UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before the Honorable Theodore R. Essex
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN MOBILE DEVICES
`AND RELATED SOFTWARE
`
`Investigation No. 3 3 7-TA-750
`
`APPLE INC.'S HIGH PRIORITY OBJECTIONS STATEMENT
`
`Pursuant to Order No. 13 and Ground Rule 9.8.13, Complainant Apple Inc.
`
`("Apple") submits the following objections to the exhibits offered by Motorola Mobility,
`
`Inc. ("Motorola") that Apple believes to be of high priority for discussion and/or ruling at
`
`the prehearing conference. These objections are supplemental to any motions to strike
`
`or motions in limine that Apple has filed and are not intended to limit the scope of any
`
`such motion.
`
`1. (cid:9)
`
`Motorola should be precluded from offering expert opinions that were not
`disclosed in expert reports.
`
`As set forth in Apple's Motion in Limine No. 1, the direct witness statements of C.
`
`Douglass Locke (RX- 1 874C) and Andrew Wolfe (RX- 1 885C) contain voluminous
`
`testimony that was not disclosed in their expert reports or during their depositions. In
`
`addition, the rebuttal witness statements of C. Douglass Locke (RX-1894C), Andrew
`
`Wolfe (RX-1895C), and Carla Mulhern (RX-1876C) also contain testimony that was not
`
`disclosed in their expert reports or during their depositions. Pursuant to Ground Rule
`
`10.5.6, the Administrative Law Judge should exclude this testimony.
`
`As set forth in Apple's Motion in Limine No. 1, there are undisclosed expert
`
`opinions in portions of testimony in response to Questions 11, 14, 17, 18, 25, 27, 28, 32,
`
`(cid:9)
`

`

`33, 35, 36, 37, 57, 69, 79, 99, 101-103, 118, 127-129, 138, 141, 143, 145-155, 171, 175,
`
`179, 190-192, 194-196, 198, 199, 211-215, 219, 232, 233, 239, 240, 243, 244, 262, 281,
`
`290, 293, 299, 302, 305, 308, 311, 321, 325, 328, 331, 334, 337, 351, 354, 360, 371, and
`
`3 86 in the Direct Witness Statement of C. Douglass Locke (RX- 1 874C), and
`
`demonstratives RDX-6, 9, 13, 14, 16, 17, and 18 attached to that Witness Statement. As
`
`further set forth in Apple's Motion in Limine No. 1, there are also undisclosed expert
`
`opinions in portions of testimony in response to Questions 23, 35, 56-62, 64-70, 137-139,
`
`172, 173, 184, 185, 195, 201, 211, 212, 223, 224, 230-233, 269, 270, 277, 280-290, 291-
`
`293, 297-299, 304-306, 307-320, 3211322, 1 324-327, 329-333, 335, 338, 340, 345-347,
`
`352, 363, 367, 378, 379, 382, 383, 386, 387, 389, 399-401, 403-406, 411, 413, 435, 439,
`
`442, 463-465, 473-475, 478-483, 486, 487, 490, 492, 493-499, 503-513, 517-522, 525-
`
`535, 538-541, 544-549, 564-566, and 572 in the Direct Witness Statement of Andrew
`
`Wolfe (RX-1 885C), and demonstratives RDX-9-12, 16-17, 20-24, 42-43, and 45-46
`
`attached to that Witness Statement.
`
`In addition, there are undisclosed expert opinions in portions of testimony in
`
`response to Questions 9, 10, 24, 26, 27, 28, 58, 85, 87, 88, 89, 90, 91, 92, 93, 94, 95, 97,
`
`98, 99, 111, 115, 116, 117, 118, 125, 130, 131, 135, 136, 137, 138, 139, 140, 141, 142,
`
`146, 155, 174, 175, 176, 177, and 178 in the Rebuttal Witness Statement of C. Douglass
`
`Locke (RX-1894C). There are also undisclosed expert opinions in portions of testimony
`
`in response to Questions 10-18, 24-26, 47, 79, 85, 98-99, 114, 44, 47, 63, 73, 116-120,
`
`123-125, 129-130, 134, 136, 137-145, 148-157, 159-168, 170, 204-210, 220-235 245-246,
`
`253-254, 263-265, 267-270, 282, 291, 295, and 313-314 in the Rebuttal Witness
`
`Statement of Andrew Wolfe (RX-1895C), and demonstratives RDX-11.2C, RDX-11.3C,
`
`' Question 321 in the Direct Witness Statement of Andrew Wolfe is followed by a
`paragraph numbered 322 that appears to be Dr. Wolfe's answer to Question 321.
`"3211322" is intended to refer to this question and answer pair.
`
`2
`
`

`

`RDX-11.4C, RDX-11.6C, RDX-11.7C, RDX-11.8C, RDX-11.9C, RDX-11.10C, RDX-
`
`11.11C, RDX-11.12C, RDX-11.13C, RDX-11.14C, RDX-11.15C, RDX-11.16C, RDX-
`
`11.17C, RDX-11.19C, RDX-11.22C, RDX-11.30C, RDX-11.31C, RDX-11.32C, RDX-
`
`11.34C, RDX-11.35C, and RDX-11.36C attached to that Witness Statement. There are
`
`further undisclosed expert opinions in portions of testimony in response to Questions 50,
`
`62, 87, and 93-96 in the Rebuttal Witness Statement of Carla S. Mulhern (RX-1876C).
`
`Apple is still in the process of reviewing the witness statements, and reserves its right to
`
`amend the list of questions and demonstratives identified in this objection.
`
`2. (cid:9)
`
`Motorola should be precluded from admitting its expert reports or
`incorporating its expert reports into its witness statements.
`
`In the direct witness statements of C. Douglass Locke (RX- I 874C) and Andrew
`
`Wolfe (RX-1885C), Motorola's experts purport to incorporate large tables from their
`
`expert reports directly into their witness statements as Appendices. See, e.g. RX- 1 874C
`
`[Locke Witness Stmt.] at 90 ("I adopt RX-0885C in full as part of my testimony."); RX-
`
`1885C [Wolfe Witness Stmt.] at 106-107 ("I adopt these Appendices in their entirety as
`
`part of my testimony. "). These tables amount to hundreds of pages of argument that are
`
`not admissible evidence because they fail to comply with Ground Rule 9.4.1.3, which
`
`requires that witness statements "contain separately numbered questions which are asked
`
`by counsel, with each question followed by the witness' own answer to that question."
`
`Presenting testimony in this form makes it impossible for Apple to make objections
`
`because there is no clear identification of questions and answers. This form of
`
`testimony is objectionable because it is in an improper narrative form and is an improper
`
`summary of legal arguments. The tables are not substantive evidence, and should not be
`
`admitted as such. As noted in Order No. 9, "[t]he ALJ does not admit expert reports
`
`into evidence," and these tables, excerpted directly from Motorola's expert reports,
`
`should not therefore be admitted at the hearing.
`
`3
`
`

`

`The Administrative Law Judge should therefore exclude RX-887, RX-894, RX-
`
`885C, RX-893, RX-890, RX-889, RX-886C, RX-888, RX-891, RX-892, RX-895C, and
`
`RX-896C, Appendices 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 to the Direct
`
`Witness Statement of C. Douglass Locke (RX-1874C), and the portions of testimony in
`
`response to Questions 135, 164, 182, 252, 272, 295, 318, 321, 328, 331, 334, 337, 342,
`
`363, 368, 374, 379, 385, 386, and 393 in that Witness Statement citing those exhibits and
`
`referencing those Appendices. The Administrative Law Judge should also exclude RX-
`
`877C, RX-878, RX-1234, RX-1235C, and RX-1236, Appendices Al, A2, A3, A4, A5,
`
`B 1, B2, B3, B4, B5, B6, and B7 to the Direct Witness Statement of Andrew Wolfe (RX-
`
`1885C), and the portions of testimony in response to Questions 289, 290, 297, 305, 306,
`
`323, 328, 333, 335, 340, 353, 461, 462, 491, 501, 502, 515, 516, 523, 524, 536, 537, 542,
`
`543, 548, and 549 in that Witness Statement citing those exhibits and referencing those
`
`Appendices.
`
`3.
`
`Motorola should be precluded from offering testimony in Dr. Wolfe's
`Witness Statement that is the subject of Apple's Motions in Limine
`
`As set forth in Apple's Motions in Limine No. 3, No. 4, and No. 5, the Direct
`
`Witness Statement of Andrew Wolfe (RX-1885C) contains testimony that is based on
`
`opinions first expressed in an untimely supplemental report, testimony regarding
`
`affirmative defenses that were not pled, and testimony regarding a claim construction that
`
`was not proposed by any party. For the reasons set forth in those motions in limine, this
`
`testimony should be excluded from the hearing.
`
`4.
`
`Motorola should be precluded from offering improper expert testimony from
`Marc D. Foodman
`
`As set forth in Apple's Motion in Limine No. 2, Motorola should be precluded
`
`from offering the testimony of Marc D. Foodman (RX-1868C) because Mr. Foodman
`
`offers unqualified legal opinions on matters outside of his personal knowledge.
`
`

`

`5. (cid:9)
`
`Motorola should be precluded from offering improper expert testimony from
`Carla S. Mulhern
`
`Motorola should be precluded from offering legal opinions in the Rebuttal
`
`Witness Statement of Carla S. Mulhern (RX-1876C). Ground Rule 9.1 states that
`
`"[l]egal argument shall be presented in the briefs," and Ground Rule 9.3 states that
`
`"[l]egal experts may only testify as to procedures of the U.S. Patent and Trademark
`
`Office." Yet in her witness statement, Ms. Mulhern offers the following legal opinions
`
`on what types of activities can be considered part of a domestic industry:
`
`• "[I]t is my understanding that the case law suggests that domestic
`manufacturing-related activities have historically been required" under
`subprongs (A) and (B). (Q.34).
`
`• Investments under subprong (C) must be tied to the asserted patents rather
`than the domestic industry products. (Q.35).
`
`• Investments in R&D cannot be considered under subprongs (A) and (B).
`(Q. 3 8).
`
`• "[D]istribution activities are not properly considered manufacturing
`activities for the purposes of the domestic industry requirement." (Q.50).
`
`• "It is my understanding as a legal matter that for products manufactured
`outside the United States, such as the Domestic Industry Products, only
`U.S. sales can embody the Asserted Patents." (Q.52).
`
`Ms. Mulhern's understanding of which activities the Commission should and should not
`
`consider is a legal opinion. Indeed, these opinions improperly go beyond her analysis of
`
`whether Apple has sufficient domestic activities.
`
`Ms. Mulhern furthermore improperly offers legal opinions based on a flawed
`
`understanding of Commission precedent on the amount of bond that is appropriate: "in
`
`the absence of Apple licenses providing specific guidance as to an established royalty for
`
`the Asserted Patents, the typical royalty rate in the telecommunications industry may be
`
`appropriate." (Q.138-39). Ms. Mulhern's opinion that the Commission should use an
`
`5
`
`

`

`industry standard royalty rate for the bond amount is a legal opinion based on her review
`
`of a single Commission opinion. These opinions should be excluded at the hearing.
`
`6.
`
`Motorola should be precluded from offering the testimony of witnesses that
`were not offered for deposition
`
`As set forth in Apple's Motion in Limine No. 6, Motorola should be precluded
`
`from offering the testimony of Christy Wyatt (RX-1887C), Andy Rubin (RX-1 878), Dale
`
`Bengtson (RX-1859C), Robert Ellett (RX-1 867C), Steven Isaac (RX-1871C), and
`
`Michael Kraus (RX-1 872C) because Motorola did not offer these witnesses for
`
`deposition during discovery.
`
`7.
`
`Motorola should be precluded from offering the testimony of undisclosed
`witnesses
`
`As set forth in Apple's Motion in Limine No. 7, Motorola should be precluded
`
`from offering the testimony of Joseph Vierra (RX-1882C) and Clayton Weimer (RX-
`
`1883C) because Motorola failed to disclose either individual as a hearing witness in a
`
`timely manner under the Procedural Schedule.
`
`8.
`
`Motorola should be precluded from offering improper expert testimony from
`Robert S. Ellett
`
`As set forth in Apple's Motion in Limine No, 8, Motorola should be precluded
`
`from offering expert opinions in the testimony Dr: Robert Ellett (R)(- 1867)because he
`
`was not identified as an expert and did not submit an expert report.
`
`9.
`
`Motorola should be precluded from offering testimony regarding products
`that are not accused of infringing the '607 patent and/or the '828 patent
`
`Apple is accusing the Motorola Atrix, Bravo, Charm, Citrus, Cliq 2, Defy, Droid,
`
`Droid 2, Droid 3, Droid 2 Global, Droid X, Droid X2, Droid Bionic, Droid Pro, Flipout,
`
`Flipside, Titanium, and XPRT of infringing the '607 patent.
`
`See Apple's Prehearing
`
`Brief at 278-79; Subramanian Witness Statement (CX-202C) at 48 (Q. 198). Apple is
`
`accusing the Motorola Atrix, Bravo, Charm, Citrus, Cliq 2, Cliq XT/Quench, Defy, Droid,
`
`

`

`Droid 2, Droid 2 Global, Droid Bionic, Droid Pro, Droid X, Droid X2, Droid 3, Flipout,
`
`Flipside, il, Titanium, Xoom, and XPRT of infringing the '828 patent. See Apple's
`
`Prehearing Brief at 45; Balakrishnan Witness Statement (CX-201C) at 113 (Q. 509). In
`
`several witness statements submitted by Motorola, however, Motorola's witnesses offer
`
`testimony regarding additional products that are not being accused of infringing the '607
`
`patent and/or the '828 patent in this investigation.
`
`Motorola has offered improper testimpny about products that are not accused in
`
`the answers to Questions 36-38, 41-42 and 62 in the Rebuttal Witness Statement of
`
`Andrew Wolfe (RX-1895C), Questions 73-75 and 79-102 in the Rebuttal Witness
`
`Statement of Dale Bengtson (RX-1859C), and Questions 114-117 in the Direct Witness
`
`Statement of Samuel Brunet (RX-1862C). 2 This testimony is not relevant to any claim
`
`or defense in this Investigation, and admitting such testimony would cause confusion and
`
`would be misleading and prejudicial. Motorola should therefore be precluded from
`
`offering this testimony regarding products that are not being accused.
`
`10. (cid:9) Motorola should be precluded from offering designated deposition testimony
`that is outside the scope of a corporate designation
`
`Pursuant to Ground Rules 4.4.1.2 and 4.4.1.3, and Commission Rules 210.28(g)
`
`and (h), the parties have not objected to the admission of corporate testimony in
`
`designated portions of the deposition transcripts of witnesses that testified as corporate
`
`representatives on behalf of the private parties. The depositions of these witnesses were
`
`taken in both a corporate and personal capacity, however, and not all of the testimony
`
`from those transcripts is the testimony of a party subject to the exception in Commission
`
`Rule 210.28(h)(2). This non-corporate testimony is hearsay and should not be admitted.
`
`2 To the extent that some of this testimony addresses products accused of infringing
`the '828 patent but not the '607 patent (Cliq XT/Quench and Xoom), it should
`nevertheless be excluded because the testimony addresses an aspect of the product (the
`structure of the touch panel) that is only at issue regarding the '607 patent.
`
`7
`
`

`

`In the designations of these transcripts, Apple has identified its objections to these
`
`portions of the testimony with the designation "FCGR 4.4.1.2" (Failure to Comply with
`
`Ground Rule 4.4.1.2). This objection has been made in the transcripts of Mr. Buckley
`
`(JX-463C), Mr. Garst (JX-464C), Mr. Hotelling (JX-465C), Mr. Jue (JX-466C), Mr.
`
`Lutton (JX-467C), Mr. Mullens (JX-468C), Mr. Reece (JX-470C), Mr. Teksler (JX-
`
`471 C), and Mr. Westerman (JX-472C). Because this testimony is not the testimony of a
`
`party, and no other exception in Commission Rule 210.28(h) applies, the testimony
`
`designated as "FCGR 4.4.1.2" is hearsay and should be excluded from the record.
`
`Dated: September 9, 2011
`
`Respectfully submitted,
`
`By:
`
`Mark G. avis
`Brian E. Ferguson
`Robert T. Vlasis,
`Edward S. Jou
`Christopher T. Marando
`Weil, Gotshal & Manges LLP
`1300 Eye Street, N.W., Suite 900
`Washington, D.C. 20005
`Tel: (202) 682-7000
`Fax: (202) 857-0940
`
`Anne M. Cappella
`Jill J. Ho
`Jacqueline T. Harlow
`Erin C. Jones
`Brian C. Chang
`Weil, Gotshal & Manges LLP
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`Tel: (650) 802-3000
`
`Matthew D. Powers
`Steven S. Cherensky
`Paul T. Ehrlich
`Robert L. Gerrity
`
`8
`
`

`

`Tensegrity Law Group LLP
`201 Redwood Shores Parkway, Suite
`401
`Redwood Shores, CA 94065
`Tel: (650) 802-6000
`
`Attorneys for Complainant
`APPLE INC.
`
`0
`
`

`

`CERTIFICATE OF SERVICE
`
`I hereby certify that a copy of the foregoing was served on September 9, 2011 as indicated, on
`the following:
`
`Via Hand Delivery (Via EDIS)
`The Honorable James Holbein
`Secretary
`U.S. International Trade Commission
`500 E Street SW, Room 112
`Washington, D.C. 20436
`
`Via Email and Hand Delivery
`Lisa Kaftan
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street, S.W., Room 401
`Washington, D.C. 20436
`
`lisa.kattan@usitc.gov
`
`Via Email and Hand Delivery
`Charles F. Schill
`STEPTOE & JOHNSON LLP
`1330 Connecticut Avenue, N.W.
`Washington, DC 20036
`
`motorola750@steptoe.com
`
`Via Hand Delivery (2 copies)
`The Honorable Theodore R. Essex
`Office of the Administrative Law Judge
`U.S. International Trade Commission
`500 E Street SW, Room 317
`Washington, D.C. 20436
`
`gregory.moldafsky@usitc.gov
`
`Via Email
`Charles K. Verhoeven
`Quinn Emanuel Urquhart & Sullivan LLP
`50 California Street, 22nd Floor
`San Francisco, CA 94111
`
`David A. Nelson
`Quinn Emanuel Urquhart & Sullivan
`LLP 500 West Madison Street, Ste. 2450
`Chicago, IL 60661
`
`Edward J. DeFranco
`Quinn Emanuel Urquhart & Sullivan
`LLP
`51 Madison Avenue, 22nd Floor
`New York, NY 10010
`
`Apple-Moto-750@quinnemanuel.com
`
`Alva/R. Parra o
`Para egal
`
`--
`
`