UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before the Honorable Dee Lord
`Administrative Law Judge
`
`
`In the Matter of
`
`CERTAIN ACTIVITY TRACKING
`DEVICES, SYSTEMS, AND COMPONENTS
`THEREOF
`
`
`Investigation No. 337-TA-963
`
`COMPLAINANTS’ REBUTTAL CLAIM CONSTRUCTION BRIEF
`
`I. INTRODUCTION
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`Pursuant to Order No. 4 (Setting Target Date and Date for Submission of Proposed
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`Procedural Schedule) and Order No. 5 (Setting the Procedural Schedule), Complainants
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`AliphCom d/b/a Jawbone and BodyMedia, Inc. (together, “Complainants” or “Jawbone”)
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`respectfully submit this Rebuttal Claim Construction Brief addressing the proper construction for
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`three terms the Parties agreed to request to be construed before the Hearing.
`
`In view of the parties’ positions in the Initial Claim Construction Briefs, Complainants
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`have modified their alternative proposed claim construction for the term “forming . . . a molding”
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`(‘811, claims 1, 16) to resolve a concern that Complainants’ original alternative construction
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`(and Staff’s alternative proposed construction) did not fit grammatically with the surrounding
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`claim language. Respondents identified that concern in their Initial Claim Construction Brief, see
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`Respondents’ Initial Br. at 7-8, and Complainants informed Respondents and Staff of their
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`modified alternative proposed claim construction on November 25, 2015. In any event,
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`Complainants continue to believe that no construction of that term is necessary and that it can be
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`understood with its plain and ordinary meaning.
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`The table below summarizes Complainants’ positions and proposed constructions, as
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`revised, for the terms in dispute:
`
`Term
`
`“contextual data of the individual”
`(’546, claim 1)
`
`“band”
`(’522, claim 2)
`
`
`“forming . . . a molding”
`(’811, claims 1, 16)
`
`Complainants’ Proposed Construction
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`data relating to the individual’s activity state,
`environment, surroundings, or location
`
`data-capable device that may be worn as a
`strap or band around an arm, leg, ankle, or
`other bodily appendage or feature
`
`REVISED: No construction necessary. If the
`term is construed, the proper construction is
`“using a mold to form a … material.”1
`
`
`
`II. LEVEL OF ORDINARY SKILL IN THE ART
`
`The Private Parties disagree on the amount of formal education the person of ordinary
`
`skill in the art would have possessed. Respondents’ Initial Br. at 2-3. Staff supports
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`Complainants’ definition, except for the ’811 patent, which Staff contends should be defined
`
`separately. Staff’s Initial Br. at 4. Nevertheless, the parties appear to agree that any dispute
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`regarding the appropriate level of ordinary skill in the art is immaterial for purposes of claim
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`construction of the terms at issue. See Respondents’ Initial Br. at 3. Accordingly, the ALJ need
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`not resolve this dispute at this time and should reserve it for the Hearing.
`
`
`1 Complainants’ original proposal for this term in the Opening Claim Construction brief was: No
`construction necessary. If the term is construed, the proper construction is “making with a
`mold.”
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`III. DISPUTED CLAIM TERMS
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`A.
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`“contextual data of the individual” (’546, claim 1)
`
`Complainants’ Proposed
`Construction
`
`data relating to the individual’s
`activity state, environment,
`surroundings, or location
`
`Respondents’ Proposed
`Construction
`
`non-physiological information
`regarding the individual’s activity
`state, environment, surroundings,
`or location
`
`Staff’s Proposed
`Construction
`
`Information relating to an
`individual’s activity state,
`environment, surroundings, or
`location
`
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`Respondents mischaracterize the invention of the ’546 patent. The ’546 patent is not
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`merely directed at a system to monitor weight loss, as Respondents state. Respondents’ Initial
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`Br. at 14. Rather, the ’546 patent is directed to a system for removing the inherent inaccuracies
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`in tracking and monitoring caloric expenditure, through body-mounted sensors, to assist with
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`weight management. ’546, Abstract.
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`
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`Respondents are also incorrect in asserting that the “specification draws a clear line
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`between ‘physiological’ data/sensors and ‘contextual’ data/sensors.” Respondents’ Initial Br. at
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`15. To the contrary, the specification explicitly states that physiological and contextual data can
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`be represented by the same data signal. For example, as Complainants pointed out in their Initial
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`Brief, the specification sets forth that “digital signal or signals representing certain physiological
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`and/or contextual characteristics of the individual user may be used by microprocessor 20 to
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`calculate or generate data indicative of physiological and/or contextual parameters of the
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`individual user.” ’546, 13:30–34 (emphasis added). Respondents’ construction would
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`impermissibly exclude this embodiment, by requiring that the contextual data always be separate
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`from the physiological data. See Osram GmbH v. Int'l Trade Comm'n, 505 F.3d 1351, 1358
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`(Fed.Cir. 2007) (noting that a claim construction that excludes a preferred embodiment is rarely,
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`if ever, correct).
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`
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`Other portions of the specification further “blur” Respondents’ so-called “clear line
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`between ‘physiological’ data/sensors and ‘contextual’ data/sensors.” For example, the
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`specification states “[t]he system can also predict data indicative of human physiological
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`parameters including energy expenditure and caloric intake for any given relevant time period as
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`well as other detected and derived physiological or contextual information.” ’546, 5:14-18. The
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`specification further states that an alternate embodiment
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`includes at least two sensors adapted to be worn on an individual’s body
`selected from the group consisting of physiological sensors and contextual
`sensors, wherein at least one of the sensors is a physiological sensor. The
`sensors are adapted to generate data indicative of at least a first parameter
`of the individual and a second parameter of the individual, wherein the
`first parameter is physiological.
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`’546, 5:50-57. This embodiment contemplates an apparatus with two sensors, of which at least
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`one is a physiological sensor. Id. In other words, this embodiment could be an apparatus with
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`two sensors, both of which are physiological. The specification reinforces that all the sensors
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`can be physiological, stating “[i]n either embodiment of the apparatus, the at least two sensors
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`may be both physiological sensors, or may be one physiological sensor and one contextual
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`sensor.” ’546, 6:3-5. Moreover, the sensors described in this embodiment generate data of at
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`least one parameter that is physiological. Id. It is unspecified whether the second parameter can
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`be contextual or physiological. However, had the inventors wanted to restrict the type of the
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`second parameter, they could easily have done so. That they did not indicates that the second
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`parameter can be contextual or physiological. In view of this, the ’546 patent contemplates that
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`contextual data can be generated from only physiological sensors.2 Respondents’ construction
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`would exclude this embodiment, because it would require a separate contextual sensor; this is not
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`required by the claims or the specification. Because Respondents’ proposed construction would
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`improperly exclude this embodiment, it is incorrect and should be rejected. Osram, 505 F.3d at
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`2
`Staff correctly acknowledges that the “contextual activity state parameter may be
`derived in part from data supplied by physiological sensors.” (Staff’s Brief at 11).
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`1358.
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`
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`For this same reason, Respondents’ argument that the claims “draw a distinction between
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`physiological and contextual data, by requiring a processing unit that ‘derive[s] physiological
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`and contextual data of the individual from data detected by said sensor device,’” is also incorrect.
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`Respondents’ Initial Br. at 16 (citing ’546, 60:21-22). As discussed above, the specification
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`contemplates a sensor device containing only physiological sensors. Once again, Respondents’
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`construction improperly excludes embodiments from the specification. Osram, 505 F.3d at
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`1358.
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`In view of the explicit construction for this phrase set forth in the specification, which
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`Complainants’ proposal mirrors, Complainants’ construction is correct.
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`B.
`
`“band” (’522, claim 2)
`
`Complainants’ Proposed
`Construction
`
`data-capable device that may be
`worn as a strap or band around
`an arm, leg, ankle, or other
`bodily appendage or feature
`
`Respondents’ Proposed
`Construction
`
`Plain and ordinary meaning.
`
`Staff’s Proposed
`Construction
`
`No construction necessary.
`Plain and ordinary meaning. If
`construed,
`the
`proper
`construction is “a substantially
`flat encircling strip.”
`
`Although Respondents contend that the term “band” should be given its plain and
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`
`
`ordinary meaning, their argument reveals their intent to deprive the term of any meaning at all
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`rather than give the term a meaning in the context of the patent as would be understood by a
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`person of ordinary skill in the art at the time of the invention. “The words of a claim are
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`generally given their ordinary and customary meaning as understood by a person of ordinary
`
`skill in the art when read in the context of the specification and prosecution history.” Thorner
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`v. Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1365-67 (Fed. Cir. 2012) (citing Phillips v.
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`AWE Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc)) (emphasis added). Contrary to
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`precedent, Respondents effectively ask the ALJ to ignore the explicit lexicography the patentee
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`provided for this term in the specification and replace it with an undefined, but apparently all-
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`encompassing, meaning that would be broad enough to include how a lay person may understand
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`the term band (e.g., a rubber band). Respondents’ arguments should be rejected because they
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`ignore the “context of the specification and prosecution history” and the point of view of “a
`
`person of ordinary skill in the art.” Id.
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`
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`Respondents argue that the patentee’s explicit definition for the term “band”—“data-
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`capable device that may be worn as a strap or band around an arm, leg, ankle, or other bodily
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`appendage or feature,” ’522 at 4:17–21, should be ignored in favor of “a common meaning that
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`has been used in a variety of contexts over a long period of time.” Respondents’ Initial Br. at 11.
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`Notably, Respondents do not say what that “common meaning” is, but their examples of such “a
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`common meaning” illustrate the fallacy of this argument: “[P]eople intuitively understand what
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`is meant by terms such as rubber band or headband.” Id. The patentee recognized that the
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`common meaning of the term—which can encompass a rubber band by example—does not
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`capture the nature or context of the invention. For this reason, the term is explicitly defined in the
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`patent. The patentee’s definition should not be ignored.
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`
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`Respondents also argue that the term “band” should be given an all-encompassing
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`meaning because the term is “so commonly understood that in recent years, the phrase ‘fitness
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`band’ . . . has entered the public lexicon.” Id. As a threshold matter, Respondents fail to provide
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`any evidence of the current “public lexicon” understanding of the term “fitness band” or to
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`explain how that alleged meaning is consistent with the context of the invention. More
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`importantly, patent terms are not construed based on the common understanding in recent years,
`
`but rather as they would be understood by a person of ordinary skill in the art at the time of the
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`invention. Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d 1111, 1116
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`(Fed. Cir. 2004) (“A court construing a patent claim seeks to accord a claim the meaning it
`
`would have to a person of ordinary skill in the art at the time of the invention.”). Thus, even
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`assuming that the term “fitness band” has acquired some common public understanding—as
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`Respondents contend—this understanding does not affect the patentee’s chosen definition for the
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`term or a person of ordinary skill in the art’s understanding of the term at the time of the
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`invention.
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`
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`Respondents’ attempt to equate the patentee’s definition of the term “band” to another
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`hypothetical—“a camera that ‘may be worn around one’s neck’”—erects a strawman and then
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`knocks it down. Id. at 12. Contrary to Respondents’ argument, the patentee’s definition for the
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`term “band” defines the necessary structure for the device—that it “may be worn as a strap or
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`band around an arm, leg, ankle, or other bodily appendage or feature.” ’522, 4:20-21. Staff
`
`agrees. Staff’s Initial Br. at 8 (“the term ‘band’ does give some additional meaning and
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`structure—though minimal—to the claim body’s listing of electronic components”).3 On the
`
`other hand, Respondents’ hypothetical camera does not describe any structure making it capable
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`of being worn around one’s neck. Had a patentee defined a special type of camera specifically
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`designed for such a use case as part of an invention in a patent, such lexicography too would be
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`controlling.
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`3 Consistently, Staff also states that “the preamble term ‘band’ is only necessary to the
`body of claim 2 to the extent that it recites a vessel or structure that holds/contains the recited
`electronic components and adds some meaning or life to the body of the claim.” Staff’s Initial
`Br. at 9. The “data-capable” portion of Complainants’ proposed construction reflects the
`claimed device’s structure of containing the recited electronic components, not merely that it
`contains sensors from the other elements of the claim. Similarly, the remainder of
`Complainants’ proposed construction addresses the structure of the band that is not captured in
`the remainder of claim 2. Staff’s Initial Brief appears to agree but does not address why the ALJ
`should decline to construe the term as defined by the patentee as Complainants propose.
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`Respondents also erroneously conflate the patentee’s definition of the term “band” with
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`exemplary embodiments, in attempting to argue that the term should not be limited to such
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`embodiments. Id. at 12-13. The specification language on which Complainants rely for their
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`proposed construction is not merely an embodiment—it is the patentee’s clear definition for the
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`term: “Although used interchangeably, ‘strapband’ and ‘band’ may be used to refer to the same
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`or substantially similar data-capable device that may be worn as a strap or band around an arm,
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`leg, ankle, or other bodily appendage or feature.” ’522 at 4:17–21. All described embodiments
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`are consistent with this definition, including those cited by Respondents. For example,
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`Respondents rely on the following passages in the specification: (1) bands also “may be attached
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`directly or indirectly to other items, organic, or inorganic, animate, or static,” id. at 4:20–23; (2)
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`“bands [] can be attached to the body or affixed to clothing, or otherwise disposed at a relatively
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`predetermined distance from a user’s person,” id. at 4:28–29; (3) bands 900 and the elements
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`described above in connection with FIGS. 1–9[] may be varied in type, configuration, function,
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`structure, or other aspects, without limitation to any of the examples shown and described.” id. at
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`19:50–53. Respondents’ Initial Br. at 12-13. Nothing in these descriptions is inconsistent with
`
`the patentee’s definition of the band. That the described bands may also be attached to “other
`
`items,” may be affixed to “clothing,” or may be of varied type, configuration, function, or
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`structure, does not take away from the defined requirement that the band be a “data-capable
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`device that may be worn as a strap or band around an arm, leg, ankle, or other bodily appendage
`
`or feature.”
`
`
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`One thing Complainants and Respondents agree on is that Staff’s alternative
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`construction—a “substantially flat encircling strip”—is incorrect because it appears to
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`impermissibly exclude the patent’s disclosed embodiments. Respondents’ Initial Br. at 13.
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`Staff’s initial brief does not address this defect in Staff’s proposed construction. Moreover, even
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`if Staff’s understanding of the terms “substantially flat” and “encircling” did not exclude the
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`disclosed embodiments, this proposed construction adds unnecessary and unhelpful ambiguity
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`that can and should be avoided.
`
`C. “forming . . . a molding” (’811, claims 1, 16)
`
`Complainants’ Proposed
`Construction
`
`Staff’s Proposed
`Construction
`
`Respondents’ Proposed
`Construction
`
`using a . . . mold to apply
`material
`
`REVISED: No construction
`necessary.
`If
`the
`term
`is
`construed,
`the
`proper
`construction is “using a mold to
`form a … material.”
`
`The term “forming . . . a molding” does not require construction and should be given its
`
`REVISED: No construction
`necessary.
`If
`the
`term
`is
`construed,
`the
`proper
`construction is “making with a
`mold . . . a molding.”
`
`plain and ordinary meaning. Indeed, all parties agree that “forming … a molding” involves use
`
`of a mold. See Respondents’ Initial Br. at 6 (noting the “point of agreement by Staff and the
`
`parties” that the claimed process “requires using a mold”); Staff’s Initial Br. at 5-6 (noting the
`
`parties’ agreement that “forming” a “molding” requires that “the formation process used in
`
`claimed methods must involve use of a mold in order for the resulting coverings to qualify as
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`‘molding[s]’”). As Respondents acknowledge in their brief, this understanding also accords with
`
`the dictionary definition of the term “molding.” Respondents’ Initial Br. at 6 n. 3. Accordingly,
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`the term needs no construction and should be given its plain and ordinary meaning.
`
`Respondents’ argument that this term needs construction focuses on what they perceive
`
`to be “a fundamental disagreement” regarding whether the formed molding must cover at least
`
`one covering. Respondents draw this perceived disagreement from Complainants’ and Staff’s
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`original alternative construction proposal: “making with a mold.” Id. at 6. In Respondents’
`
`view, this original alternative construction proposal “would read out the limitation that the
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`molding be formed such that it covers the underlying device, and replace it with an entirely new
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`limitation that requires the mold to cover the underlying device.” Id. (emphasis in original).
`
`This perceived disagreement, however, appears to be a misunderstanding stemming from the fact
`
`that Complainants’ and Staff’s original alternative constructions did not perfectly fit
`
`grammatically with the surrounding claim language. See Staff’s Initial Br. at 6 (acknowledging
`
`Respondents’ argument that Staff’s and Complainants’ original proposed alternative construction
`
`“cannot be literally [] substituted in the claim language without altering its meaning due to the
`
`lack of a direct object in the [original] proposed construction.”). As the parties’ initial briefs
`
`make clear, all parties agree that the molding, not the mold, should cover the underlying device.
`
`The lack of any disagreement on this issue supports Complainants’ and Staff’s view that the term
`
`needs no construction and should be given its plain and ordinary meaning.
`
`Should the ALJ determine that it is necessary to construe the term, Complainants have
`
`modified their alternative proposal to “using a mold to form a … material” to address the
`
`grammatical awkwardness of their original alternative construction. There should be no such
`
`controversy with Complainants’ modified proposal. As described above, all parties agree that
`
`“forming” a “molding” requires using a mold. In their Initial Brief, Respondents’ key argument
`
`was that the term requires that “the material formed by the mold ‘covers all or substantially all’
`
`of the underlying component or device.” Complainants’ current proposal is consistent with that
`
`argument. Applying the revised proposal to the first relevant limitation in Claim 1 yields
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`“selectively [using a mold to form a] first inner [material] that covers all or substantially all of
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`the at least one covering,” which mirrors what Respondents contend is the correct understanding
`
`of the term.
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`Staff similarly modified its alternative construction proposal to “making with a mold . . .
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`a molding.” Complainants do not object to Staff’s proposal as it reflects the plain and ordinary
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`meaning of the term, but Complainants believe that their proposal avoids the redundancy
`
`inherent in use of the term “mold” twice and provides more clarity to the extent any is deemed
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`necessary beyond the plain and ordinary meaning of the term.
`
`
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`Respondents’ proposed construction should be rejected because it would impermissibly
`
`restrict the scope of the claim limitation. Respondents attempt to inject a requirement into the
`
`claim that forming a molding must involve “applying” material using a mold. As explained in
`
`detail in Complainants’ Initial Brief, the specification makes clear that although a molding may
`
`be formed by applying the material into a mold cavity that surrounds the framework, it is not
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`required to be so formed and it may be varied in its structure. Complainants’ Initial Br. at 12.
`
`Respondents’ Initial Brief fails to provide any argument for why their additional, restrictive
`
`limitation is appropriate or how it is supported by any intrinsic evidence. But as Complainants
`
`explained in their Initial Brief, in attempting to insert this additional requirement into the claim
`
`Respondents are improperly seeking to limit the claim to certain described embodiments.
`
`Complainants’ Initial Br. at 11-12. Claim scope must not be limited to any particular
`
`embodiment unless the patentee expressed a clear intent to do so. Saunders Group, Inc. v.
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`Comfortrac, Inc., 492 F.3d 1326, 1332 (Fed. Cir. 2007). Accordingly, the ALJ should reject
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`Respondents’ proposed construction.4
`
`
`
`
`4 Staff notes that “Respondents do not appear to have ascribed any particular meaning to
`the word ‘apply’ in their proposed construction in their Initial Brief.” Staff’s Initial Br. at 6 n.2.
`Respondents’ failure to provide any support in their brief for this attempted narrowing of the
`claim should lead the ALJ to reject the erroneous construction.
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`Dated: December 4, 2015
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`
`Respectfully submitted,
`
`
`
`/s/ Kalpana Srinivasan
`
`Max L. Tribble Jr.
`Bryce T. Barcelo
`SUSMAN GODFREY L.L.P.
`1000 Louisiana, Suite 5100
`Houston, TX 77002-5096
`Telephone: (713) 651-9366
`Facsimile: (713) 65-6666
`mtribble@susmangodfrey.com
`bbarcelo@susmangodfrey.com
`
`Kalpana Srinivasan
`Oleg Elkhunovich
`SUSMAN GODFREY L.L.P.
`1901 Avenue of the Stars, Suite 950
`Los Angeles, California 90067-6029
`Telephone: (310) 789-3100
`Facsimile: (310) 789-3150
`ksrinivasan@susmangodfrey.com
`oelkhunovich@susmangodfrey.com
`
`Genevieve Vose Wallace
`Floyd G. Short
`SUSMAN GODFREY L.L.P.
`1201 Third Avenue, Suite 3800
`Seattle, Washington 98101-3000
`Telephone: (206) 516-3880
`Facsimile: (206) 516-3883
`gwallace@susmangodfrey.com
`fshort@susmangodfrey.com
`
`Tamar Lusztig
`SUSMAN GODFREY L.L.P.
`560 Lexington Avenue, 15th Floor
`New York, NY 10022-6828
`Telephone: (212) 336-8330
`Facsimile: (212) 336-8340
`tlusztig@susmangodfrey.com
`
`Andrew F. Pratt
`VENABLE LLP
`575 7th Street, NW
`Washington, DC 20004
`Telephone: (202) 344-4389
`Facsimile: (202) 344-8300
`AFPratt@Venable.com
`
`Counsel for AliphCom d/b/a Jawbone and BodyMedia,
`Inc.
`
`
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`CERTIFICATE OF SERVICE
`
` I
`
` hereby certify that a copy of the COMPLAINANTS’ REBUTTAL CLAIM
`CONSTRUCTION BRIEF was served on the following parties in the manner indicated below,
`this 4th day of December, 2015:
`
`
` 
`
` Via First Class Mail
`
` Via Hand Delivery
`
` Via Federal Express
`
` Via Electronic Mail
`
` Via Electronic Filing (EDIS)
`
` 
`
` Via First Class Mail
`
` Via Hand Delivery (2 Copies)
`
` Via Federal Express
`
` Via Electronic Mail
`
`(c/o: edward.jou@usitc.gov)
`
` 
`
` Via First Class Mail
`
` Via Hand Delivery
`
` Via Federal Express
`
` Via Electronic Mail
`
` 
`
` Via First Class Mail
`
` Via Hand Delivery
`
` Via Federal Express
`
` Via Electronic Mail
`
`
`
`
`
`
`The Honorable Lisa Barton, Secretary
`U.S. International Trade Commission
`500 E Street, SW, Room 112
`Washington, D.C. 20436
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`
`The Honorable Dee Lord
`U.S. International Trade Commission
`500 E Street, SW, Room 317
`Washington, D.C. 20436
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`Peter Sawert, Esq.
`Commission Investigative Attorney
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street S.W.
`Washington, D.C. 20436
`Email: Peter.Sawert@usitc.gov
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`
`Mark L. Hogge
`Shailendra K. Maheshwari
`Nicholas H. Jackson
`DENTONS US LLP
`1301 K Street, NW
`East Tower, Ste. 600
`Washington, DC 2005
`Telephone: (202) 408-6400
`Facsimile: (202) 408-6399
`Email: Flextronics@dentons.com
`
`Counsel for Respondents Flextronics International
`Ltd. and Flextronics Sales & Marketing (A-P) Ltd.
`
`
`Josh A. Krevitt (Lead)
`Beatrice Hahn
`GIBSON, DUNN & CRUTCHER LLP
`
`13
`Certificate of Service of Complainants’ Rebuttal Claim Construction Brief
`3997143v1/014661
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`Inv. No. 337-TA-963
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`13 of 14
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` Via First Class Mail
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` Via Hand Delivery
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` Via Federal Express
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` Via Electronic Mail
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`200 Park Avenue
`New York, NY 10166
`Telephone: 212.351.4000
`Facsimile: 212.351.4035
`
`Frederick S. Chung
`Stuart M. Rosenberg
`Alison Watkins
`Quincy Lu
`Christina Chandler Kogan
`Zachary Wood
`Ryan K. Iwahashi
`Andrew Robb
`Ernest Y. Hsin
`GIBSON, DUNN & CRUTCHER LLP
`1881Page Mill Road
`Palo Alto, CA 94304-1211
`Telephone: 650.849.5300
`Facsimile: 650.849.5333
`
`Neema Jalali
`GIBSON, DUNN & CRUTCHER LLP
`555 Mission Street, Suite 3000
`San Francisco, CA 94105-0921
`Telephone: 415.393.8258
`Facsimile: 415.374.8409
`
`Jason Lo
`GIBSON, DUNN & CRUTCHER LLP
`333 South Grand Avenue
`Los Angeles, CA 90071-3197
`Telephone: 213.229.7153
`Facsimile: 213.229.6253
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`Email: Fitbit337TA963@gibsondunn.com
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`Counsel For Respondent Fitbit, Inc.
`
`
`
`/s/ Laura Q. Andrews
`SUSMAN GODFREY L.L.P.
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`14
`Certificate of Service of Complainants’ Rebuttal Claim Construction Brief
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`Inv. No. 337-TA-963
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