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`UNITED STATES INTERNATIONAL TRADE COMMISSION
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`Washington, D.C.
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`In the Matter of
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`CERTAIN WEARABLE ELECTRONIC
`DEVICES WITH ECG FUNCTIONALITY
`AND COMPONENTS THEREOF
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`Inv. No. 337-TA-1266
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`ORDER NO. 23:
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`DENYING RESPONDENT APPLE’S MOTIONS IN LIMINE NOS. 1
`AND 2
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`(March 23, 2022)
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`Respondent Apple, Inc. (“Apple”) filed motions in limine nos. 1 (“MIL 1” (Mot. 1266-
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`022)) and 2 (“MIL 2” (Mot. 1266-023)) on March 7, 2022. Complainant AliveCor, Inc.
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`(“AliveCor”) timely filed oppositions (“MIL 1 Oppo.” and “MIL 2 Oppo.,” respectively), and the
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`Commission’s Office of Unfair Import Investigations (“Staff”) filed an omnibus response (“Staff
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`Resp.”).
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`The two motions present similar issues. MIL 1 seeks to exclude evidence and argument
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`regarding allegedly “anticompetitive” conduct by Apple, in particular that “Apple acted to
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`eliminate AliveCor as a competitor.” MIL 1 at 1. MIL 2 seeks to exclude “evidence and argument
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`regarding AliveCor’s meetings with Apple.” MIL 2 at 1. The Staff opposes both motions. See
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`Staff Resp. at 7-9.
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`As presented by AliveCor, the evidence and argument at issue include: AliveCor
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`developed an app called Kardia, which relied on heart rate data collected from a sensor on the
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`Apple Watch (MIL 1 Oppo. at 2); Apple tried to develop a product to compete with Kardia as early
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`as 2013 (MIL 2 Oppo. at 5); Apple held meetings with AliveCor personnel in 2016, at which the
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`KardiaBand System was demonstrated (MIL 2 Oppo. at 3); Apple eventually released the Apple
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`1
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`Watch 4, which (in addition to infringing) communicated heart rate data to Kardia differently than
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`before, such that the app was no longer as accurate (MIL 1 Oppo. at 2; see also AliveCor’s
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`Prehearing Brief (“CPB”) at 178); and as a result AliveCor discontinued sales of one domestic
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`industry product, which had enjoyed commercial success and industry praise, and started
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`developing new domestic industry products (MIL 1 Oppo. at 2; CPB at 177-79). AliveCor and the
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`Staff correctly observe that such evidence is relevant to secondary considerations of non-
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`obviousness, specifically copying, and the economic prong of domestic industry. See MIL 1 Oppo.
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`at 3; MIL 2 Oppo. at 2; Staff Resp. at 7-8.
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`Apple essentially concedes that the contested evidence is relevant to economic prong:
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`AliveCor’s allegations of Apple’s anticompetitive conduct are “an implicit admission that
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`AliveCor cannot show it has an established domestic industry.” MIL 1 at 5. And whether
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`AliveCor’s evidence of copying is “[u]nsubstantiated,” as Apple contends, will be determined after
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`the hearing; certainly it cannot be determined before actually hearing all the evidence. MIL 2 at
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`3. Nor is this case similar to Certain Multi-Stage Fuel Vapor Canister Systems and Activated
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`Carbon Components Thereof, Inv. No. 337-TA-1140, Order No. 35 at 2 (Nov. 15, 2019), where
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`an expert’s opinion regarding the Complainant’s state of mind was stricken as “unduly
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`speculative.” See MIL 1 at 4. The evidence here consists of fact witness testimony and
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`documentary evidence, as well as some expert evidence, concerning Apple’s conduct and
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`AliveCor’s response, rather than Apple’s state of mind. See MIL 1 Oppo. at 2, 4; MIL 2 Oppo. at
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`2-3; CPB at 96. Lastly, the challenged evidence may prejudice Apple (or it may not), but Apple
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`provides no basis to conclude that any prejudice substantially outweighs the evidence’s probative
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`value, that is, that the prejudice is undue. See MIL 2 at 1. As the Staff puts it, “[w]hile evidence
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`of copying is [certainly] not favorable to Apple, it is not unfairly prejudicial.” Staff Resp. at 9.
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`2
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`Therefore, MIL 1 (Mot. 1266-022) and MIL 2 (Mot. 1266-023) are denied.
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`Within seven days of the date of this document, the parties shall submit to the Office of the
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`Administrative Law Judges a joint statement as to whether or not they seek to have any portion of
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`this document deleted from the public version. If the parties do seek to have portions of this
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`document deleted from the public version, they must submit to this office a copy of this document
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`with red brackets indicating the portion or portions asserted to contain confidential business
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`information. The submission may be made by email and/or hard copy by the aforementioned date
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`and need not be filed with the Commission Secretary.
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`SO ORDERED.
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`_____________________________
`Cameron Elliot
`Administrative Law Judge
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`3
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