Date: March 9, 2018
`
`Case: Certain Robotic Vacuum Cleaning Devices and Components
`Thereof Such as Spare Parts
`
`Ace-Federal Reporters, Inc.
`Phone: 202-347-3700
`Fax: 202-737-3638
`Email: info@acefederal.com
`Internet: www.acefederal.com
`
`1
`
`IROBOT 2015
`Shenzhen Silver Star v. iRobot
`IPR2018-00897
`
`
`
`Case: Certain Robotic Vacuum Cleaning Devices and Components
`Thereof Such as Spare Parts
`
`Ace-Federal Reporters, Inc.
`Phone: 202-347-3700
`Fax: 202-737-3638
`Email: info@acefederal.com
`Internet: www.acefederal.com
`
`1
`
`IROBOT 2015
`Shenzhen Silver Star v. iRobot
`IPR2018-00897
`
`
`
`2
`
`
`
` UNITED STATES OF AMERICA
` BEFORE THE
` INTERNATIONAL TRADE COMMISSION
`
`Page 1
`
`- - - - - - - - - - - - - - - - - -x
`IN THE MATTER OF: : Investigation No.
`CERTAIN ROBOTIC VACUUM CLEANING : 337-TA-1057
`DEVICES AND COMPONENTS THEREOF :
`SUCH AS SPARE PARTS :
`- - - - - - - - - - - - - - - - - -x
`
` HEARING
`
` Friday, March 9, 2018
` Courtroom B
` U.S. International Trade
` Commission
` 500 E Street SW
` Washington, DC
`
`The Hearing commenced, pursuant to notice of the Judge, at
`9:48 a.m., before the Honorable Thomas B. Pender,
`Administrative Law Judge for the United States
`International Trade Commission.
`
`1
`
`2
`
`3
`
`4 5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`3
`
`
`
`Page 2
`1
`
`APPEARANCES
`
` RUFFIN CORDELL, ESQ.
` RALPH A. PHILLIPS, ESQ.
` STEPHEN A. MARSHALL, ESQ.
` LINHONG ZHANG, ESQ.
` JACK R. WILSON, ESQ.
` Fish & Richardson P.C.
` 901 15th Street, NW, Suite 700
` Washington, DC 20005
` 202.783.5070
` Counsel for Complainant iRobot Corporation
`
` JOSEPH B. WARDEN, ESQ.
` Fish & Richardson P.C.
` 222 Delaware Avenue, 17th Floor
` Wilmington, Delaware 19801
` 302.652.5070
` Counsel for Complainant iRobot Corporation
`
` - continued -
`
`2 3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`4
`
`
`
`APPEARANCES (CONTINUED):
`
`Page 3
`
` ANDREW G. PEARSON, ESQ.
` Fish & Richardson P.C.
` One Marina Park Drive
` Boston, Massachusetts 02210
` 617.542.5070
` Counsel for Complainant iRobot Corporation
`
` KECIA J. REYNOLDS, ESQ.
` SEAN M. WEINMAN, ESQ.
` Pillsbury, Winthrop, Shaw, Pittman LLP
` 1200 Seventeenth Street, NW
` Washington, DC 20036
` 202.663.8025
` Counsel for Respondents The Black & Decker Corporation
` and Black & Decker (U.S.) Inc., Shenzhen Silver Star
` Intelligent Technology Co., Ltd., Hoover Inc., and
` Royal Appliance Manufacturing Co. d/b/a TTI Floor Care
` North America, Inc., and bObsweep USA and
` bObsweep Inc.
`
` - continued -
`
`1
`
`2 3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`5
`
`
`
`Page 4
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`APPEARANCES (CONTINUED):
` BRYAN P. COLLINS, ESQ.
` Pillsbury, Winthrop, Shaw, Pittman LLP
` 1650 Tysons Boulevard, 14th Floor
` McLean, Virginia 22102
` 703.770.7900
` Counsel for Respondents The Black & Decker Corporation
` and Black & Decker (U.S.) Inc., Shenzhen Silver Star
` Intelligent Technology Co., Ltd., Hoover Inc., and
` Royal Appliance Manufacturing Co. d/b/a TTI Floor Care
` North America, Inc., and bObsweep USA and
` bObsweep Inc.
`
` JACK KO, PhD, ESQ.
` Pillsbury, Winthrop, Shaw, Pittman LLP
` Suite 4201, Bund Center
` 222 Yan An Road East
` Shanghai 200002 China
` 86.21.6137.7999
` Counsel for Respondents The Black & Decker Corporation
` and Black & Decker (U.S.) Inc., Shenzhen Silver Star
` Intelligent Technology Co., Ltd., Hoover Inc., and
` Royal Appliance Manufacturing Co. d/b/a TTI Floor
` Care North America, Inc., and bObsweep USA and
` bObsweep Inc. - continued -
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`6
`
`
`
`APPEARANCES (CONTINUED):
`
`Page 5
`
` NICHOLAS A. BROWN, ESQ.
` Greenberg Traurig, LLP
` Four Embarcadero Center, Suite 3000
` San Francisco, California 94111
` 415.655.1300
` Counsel for Respondent Shenzhen ZhiYi Technology
` Co., Ltd.
`
` P.J. MC CARTHY, ESQ.
` MARK G. DAVIS, ESQ.
` Greenberg Traurig, LLP
` 2101 L Street, NW, Suite 1000
` Washington, DC 20037
` 202.331.3100
` Counsel for Respondent Shenzhen ZhiYi Technology
` Co., Ltd.
`
`1
`
`2 3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`7
`
`
`
`Page 6
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` P R O C E E D I N G S
` JUDGE PENDER: We are now on the record.
` I was thinking to myself that when I get a brief
`like yours, I would have been happier with an executive
`summary, you know what I mean? And so this is -- this
`opening statement to you is probably important.
` MR. CORDELL: Well, thank you, your Honor. The
`reality is we struggle in cases like this with the number
`of products and the matrix that we have to put forward and
`the amount of proof we have to preserve, and at the same
`time, I readily acknowledge that the readability of the
`brief suffers greatly and we need to work on that, and we
`will. We will take your Honor's comments to heart and make
`sure that it counts.
` But having said that, I do appreciate the
`opportunity to make an opening statement. I will try to
`address it in chunks, and hopefully with a little more of
`an organization and executive summary.
` But I'd like to talk a little bit about our
`client and kind of the development that your Honor
`mentioned earlier today and how wonderful that's been, do a
`little bit on the Respondents to just sort of peel the veil
`back on who they are, and then address each of the patents
`and at least hit the significant infringement and
`invalidity issues that are likely to come up.
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`8
`
`
`
`Page 7
` So with that, let me begin. IRobot, our client.
`Our client was founded by the three folks you see in the
`center, Helen Greiner, Rodney Brooks and Colin Angle. They
`were young MIT students and had been very interested in
`robots all the way through their academic career.
` They predated the battle bots that your Honor
`mentioned this morning, so I guess they were into robots
`before robots were fighting.
` On the left we show one of the prototypes that
`they worked on, which is called Ghengis, that was being
`developed for NASA. They were very big into the space
`program and were instrumental in bringing robotics to the
`broader community.
` They were established in 1990 in a little strip
`mall, the picture is not very good. But really from modest
`beginnings, iRobot has sprung forth.
` This is, in slide 4, Ghengis, which was that
`early robot they did in conjunction with NASA. Spent a
`fair amount of time in Smithsonian, on loan, I think it's
`on to another exhibit, but obviously a very, very important
`development.
` But this isn't just an experiment, it's not just
`theoretical. IRobot makes products that do real work.
` So in slide 5 we show the Pyramid of Giza
`because they made a robot that explored the intricacies of
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`9
`
`
`
`Page 8
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`the Pyramid of Giza without damaging the historical
`artifact that the structure is.
` In the center we show an oil well that's leaking
`oil because iRobot sends rovers down subsea to identify and
`ameliorate these kinds of spills.
` We've got a NASA rover and it contains a lot of
`iRobot technology as they send probes out to other planets.
`In the lower right hand we have a variant of the robot
`that's used to diffuse mines, and that's a theme that I
`will touch on over and over again.
` IRobot also makes devices for oil wells. We
`have the microrig.
` JUDGE PENDER: Diffuse mines, huh? Are they
`one-offs?
` MR. CORDELL: That could be. That could be. It
`depends on how it's diffused, I suppose.
` JUDGE PENDER: When I was at the Z in the early
`1980s, we would have to send mine sweepers down the road
`every night because they would sneak across the parallel
`there and put mines in the roads. It would have been
`nice -- I never had any confidence in those mine-sweeping
`devices, you know.
` MR. CORDELL: I had to pick among the various
`things that iRobot makes, but they actually make modern
`mine-sweeping devices that have weights on them. And you
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`10
`
`
`
`Page 9
`are right, I think they are single use devices, but again,
`better for that purpose.
` The microrig is something that goes down hole in
`oil wells and does all kinds of work, you know, 10,000 feet
`below the surface. But iRobot also makes units that go
`into any hostile environment, nuke plants, places where the
`environment is too toxic for humans, so iRobot fills that
`gap, keeping humans safe.
` JUDGE PENDER: Do they make stuff that goes into
`wells too, like water wells?
` MR. CORDELL: Well, the microrig is exactly for
`that purpose. This one is shown in an oil capacity, but it
`can do all kinds of things down hole. You're right, I
`should have thought of this. They could fix some of the
`problems your Honor had with the DEQ.
` JUDGE PENDER: Well, it's not a problem anymore.
`Now I have all the extension agents want to come out and no
`one has ever seen a 70-gallon well before.
` MR. CORDELL: Wow. So everything got cleared?
` JUDGE PENDER: Yeah. It's lovely. Head
`pressure is now up to 15 feet below surface from --
` MR. CORDELL: Wow.
` JUDGE PENDER: Yeah, I know.
` MR. CORDELL: Wow. What's your elevation there?
` JUDGE PENDER: Well, I'm about 1100 right there.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`11
`
`
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`Page 10
` MR. CORDELL: Wow. And you get to 15 feet,
`1
`that's remarkable. Yeah, I bet they're lining up.
` Robot ranger is a neat unit, it's a sea-borne
`robot that is sort of a drone for the Navy and Coast Guard,
`if you want to call it that. It carries out all kinds of
`missions. It clears mines. It does -- it does active
`warfare. It can carry munitions, it does surveillance,
`lots of different functions.
` One of the things that iRobot is most proud of
`is -- are the products that it's made for the military.
`Slide 7, we show a couple of examples. On the left we
`have -- upper left we have a PackBot. And the idea of a
`PackBot was a robot that could be man-portable. You could
`put it on a soldier's back, they could walk it into combat
`and then deploy it where it was used -- where it was
`needed.
` Sort of the next picture in is a picture of a
`PackBot exploring caves in Afghanistan, obviously a place
`you don't want to send people in if you don't have to and
`encounter whatever happens to be down there.
` And then we had a large version of the PackBot
`called the Warrior, on the right side, that's diffusing an
`IED. And as your Honor pointed out, sometimes those are
`single-use used devices. On the other hand, while it's a
`lot less exciting than the Hurt Locker movie, it's safer
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`12
`
`
`
`Page 11
`
`for the people. That's the fundamental idea. And
`literally these devices saved thousands of lives in the
`last Gulf War.
` There are also smaller versions, at slide 8 on
`the left, we've got a SUGV, a lighter version of the
`PackBot. It's designed to be taken out with the squad and
`the squad deploys it where they encountered enemy to do the
`surveillance. It's got video capability.
` JUDGE PENDER: The arms on the front, if they
`hit an obstacle, they can climb over it?
` MR. CORDELL: Correct. It's a stair-climbing
`mechanism. By deploying it, it lifts the tracks that you
`see underneath to a level that can get on top of the
`obstacle, whatever that might be.
` It also has this video capability that you see
`high up so that it can be deployed and the squad remains
`safely under cover, and they can do surveillance and figure
`out where the enemy is before they expose themselves.
` JUDGE PENDER: I bet you the soldiers appreciate
`that.
` MR. CORDELL: Absolutely. Absolutely. Very,
`very popular. Too bad we can't put one out there with
`every single one of them in harm's way.
` But it's not just the military. On the right of
`slide 8, we have a photo of the PackBot at the World Trade
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`13
`
`
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`Page 12
`Center. So after the World Trade Center disaster, it was
`1
`sent in to identify victims that might be buried in rubble.
`And, you know, first responders were swarming all over it,
`but much of it was too unstable for people to go into
`safely.
` So we sent in the PackBot, and the PackBot goes,
`identifies signs of life, has sophisticated listening
`devices and is able to then have the human responders only
`take risks where they could actually save a victim. So
`very, very important work, something we're very proud of.
` The headquarters is in Bedford, Mass. And your
`Honor saw some of this in the DI motion. And there's
`another facility over in Pasadena.
` But really, the takeaway here is that iRobot is
`really a true American success story. You know, our MIT
`founders started out with nothing and yet had built this
`company, and really created an entire product segment that
`didn't exist before. And it was through creativity and
`vision and all of the R&D that it took to do this, as your
`Honor knows, was done here in the States.
` IRobot does do some manufacturing overseas, so I
`don't want to make you think that it's all American, all
`the time. The manufacturing of the current units is
`done -- is done overseas in China.
` But all the R&D and, as your Honor knows,
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`14
`
`
`
`Page 13
`
`hundreds of engineers are employed here to carry out the
`iRobot vision.
` So let's talk about the technology and the
`products that are actually at issue. We have the Roomba,
`which was released in 2002 after about three years of
`intensive work, and again launched a whole new product
`category.
` Your Honor noted that there's some prior art out
`there, the Suckmaster, which was kind of a gangly, ugly
`thing and I'll talk about that a little more later. But
`the reality is that was a hobby project, something done to
`pick up rice at a competition.
` JUDGE PENDER: Oh, I understand that. But the
`point, though, is you know, the prior art is the prior art,
`you know what I mean? You have said that to me.
` MR. CORDELL: I have, I have. I probably will
`say it again. But I will address the Suckmaster
`individually, because -- because it was a hobby project, it
`suffered from deficiencies that keep it from invalidating
`these claims.
` But the reality is that iRobot was the one that
`came along with this notion of consumer version of a
`cleaning robot and created the whole product category,
`simply didn't exist before iRobot.
` There are a whole line of Roombas, not all of
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`15
`
`
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`Page 14
`which, of course, are at issue here. And then they also
`1
`make robotic cleaners for other applications, things like
`the Scuba, which is a mopping robot, it can actually mop
`your floor. The Looj, which is a gutter cleaner, you put
`it up in your gutter, so again humans don't have to take
`risk. It runs down the gutter, throwing out all of the
`debris that might otherwise be there.
` JUDGE PENDER: What's that called?
` MR. CORDELL: The Looj, L-o-o-j. I don't have
`one of those. I have these, but I'm getting one, because I
`have -- that gutter cleaning thing is -- it's too risky
`now. I've gotten old enough to understand that that ladder
`is a bad thing.
` JUDGE PENDER: When I go swimming, there's a
`former Olympic swimmer there that I swim with sometimes.
`He gives me three things. No ladders, no this, no that.
`But the no ladders is the important one.
` MR. CORDELL: I think that's right. And I have
`40-foot gutters, so it's a bad place to be.
` They also make a Verro, which is a pool-cleaning
`robot. I don't know if you've seen that in the pools, but
`it's out there.
` So let's talk about the DI products. It's
`Roomba 650, 860 and the 980. The good news is for two of
`the patents, there's no technical DI dispute. So that
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`16
`
`
`
`Page 15
`certainly advances the cause of getting this all resolved.
` We also have the happy fact that your Honor has
`already ruled on the economic prong of domestic industry.
`Respondents did not petition on that, and while I suppose
`the Commission could still do something with it, at this
`point, I think it's remote.
` JUDGE PENDER: I think the domestic industry for
`you all was a sweet spot. You hit into the sweet spot.
`You know, almost any time you're going to have more than
`$10 million worth of domestic industry, how can you not say
`that's substantial, you know? So --
` MR. CORDELL: And 400 R&D engineers, that's a --
` JUDGE PENDER: One of the things we do is we
`make a mistake, we think because, say, for instance, I'll
`give you an example, and I don't mean it to be a real-world
`example. BASF, somebody might say $20 million isn't
`substantial to BSAF. But yes, it is, it's substantial to
`the economy of the United States. It's not whether it's
`substantial to BSAF so much as is it substantial in the
`United States. And that's why I ruled the way that I rule.
` MR. CORDELL: And I am sure that to the business
`unit that's responsible for it, even at a big company like
`BASF, that's a significant amount of money.
` Now we have the Respondents. We started out
`with about 11, and -- depending on how you count them,
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`17
`
`
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`Page 16
`because some of them are sort of affiliated.
`1
` But as your Honor pointed out, our goal here is
`to either license or get them out of the market. And we've
`done a fair amount of work in this case to make that
`happen.
` So Bissell Homecare was licensed. Suzhou
`Realpower agreed to get out of the market. Black & Decker
`agreed to get out of the market. Matsutek was licensed.
` We're down to really 3-1/2 Respondents, and the
`reason why I say a half is that Hoover, as your Honor
`pointed out earlier, is half out of the market. So what
`happened to Hoover is that one of their suppliers agreed to
`get out of the market, but they still have TTI as the
`supplier, and Silver Star. So they are half out of the
`market.
` So we are down to really 3-1/2 Respondents at
`this point, so we have made great progress.
` So let me just talk a little bit about each of
`the Respondents, if I can. Let's start with Shenzhen
`ZhiYi, and I am practicing saying that name. I'm told that
`it rhymes with GE, but it's ZhiYi. So I'll let the
`Respondents correct my pronunciation.
` They do business under the iLife mark and we've
`had some debate back and forth about whether or not --
`that's a proper association. But I think it's pretty
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`18
`
`
`
`Page 17
`
`settled now that it's ZhiYi iLife, almost said as one
`phrase.
` They're pretty new, you know, established in
`2010. They are an electronics OEM. They have gotten into
`some dust-ups over some of their advertising claims, and
`that's what I've got in the middle of the slide there.
` But you can see that even the advertising
`agencies associate ZhiYi with the iLife name. So iLife
`ZhiYi, we're going to see that over and over again.
` Silver Star is the next Respondent, that's a big
`part of the manufacturing end of some of the other
`Respondents' products. It's a big Chinese conglomerate,
`the Silver Star group. The Silver Star group has been
`around --
` JUDGE PENDER: Have you guys given any thought
`to trade dress?
` MR. CORDELL: We have, we have. We've looked at
`some of that.
` JUDGE PENDER: I'd be 50 percent there right at
`the moment.
` MR. CORDELL: Maybe we should pursue that a
`little more vigorously. In the Commission, trade dress
`carries with it a whole bunch of additional burdens, so
`we --
` JUDGE PENDER: Usually what you have, problem in
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`19
`
`
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`Page 18
`trade dress, is the issue of survey, you know? Was it done
`1
`properly, whatever, you know?
` MR. CORDELL: We've had a few of those cases,
`and it's enormous contention over the way the questions are
`phrased and how --
` JUDGE PENDER: Exactly.
` MR. CORDELL: -- the sample was chosen and who
`was interviewed. It gets expensive fast. But you're
`right, that may well be the way to go.
` Established 2005 here refers to the fact that
`that's when Silver Star started to look at robots. And
`they claim to manufacture a bunch of them, but we'll see in
`a moment that, you know, where they get their designs is
`what's important.
` Hoover, your Honor is right, we've had Hoover
`forever. It's an iconic American brand. But it was sold
`to a Chinese conglomerate, TTI, in 2007. Your Honor may
`remember them from the 1016 investigation. Same outfit.
` Designs are pretty much done by overseas
`companies, and as I mentioned before, Hoover had a
`different supplier that agreed to exit the market for the
`Quest 700 and the Quest 800. So those robots have been
`taken out of the case.
` But the Quest 100 and Rogue 950, those are
`representative at least for our purposes, are being made by
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`20
`
`
`
`Page 19
`
`Silver Star.
` And then finally we have bObsweep, which is a
`Canadian-based reseller. It's kind of a -- kind of, I
`guess, for lack of a better term, they are kind of just a
`retail outfit. They get products designed and manufactured
`by Silver Star, one of the other Respondents. They have no
`R&D or development staff. They are a marketing and sales
`organization. It's a couple of brothers, and I believe
`Respondents said one of them might be here for the trial,
`Ali Ebrahimi Afrouzi and Masih Ebrahimi Afrouzi, and they
`are really bObsweep. It's those guys that seem to do it.
` It turns out, your Honor, as we have seen in
`other cases, we've got some evidence here that the
`Respondents here didn't do all their own homework, and
`maybe were relying very heavily on iRobot and its designs
`as they made an effort to enter this market.
` So I have a series of slides now that are CBI,
`so I won't put them up on the screen, but your Honor has
`them in front of you. So it's slide 19, the one entitled
`"imitation is not flattery, "we have an e-mail from
`Mr. Afrouzi of bObsweep. And he is discussing with his
`brother, Masih Afrouzi of bObsweep, that it's -- and they
`are debating whether or not the product is too close to the
`iRobot product.
` And you don't usually see terms like "knockoff"
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`21
`
`
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`Page 20
`or "Chinese copy" in a document of this -- of this kind.
`1
` At the lower part of the slide, we have an
`additional message, this one is from Irobot, which is part
`of the --
` MS. REYNOLDS: Excuse me, your Honor, I really
`hate to interrupt an opening, but even though the slide is
`not up, this is still CBI that's being discussed.
` JUDGE PENDER: I understand you call it CBI, but
`if I was asked to rule on this as CBI, I'd have a hard time
`understanding why it is CBI. Can you -- can you educate to
`me as to why this is CBI?
` And the reason is I am particularly sensitive to
`the fact that CBI is overused here at the Commission. We
`don't have any problem protecting what ought to be
`protected, but for heaven's sakes, I mean, you know. Why
`is this CBI?
` MS. REYNOLDS: Your Honor, I have not had an
`opportunity to review this. I just heard --
` JUDGE PENDER: You're not answering my question.
`Why is this CBI?
` MS. REYNOLDS: Your Honor, if you could please
`look at CX-0986C, the highlighted portion, and I don't want
`to read this out.
` JUDGE PENDER: I understand that. But I don't
`see anything that is CBI about that. It's not cost or
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`22
`
`
`
`Page 21
`pricing information. It is -- you know, I can almost take
`judicial -- you're not explaining to me why this is CBI.
`You're not -- you're not persuading me. In fact, you're
`doing the opposite of persuading me.
` Because something hurts too much doesn't make it
`CBI.
` MS. REYNOLDS: Your Honor --
` JUDGE PENDER: I rule it's not CBI. I will take
`the hit on it. It's not CBI. I have not heard a
`reasonable explanation of why it is CBI. If you can -- if
`you want to file later and establish why it's CBI, that's
`one thing. But right now, you haven't done it.
` But anyway, I don't think there's anybody in
`this room who is not subject to the protective order
`anyway. I mean --
` MR. CORDELL: We do have a couple of the iRobot
`folks in the back, your Honor.
` JUDGE PENDER: Yeah, but for heaven's sakes,
`what -- this is -- see, that's why I don't find it to be
`CBI. I don't see how anybody gets a technical advantage
`out of any of this or any kind of a business advantage from
`this. This is something everybody knows.
` All right. Move on from this slide, then,
`Mr. Cordell.
` MR. CORDELL: Thank you, your Honor. Going now
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`23
`
`
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`Page 22
`to slide 20, which we've also blocked out, we have an
`1
`excerpt -- what we were talking about before, were bObsweep
`and Silver Star, xRobot, now we have moved on to ZhiYi
`iLife, and here we have the testimony of Mr. Song, one of
`their witnesses.
` And he was asked very candidly, did you look at
`the iRobot products, and he said all aspects. And then
`what I don't have on this slide is him going on to discuss
`all of the various components, you can see it in the
`citation at the bottom, that they focused on, as they were
`designing the ZhiYi iLife products. Pretty much every
`aspect of the robot they considered.
` Then at slide 21, I have another message, this
`is going back to xRobot and Silver Star, where they were
`discussing with business partners what they should do in
`terms of the design of the device. And they specifically
`recommended using iRobot's design, and in particular, the
`collision of the machine to be triggered in advance, so
`that what they're talking about here is that soft touch
`aspect of the iRobot design that's in the patents and is
`very, very important.
` JUDGE PENDER: What -- I see this evidence here,
`or what will be evidence, I don't know whether it's been
`moved into evidence yet, Mr. Cordell.
` It's -- it's self-proving, so to speak. But
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`24
`
`
`
`Page 23
`
`what part of the case is it most relevant to?
` MR. CORDELL: So it impacts on secondary
`considerations, we've got some copying evidence.
` JUDGE PENDER: I was thinking so.
` MR. CORDELL: It also colors some of the
`infringement case. When we hear from Respondents, you
`know, that they believe that they have shortened the
`bristle length and that somehow avoids infringement, the
`fact that they took the iRobot design and used it to then
`create their own, I think does --
` JUDGE PENDER: Well, you know, we make an art of
`design-around, and that bugs me, frankly. I mean, you
`know, I don't think anybody ever intended that to be an
`industry in and of itself, but it is.
` But I get your point. In other words, what
`you're saying is it's a relationship issue there.
` Now -- and so if you have evidence that takes
`this -- these slides or whatever, the information on these
`slides, and you can point to claims and stuff like that,
`then it gets a little more credible, you know what I mean?
`The allegation of infringement gets a little more credible,
`I think anyway. At least to me.
` MR. CORDELL: Well, and certainly the slide that
`I just showed your Honor impacts the 553 case, and it
`shows --
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`25
`
`
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`Page 24
` JUDGE PENDER: Right, right. And when it talks
`1
`about the cushioning space, et cetera.
` MR. CORDELL: That's right. The soft touch.
` JUDGE PENDER: Yeah, I get it.
` MR. CORDELL: And the last one of these I'll do,
`there are others, but I'll cut this off, is at slide 22,
`where the Respondents knew they would face reckoning, they
`knew that what they were doing would likely get attention,
`and they specifically knew that this would result in their
`products getting stuck at the port.
` JUDGE PENDER: See, if this was in district
`court and there was infringement found here, the judge
`would be trebling damages, because he would find that it
`was -- if there was infringement of a valid patent, he
`would find that that was deliberate. Okay.
` MR. CORDELL: Certainly suggests that they knew
`exactly what they were getting into and why.
` So with that, your Honor, let me turn back to
`the patents in suit. And no one will dispute that this is
`public. We start with the '553. This is what we call the
`light touch patent, and it does -- it does deal with the
`idea that you have sensors in software so that when the
`robot approaches an obstacle, it knows that it's there, and
`it slows down.
` And while, you know, I'm not here to testify, I
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`26
`
`
`
`Page 25
`can tell you that when I bought my first iRobot, this was
`the feature my wife was interested in. She actually didn't
`care if it cleaned or not. She sat there and watched the
`thing to make sure it wasn't going to ding up her
`furniture.
` So we had a long trial period where she was
`watching it run around the floor and go into different
`rooms, and it amazed her that it would slow down, and when
`it approached one of their antiques, it didn't bash into
`it, at least not as hard. That was very, very important.
`And it's --
` JUDGE PENDER: I'm wondering how close to
`judicial notice do I take to the fact -- I'm being serious,
`I know it's funny, but how close to judicial no
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
