UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C.
`
`In the Matter of
`
`CERTAIN MOBILE PHONES, TABLET
`COMPUTERS, SMART WATCHES,
`SMART SPEAKERS, AND DIGITAL
`MEDIA PLAYERS, AND PRODUCTS
`CONTAINING SAME
`
` Inv. No. 337-TA-1300
`
`ORDER NO. 5:
`
`PROPOSED SCHEDULING ORDER
`
`(March 11, 2022)
`
`On February 24, 2022, the Commission instituted this Investigation pursuant to
`
`subsection (b) of Section 337 of the Tariff Act of 1930, as amended, to determine:
`
`whether there is a violation of subsection (a)(1)(B) of section 337 in the importation
`into the United States, the sale for importation, or the sale within the United States
`after importation of certain products identified in paragraph (2) by reason of
`infringement of one or more of claims 2, 3, 5–8, and 11–18 of the ’430 patent;
`claims 1–3, 7, 12, and 18 of the ’273 patent; claims 1, 9, 10, 12–14, 18, and 20 of
`the ’621 patent; claims 1, 2, 4, 7–10, 12, 15, and 16 of the ’770 patent; and claims
`1, 2, 8, 10, 13, and 15 of the ’400 patent, and whether an industry in the United
`States exists as required by subsection (a)(2) of section 337[.]1
`
`87 Fed. Reg. 10385 (Feb. 24, 2022).
`
`The Notice of Investigation (“NOI”) names as complainants: Ericsson Inc. of Plano, TX;
`
`and Telefonaktiebolaget LM Ericsson of Stockholm, Sweden (“Complainants”). Id. at 10386.
`
`The NOI names as respondent: Apple Inc. at Cupertino, CA (“Respondent”). Id. The Office of
`
`Unfair Import Investigations (“Staff,” and with Complainants and Respondent, the “Parties”) is
`
`1 The asserted patents are: U.S. Patent No. 7,151,430 (“the ’430 patent”); U.S. Patent No. 9,509,273 (“the
`’273 patent”); U.S. Patent No. 9,853,621 (“the ’621 patent”); U.S. Patent No. 7,957,770 (“the ’770
`patent”); and U.S. Patent No. 9,705,400 (“the ’400 patent”). 87 Fed. Reg. 10385 (Feb. 24, 2022).
`
`Page 1 of 6
`
`IPR2022-00716
`Apple EX1014 Page 1
`
`
`
`Washington, D.C.
`
`In the Matter of
`
`CERTAIN MOBILE PHONES, TABLET
`COMPUTERS, SMART WATCHES,
`SMART SPEAKERS, AND DIGITAL
`MEDIA PLAYERS, AND PRODUCTS
`CONTAINING SAME
`
` Inv. No. 337-TA-1300
`
`ORDER NO. 5:
`
`PROPOSED SCHEDULING ORDER
`
`(March 11, 2022)
`
`On February 24, 2022, the Commission instituted this Investigation pursuant to
`
`subsection (b) of Section 337 of the Tariff Act of 1930, as amended, to determine:
`
`whether there is a violation of subsection (a)(1)(B) of section 337 in the importation
`into the United States, the sale for importation, or the sale within the United States
`after importation of certain products identified in paragraph (2) by reason of
`infringement of one or more of claims 2, 3, 5–8, and 11–18 of the ’430 patent;
`claims 1–3, 7, 12, and 18 of the ’273 patent; claims 1, 9, 10, 12–14, 18, and 20 of
`the ’621 patent; claims 1, 2, 4, 7–10, 12, 15, and 16 of the ’770 patent; and claims
`1, 2, 8, 10, 13, and 15 of the ’400 patent, and whether an industry in the United
`States exists as required by subsection (a)(2) of section 337[.]1
`
`87 Fed. Reg. 10385 (Feb. 24, 2022).
`
`The Notice of Investigation (“NOI”) names as complainants: Ericsson Inc. of Plano, TX;
`
`and Telefonaktiebolaget LM Ericsson of Stockholm, Sweden (“Complainants”). Id. at 10386.
`
`The NOI names as respondent: Apple Inc. at Cupertino, CA (“Respondent”). Id. The Office of
`
`Unfair Import Investigations (“Staff,” and with Complainants and Respondent, the “Parties”) is
`
`1 The asserted patents are: U.S. Patent No. 7,151,430 (“the ’430 patent”); U.S. Patent No. 9,509,273 (“the
`’273 patent”); U.S. Patent No. 9,853,621 (“the ’621 patent”); U.S. Patent No. 7,957,770 (“the ’770
`patent”); and U.S. Patent No. 9,705,400 (“the ’400 patent”). 87 Fed. Reg. 10385 (Feb. 24, 2022).
`
`Page 1 of 6
`
`IPR2022-00716
`Apple EX1014 Page 1
`
`
`
`also a party in this Investigation. Id.
`
`Target Date
`
`Pursuant to Commission Rule 210.51(a), a target date for completion of the Investigation
`
`in the above-captioned matter must be set. See 19 C.F.R. 210.51(a). Order No. 4 sets an 18-
`
`month target date. The target date is therefore August 24, 2023. Based on the target date, the
`
`final initial determination on violation (“ID”) in this Investigation is due no later than April 24,
`
`2023. The proposed Procedural Schedule is set forth in Attachment A hereto.
`
`Pandemic Evacuation
`
`The Commission is operating under a Pandemic Evacuation plan that has been published
`
`in the Federal Register and on the Commission’s website. Commission Staff, including the
`
`Office of Administrative Law Judges (“OALJ”), are working remotely. The Commission offices
`
`are in the process of re-opening.
`
`The OALJ is not accepting paper filings/copies, CD’s, flash drives, and the like.
`
`Applications for Subpoenas should be filed exclusively on McNamara337@usitc.gov. Courtesy
`
`copies of documents filed on EDIS should be sent to McNamara337@usitc.gov. Please contact
`
`Dockets Staff for procedures for filing documents on EDIS during this period until the
`
`Evacuation is lifted. Filing instructions on EDIS are also available on the Commission’s
`
`website.
`
`As explained in the Ground Rules, the Commission is using WEBEX as its secure video
`
`platform. Until the Commission issues notice that the Commission courtrooms and building will
`
`be open, evidentiary hearings and possibly other hearings will be conducted virtually on
`
`WEBEX. Some management conferences may be scheduled for telephone conference only.
`
`Page 2 of 6
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`IPR2022-00716
`Apple EX1014 Page 2
`
`
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`Pre-Hearing and Evidentiary Hearing
`
`
`
`The evidentiary hearing (“Hearing”) is scheduled for January 5-6, 9-12, 2023, at a
`
`location to be announced closer to the Hearing date. At my discretion, a Pre-Hearing Conference
`
`(or more than one) to resolve outstanding Motions in Limine (“MIL”) and High Priority
`
`Objections (“HPO”) and other outstanding Motions and issues is likely to be to held by
`
`telephone within two (2) to three (3) weeks before the Hearing, if possible. A final Pre-Hearing
`
`Conference will commence in the same location as the Hearing and on the first day of the
`
`Hearing, January 5, 2023.
`
`The Hearing is likely to be held in one of the Commission Courtrooms, with some
`
`possibility of remote participants, which is yet to be determined. The Hearing days will start at
`
`9:30 a.m. and conclude at 5:30 p.m. each day, barring unforeseen circumstances (severely
`
`inclement weather, etc.). If the Hearing is held by video on WEBEX, we will be issuing other
`
`instructions.
`
`Complainants as a group are limited to two (2) total MILs and/or HPOs in combination.
`
`Respondent is also limited to two (2) total MILs and/or HPOs in combination. MILs and/or
`
`HPOs styled as a single motion but are in fact omnibus in nature may be denied automatically
`
`without prejudice with a request for refiling. Motions for Receipt of Evidence without a
`
`Sponsoring Witness will be treated separately.
`
`Direct testimony will be taken during the Hearing. Basic background information about a
`
`witness or the issues (no other substance) may be considered as part of an acceptable witness
`
`statement if leave is granted. Whether other testimony may be provided in a witness statement
`
`will be determined later but it is not likely unless exigent circumstances exist, and then, with
`
`leave. Witness Statements are allowed rarely, even for experts located outside the United States.
`
`Page 3 of 6
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`IPR2022-00716
`Apple EX1014 Page 3
`
`
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`Pandemic constraints may change this.
`
`As discussed in Ground Rule 1.14.4.1, opening and closing statements are optional.
`
`However, they are helpful and encouraged. Some parties are using closing statements in addition
`
`to openings, to their advantage.
`
`Changes to Ground Rules
`
`Please read the Ground Rules and follow them. The procedure for discovery disputes has
`
`been clarified. (See G.R. 2.5.). However, the Parties should bring discovery problems to the
`
`attention of Chambers as soon as possible in addition to the scheduled Management Conferences
`
`that are designed to deal with problems as they occur.
`
`There is a more complete explanation of the expectations for pre-hearing briefs. (G.R.
`
`7.2.). Service of paper copies of the proposed exhibits to Chambers prior to the Hearing are no
`
`longer required, and during the Pandemic Evacuation, are prohibited. (See G.R. 8.7.2.).
`
`The document filing requirement of Ground Rule 1.2 has been amended. All pleadings
`
`must contain the name of the party that filed the document along with the title of the document.
`
`When arranged in advance, Chambers may accept certain submissions, in certain
`
`circumstances (e.g., before a Markman hearing) on BOX, which the Commission has approved.
`
`In addition to pertinent Ground Rules regarding expert reports, the Parties shall file on
`
`EDIS all expert reports upon which they intend to rely. (See, e.g., G.R. 8.5.).
`
`Any submission that exceeds the page limitations set forth in the Ground Rules may be
`
`denied provisionally. Likewise, an opposition or response to a motion that exceeds the relevant
`
`page limitations may be denied provisionally and returned for refiling. If there is not a re-filing,
`
`the response may not be considered for the ruling. A party must show good cause and receive
`
`permission for leave to file any submission that exceeds the page limitations for that type of
`
`Page 4 of 6
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`IPR2022-00716
`Apple EX1014 Page 4
`
`
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`submission.
`
`Other Instructions/Contact
`
`For Case/Discovery Management Conferences that will be held by telephone, the Parties
`
`should jointly submit one e-mail to Chambers through McNamara337@usitc.gov at least 24
`
`hours before containing: (1) the names of the speaker and listener for each party with the identity
`
`of the party they represent;2 (2) the name of the court reporter; and (3) the call-in telephone
`
`number and passcode. As is implied, for telephone conferences, one of the Parties is responsible
`
`for the court reporter.
`
`For WEBEX conferences, several days before, the Parties will be invited to submit: (1)
`
`the names of the speaker and listener for each party with the identity of the party they represent;
`
`and (2) their e-mail addresses and telephone numbers where they can be reached if necessary.
`
`The Parties will then be sent an invitation, that will include a dial-in number, which they must
`
`accept if they wish to participate. Other procedural suggestions or directions will be sent before
`
`a WEBEX proceeding.
`
`The Parties should notify Chambers of the names of all non-parties or third-parties that
`
`are known to have discoverable information in this Investigation by a filing a Notice on EDIS
`
`before the first Discovery Management Teleconference, or as soon as can be determined. A
`
`copy of the same should be sent to Chambers through McNamara337@usitc.gov.
`
`As the Investigation proceeds closer to the Hearing, the Parties will be asked if they need
`
`additional days or fewer days for the Hearing. The Parties also may request a change at least two
`
`(2) months before the Hearing. The Parties are urged to think about the amount of time that they
`
`may need as soon as the case starts to narrow and eliminate patents/claims or prior art references.
`
`
`2 Each party is limited to one (1) speaker and one (1) listener unless otherwise permitted.
`
`Page 5 of 6
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`IPR2022-00716
`Apple EX1014 Page 5
`
`
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`Contact
`
`Please note that in the event a party needs to contact Chambers for an emergency
`
`intervention or request which they have filed on EDIS (and even if they have not), unless
`
`otherwise notified, they should copy Ms. Jae B. Lee, jae.lee@usitc.gov, and
`
`McNamara337@usitc.gov. If documents are being filed on EDIS, they also should be sent to
`
`McNamara337@usitc.gov.
`
`Communications with Ms. Lee, whether or oral or written, may not be cited in pleadings
`
`or papers. Letters should be addressed to the administrative law judge.
`
`SO ORDERED.
`
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`Page 6 of 6
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`IPR2022-00716
`Apple EX1014 Page 6
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`
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