`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C.
`
`
`
`In the Matter of
`
`CERTAIN WEARABLE ELECTRONIC
`DEVICES WITH ECG FUNCTIONALITY
`AND COMPONENTS THEREOF
`
`
`
`
`
`Inv. No. 337-TA-1266
`
`
`ORDER NO. 25:
`
`
`DENYING RESPONDENT APPLE’S MOTION IN LIMINE NO. 4
`
`(March 23, 2022)
`
`Respondent Apple, Inc. (“Apple”) filed motion in limine no. 4 (“MIL 4” (Mot. 1266-025))
`
`on March 7, 2022. Complainant AliveCor, Inc. (“AliveCor”) timely filed an opposition (“MIL 4
`
`Oppo.”), and the Commission’s Office of Unfair Import Investigations (“Staff”) filed an omnibus
`
`response (“Staff Resp.”).
`
`In MIL 4 Apple seeks to preclude AliveCor’s economic expert, Dr. Michael Akemann,
`
`from relying on any evidence other than that related to AliveCor’s investments in customer support
`
`to show activities for an alleged domestic industry product, the KardiaBand System, after 2018.
`
`See MIL 4 at 1. In particular, Apple seeks to preclude evidence of “alleged R&D . . . after 2018.”
`
`MIL 4 at 4. One principal basis for the motion is Dr. Akemann’s deposition testimony, where he
`
`stated that the “
`
`” See MIL 4 at 2-3 (quoting MIL 4, Ex.
`
`
`
`B at 256:7-16). Another is a statement in his report that, “
`
`
`
`
`
`
`
`.” See MIL 4 at 3, 4 (citing MIL 4, Ex. C at
`
`¶ 167).
`
`1
`
`
`
`
`The Staffopposes the motion, and with respect to the deposition testimony, helpfully points
`
`to Dr. Akemann’s complete question and answer:
`
`MIL 4, Ex. B at 256:7-16. Apple’s selective and incomplete quotation of Dr. Akemann’s
`
`deposition testimony ignores both the time period (mid-2019 instead of 2018) and the expressly
`
`nenirT
`
`Admittedly, Dr. Akemann’s expert report, in the discussion of subsection (C), does appear
`
`to limit efforts attributable to the KardiaBand, that is, R&D and regulatory work priorto 2018, and
`
`only customer support from 2018 to 2021. MIL 4, Ex. C at § 167. AliveCor’s subsection (C)
`
`theory, however, does not appearto distinguish between the various DI Product models. See CPB
`
`at 180-181, 192; RX-0331C at § 143 (referencing Akemann Exhibit 10a); RX-0348C (Akemann
`
`Exhibit 10a, referencing Akemann Exhibit 10b); RX-0349C (Akemann Exhibit 10b, setting forth
`
`engineer time attributed to “DI Products”). Thus, it is not clear that shifting R&D mvestments
`
`from the KardiaBandto a later product, such asee.
`
`makesa difference. See Certain Integrated Circuit Chips and Products Containing the Same,Inv.
`
`No. 337-TA-859, Comm/’n Op. at 39 (Aug. 22, 2014) (holding that ultimate emphasis for
`
`subsection (C) is a nexus between the investment and asserted patent). Moreover, to the extent
`
`there is a difference, Apple has identified a collection of fact witness testimony that seemingly
`
`contradicts any opinion that R&D or regulatory work continued for KardiaBand beyond 2018. See
`
`MIL 4 at 3 (citing JX-0223C (Albert); JX-0225C (Raghavan)); but see MIL 4 Oppo. at 5-8
`
`
`
`
`
`(discussing same). The record will benefit more from the resolution of these conflicts than from
`
`preemptive exclusion. There is otherwise a considerable amount of discussion in the moving
`
`papers, particularly that of the private parties, that is either beside the point or is of marginal
`
`relevance, and the analysis above suffices to resolve the motion.
`
`Therefore, MIL 4 (Mot. 1266-025) is denied.
`
`Within seven days of the date of this document, the parties shall submit to the Office of the
`
`Administrative Law Judges a joint statement as to whether or not they seek to have any portion of
`
`this document deleted from the public version. If the parties do seek to have portions of this
`
`document deleted from the public version, they must submit to this office a copy of this document
`
`with red brackets indicating the portion or portions asserted to contain confidential business
`
`information. The submission may be made by email and/or hard copy by the aforementioned date
`
`and need not be filed with the Commission Secretary.
`
`SO ORDERED.
`
`
`
`
`
`
`_____________________________
`Cameron Elliot
`Administrative Law Judge
`
`3
`
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
