Complainant’s Need In this investigation, complainant is represented by several partners and associates from the Washington, DC, Menlo Park, CA, Los Angels, CA, and Houston, TX offices of Howrey, Simon, Arnold and White, LLP (H~wrey).~ In addition, at least four independent experts, all having Ph.D.s in either computer science, mathematics, electrical engineering or electrical and computer engineering, have been retained on complainant’s behalf for consultation in this investigation.’ Complainant has not explained how this cadre of highly trained individuals is inadequate to prepare and present its case in this investigation without Messrs. Clark and Gunther having access to respondents’ confidential business information.

(Gunther Decl. 7 2; Clark Decl. 7 2).7 Given the broad scope of the The federal courts have held source code to constitute a protectable trade secret and have denied in-house counsel immediate and direct access to it.

Moreover, Clark is responsible for advising complainant on “potential [intellectual property] claims against other companies.” Declaration of William R.Clark at 7 2. competition or unfair acts in the importation of articles into the United States.” Akzo, 808 F.2d at 1488, quoting Younp Engineers, Inc. v. U.S. International Trade Comm’n, 721 F.2d 1305, 13 15 (Fed. Cir. 1983).

A lack of cooperation in providing information hinders the Commission’s ability to make a fair determination on a complete record, potentially resulting in broader harm to parties not before the Commission, as well as the public at large.

Item 2 - Responsible Executives From Complainant And Respondents Will Meet To Discuss Settlement - Wednesday, November 20,2002.

the claims, as of September 16, that will be in issue at the hearing.’ The identification of the exact claims in issue was conditioned on complainant, as well as respondents, receiving complete electronic copies of all relevant source code no later than Friday, July 26,3 with the parties providing assistance, as required, for accessing the source code.

The identification date was also conditioned on complainant taking depositions before September 16 in Japan,4 of respondents’ hlly prepared 30(b)6 witnesses relative to respondents’ source code without complainant waiving its right to depose the same witnesses at a later date on issues unrelated to questions on the source code for identification of claims raised in the depositions scheduled before September

The parties are in agreement that, if at the conclusion of the November 20 meeting no agreement for settlement has been reached but the parties feel that progress has been made, one or more subsequent meetings will be scheduled between the private * It is conceivable, as the hearing date approaches, that the number of claims in issue at the hearing may continue to be reduced even after September 16,2002.

- Notice To Parties At the preliminary conference on July 9, 2002, this administrative law judge made reference to the BIO 2002 conference in Toronto in June where he appeared on a panel with Judge Michel of the Federal Circuit and Judge Young of the District of Massachusetts, and further made reference to learning at the conference of the work being done in educating the judiciary in biotechnology (E pages 157- 174 of the 7/9/02 transcript).

He also obtained at the conference a copy of “The Bio Judiciary Project A Jurist’s Guide To 21’‘ Century Biotechnology.” As reported in the Forward to the guide, Supreme Court Associate Justice Stephen Breyer has “called on the biotechnology community to provide information on genetics, the genomic revolution and the impact of judicial decisions about biotechnology on society.” With respect to this investigation, it is elementary that the patents in issue and their prosecution histories cannot be rewritten.

Moreover, this administrative law judge does not want any proposed education process to be make work that achieves nothing nor does he want it to be a vehicle for arguments or for advocating the parties’ disagreements on substantive issues.

Order No. 4 and the submission of claim charts, a. provide the parities adequate opportunity to advance their contentions and arguments on substantive issues.

(ii) Documentary evidence shall be submitted in written exhibit form and shall be served on the opposing parties on or before the date to be ordered in the procedural schedule as set by the administrative law judge following the preliminary conference.

The parties shall also deliver one (1) additional copy of each exhibit, whether received in evidence or specifically rejected, to the administrative law judge within ten (10) days after conclusion of the hearing for later use by to the Office of General Counsel.

Physical exhibits shall be numbered in a separate series commencing with "1" preceded by the prefixes "CPX," "RPX," and "SPX," for complainant, respondents, and the Commission investigative attorney, respectively.

Cooperation Due to the time limitations imposed by section 337, counsel should attempt to resolve, by stipulation or negotiated agreement, any procedural problems encountered, including those relating to discovery and submission of evidence.