—
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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`WASHINGTON, D.C.
`
`In the Matter of
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`CERTAIN LTE- AND 3G-COMPLIANT
`CELLULAR COMMUNICATIONS
`DEVICES
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`
`
`Investigation No. 337-TA-
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`COMPLAINANT INVT SPE LLC’S STATEMENT
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`REGARDING THE PUBLIC INTEREST UNDER 19 C.F.R § 210.8(b)
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`Complainant INVT SPE LLC (“INVT”) hereby submits this Statement Regarding the
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`Public Interest pursuant to Commission Rule 210.8(b), l9 C.F.R. § 210.8. The proposed
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`respondents are Apple lnc., HTC Corporation, HTC America, Inc., ZTE Corporation, and ZTE
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`(USA) Inc. (collectively “Respondents”). Issuance of the relief requested will not adversely
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`impact the public health, safety, or welfare conditions in the United States, competitive
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`‘ conditions in the United States economy, the production of like or directly competitive articles in
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`the United States, or United States consumers. Thus, this Investigation does not present an
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`instance where the Commission, the parties, and the public should be required to undergo the
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`time and expense of discovery and trial for a Recommended Determination by the ALJ on the
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`public interest.
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`For purposes of the Complaint and this public interest statement, INVT seeks a limited
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`exclusion order and a cease and desist order or orders directed to certain infringing LTE- and
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`3G-compliant cellular communications devices manufactured by the Respondents whether
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`imported or sold by Respondents or another company (the “Accused Products”). The Accused
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`Products infringe one or more valid and enforceable United States patents owned by INVT,
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`including certain claims Of United States Patent Nos. 6,760,590; 7,206,587; 7,764,711;
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`7,848,439; and 7,339,949 (collectively the “Asserted Patents”). The Asserted Patents are
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`IPR2018-01476
`Apple v. INVT
`INVT Exhibit 2011 - Page 1
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`

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`—
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`essential to certain LTE and 3G standards as detailed in INVT’s Complaint, and INVT remains
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`ready, willing, and able to license the Asserted Patents on fair, reasonable, and non-
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`discriminatory (“FRAND”) terms.
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`Whether to issue remedial orders based on standards-essential patents (“SEPs”) is
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`evaluated after a violation determination. Certain Industrial Control System Software, Systems
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`Using Same, and Components Thereof, Inv. No. 337-TA—1020, Order Denying Request for Entry
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`Into Early Disposition Pilot Program (U.S.I.T.C. Sept. 13, 2016). INVT submits that there is no
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`reason to withhold Commission remedies because Respondents have failed to engage in
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`meaningful negotiations to arrive at mutually agreeable FRAND licenses. INVT seeks the
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`requested relief only after Respondents have declined to accept INVT’s license offers, and failed
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`‘
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`to counter-offer or otherwise explain why they do not believe INVT’s offers are FRAND, or why
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`they do not need to license the Asserted Patents. Accordingly, no hold-up concerns are manifest.
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`Rather, this Investigation fits squarely within the situations in which Section 337 relief is
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`appropriate due to violations based on FRAND-encumbered SEPs, as described by the United
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`States Department of Justice and United States Patent and Trademark Office Policy Statement on
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`Remedies for Standard-Essential Patents Subject to Voluntary FRAND Commitments.1 For
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`example, the Policy Statement provides that such situations include where the potential licensee
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`refuses to negotiate, whether actually or constructively. Id.
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`Issuance of the requested remedial orders Will thus provide effective relief in the face of
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`ongoing patent infringement by Respondents and eliminate Respondents’ unfair competition. As
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`the Commission has stated, “the public interest favors the protection of US. intellectual property
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`' USDOJ/USPTO Policy Statement on Remedies for Standard-Essential Patents Subject to
`Voluntary FRAND Commitments at 7 (2013) (“Policy Statement”), available at
`https://www.justice.gov/sites/default/files/atr/legacy/2014/09/18/290994.pdf.
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`Page 2 of 5
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`IPR2018-01476
`Apple v. INVT
`INVT Exhibit 2011 - Page 2
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`

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`rights by excluding infringing imports.” Certain Two-Handle Centerset Faucets and
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`Escutcheons, and Components Thereof, Inv. No. 337-TA-422, Comm’n Op. at 9 (U.S.I.T.C. July
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`21, 2000). Protecting INVT’s important intellectual property rights in the United States through
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`the requested remedial orders will accordingly serve the public interest while having little or no'
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`adverse effect on health and welfare.
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`1.
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`How the Accused Products Are Used in the United States
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`Respondents’ products potentially subject to remedial orders in this Investigation are
`certain LTE- and 3G-compliant cellular communications devices. The cellular communications
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`devices at issue include, but are not limited to, mobile phones, tablets, and smartwatches. These
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`devices are configured to operate on an LTE and/or a 3G network and allow users to place and
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`receive telephone calls, to run applications, and to communicateover cellular communications
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`networks in accordance with a subset of relevant LTE and 3G communications standards cited in
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`the Complaint. These devices provide users with both voice and data connections. Data is used
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`for applications such as connecting to the internet, streaming videos, email, and at times even for
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`voice calls (e.g., Voice over LTE). The Accused Products are used by United States consumers
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`for mobile entertainment and communication purposes, including a number of civic and personal
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`functions such as emergency services. However, issuance of any requested remedial order would
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`not diminish such services to implicate public health, safety, or welfare concerns, as discussed
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`below.
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`2.
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`No Public Health, Safety, or Welfare Concerns Relate to the Requested
`Remedial Orders
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`The Accused Products do not implicate any public health, safety, or welfare concerns.
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`Specifically, the Accused Products are not medical or health devices, are not otherwise health-
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`related, and are not essential for public safety or welfare. Moreover, as discussed below, there
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`Page 3 of 5
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`IPR2018-01476
`Apple v. INVT
`INVT Exhibit 2011 - Page 3
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`”are alternative sources of like, directly competitive, and substitute alternatives in the United
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`States and no health or safety-related features are unique to the Respondents’ Accused Products.
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`Accordingly, there are no public health, safety, or welfare considerations that would counsel
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`against excluding the Respondents’ Accused Products.
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`3.
`
`INVT’s Licensees and Third Parties Make Like or Directly Competitive
`Articles Which Could Replace the Subject Articles if They Were to be
`Excluded
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`Entities authorized to practice the patented technology and third parties not named in this
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`Investigation make like and directly competitive articles that would replace the Accused
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`Products after the issuance of the requested remedial orders. For example, Samsung, which holds
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`a_ license to the Asserted Patents, makes a variety of mobile phones,
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`tablets, and smartwatches that compete directly with the Accused Products of the Respondents.
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`Similarly, there are a variety of other companies not named in this Investigation that make like
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`and directly competitive articles that would replace the Accused Products.
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`4.
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`INVT’s Licensees and Third Parties Have the Capacity to Replace the
`Volume of Articles Subject to the Requested Remedial Orders in a
`Commercially Reasonable Time in the United States
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`INVT’s licensees, such as Samsung, as well as third party manufacturers not named in
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`this Investigation have the capacity to replace the volume of products potentially subject to an
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`exclusion order and/or a cease and desist order within a commercially reasonable time in the
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`United States. According to reports, Samsung is one of the top two smartphone suppliers in the
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`United States.2 Other manufacturers not named in this Investigation make and sell competing
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`products and will be unaffected by any remedial orders issued in this Investigation. Samsung has
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`2 Todd Haselton, Samsung retakes top spot from Apple in US smartphone market, Kantar says,
`CNBC (Aug. 9, 2017, 8:49 AM), https://www.cnbc.com/2017/08/09/samsung-retakes-top-spot-
`from-apple-in-us-smartphones-kantar-says.html.
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`Page 4 of 5
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`IPR2018-01476
`Apple v. INVT
`INVT Exhibit 2011 - Page 4
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`previously asserted, and the Commission has accepted, Samsung’s own assertions that it and
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`other manufacturers (including several not named in this Investigation) have the capacity to
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`replace 3G and LTE cellular communications devices. See, e. g., Certain Electronic Devices,
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`Including Wireless Communication Devices, Portable Music and Data Processing Devices, and
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`Tablet Computers, lnv. 337-TA-794, Notice of the Commission’s Final Determination Finding a
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`Violation of Section 337; Issuance of a Limited Exclusion Order and a Cease and Desist Order;
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`Termination of the Investigation (U.S.I.T.C. June 4, 2013). Accordingly, Samsung and other
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`manufacturers have the capacity to replace the volume of articles potentially subject to remedial
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`orders in a commercially reasonable time in the United States.
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`5.
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`The Requested Remedial Orders Would Minimally Impact Consumers
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`As stated above, if the Respondents’ infringing products were excluded, consumers and
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`carriers would not be deprived of like or competitive products and consumers would not be
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`adversely impacted because INVT’s licensees and other suppliers would easily meet United
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`States market demand with devicesnot subject to the remedial orders. Competing products are
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`readily available in the United States from other sources, including those licensed by INVT.
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`Thus, the potential exclusion order and cease and desist order will have no meaningful impact on
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`United States consumers.
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`6.
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`Conclusion
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`For the foregoing reasons, the remedies sought in INVT’s Complaint, filed concurrently
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`herewith, will not adversely affect the public interest.
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`Page 5 of 5
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`IPR2018-01476
`Apple v. INVT
`INVT Exhibit 2011 - Page 5
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`Dated: September 13, 2018
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`Respectfully submitted,
`
` Bryan J. V gel
`
`Derrick J. Carman
`
`Stephanie A. Diehl
`ROBINS KAPLAN LLP
`
`399 Park Avenue
`Suite 3600
`
`New York, NY 10022
`
`Telephone: (212) 980-7400
`Facsimile: (212) 980-7499
`bvogel@robinskaplan.com
`dcarman@robinskaplan.com
`sdiehl@robinskaplan.com
`
`Christopher A. Seidl
`John K. Harting
`ROBINS KAPLAN LLP
`800 LaSalle Avenue
`Suite 2800
`
`Minneapolis, MN 55402
`Telephone: (612) 349-8500
`Facsimile: (612) 339-4181
`cseidl@robinskaplan.com
`jharting@robinskaplan.com
`
`Li Zhu
`
`‘
`
`ROBINS KAPLAN LLP
`2440 W. El Camino Real
`Suite 100
`
`Mountain View, CA 94040
`
`Telephone: (650) 784-4040
`Facsimile: (650) 784-404]
`lzhu@robinskaplan.com
`
`C0 unselfor Complainant
`HVVT SPE LLC
`
`IPR2018-01476
`Apple v. INVT
`INVT Exhibit 2011 - Page 6
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`