q v cm jd w fs t jp o
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`Before the Honorable
`Administrative Law Judge David P. Shaw
`
`In the Matter of
`
`CERTAIN POINT-TO-POINT NETWORK
`COMMUNICATION DEVICES AND
`PRODUCTS CONTAINING SAME
`
`Investigation No. 337-TA-892
`
`MOTION FOR LEAVE TO REPLY TO RESPONDENTS’ RESPONSE TO STRAIGHT
`PATH’S MOTION TO TERMINATE THE INVESTIGATION BASED ON
`WITHDRAWAL OF THE COMPLAINT
`
`Pursuant to Ground Rule 5 and 19 C.F.R. § 210.15, Complainant Straight Path IP Group,
`
`Inc. (“Straight Path”) hereby respectfully submits this Motion for Leave to Reply to
`
`Respondents’ Response to Straight Path’s Motion to Terminate the Investigation Based on
`
`Withdrawal of the Complaint. (Motion Docket No. 892-045). The present Reply is submitted to
`
`address certain mischaracterizations with respect to Straight Path’s reasons for moving to
`
`terminate the present Investigation made in Respondents’ Response to Straight Path’s Motion to
`
`Terminate.
`
`Pursuant to Ground Rule 5.e., Straight Path contacted Respondents and the Staff on May
`
`9, 2014 regarding their position on the instant motion for leave and whether they would waive
`
`the 2 business day rule. Neither Respondents nor Staff responded to Straight Path’s request.
`
`LG v. Straight Path, IPR2015-00198
`Straight Path - Exhibit 2011 - Page 1
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`

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`q v cm jd w fs t jp o
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`May 9, 2014
`
`Respectfully Submitted,
`
`/s/James M. Wodarski
`Michael T. Renaud
`James M. Wodarski
`Michael J. McNamara
`Aarti Shah
`Michael C. Newman
`Sandra J. Badin
`Stephen P. Cole
`Robert J. L. Moore
`Mintz, Levin, Cohn, Ferris, Glovsky and
`Popeo, P.C.
`One Financial Center
`Boston, MA 02110
`Phone: (617) 542-6000
`Fax: (617) 542-2241
`
`Counse lforComplainantStraightPathIP
`Group, Inc.
`
`2
`
`LG v. Straight Path, IPR2015-00198
`Straight Path - Exhibit 2011 - Page 2
`
`

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`q v cm jd w fs t jp o
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`Before the Honorable
`Administrative Law Judge David P. Shaw
`
`In the Matter of
`
`CERTAIN POINT-TO-POINT NETWORK
`COMMUNICATION DEVICES AND
`PRODUCTS CONTAINING SAME
`
`Investigation No. 337-TA-892
`
`COMPLAINANT STRAIGHT PATH’S REPLY TO RESPONDENTS’ RESPONSE TO
`STRAIGHT PATH’S MOTION TO TERMINATE THE INVESTIGATION BASED ON
`WITHDRAWAL OF THE COMPLAINT
`
`Complainant Straight Path IP Group, Inc. (“Straight Path”) respectfully submits this reply
`
`brief to address certain statements in Respondents’ Response to Straight Path’s Motion to
`
`Terminate the Investigation Based on Withdrawal of the Complaint. (Motion Docket No. 892-
`
`045) [the “Response”].
`
`The unprofessional tone and unnecessary hyperbole in the Response, demands a brief
`
`response. Respondents’ claim of vexatious litigation tactics is entirely misplaced, as the various
`
`settlements with certain respondents and Google, alone, demonstrate. To the contrary, it is
`
`Netflix’s and the remaining Respondents’ intentional discovery misconduct that led to Straight
`
`Path’s decision to withdraw its complaint, and request that the Investigation be terminated.
`
`Respondents also incorrectly accuse Straight Path of withdrawing the complaint to avoid seeing
`
`the OUII Staff Attorney’s pre-hearing submission. Straight Path was confident that the Staff’s
`
`brief would have forecasted that the administrative record would support a finding that the
`
`asserted patents were valid. What Staff’s brief may likely have identified is certain failure of
`
`proof issues concerning infringement as to the Netflix application running on the accused
`
`devices. Any such proof issue would be the direct and sole result of Netflix’s intentionally
`
`LG v. Straight Path, IPR2015-00198
`Straight Path - Exhibit 2011 - Page 3
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`

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`q v cm jd w fs t jp o
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`evasive and dilatory discovery tactics, on its own accord and in collaboration with Respondents’
`
`counsel.
`
`Straight Path has every right to pursue these claims in district court; and, precisely to this
`
`point, Straight Path will do so with confidence that Netflix and the Respondents, as district court
`
`defendants, will not be able to manipulate further the discovery process, and will all too late but
`
`finally meet their longstanding obligation to provide complete and comprehensive discovery.
`
`From that discovery, Straight Path is equally confident that it will prove infringement.
`
`Accordingly, moving forward, if the ALJ and Commission need to address the issues
`
`arising from the present request to terminate, they should focus on preventing evasive and
`
`dilatory discovery tactics, which materially impair the Commission from serving its statutory
`
`function in adjudicating these disputes on a full and fair administrative record.
`
`I.
`
`Straight Path Diligently Sought Relevant Discovery Regarding the Netflix
`Application But was Thwarted in its Efforts by Underhanded Delay Tactics
`
`Straight Path diligently sought discovery regarding the Netflix application from the
`
`inception of this Investigation, but Straight Path’s efforts to seek discovery regarding the
`
`structure, function, and operation of the Netflix application, including server side related
`
`information, were blocked by Netflix and Respondents’ subversive delay tactics.
`
`Straight Path served written discovery on Respondents seeking information regarding the Netflix
`
`application immediately after the institution of this Investigation, but none of the Respondents
`
`provided the requested information in their discovery responses. Se e Order No. 22 (denying
`
`Straight Path’s motion requesting certification to the Commission of a request for judicial
`
`enforcement of the Google subpoena); Order No. 25 (denying Straight Path’s motion to compel
`
`2
`
`LG v. Straight Path, IPR2015-00198
`Straight Path - Exhibit 2011 - Page 4
`
`

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`q v cm jd w fs t jp o
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`discovery from the Sony Respondents). Indeed, even the AmTRAN Respondents,1 who were
`
`represented by Netflix’s own counsel, Perkins Coie, provided no responsive information and
`
`instead directed Straight Path to Netflix for the required discovery.
`
`Straight Path subpoenaed Netflix on October 25, 2013, but Netflix, as part of its defense
`
`strategy, did everything possible to delay responding to the subpoena in an effort to run out the
`
`clock on the fact discovery period. On November 8, 2013, Netflix filed a motion for an extension
`
`of time to respond to the subpoena to November 22, 2013, which was granted. Netflix finally
`
`filed its motion to quash on December 2, 2013, well over a month after service of the subpoena.2
`
`Even worse, Netflix’s motion to quash argued that the subpoena should be quashed because
`
`Straight Path could obtain the needed discovery from the Respondents, including AmTRAN.
`
`This is disingenuous because, as mentioned above, the Respondents, including AmTRAN, which
`
`is represented by Netflix’s counsel, refused to provide the requested discovery and directed
`
`Straight Path to obtain the discovery from Netflix.
`
`On January 9, 2014, only two weeks before the close of fact discovery, the ALJ denied
`
`Netflix’s motion to quash in its entirety. Se e Order No. 16. But, despite the ALJ’s order, Netflix
`
`continued to refuse to produce the requested discovery, and especially server side related
`
`information even though it was specifically requested in the subpoena. Immediately after the
`
`ALJ denied Netflix’s motion to quash, Straight Path contacted Netflix to request the immediate
`
`production of the code, documents, and deposition witness requested by the subpoena.
`
`Incredibly, Netflix still tried to evade production of the requested discovery, and in fact
`
`continued to argue that Straight Path should seek the discovery from Respondents, an argument
`
`that was specifically denied by the ALJ. For example, on January 15, Netflix responded to a
`
`1 The AmTRAN Respondents are AmTRAN Technology Co., Ltd. and AmTRAN Logistics, Inc.
`2 Netflix initially filed its motion to quash on November 22, 2013, but the motion was denied by the ALJ for failure
`to comply with Ground Rule 5.l. Se e Order No. 11.
`
`3
`
`LG v. Straight Path, IPR2015-00198
`Straight Path - Exhibit 2011 - Page 5
`
`

`

`q v cm jd w fs t jp o
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`request to review source code by stating that the “releases of the Netflix SDKs provided to the
`
`Respondents will not be on the review computers because we understand that this code is
`
`available to Straight Path via at least the Panasonic and Vizio Respondents.” Ex. A at 5. Then,
`
`on January 16, in response to Straight Path’s inquiry regarding when a deposition witness would
`
`be provided, Netflix stated: “Netflix believes that once Straight Path reviews the volume of
`
`Netflix-related documents and code that have been produced by Netflix and the Respondents, a
`
`witness will be unnecessary.” Id. at 4.
`
`Netflix did not provide access to any of its source code until January 16, 2014 and did not
`
`provide a witness for deposition until February 11, 2014, well after the close of fact discovery
`
`and only a week before Straight Path’s expert report on infringement was due. Even then, after
`
`losing a motion to quash the subpoena, and producing the information well after the close of fact
`
`discovery, Netflix’s production was still substantially deficient. Netflix continues to withhold
`
`relevant discovery from Straight Path, including server side related discovery. Netflix
`
`deliberately failed to fully comply with the ALJ’s order, knowing that because of the limits on
`
`the Commission’s ability to enforce subpoenas, and the fact that Straight Path could not afford to
`
`have the hearing significantly delayed, Straight Path was powerless to do anything to force them
`
`to fulfill their obligations.
`
`I.
`
`The Time and Resources Spent on Discovery in this Investigation are Not Lost
`Because Such Discovery can be Transferred to the District Court Actions
`
`Notwithstanding Netflix’s and Respondents’ discovery misconduct, the substantial time
`
`and resources spent on this Investigation is not “all for naught,” as Respondents’ suggest.
`
`Response at 7. In light of the circumstances, the ALJ should assist Straight Path to achieve a
`
`prompt and complete transfer of the discovery provided in this Investigation to the district courts
`
`4
`
`LG v. Straight Path, IPR2015-00198
`Straight Path - Exhibit 2011 - Page 6
`
`

`

`q v cm jd w fs t jp o
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`where claims are pending, and the litigation will continue. That will avoid redundancies and
`
`streamline the district court proceedings.
`
`II.
`
`Conclusion
`
`For these reasons, as well as those stated in its opening motion and memorandum,
`
`Straight Path asks that the ALJ issue an initial determination terminating the Investigation. No
`
`other action is warranted or necessary.
`
`May 9, 2014
`
`Respectfully Submitted,
`
`/s/James M. Wodarski
`Michael T. Renaud
`James M. Wodarski
`Michael J. McNamara
`Aarti Shah
`Michael C. Newman
`Sandra J. Badin
`Stephen P. Cole
`Robert J. L. Moore
`Mintz, Levin, Cohn, Ferris, Glovsky and
`Popeo, P.C.
`One Financial Center
`Boston, MA 02110
`Phone: (617) 542-6000
`Fax: (617) 542-2241
`
`Counse lforComplainantStraightPathIP
`Group, Inc.
`
`29806944v.1
`
`5
`
`LG v. Straight Path, IPR2015-00198
`Straight Path - Exhibit 2011 - Page 7
`
`

`

`EXHIBIT A
`
`+’&$%,’&#’*,(+’)-
`
`LG v. Straight Path, IPR2015-00198
`Straight Path - Exhibit 2011 - Page 8
`
`

`

`United States International Trade Commission
`Investigation No. 337-TA-892
`Certain Point-To-Point Network Communications Devices and Products Containing Same
`
`CERTIFICATE OF SERVICE
`
`I, Megan A. De Renzis, hereby certify that on May 9, 2014, true and correct copies of the
`forgoing documents were served on the parties listed below:
`
`" Via EDIS
`" Via Hand Delivery (2 copies)
`
`" Via Hand Delivery (1 copy)
`" Via Electronic Mail
`Patricia.Chow@usitc.gov
`# Via First Class Mail
`" Via Hand Delivery
`" Via Electronic Mail
`James.Wiley@usitc.gov
`# Via First Class Mail
`# Via Federal Express
`" Via Electronic Mail
`AmTran-ITC-Service@perkinscoie.com
`AmTRAN-892@alston.com
`
`The Honorable Lisa Barton
`Acting Secretary to the Commission
`U.S. International Trade Commission
`500 E Street SW
`Washington, DC 20436
`Administrative Law Judge David P. Shaw
`U.S. International Trade Commission
`500 E Street, S.W.
`Washington, DC 20436
`James Wiley, Esq.
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street SW, Suite 401
`Washington, D.C. 20436
`Counse lforRe sponde ntsAmTranLogistics, Inc.
`and AmTranTe chnologyCo., Ltd.:
`
`John P. Schnurer
`Jack Ko
`Kevin J. Patariu
`Perkins Coie LLP
`11988 El Camino Real, Suite 200
`San Diego, California 92130
`Telephone: (858) 720-5700
`Facsimile: (858) 720-5799
`
`James B. Coughlan
`Perkins Coie LLP
`700 Thirteenth Street, NW, Suite 600
`Washington, DC 20005
`Telephone: (202) 654-6200
`Facsimile: (202) 654-6211
`
`Yitai Hu
`S.H. Michael Kim
`Helen Su
`ALSTON & BIRD LLP
`275 Middlefield Road, Suite 150
`Menlo Park, CA 94025
`Telephone: 650-838-2020
`
`LG v. Straight Path, IPR2015-00198
`Straight Path - Exhibit 2011 - Page 9
`
`

`

`United States International Trade Commission
`Investigation No. 337-TA-892
`Certain Point-To-Point Network Communications Devices and Products Containing Same
`
`Facsimile: 650-838-2001
`
`Jennifer (Celine) Liu
`Christopher R. Byrnes
`ALSTON & BIRD LLP
`950 F Street, NW
`Washington, DC 20004
`
`Counse lforRe sponde ntsLG Ele ctronicsInc., LG
`Ele ctronicsU.S.A., Inc. and LG Ele ctronics
`M obile Comm U.S.A, Inc.:
`
`Smith R. Brittingham IV
`Rajeev Gupta
`Michael E. Kudravetz
`Finnegan, Henderson, Farabow,
`Garrett & Dunner L.L.P.
`901 New York Avenue, N.W.
`Washington, DC 20001-4413
`Telephone: (202) 408-4000
`Fax: (202) 408-4400
`
`Andrew C. Sonu
`Finnegan, Henderson, Farabow,
`Garrett & Dunner L.L.P.
`Two Freedom Square
`11955 Freedom Drive
`Reston, VA 20190-5675
`Telephone: (571) 203-2700
`Fax: (202) 408-4400
`Re sponde ntsPanasonic Corporationand
`Panasonic CorporationofNorthAme rica:
`
`Steven J. Routh
`Sten A. Jensen
`William H. Wright
`Diana M. Szego
`T. Vann Pearce, Jr.
`Christopher J. Higgins
`Jordan L. Coyle
`ORRICK, HERRINGTON & SUTCLIFFE, LLP
`1152 15th Street, NW
`Washington, D.C. 20005
`Telephone: 202-339-8400
`Facsimile: 202-339-8500
`
`2
`
`# Via First Class Mail
`# Via Federal Express
`" Via Electronic Mail
`892ITC-LG@finnegan.com
`
`# Via First Class Mail
`# Via Federal Express
`" Via Electronic Mail
`892-Panasonic@orrick.com
`
`LG v. Straight Path, IPR2015-00198
`Straight Path - Exhibit 2011 - Page 10
`
`

`

`United States International Trade Commission
`Investigation No. 337-TA-892
`Certain Point-To-Point Network Communications Devices and Products Containing Same
`
`# Via First Class Mail
`# Via Federal Express
`" Via Electronic Mail
`Sony-SP-ITC@WolfGreenfield.com
`fm-sony-892@fostermurphy.com
`
`William H. Wright
`Christopher P. Broderick
`Andrew Y. Yen
`ORRICK, HERRINGTON & SUTCLIFFE, LLP
`777 South Figueroa Street
`Suite 3200
`Los Angeles, CA 90017
`Telephone: 213-629-2020
`Facsimile: 213-612-2499
`
`Counse lforRe sponde ntsSonyCompute r
`Ente rtainme nt, Inc., SonyCompute r
`Ente rtainme ntAme rica Inc., SonyCompute r
`Ente rtainme ntAme rica LLC, SonyCorporation,
`SonyCorporationofAme rica, SonyEle ctronics
`Inc., SonyM obile CommunicationsAB, Sony
`M obile Communications(USA)Inc. and Sony
`EricssonM obile Communications(USA)Inc.
`
`James B. Altman
`F. David Foster
`Barbara A. Murphy
`David F. Nickel
`Susan Koegel
`Kandis C. GibsonFoster, Murphy,
`Altman & Nickel, PC
`1899 L Street, NW, Suite 1150
`Washington, DC 20036
`202-822-4100
`
`Michael N. Rader
`Allen S. Rugg
`Charles Steenburg
`D. Alexander Ewing
`Eric G. J. Kaviar
`Turhan F. Sarwar
`Wolf, Greenfield & Sacks, P.C.
`600 Atlantic Avenue
`Boston, MA 02210-2206
`
`Counse lforRe sponde ntsToshiba Corporation,
`Toshiba Ame rica Inc. and Toshiba Ame rica
`InformationSyste ms, Inc.:
`
`Paul T. Meiklejohn
`
`# Via First Class Mail
`# Via Federal Express
`" Via Electronic Mail
`
`3
`
`LG v. Straight Path, IPR2015-00198
`Straight Path - Exhibit 2011 - Page 11
`
`

`

`United States International Trade Commission
`Investigation No. 337-TA-892
`Certain Point-To-Point Network Communications Devices and Products Containing Same
`
`Tosh-SP-ITC@dorsey.com
`Tosh-892-ITC@kvn.com
`
`# Via First Class Mail
`# Via Federal Express
`" Via Electronic Mail
`Vizio-SPIPG@bakermckenzie.com
`
`David Tseng
`Lukas Dudkowski
`Mudit Kakar
`William Perry
`Emily Lawson
`DORSEY & WHITNEY LLP
`701 Fifth Avenue, Suite 6100
`Seattle, WA 98104
`Telephone: 206-903-8800
`Facsimile: 206-903-8820
`
`Keker & Van Nest LLP
`633 Battery Street
`San Francisco, California 94111-1809
`Telephone: (415) 391-5400
`
`Re sponde ntsVIZ IO, Inc.:
`
`Kevin M. O'Brien
`Richard V. Wells
`Matt Dushek
`Baker & McKenzie LLP
`815 Connecticut Ave., N.W.
`Washington, DC 20006
`Tel: 202 452 7000
`Fax: 202 452 7074
`
`Edward K. Runyan
`Baker & McKenzie LLP
`300 E. Randolph St.
`Chicago, lllinois 60601
`Ph. 312 861-8000
`Fax. 312 861 2829
`
`D. James Pak
`Baker & McKenzie LLP
`Two Embarcadero Center, 11th Floor
`San Francisco, CA 94111
`Tel: 415 592 3209
`Fax: 202 416 7033
`
`4
`
`LG v. Straight Path, IPR2015-00198
`Straight Path - Exhibit 2011 - Page 12
`
`

`

`United States International Trade Commission
`Investigation No. 337-TA-892
`Certain Point-To-Point Network Communications Devices and Products Containing Same
`
`Megan A. De Renzis
`Legal Specialist
`Mintz, Levin, Cohn, Ferris,
`Glovsky and Popeo, P.C.
`One Financial Center
`Boston, MA 02111
`Direct: (617) 348-4893
`Fax: (617) 542-2241
`
`5
`
`LG v. Straight Path, IPR2015-00198
`Straight Path - Exhibit 2011 - Page 13
`
`