 337-TA-560, Init. Determ. at 149-150 (June 1, 2007).

First, the low value of the patented technology compared with the value of the accused

products is apparent from the amounts that third parties have agreed to pay in MMP portfolio

license agreements.

Although

Respondents do not agree that this represents a "reasonable royalty," it demonstrates that the

perceived value of the '336 patent is miniscule compared to the overall value of the accused

PUBLIC VERSION

11

products offered by Respondents.

Second, the '336 patent technology has a low qualitative value.

Complainants failed to present any evidence that consumers demand or value the functionality

provided by the '336 patent. Thus, this factor weighs in favor of removing Respondents'

downstream products from an exclusion order. See Certain NOR and NAND Flash Memory

Devices & Prods. Containing Same, Inv. No. 337-TA-560, Init. Determ. at 149-150 (June 1, 2007).

Factor 2: That the downstream products are manufactured by 2.Respondents does not preclude an EPROMs analysis herein

The second EPROMs factor involves an evaluation of the identity of the manufacturers of

the downstream products. Although Respondents are manufacturers of accused downstream

products, this fact does not render an EPROMs analysis moot. See, e.g., Certain Liquid Crystal

Display Modules, Prods. Containing Same, & Methods Using the Same, Inv. No. 337-TA-634,

Comm'n Op. at 4 (Nov. 24, 2009) (adopting ALJ's analysis of whether an exclusion order should

apply to the named respondents' downstream products based on EPROMs factors); Certain

Microprocessors, Components Thereof, & Prods. Containing Same, Inv. No. 337-TA-781, Init.

Determ. at 174-78 (Dec. 14, 2012).

Applying a downstream analysis is particularly appropriate on the facts of this case to

balance the interests involved in considering the other EPROMs factors. Because Complainants

do not produce anything for sale in the market, the benefit to Complainants of a remedial order is

non-existent despite the identity of the downstream product manufacturers. On the other hand,

the harm to the downstream product manufacturers and to U.S. consumers is significant, and no

less so because the former are named as Respondents.

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12

Factor 3: Complainants will not receive any incremental benefit if the 3.Commission excludes Respondents' downstream products

Complainants do not manufacture or sell any products in the United States that compete

with, or can be used in, Respondents' downstream products.

Thus, Complainants would not receive any

direct incremental benefit in product sales or profits if Respondents' downstream products are

excluded. [Tr. (Vander Veen) 1869:3-22.]

Moreover, there is no evidence in the record showing that Complainants' royalty revenues

would increase should a remedial order issue.

Any other purported incremental benefit to

Complainants is highly speculative, would be very limited, and would be outweighed by the

other EPROMs factors.

Factor 4: Excluding downstream products will harm Respondents' 4.non-infringing activities

An exclusion order encompassing downstream products will significantly harm

Respondents' noninfringing activities such as sales of noninfringing accessories and components.

For example, the only accused instrumentalities for computer products are spinning hard drives.

[RDX-4.17C; RDX-4.18C; RDX-1022C; Tr. (Subramanian) 1129:23-1132:12.] An exclusion

order on these downstream products (e.g., desktop computers, notebooks, tablets) would bar the

sale of the entire computer rather than the one component accused of infringement. Excluding

Respondents' downstream products will likely result in lost sales of such accessories and larger

non-infringing components.

PUBLIC VERSION

13

Factors 5 and 6: Excluding downstream products would harm 5.consumers and third parties, and Complainants have offered no evidence of an alternative supply of non-infringing products

It is uncontroverted that excluding Respondents' downstream products would have an

adverse impact on U.S. consumers and competitive conditions in the U.S. economy by

significantly reducing the U.S. supply of notebooks, tablets, mobile phones, smartphones, e-

readers, data cards, USB modems, mobile hotspots, portable handheld gaming devices,

navigation devices, and other consumer electronic devices that could not be adequately

compensated by alternative supplies. [RDX-6C.6; RDX-6C.7; RX-936C; RX-1634C; RX-1636;

RX-1637; RX-2188C; Tr. (Vander Veen) 1844:8-18; 1846:6-22; 1848:5-1849:25.]

Respondents' downstream products account for a significant portion of the U.S. market

for several types of products at issue in this investigation. [RDX-6C.6; RDX-6C.7; RX-936C;

RX-1634C; RX-1636; RX-1637; RX-2188C; Tr. (Vander Veen) 1844:8-18; 1846:6-22; 1848:5 –

1849:25.] Respondents account for approximately of U.S. smartphone sales in 2012. [Tr.

(Vander Veen) 1849:3-8; 1863:13-23; RX-1636; RX-1637; and RX-936C.] Respondent

Garmin's market share for personal navigation devices was in December

2012 and ranged from from December 2010 to December

2012. [Tr. (Vander Veen) 1849:11-25; 1866:10-1867:21; RDX-6C.7; RX-2188C.]

Banning this portion of smartphone and personal navigation device products from the

market would adversely affect competitive conditions in the United States and U.S. consumers

by giving them fewer choices, reducing supply, and necessarily leading to significantly higher

prices. [Tr. (Vander Veen) 1846:6-22.] Complainants offered no evidence that their licensees

offer products that could replace Respondents' excluded products, or to the extent any such

products exist, that those products could make up this missing supply. Instead, the only evidence

in the record demonstrates that an exclusion order would create such a disruption in the market

PUBLIC VERSION

14

for smartphones and personal navigation devices that it is questionable whether licensed products

could fill the gap in a reasonable time period. [Tr. (Vander Veen) 1861:10-16; 1862:15-1863:2;

1863:13-1864:5.]

Moreover, excluding downstream products will also negatively affect third-party

component suppliers who supply other portions of the Respondents' accused products beyond the

accused Texas Instruments, and Samsung semiconductor chips. Therefore, a large

portion of the monetary value comes from components other than the allegedly infringing

semiconductor chips. If Respondents' downstream products are excluded, third party suppliers

of other components would lose revenue due to Respondents' inability to import products that

incorporate those products.

Factor 7: Respondents' products that do not contain an infringing 6.semiconductor chip will be improperly excluded

Customs and Border Protection has no readily ascertainable method for determining

whether Respondents' downstream products contain a semiconductor chip that allegedly

infringes the '336 patent. Respondents' accused products incorporate semiconductor chips from

many suppliers. [See, e.g., RDX-4.69C; RDX-4.70C, RDX-4.71C, RX-617C at QTPL 13714;

RDX-4.80C; Tr. (Subramanian) 1178:9-1182:23; 1191:4-1193:9.] Complainants' infringement

allegations, however, are limited to products containing Texas Instruments, and

Samsung chips, even though Respondents produced technical information during discovery for

other products. It is likely that products incorporating semiconductor chips from suppliers other

than Texas Instruments, and Samsung will be improperly excluded by the order that

Complainants seek.

Factor 8: There is no evidence Respondents will evade an order that 7.does not cover downstream products

Complainants did not present evidence that Respondents will attempt to evade an order

PUBLIC VERSION

15

that does not cover downstream products. Respondents currently manufacture their downstream

products outside the United States, which is not an evasive activity.

; Certain Baseband Processor Chips &

Chipsets, Transmitter & Receiver (Radio) Chips, Power Control Chips, & Prods. Containing the

Same, Including Cellular Telephone Handsets, Inv. No. 337-TA-543, Comm'n Op. at 107-108

(June 19, 2007). An exclusion order that does not cover downstream products would not result

in Respondents relocating their production operations outside the United States to evade an

exclusion order.

Factor 9: Excluding downstream products would burden Customs 8.

Absent a certification provision, it would be difficult, if not impossible, for Customs to

enforce an exclusion order against a Respondent's downstream product without disassembling

the physical product to determine if it contains an infringing semiconductor chip. The packaging

and/or markings on Respondents' products generally do not identify the individual components

used in the products. Disassembly would be both unduly burdensome and likely destructive.

This burden would be compounded because Complainants have asserted that Respondents'

downstream products span at least 36 HTS numbers.

The RD's ruling on downstream products is inconsistent with other 9.ITC determinations

The RD did not perform a complete EPROMs analysis, because it summarily decided

without any further analysis that the accused products are not downstream products. [RD at 7

("Further, the Administrative Law Judge finds that the Accused Products are not 'downstream'

products in the sense contemplated by the Commission in EPROMs, and thus, Respondents'

analysis of the EPROMs factors is moot.").] The conclusory nature of this finding, without

further explanation, requires further scrutiny by the Commission.

PUBLIC VERSION

16

This investigation also presents the Commission with the perfect opportunity to reconcile

divergent views among the ALJs about the application of EPROMs. While the ALJ in this

investigation appeared to have concluded that the accused products are not downstream products

because they are made by named respondents, another ALJ found just last year in the 784

investigation that these same facts justify the application of EPROMs and the rejection of an

exclusion order covering downstream products. See Certain Light-Emitting Diodes and Prods.

Containing The Same, Inv. No. 337-TA-784, Rec. Determ., 2012 WL 3246531 at *1-4 (July 23,

2012) (applying EPROMs factors and recommending no exclusion order against end-user

products made by one of the respondents). The 784 Investigation, however, settled before the

Commission had the opportunity to address this issue. As a result, a divergence of views among

the ALJs has emerged, as shown by the contrasting recommended determinations in this

investigation and the 784 investigation. The Commission should resolve this inconsistency and

rule that, where the instrumentality allegedly practicing the patent claim is a component, an

EPROMs analysis is appropriate even if the downstream products are made by a named

respondent.

D. There should be exemptions to any limited exclusion order for repair, replacement, warranty and service contracts

Any exclusion order should have an exemption to allow Respondents to fulfill existing

repair, replacement, warranty and service contracts. See Certain Personal Data & Mobile

Commc'ns Devices & Related Software, Inv. No. 337-TA-710, Comm'n Op., at 78-83 (Dec. 29,

2011) ("Mobile Commc'ns") (granting an exemption to the scope of the exclusion order to permit

Respondent to import refurbished handsets as replacements under warranty and/or insurance

contracts).

The Respondents here (e.g., LG, ZTE, Novatel, Samsung) provide repair and replacement

PUBLIC VERSION

17

services under warranty contracts. [RDX-6C.5; RX-926C; RX-959C; RX-960C; RX-996C; RX-

997C; RX-998; RX-999; RX-1218; RX-1219.] There is no dispute that, without such an

exemption, consumers would be unable to receive repair or replacement devices under a

warranty claim. [Tr. (Vander Veen) 1844:8-1846:5.] To protect U.S. consumers who may need

to obtain repairs or replacements of accused devices covered by warranties and/or service

contracts, any exclusion order should contain an exemption allowing Respondents to honor such

contracts.

E. Any exclusion order should include a certification provision with Customs and a reasonable adjustment period

In the event that an exclusion order is issued, allowing a certification provision and a

reasonable adjustment period would protect the public from the undue harm that would

otherwise result from an exclusion order.

First, a provision that permits Respondents to certify that certain imported products do

not infringe the asserted claims is appropriate because such products do not infringe.4 A

certification provision is also appropriate here because Customs would be "unable to easily

determine by inspection whether an imported product violates a particular exclusion order."

Certain Semiconductor Chips with Minimized Package Size & Prods. Containing Same, Inv. No.

337-TA-605, Comm'n Op. at 72 (June 3, 2009).

Second, an adjustment period would alleviate the harm to U.S. consumers and legitimate

commerce caused by the disruption to the supply of Respondents' products. [See, e.g., Exhibit 1

to this Brief (Declaration of )]; see also Mobile Commc'ns, Inv. No. 337-TA-710,

4 Such products do not infringe if they include licensed components, or because

Complainants failed to offer evidence of infringement. A certification provision would ease the

burden on Customs and the Commission regarding future disputes concerning licensed or non-

accused products.

PUBLIC VERSION

18

Comm'n Op., at 78-83 (ruling that the Commission has the authority to implement a reasonable

adjustment period based on the likely effects of a remedy). The accused semiconductor chips are

a small component of Respondents' products, and most of the value of those products comes

from features unrelated to the asserted claims. An adjustment period will allow Respondents to

shift production toward alternative semiconductor chips, such as chips that Complainants did not

establish are infringing or that are licensed semiconductor chips. An adjustment period will also

limit Complainants' ability to "holdup" Respondents for excessive royalties compared to the

relatively low value of the patented technology.

Also to permit adjustment, particularly because of the substantial adverse impact that a

remedy would have on third parties, such as network providers, any remedy should be directed

only toward newly designed products, rather than the currently manufactured models. The

Commission has previously adopted this approach for cellular telephones, and this approach

would be appropriate in this investigation to the extent any remedy is issued. See Certain

Baseband Processor Chips and Chipsets, Transmitter and Receiver (Radio) Chips, Power

Control Chips, and Products Containing Same, Including Cellular Telephone Handsets, Inv. No.

337-TA-543, Comm'n Op. at 124 (Jun. 19, 2007).5

III. COMPLAINANTS ARE NOT ENTITLED TO CEASE AND DESIST ORDERS

Because there is no Section 337 violation, there is no basis for cease and desist orders in

this investigation. To the extent the Commission determines that a remedy is warranted,

Complainants bear the burden of proving that each Respondent has a "commercially significant

inventory" in the United States in order to justify a cease and desist order against each particular

5 Although the Federal Circuit vacated that exclusion order, it did so for reasons having

nothing to do with the "grandfathering" provision; hence, nothing precludes the Commission

from applying such a principle in this investigation.

PUBLIC VERSION

19

Respondent. Certain Mobile Devices, Associated Software, & Components Thereof, Inv. No.

337-TA-744, Comm'n Op. at 25-26 (June 5, 2012).

A. The ALJ correctly recommended against the issuance of cease and desist orders

The RD considered Complainants' arguments on this issue, but found them wanting. [RD

at 9.] As the RD explained, Complainants bore the burden of proof, but failed to offer any

evidence supporting their demand for a cease & desist order. [Id. ("The Administrative Law

Judge finds that Complainants have failed to meet their burden to justify the issuance of cease

and desist orders with respect to any Respondent. Significantly, Complainants cite to no

evidence in the record to support their position in this regard.").]

The ALJ also disagreed with the Investigative Attorney that the stipulation between

and Complainants constituted adequate evidence, because there is no evidence that the

inventories in these stipulations were commercially significant:

Regarding the stipulations cited by Staff, while those stipulations may include

facts regarding amounts of inventories for certain Respondents, Complainants

have failed to provide any explanation or to adduce any facts to show that the

listed inventories are commercially significant. Notably, the stipulations

themselves only list an amount of the Accused Products in inventory, without

acknowledging that such inventory is commercially significant.

[Id.] This stipulation merely provides a s

Neither Complainants, nor the Investigative

Attorney, attempted to explain why this is commercially significant.

[Id.] Thus, a cease and desist order on such inadequate evidence is inappropriate. See

Fuji Photo Film Co. Ltd. v. Int'l Trade Comm'n, 386 F.3d 1095, 1108 (Fed. Cir. 2004) (ruling

PUBLIC VERSION

20

that the Commission did not err in refusing to issue cease and desist order where there was no

evidence of commercially significant inventory).

Given this failure of proof, the ALJ correctly recommended against the issuance of cease

and desist orders. [RD at 9 ("Accordingly, the Administrative Law Judge does not recommend

that cease and desist orders issue.").]

B. Beyond failure of proof, the evidence demonstrates that there is no commercially significant inventory for many respondents

Beyond the failure of proof that the ALJ identified in his RD, the evidence in this

investigation demonstrates that many Respondents do not maintain any inventory, much less

commercially significant inventory.

ZTE 1.

Complainants failed to introduce any evidence that ZTE maintains any U.S. inventory, let

alone commercially significant inventory. R

LG 2.

Complainants failed to introduce any evidence that LG maintains any U.S. inventory, let

alone a commercially significant inventory.

PUBLIC VERSION

21

Huawei 3.

ALJ Gildea correctly found that no cease and desist order should issue as to Huawei if the

Commission finds a violation of Section 337. [RD at 9.] Consistent with the facts of record,

By failing to raise the point earlier and instead raising the issue for the first time in its

Petition for Review, TPL has waived its right to argue that a cease and desist order should issue

PUBLIC VERSION

22

against Huawei. See Certain Baseband Processor Chips and Chipsets, Transmitter,& Receiver

(Radio) Chips, Power Control Chips, and Products Containing Same, Including Cellular

Telephone Handsets, Inv. No. 337-TA-543, Comm'n Det., 2011 WL 6121182, at *83 (Oct. 2011)

(finding that respondent waived obviousness arguments raised for the first time in respondents'

Petition for Review of the ALJ's final Initial Determination); see also Administrative Law Judge

Gildea's Ground Rule 10.1 ("The post-hearing brief shall discuss the issues and evidence

tried…and those issues that are included in the pre-hearing brief and any permitted amendments

thereto. All other issues shall be deemed waived.").

Samsung 4.

Complainants failed to introduce any evidence that Samsung maintains any U.S.

inventory, let alone a commercially significant inventory, of accused products.

IV. NO BOND IS NECESSARY DURING THE PRESIDENTIAL REVIEW PERIOD

In the event the Commission issues a remedy, Respondents' products are entitled to enter

the U.S. during the 60-day Presidential Review period under a bond sufficient to protect the

Complainant from injury. 19 U.S.C. § 1337(j)(3). Complainants bear the burden of

demonstrating both the need for and amount of a bond. Certain Rubber Antidegradants,

Components Thereof, and Products Containing Same, Inv. No. 337-TA-533, Comm'n Op. at

133-134 (April 2008).

A. The ALJ correctly recommended against the imposition of any bond

Here, Complainants failed to introduce any evidence whatsoever regarding the need of a

bond. The ALJ recognized this failure of proof and expressly recommended against the

imposition of any bond:

The Administrative Law Judge finds that Complainants have failed to meet

their burden to justify the imposition of any bond. See Rubber Antidegradants,

PUBLIC VERSION

23

Comm'n Op. at 40-41. Significantly, Complainants do not cite to any evidence in

the record to support their contention that the usual process for determining the

bond amount should be set aside here because this Investigation concerns a wide

variety of products, pricing variations, and distribution methods.

[RD at 12.] Indeed, Complainants presented no evidence regarding the difficulty of determining

a price differential, how each respondent sets prices, or the differences in sales prices between

any alleged patented domestic product and the alleged infringing imported product. Therefore,

zero bond is warranted. Certain Portable Elec. Devices, Inv. No. 337-TA-721, Init. Determ. at

110-12 (Oct. 17, 2011) (recommending no bond because complainants failed to meet their

burden to justify any bond); Certain Elec. Devices, Inv. No. 337-TA-794, Comm'n Op. at 117-

118 (June 4, 2013) (zero bond); Certain Kinesiotherapy Devices, Inv. No. 337-TA-823 (June 17,

2013) (zero bond).

The ALJ further rejected the Investigative Attorney's proposed royalty rate because there

was inadequate evidence supporting the proposal. [RD at 12 ("Regarding Staff's proposed

royalty rate, the Administrative Law Judge finds the evidence insufficient to justify imposing a

bond based on the alleged effective royalty rate Staff proposes.").]

Under similar facts, other ALJs have also recommended against the imposition of a bond.

See e.g., Certain Portable Elec. Devices & Related Software, Inv. No. 337-TA-721, Init. Determ.

at 110-12 (Oct. 17, 2011) (recommending no bond because complainants failed to meet its

burden of justifying any bond); Certain Integrated Circuits, Inv. No. 337-TA-786, Init. Determ.

at 182-83 (July 12, 2012) (recommending no bond because complainant failed to offer evidence

that "allowing Respondents to import products during the Presidential review period without a

bond will harm Freescale's licensing business."). In light of these rulings, it is entirely proper

that the ALJ here "does not recommend the imposition of a bond during the 60-day Presidential

review period." [RD at 12.]

PUBLIC VERSION

24

Based on Complainants' failure of proof, the Commission should adopt the ALJ's

recommendation and follow its accepted methodology to require a zero bond when complainants

fail to present adequate evidence. Certain Rubber Antidegradants, Inv. No. 337-TA-533,

Comm'n Op. at 40 (2006) (rejecting request for a 100% bond, and stating that "[i]n our view, the

complainant has the burden of supporting any proposition it advances, including the amount of

bond."); Certain Dimmable Compact Fluorescent Lamps, 337-TA-830, Init. Determ., 2013 WL

1278074, 5 (March 1, 2013).

B. There is no patented domestic industry product and thus no price difference

Complainants have failed to prove that there is a patented domestic industry product in

this investigation. This failure of proof is not surprising. Complainants do not produce anything,

let alone competing products. Without any evidence of a competing product, Complainants did

not – and could not – offer any evidence of price difference between a patented domestic product

and the accused imported articles. Nor did Complainants present any evidence that they would

lose sales or suffer any harm as a result of Respondents' products being imported during the

Presidential Review period. There is no such product, no such sale, in the record, and

accordingly, there is no such harm.

Complainants' unsupported request for a 100% bond is particularly specious here because

Complainants are three patent assertion entities that do not engage in any competitive activity

with the Respondents. A bond would provide no benefit to them. [Tr. (Vander Veen) 1869:7-

11]; see Certain Elec. Devices, Inv. No. 337-TA-794, Comm'n Op. at 118-119 (July 5, 2013).

Consequently, a zero bond level is appropriate and no bonding requirement should be

imposed in this investigation.

PUBLIC VERSION

25

V. A REMEDIAL ORDER WOULD BE HARMFUL TO THE PUBLIC INTEREST

If the Commission were to reverse the Initial Determination and find a violation of

Section 337, the facts of this investigation would nevertheless demonstrate that a limited

exclusion order and/or cease and desist orders would be contrary to the public interest. In

particular, any remedial order issued in this investigation would be directed to a substantial

percentage of the U.S. markets for, among other products, smartphones and personal navigation

devices, and therefore would negatively affect U.S. consumers in the form of higher prices and

more limited choices in terms of features and functionality. Any remedial order also would

negatively affect the competitive conditions in the U.S. economy, and would reward patent

assertion entities whose sole business is to extract revenues from existing electronics producers.

The negative impact on the public interest factors outweighs the benefit accrued to a group of

patent assertion entities that produce no product.

The legislative history of the 1974 amendments to Section 337 that added the public

interest provisions makes clear that "the public interest must be paramount in the administration"

of the statute. S. Rep. No. 93-1298, at 193 (1974). The report further states that "the public

health and welfare and the assurance of competitive conditions in the United States economy

must be the overriding considerations in the administration of this statute." Id. at 197. In order

to assure that occurs, the Commission (in consultation with other identified agencies) must

balance adverse impact on the public interest factors against what "would be gained by

protecting the patent holder (within the context of the U.S. patent laws)." Id. If the adverse

impact is greater on the public in this equation, the exclusion order should not issue. Id. Under

this calculation, an exclusion order cannot issue if more would be gained by the patent holder by

issuance of the order than would be permitted within the context of the U.S. patent laws by, for

example, obtaining relief without meeting the same standards of proof and criteria required for

PUBLIC VERSION

26

relief under the patent laws.

A. A remedial order would have deleterious effects on United States consumers

A remedial order in this investigation would deprive U.S. consumers of Respondents'

goods and services, in exchange for nothing except the possibility of fewer products to choose

from at higher prices. [Tr. (Vander Veen) 1844:8-18.] Respondents account for a significant

share of the sales of several products at issue in this investigation, including of the sales of

smartphones in the United States and between of the mobile navigation devices

market from December 2010 to December 2012 with of the market in December 2012.

[RX-1636; RX-1637; RX-936C; RX-2188C; Tr. (Vander Veen) 1840:11-25, 1846:6-22,

1848:24-1849:8, 1866:10-1867:21.] Should an exclusion order issue, there would be a

substantial reduction in supply in the U.S. market for products such as smartphones and personal

navigation devices, resulting in less choice for consumers due to fewer market participants

selling products and ultimately leading to higher prices for those goods. [Id.] When such a large

stake of a product market is at issue, the Commission has found that an exclusion order may raise

concerns regarding competitive conditions in the U.S. economy. See Certain Personal Data and

Mobile Commc'ns Devices, Inv. No. 337-TA-710, Comm'n Op. at 79-83 (Dec. 29, 2011)

(delaying the exclusion of accused products by four months after considering the competitive

conditions in the U.S. economy). A transition period for any exclusion order in this investigation

is therefore warranted. [See, e.g., Exhibit 1 to this Brief (Declaration of ).]

While Complainants may suggest that their licensees can replace the subject articles if

Respondents' goods are excluded, Complainants have failed to demonstrate that their licensees

have the capacity to do so. For example, even if Complainants identified any licensee in the

mobile phone business with a viable alternative supply chain, there is still no evidence that these

licensees' products are interchangeable, or that they have the infrastructure or the capacity to fill

PUBLIC VERSION

27

the void left by a reduction of nearly of the U.S. market's smartphones. Even if there were

any group of licensees that make up a significant portion of a relevant market, a remedial order

would still result in reduced consumer choice and competition. [Tr. (Vander Veen) 1846:6-22.]

Complainants have also failed to show that their licensees can increase production within

a commercially reasonable time to account for even a portion of the increased demand that

would result from an exclusion order. Accordingly, U.S. consumers could experience a shortage

of devices, including replacement devices, and/or a delay in obtaining such devices. Nor have

Complainants provided evidence that their licensees' products are comparable to the products

that would be subject to an exclusion order. As a result, U.S. consumers might be unable to

obtain products with the features or functionality they want.

U.S. consumers could also be harmed by Respondents' inability to carry out their

obligations under existing warranty and insurance contracts if an exclusion order issues without a

repair exception. [Tr. (Vander Veen) 1844:8-1846:5.]

Finally, an exclusion order would deny consumers access to complex devices with many

functionalities and features even though the infringement allegations are only directed to a

particular feature of a single component within the accused devices. As recognized by courts,

other government agencies, and commentators, a remedy that far exceeds the scope of the

patented contributions to an accused article would unduly harm U.S. consumers. See Apple Inc.

v. Samsung Elecs. Co., Ltd., 735 F.3d 1352, 1372-73 (Fed. Cir. 2013) ("We see no problem with

the district court's decision, in determining whether an injunction would disserve the public

interest, to consider the scope of Apple's requested injunction relative to the scope of the

patented features and the prospect that an injunction would have the effect of depriving the

public of access to a large number of non-infringing features."); see also Ricoh Co., Ltd. v.

PUBLIC VERSION

28

Quanta Computer, Inc., 2010 U.S. Dist. LEXIS 38220 at *6 (W.D. Wis. Apr. 19, 2010) (noting

that the component at issue was a small part of the overall product and that an injunction was

not in the public interest); Broadcom Corp. v. Qualcomm Inc., 2007 U.S. Dist. LEXIS 97647 at

*19–21 (C.D. Cal. Dec. 31, 2007) (tailoring the injunction to ameliorate the impact on

consumers by providing time for design-around when the scope of the infringed patent is

limited); Sundance, Inc. v. Demonte Fabricating Ltd., 2007 U.S. Dist. LEXIS 158 at *7-8 (E.D.

Mich. Jan. 4, 2007) (noting that the patented technology was but one feature of the defendant's

product); z4 Techs., Inc. v. Microsoft Corp., 434 F. Supp. 2d 437, 441 (E.D. Tex. 2006) (stating

that in a small component scenario, damages are sufficient).

The district court appropriately took this fact into account in the Apple v. Samsung case

when it denied injunctive relief. As the district court noted:

However, the injunction would make certain phones unavailable to consumers. It

would not be equitable to deprive consumers of Samsung's infringing phones

when, as explained above, only limited features of the phones have been found to

infringe any of Apple's intellectual property. Though the phones do contain

infringing features, they contain a far greater number of non-infringing features to

which consumers would no longer have access if this Court were to issue an

injunction. The public interest does not support removing phones from the market

when the infringing components constitute such limited parts of complex, multi-

featured products.

Apple Inc. v. Samsung Elecs. Co., Ltd., 909 F. Supp. 2d 1147, 1163 (N.D. Cal. 2012), vacated

on other grounds by Apple, 735 F.3d 1352.

Respondents respectfully submit that the Commission's current statutory mandate to

consider the effect on U.S. consumers as part of its public interest considerations should include

an analysis of whether an exclusion order is appropriate based on a minor patented component

of a complex product which includes many other non-infringing features. Indeed, at least in

other contexts, the Commission has "consider[ed] the importance of the component when

PUBLIC VERSION

29

comparing the value of the infringing articles to the value of the downstream products in which

they are incorporated." Certain Display Controllers & Prods. Containing Same, Inv. No. 337-

TA-491/481, Comm'n Op., 2005 ITC LEXIS 901 at*89 (Feb. 4, 2005); see also Certain

Electronic Devices, Including Wireless Communications Devices, Portable Music and Data

Processing Devices, and Tablet Computers, Inv. No. 337-TA-794, Comm'n Op., Dissenting

Views of Commissioner Pinkert at D5 (July 5, 2013) (noting that "granting the complainant

relief under Section 337 based on a minor component of a complex multi-component product

would in all likelihood impose substantial costs on consumers while undermining the standards

setting process and thus public welfare and competitive conditions in the U.S. economy"). The

Commission should do the same here when evaluating the impact of the remedy on the public

interest.

Respondents' products that are potentially subject to exclusion in this investigation are

complex, multi-functional products that contain many features useful for consumers other than

the specific functionality within the various chips that Complainants have accused of

infringement. Complex electronic devices, such as smartphones and personal navigation

devices, comprise hundreds, if not thousands, of discrete features and components. These

features and components potentially implicate thousands of patents. The infringement

allegations for the '336 patent, however, narrowly focus on particular microprocessor clocking

technology. In contrast, there are many features within the accused devices that are not

implicated by Complainants' infringement allegations, including music players, digital cameras

and personal digital assistants.

Given the relatively minor role played by the allegedly patented technology within

Respondents' devices at issue, the Commission should find that an exclusion order would unduly

PUBLIC VERSION

30

harm consumers and be contrary to the public interest.

B. A remedial order would have deleterious effects on competitive conditions in the United States economy

1. Any remedial order would remove key market participants that provide the needed supply and competition in this space to drive innovation

The issuance of remedial orders would also harm the competitive conditions in the U.S.

economy. Orders blocking Respondents from the marketplace would remove the majority of key

players from a number of consumer electronics sectors. As discussed above, Respondents hold

significant market shares in several industries, including the mobile phone and

markets. [Tr. (Vander Veen) 1861:22-1864:5.] Fewer market participants

would result in higher prices, reduced market access, less choice, and decreased incentives to

innovate, thus harming competitive conditions in the U.S. economy. [Id. 1846:6-22.]

A remedial order would also likely adversely affect the competitive conditions for the

relevant categories of products by providing Complainants significant asymmetric bargaining

power over Respondents in licensing negotiations. As a result, competitive conditions in the

U.S. economy for these various product categories would be adversely affected through

constrained supply, reduced consumer choice, reduced numbers of market participants, and

increased prices.

2. Complainants have not demonstrated that they or their licensees can replace the articles at issue with like or directly competitive articles

While Complainants may suggest that their licensees can replace the subject articles if

Respondents' goods are excluded, Complainants have failed to demonstrate that their licensees

have the capacity to do so. For example, even if Complainants identified any licensee in the

mobile phone business with a viable alternative supply chain, there is still no evidence that these

licensees' products are interchangeable, or that they have the infrastructure or the capacity to fill

PUBLIC VERSION

31

the void left by a reduction of nearly of the U.S. market's smartphones. Even if there were

any group of licensees that make up a significant portion of a relevant market, a remedial order

would still result in reduced consumer choice and competition. [Tr. (Vander Veen) 1846:6-22.]

Complainants have also failed to show that their licensees can increase production within

a commercially reasonable time to account for even a portion of the increased demand that

would result from an exclusion order. Accordingly, U.S. consumers could experience a shortage

of relevant devices, including replacement devices, and/or a delay in obtaining such devices.

Nor have Complainants provided evidence that their licensees' products are comparable to the

products that would be subject to an exclusion order. For example, a remedial order in this

investigation could result in the exclusion of Samsung, HTC, and LG smartphones from the

United States market. These three companies currently represent approximately 76% of the

worldwide market share for Android devices.6 When the time comes to purchase another

electronic device—such as a smartphone or tablet, a U.S. consumer currently using an Android

device and the Android ecosystem will likely want to purchase another Android device. By

removing Samsung, HTC, LG, and others, U.S. consumers will be left with choices from

Motorola (which currently represents 5.0% of global Android market share) and the handful of

lesser-known manufactures which comprise the other 24%.7 These manufacturers may not be

able to ramp up supply in time to meet the new consumer demand. As a result, U.S. consumers

might be unable to obtain products with the features or functionality they want.

In stark contrast to Complainants assertions, the realities of the smartphone, tablet, and e-

reader marketplace demonstrate that replacing large portions of the market would be extremely

6 Sorry, Google: Samsung Has Flat-Out Conquered Android, BGR (Nov. 8, 2013, 2:35

PM), http://bgr.com/2013/11/08/samsung-android-devices-market-share/. 7 Id.

PUBLIC VERSION

32

difficult, and if possible at all, a lengthy process. The news is littered with stories of smartphone

and tablet manufacturers failing to meet consumer demand, supply shortages, and supply

disruptions.8 The shortfalls occur because the process of bringing these complex devices to

market involves numerous steps with myriad of actors that all need to act in concert. The

manufacturers at issue in this investigation, such as Samsung, LG, and HTC, coordinate this

process in order to bring innovative, useful devices to the American public. Removing these

companies and their devices from the market will result in a shortfall of devices and other

harmful effects to United States consumers and competitive conditions. [See, e.g., Exhibit 1 to

this Brief (Declaration of ).]

3. A remedial order would increase the asymmetric bargaining advantage of patent assertion entities

Complainants are patent assertion entities. They conduct no research, make no products

and sell no services.

Complainants purchased the asserted patent solely to assert it against established industry

participants. They do not encourage the adoption of technology. Instead, their business model

focuses on extracting payments from companies that contribute valuable products and services to

U.S. consumers at royalty rates well above their potential damages liability in district court.

8 See, e.g., Retina iPad Mini Backorders at Major US Carriers Hints at Ongoing Supply

Shortage, APPLEINSIDER (Nov. 20, 2013, 9:32 PM),

http://appleinsider.com/articles/13/11/21/retina-ipad-mini-backorders-at-major-us-carriers-hints-

at-ongoing-supply-shortage; Microsoft's Surface Pro Launch Marred by Supply Shortages,

ZDNET (Feb. 10, 2013, 4:59 PM), http://www.zdnet.com/microsofts-surface-pro-launch-marred-

by-supply-shortages-7000011089/#; iPhone 5S Stock Shortages Set to Get Worse Analysts

Predict, TRUSTED REVIEWS (Oct. 27, 2013), http://www.trustedreviews.com/news/iphone-5s-

stock-shortages-set-to-get-worse-analysts-predict.

PUBLIC VERSION

33

Although there is a legitimate interest in protecting intellectual property rights, that

interest simply does not extend to granting patent assertion entities like these Complainants the

right to gain undue leverage by obtaining an exclusion order at the Commission. Complainants'

own business model seeks solely to monetize patents. In fact, exclusion is contrary to

Complainants' financial interests, as well, except for the "hold-up" value it provides.

Complainants have no products, let alone domestically manufactured products, to protect with an

exclusion order. Because Complainants make no products, they have no product sales at risk

when negotiating licenses to their intellectual property. If an exclusion order were to issue,

Complainants could use that order to demand overly favorable licensing terms—thereby

permitting Complainants to artificially and wrongfully inflate the value of their patents.

Issuance of an exclusion order in this investigation would also run contrary to the

interests and industries that the statute was designed to protect. The legislative history of Section

337 shows that it was designed to protect companies that are exploiting the asserted patent

through manufacturing or through licensing directed to bringing products to market. See S. Rep.

No. 100-71, at 129 (1987); H.R. Rep. No. 100-40, at 157 (1987); Certain Coaxial Cable

Connectors and Components Thereof and Products Containing Same, Inv. No. 337-TA-650,

Comm'n Op. at 47 (Apr. 14, 2010). Complainants' primary business involves seeking out

potential licensees who manufacture and sell products that are already in the marketplace. This

is not the type of activity that Section 337's legislative history contemplates. This fact provides

additional support for why it would not be in the public interest to issue remedial orders in this

investigation.

4. A remedial order in favor of a patent assertion entity would turn the purpose of section 337 on its head

The Commission was established "to adjudicate trade disputes between U.S. industries

PUBLIC VERSION

34

and those who seek to import goods from abroad."9 H.R. REP. NO. 100-40, at 157 (1987). It is

not an appropriate forum to adjudicate all intellectual property disputes, particularly where the

asserting party produces no products and the remedy sought would only harm U.S. consumers.

The issuance of a remedial order would not benefit Complainants in the investigation; they make

no product and a remedial order would not protect their domestic industry. However, it would

harm U.S. consumers and competitive conditions in the United States. Additionally, it could

have the collateral effect of harming businesses in the United States that sell the products at

issues and their employees. In cases like this, the appropriate remedy is monetary damages and,

thus, the appropriate remedy is not from the U.S. International Trade Commission.

C. A remedial order would have no impact on U.S. production of articles that are like or directly competitive to those that are subject to investigation

Complainants are non-practicing entities. They do not produce anything – let alone any

products that compete with the accused imported articles or that practice the patent-in-suit.

Moreover, Complainants did not produce sufficient evidence that their licensees produce like or

directly competitive products in the United States. There is also no evidence in the record as to

where these licensees actually manufacture their products, so there is no evidence that U.S.

production of these products would be affected should Respondents' products be subject to an

exclusion order or cease and desist orders. Thus, while the U.S. public would likely be

significantly affected by a remedial order, there would be no impact on domestic production of

competitive articles.

D. A remedial order would harm the public health and welfare

The articles at issue in this investigation—such as smartphones, tablets, and e-readers—

9 The Federal Circuit has described it as "fundamentally a trade forum, not an intellectual

property forum." Mezzalingua v. Int'l Trade Comm'n, 660 F.3d 1322, 1327-28 (Fed. Cir. 2011).

PUBLIC VERSION

35

have become increasingly important to the public health and welfare in the United States.10

Any

remedial order that limited availability or increased prices would harm the public by hindering

U.S. consumers' abilities to access devices that help them manage their health. Healthcare

providers and consumers use these devices to help improve their health by, for example: (i)

accessing electronic health records; (ii) utilizing medical reference applications; and (iii) remote

physician consultations. This is an area of technological growth and new ways of leveraging

smartphones, tablets, and other electronic devices to improve health are emerging on a regular

basis. Crippling the supply of these electronic devices by excluding major industry players

would stifle this innovation and harm the public health and welfare in the United States.

E. A remedial order in this investigation would be contrary to the public interest

For all of these reasons, a limited exclusion order or cease and desist orders in this

investigation would be contrary to the public interest. The harm to U.S. consumers and

competitive conditions in the U.S. economy that would result from the issuance of remedial

orders directed to such substantial portions of the U.S. market outweighs the interest in

protecting Complainants' intellectual property rights—especially because, as patent assertion

entities whose business model does nothing to encourage innovation, Complainants can be made

whole through an award of monetary damages.

10

See, e.g., How Smartphones Are Changing Health Care, MASHABLE (Sept. 26, 2012),

http://mashable.com/2012/09/26/smartphones-health-care-infographic/; 47% of Doctors Use

Smartphone, Tablet and PC, INFORMATIONWEEK (Aug. 14, 2013, 1:55 PM),

http://www.informationweek.com/mobile/47--of-doctors-use-smartphone-tablet-and-pc/d/d-

id/1111170; How Smartphones Are Changing Health Care for Consumers and Providers,

CALIFORNIA HEALTHCARE FOUNDATION (April 2010),

http://www.chcf.org/~/media/MEDIA%20LIBRARY%20Files/PDF/H/PDF%20HowSmartphon

esChangingHealthCare.pdf.

PUBLIC VERSION

36

VI. CONCLUSION

For the reasons stated above, Respondents request that any remedial orders issued in this

investigation: (a) exempt products and chips already found to be noninfringing; (b) focus solely

on the product categories accused in this investigation; (c) avoid coverage of Respondents'

downstream products; (d) include a reasonable adjustment period; and (e) include a certification

provision. Respondents submit that no cease and desist orders should issue with respect to any

Respondent in this investigation, and that no bond be issued during any Presidential review

period. Finally, Respondents submit that injunctive relief against Respondents' accused products

is adverse to the public interest.

PUBLIC VERSION

37

Dated: December 23, 2013 Respectfully submitted,

/s/ Paul F. Brinkman

David Eiseman

Paul F. Brinkman

Michael James O'Connor

Pamela L. Van Dort

QUINN EMANUEL URQUHART & SULLIVAN, LLP

1299 Pennsylvania Ave. NW, Suite 825

Washington, DC 20004

Tel.: (202) 538-8000

Counsel for Respondent Barnes & Noble, Inc.

/s/ Eric C. Rusnak

Eric C. Rusnak

K&L GATES LLP

1601 K Street, NW

Washington, DC 20006-1600

Telephone: (202) 778-9000

Michael J. Bettinger

Timothy Walker

Curt Holbreich

Harold H. Davis, Jr.

Irene I. Yang

K&L GATES LLP

Four Embarcadero Center, 12th Floor

San Francisco, CA 94111

Telephone: (415) 882-8200

Michael J. Abernathy

Brian J. Arnold

K&L GATES LLP

70 West Madison Street, Suite 3100

Chicago, IL 60602-4207

Telephone: (312) 372-1121

Counsel for Respondent Novatel Wireless,

Inc.

/s/ Timothy Bickham

Charles Schill

Timothy C. Bickham

Alice A. Kipel

STEPTOE & JOHNSON LLP

1330 Connecticut Avenue, NW

Washington, DC 20036

Telephone: (202) 429-3000

Counsel for Respondents Huawei Technologies

Co., Ltd., Huawei Device Co., Ltd., Huawei

Device USA Inc., and Futurewei Technologies,

Inc.

/s/ Scott A. Elengold

Michael J. McKeon

Richard A. Sterba

Christian A. Chu

Scott A. Elengold

FISH & RICHARDSON P.C.

1425 K Street, N.W., 11th Floor

Washington, D.C. 20005

Telephone: (202) 783-5070

Attorneys for Respondents LG Electronics, Inc.

and LG Electronics USA, Inc.

/s/ Aaron Wainscoat

Mark Fowler

Aaron Wainscoat

Carrie Williamson

Erik Fuehrer

DLA PIPER LLP (US)

2000 University Avenue

East Palo Alto, California 94303

Tel: 650-833-2000

Attorneys for Respondents Samsung

Electronics Co., Ltd. and Samsung

Electronics America, Inc.

PUBLIC VERSION

38

/s/ Adam P. Seitz

Louis S. Mastriani

Sarah E. Hamblin

Daniel F. Smith

Dana L. Watts

ADDUCI, MASTRIANI & SCHAUMBERG, L.L.P.

1133 Connecticut Avenue, N.W., 12th Floor

Washington, DC 20036

Telephone: (202) 467-6300

Adam P. Seitz

Eric A. Buresh

Jason R. Mudd

ERISE IP, P.A.

6201 College Boulevard, Suite 300

Overland Park, KS 66211

Telephone: (913) 777-5600

Counsel for Respondents Garmin Ltd., Garmin

International, Inc. and Garmin USA, Inc.

/s/ Stephen R. Smith

Stephen R. Smith

COOLEY LLP

11951 Freedom Drive

Reston, VA 20190

Tel.: 703.456.8000

Fax: 703.456.8100

Email: HTC-TPL@cooley.com

Kyle Chen

COOLEY LLP

3175 Hanover Street

Palo Alto, CA 94304

Tel: 650.843.5000

Fax: 650.849.7400

Email: HTC-TPL@cooley.com

Counsel for Respondents HTC Corp.,

HTC America, Inc., Nintendo Co., Ltd. and

Nintendo of America Inc.

/s/ Jay H. Reiziss

Jay H. Reiziss

Lyle B. Vander Schaaf

Michelle A. Miller

BRINKS, GILSON & LIONE

1775 Pennsylvania Avenue, NW, Suite 900

Washington, D.C. 20006

(202) 296-6940 (phone)

William H. Frankel

Robert S. Mallin

Kori Anne Bagrowski

Hersh H. Mehta

BRINKS, GILSON & LIONE

NBC Tower, Suite 3600

455 North Cityfront Plaza Drive

Chicago, IL 60611-5599

(312) 321-4200 (phone)

Attorneys for Respondents

ZTE Corporation and ZTE (USA) Inc.

PUBLIC VERSION

Exhibit 1

PUBLIC VERSION

PUBLIC VERSION

PUBLIC VERSION

PUBLIC VERSION

PUBLIC VERSION

1

CERTIFICATE OF SERVICE

I, Matthew Salcedo, hereby certify that on January 2, 2014, a copy of the PUBLIC VERSIONOF RESPONDENTS’ JOINT BRIEF ON REMEDY, BONDING, AND THE PUBLICINTEREST and EXHIBIT 1 was served on the following as indicated:

The Honorable Lisa R. BartonActing SecretaryU.S. International Trade Commission500 E Street, S.W.Washington, D.C. 20436

Via Hand Delivery (8 copies)Via Overnight CourierVia E-Filing

The Honorable E. James GildeaChief Administrative Law JudgeU.S. International Trade Commission500 E Street, S.W., Room 317Washington, D.C. 20436Email:sarah.zimmerman@usitc.gov;kenneth.schopfer@usitc.gov

Via Hand Delivery (2 copies)Via Overnight CourierVia Electronic mail

R. Whitney WinstonOFFICE OF UNFAIR IMPORT INVESTIGATIONSU.S. International Trade Commission500 E Street, S.W., Room 401Washington, D.C. 20436Email: Whitney.Winston@usitc.gov

Via Hand DeliveryVia Overnight CourierVia Electronic mail

For Complainants Technology Properties Limited,LLC and Phoenix Digital Solutions LLC:

James C. OttesonAGILITY IP LAW, LLP149 Commonwealth DriveMenlo Park, CA 94025Email: TPL853@agilityiplaw.com

Michelle G. BreitJames R. FarmerOTTESON LAW GROUPAGILITY IP LAW, LLP14350 North 87th Street, Suite 190Scottsdale, AZ 85260

Via Hand DeliveryVia Overnight CourierVia Electronic mail

2

For Complainant Patriot Scientific Corporation:

Charles T. HogeKIRBY NOONAN LANCE & HOGE LLP350 Tenth Avenue, Suite 1300San Diego, CA 92101Email: choge@knlh.com

Via Hand DeliveryVia Overnight CourierVia Electronic mail

For Respondents Acer, Inc., Acer AmericaCorporation, Amazon.com, and Novatel Wireless,Inc.:

Eric C. RusnakK&L GATES LLP1601 K Street, NWWashington, DC 20006-1600Email: AcerAmazonNovatel_ITC853@klgates.com

Via Hand DeliveryVia U.S. MailVia Electronic mail

For Respondent Barnes & Noble, Inc.:

Paul F. BrinkmanQUINN EMANUEL URQUHART &SULLIVAN, LLP1299 Pennsylvania Avenue NW, Suite 825Washington, DC 20004Email: BN-853@quinnemanuel.com

Via Hand DeliveryVia U.S. MailVia Electronic mail

For Respondents Garmin Ltd., Garmin International,Inc., and Garmin USA, Inc.:

Louis S. MastrianiADDUCI, MASTRIANI & SCHAUMBERG, LLP1133 Connecticut Avenue, N.W., 12th FloorWashington, DC 20036Email: Garmin-853@adduci.com

Via Hand DeliveryVia U.S. MailVia Electronic mail

Adam P. SeitzEric A. BureshJason R. MuddERISE, IP, P.A.6201 College Boulevard, Suite 300Overland Park, KS 66211Email: Garmin_853@eriseIP.com

Via Electronic Mail

3

For Respondents HTC Corporation, HTC America:

Stephen R. SmithCOOLEY LLP11951 Freedom DriveReston, VA 20190Email: HTC-TPL@cooley.com

Via Hand DeliveryVia U.S. MailVia Electronic mail

For Respondents Huawei Technologies Co., Ltd.,Huawei DeviceCo., Ltd., Huawei Device USA Inc., andFuturewei Technologies, Inc.:

Timothy C. BickhamSTEPTOE & JOHNSON LLP1330 Connecticut Avenue, NWWashington, DC 20036Email: Huawei853@steptoe.com

Via Hand DeliveryVia U.S. MailVia Electronic mail

For Respondents Kyocera Corporation, KyoceraCommunications, Inc.:

M. Andrew WoodmanseeMORRISON &FOERSTER LLP12531 High Bluff DriveSan Diego, CA 92130Email: Kyocera-TPL-ITC@mofo.com

Via Hand DeliveryVia U.S. MailVia Electronic mail

For Respondents LG Electronics, Inc., LG ElectronicsU.S.A., Inc.:

Scott ElengoldFISH & RICHARDSON P.C.1425 K Street, N.W., Suite 1100Washington, D.C. 20005Email: LG-TPLITCService@fr.com

Via Hand DeliveryVia U.S. MailVia Electronic mail

For Respondents Nintendo Co., Ltd., Nintendo ofAmerica, Inc.:

Stephen R. SmithCOOLEY LLP11951 Freedom DriveReston, VA 20190Email: Nintendo-TPL@cooley.com

Via Hand DeliveryVia U.S. MailVia Electronic mail

4

For Respondents ZTE Corporation and ZTE (USA)Inc.:

Jay H. ReizissBRINKS HOFER GILSON & LIONE1775 Pennsylvania Avenue, NWSuite 900Washington, DC 20006Email: Brinks-853-ZTE@brinksgilson.com

Via Hand DeliveryVia U.S. MailVia Electronic mail

/s/ Matthew Salcedo

Matthew SalcedoSenior ParalegalDLA Piper LLP (US)2000 University AvenueEast Palo Alto, CA 94303Telephone: 650-833-2000Facsimile: 650-833-2001