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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
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`In the Matter of
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`CERTAIN LOCATION-SHARING
`SYSTEMS, RELATED SOFTWARE,
`COMPONENTS THEREOF, AND
`PRODUCTS CONTAINING SAME
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`Inv. No. 337-TA-
`(Docket No. 337-TA-3655)
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`PROPOSED LENOVO RESPONDENTS’ REQUEST FOR DENIAL OF
`INSTITUTION IN-PART
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`Pursuant to the Commission’s Notice,1 the Lenovo Respondents2 request that the
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`Commission deny in-part institution of ITC Complaint Docket No. 337-TA- 3655 filed by AGIS.3
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`The Commission should decline to institute as to proposed Respondents LGL and Lenovo US
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`based on AGIS’s complete failure to plead facts supporting a violation of Section 337 by anyone
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`other than Motorola.
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`Section 337 prohibits the “importation into the United States, the sale for importation, or the
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`sale within the United States after importation by the owner, importer, or consignee, of articles that
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`. . . infringe.” 19 U.S.C.§ 1337(a)(1)(B)(i); Certain Carbon and Alloy Steel Products, Inv. No. 337-
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`TA-1002, Initial Determination at 33 (Oct. 2, 2017) (“[A] complainant must prove that a
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`respondent actually imported or sold for importation the articles at issue.”). Consistent with the
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`express statutory language, the Commission’s regulations require that each complaint include “a
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`statement of facts constituting the alleged” Section 337 violation, and a “showing that each person
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`named as violating section 337 . . . is importing or selling the article covered by . . . each involved
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`U.S. Patent.” 19 C.F.R. § 210.12(a)(2), (a) (9)(viii) (emphasis added). Recent Commission
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`precedent demonstrates that a complaint’s failure to plead such facts as to a specific proposed
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`respondent justifies non-institution as to that entity. See, e.g., Certain Electronic Devices,
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`Semiconductor Devices, 337-TA-1340, Letter from K. Hiner to A. Pratt, EDIS Doc. ID. 784017,
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`(Nov. 8, 2022) (denying institution as to Qualcomm) (“1340 Non-institution Letter”).
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`AGIS’s Complaint falls well short of the requirements of 19 C.F.R. § 210.12. Rather than
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`make the required “showing” that LGL or Lenovo US are “importing or selling” the accused
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`1 See Notice of Receipt of Complaint and Solicitation of Comments Relating to the Public Interest,
`87 Fed. Reg. 72509 (Nov. 25, 2022).
`2 The Lenovo Respondents include Lenovo Group Ltd (“LGL”); Lenovo (United States), Inc.
`(“Lenovo US”); and Motorola Mobility LLC (“Motorola”).
`3 “AGIS” is Advanced Ground Information Systems, Inc. and AGIS Software Development LLC.
`1
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`products, AGIS simply states in conclusory fashion—without any factual support or citing a single
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`document—that “[o]n information and belief, Lenovo Group manufactures, imports, sells for
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`importation, offers for sale, and/or sells within the United States after importation the Lenovo
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`Accused Products.” Compl., ¶ 29. The only factual support regarding importation and sale in the
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`Complaint relates exclusively to Motorola. All of the exhibits pertaining to what AGIS calls “the
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`Lenovo Accused Products” concern Motorola’s activities relating to the Motorola Edge (2021)
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`phone. See Compl., Ex. 97 (shipment from Motorola without reference to LGL), Ex. 99 (packing
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`list showing Motorola without reference to LGL or Lenovo US), Ex. 96 (packaging referring to
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`Motorola without reference to LGL or Lenovo US).
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`The Complaint lacks any factual allegations regarding importation or sale by LGL or
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`Lenovo US because, in fact, these entities are not involved in any of the activities AGIS alleges on
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`“information and belief.” While LGL is the ultimate parent of Lenovo US and Motorola, it is “a
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`holding company that does not produce goods or services itself” as the U.S. District Court for the
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`District of Delaware found in dismissing LGL from a patent infringement action in 2019.4 In fact,
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`LGL has repeatedly established, in the context of procuring its dismissal from patent litigation, that
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`it “does not make, use, sell, offer to sell, have sold, [or] import” products in the United States.5
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`LGL, Motorola, and Lenovo US are distinct corporate entities with distinct operations. This is why
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`the Commission has, in the past, instituted Section 337 investigations against Motorola without
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`naming LGL and Lenovo US. See, e.g., Certain LTE-Compliant Cellular Communication Devices,
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`Inv. No. 337-TA-1253, Notice of Institution, EDIS Doc. ID. 735638, (Mar. 2, 2021) (naming
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`4 3G Licensing, S.A. et al. v. Lenovo Group Ltd. et al., CA 17-84-LPS, Report and
`Recommendation (D.I. 308) (Aug. 22, 2019) adopted in D.I. 312 (finding a lack of personal
`jurisdiction over LGL)
`5 See, e.g., Tela Innovations, Inc. v. Lenovo Group, Ltd. et al., C.A. No. 18-2025 (RGA), Joint
`Stipulation of Dismissal of Defendant Lenovo Group Ltd. (D.I. 9) (April 17, 2019).
`2
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`Motorola without LGL and Lenovo US).
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`Just a few months ago, the Commission declined to institute the 1340 Investigation against
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`Qualcomm because “[t]he information provided with the complaint, supplement, and exhibits . . .
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`does not sufficiently describe the specific instance(s) of importation or sale” for Qualcomm.6
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`Significantly, the Commission cited the very same regulations that dictate the outcome here: 19
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`C.F.R. §§ 210.12(a)(3) and (a)(9)(viii). Similarly, in 2019, the Commission declined to institute an
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`investigation against SK Battery Hungary Kft. in Lithium Ion Batteries, Inv. 337-TA-1159 after the
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`complainant could not establish “at least one specific instance of importation of articles . . . into the
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`United [sic] Staets or in the sale of such articles by the owner, importer, or consignee . . .”7 The
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`outcome should be no different here: AGIS has failed to satisfy 210.12(a)(3) and (9)(viii).
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`*
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`*
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`*
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`Section 337 investigations should not be automatic. A complainant must comply with the
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`statute and the applicable regulations before the ITC commits public resources to conduct an
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`investigation. And, while Section 337 provides that “[t]he Commission shall investigate any
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`alleged violation of this section,” 19 U.S.C. § 1337(b)(1), the Commission must retain and
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`exercise discretion to decide after an informal pre-institution investigation that a formal Section
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`337 investigation is not justified especially where a complainant fails to follow Commission
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`Rules like AGIS has done here.
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`6 1340 Non-Institution Letter.
`7 Compare Letter from A. Beverina (OUII) to M. Hogge, EDIS Doc. ID. 676345, (May 13, 2019)
`with Notice of Institution, EDIS Doc. ID. 677297, (May 29, 2019) (internal quotations omitted).
`3
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`Dated: December 5, 2022
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`Respectfully submitted,
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`/s/ Daniel Valencia
`Daniel Valencia
`Covington & Burling LLP
`One CityCenter,
`850 Tenth Street, NW
`Washington, DC 20001-4956
`T 202 662 6000
`dvalencia@cov.com
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`Counsel for Proposed Respondents
`Lenovo Group Limited; Lenovo
`(United States), Inc.; and Motorola
`Mobility LLC
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`4
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`CERTIFICATE OF SERVICE
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`I, Marissa Golub, certify that on December 5, 2022, copies of the foregoing
`PROPOSED LENOVO RESPONDENTS’ REQUEST FOR DENIAL OF INSTITUTION
`IN-PART
`were delivered, pursuant to Commission regulations, upon the following interested parties as
`indicated:
`
`Katherine M. Hiner, Acting Secretary
`U.S. International Trade Commission
`500 E Street, S.W., Room 112
`Washington, D.C. 20436
`
`Evan H. Langdon
`Fabricant, LLP
`1101 Pennsylvania Ave NW
`Suite 300
`Washington, D.C. 20004
`Counsel for Complainants AGIS Software
`Development LLC and Advanced Ground
`Information Systems, Inc.
`
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`☐ Via First Class mail
`☐ Via Hand Delivery
`☐ Via UPS Overnight
`☐ Via Facsimile
`☒ Via Electronic Filing (EDIS)
`
`☐ Via First Class mail
`☐ Via Hand Delivery
`☐ Via UPS Overnight
`☐ Via Facsimile
`☒ Via Electronic Mail
`ELangdon@fabricantllp.com
`
`
`
`
`/s/ Marissa Golub
`Marissa Golub
`Senior Litigation Paralegal
`Covington & Burling LLP
`One CityCenter, 850 Tenth Street, NW
`Washington, DC 20001-4956
`T +1 202 662 6594 | mgolub@cov.com
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