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`UNITED STATES INTERNATIONAL TRADE COMMISSION
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`Washington, D.C.
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`In the Matter of
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`CERTAIN WEARABLE ELECTRONIC
`DEVICES WITH ECG FUNCTIONALITY
`AND COMPONENTS THEREOF
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`Inv. No. 337-TA-1266
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`ORDER NO. 26:
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`DENYING RESPONDENT APPLE’S MOTION IN LIMINE NO. 5
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`(March 24, 2022)
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`Respondent Apple, Inc. (“Apple”) filed motion in limine no. 5 (“MIL 5” (Mot. 1266-026))
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`on March 7, 2022. Complainant AliveCor, Inc. (“AliveCor”) timely filed an opposition (“MIL 5
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`Oppo.”), and the Commission’s Office of Unfair Import Investigations (“Staff”) filed an omnibus
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`response (“Staff Resp.”).
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`AliveCor entered into a license agreement with
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` Inc. (the “License”), after
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`the close of fact discovery. See MIL 5, Ex. A (CX-0872C). AliveCor then moved, and was
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`permitted, to supplement its interrogatory responses to incorporate this newly created document.
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`Order No. 17 (Feb. 24, 2022). In MIL 5, Apple nonetheless requests that all reference to the
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`License “and the license itself should be excluded from the hearing and the evidentiary record.”
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`MIL 5 at 2. The Staff opposes the motion. See Staff Resp. at 12-13.
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`AliveCor appears to rely on the License in only a very limited way; AliveCor’s Prehearing
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`Brief (“CPB”) cites it only as very generalized evidence of a domestic industry and as evidence
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`that a reasonable royalty may be calculated for purposes of setting a bond. See CPB at 180 (citing
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`CX-0872C), 200 (same). Although AliveCor suggests that the License may be relied on more
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`substantively both for domestic industry and as a secondary consideration of non-obviousness, the
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`Prehearing Brief does not include it in any quantitative analysis of domestic industry economic
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`1
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`prong, or cite it as evidence of non-obviousness, and does not even argue that the License’s royalty
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`rate (at most
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` per unit, in contrast to
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` per unit for its license with
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`) should be
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`adopted. See CPB at 98, 191-93, 200; MIL 5, Ex. A at Attachment A; MIL 5 Oppo. at 3-4. In
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`view of such limited materiality, Apple will suffer no undue prejudice by its admission or
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`consideration.
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`Therefore, MIL 5 (Mot. 1266-026) is denied.
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`Within seven days of the date of this document, the parties shall submit to the Office of the
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`Administrative Law Judges a joint statement as to whether or not they seek to have any portion of
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`this document deleted from the public version. If the parties do seek to have portions of this
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`document deleted from the public version, they must submit to this office a copy of this document
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`with red brackets indicating the portion or portions asserted to contain confidential business
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`information. The submission may be made by email and/or hard copy by the aforementioned date
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`and need not be filed with the Commission Secretary.
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`SO ORDERED.
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`_____________________________
`Cameron Elliot
`Administrative Law Judge
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`2
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