UNITED STATES INTERNATIONAL TRADE COMMISSION
WASHINGTON, D.C.
Before the Honorable David P. Shaw
Administrative Law Judge
In the Matter of
CERTAIN WIRELESS DEVICES WITH
3G CAPABILITIES AND COMPONENTS
THEREOF
Investigation No. 337-TA-800
INTERDIGITAL’S RESPONSE TO RESPONDENT NOKIA’S MOTION FOR LEAVE
TO SUPPLEMENT ITS OPPOSITION TO INTERDIGITAL’S RENEWED
MOTION TO COMPEL PRODUCTION OF SOURCE CODE
Complainants InterDigital Communications, LLC, InterDigital Technology
Corporation, and IPR Licensing, Inc. (collectively “InterDigital”) respectfully respond to
Respondents Nokia Corporation and Nokia Inc.’s (collectively “Nokia”) February 24, 2012,
Motion For Leave to Supplement Its Opposition to InterDigital’s Renewed Motion to Compel
Production of Source Code. (Mot. No. 800-051).
Nokia’s supplement provides written confirmation that Nokia has yet to produce
all of its undisputedly relevant and responsive source code. Critical portions of Nokia’s source
code thus remain unproduced (i) six months after InterDigital requested them on September 1,
2011, (ii) three months after Nokia’s December 2, 2011 representation to the ALJ that it “stands
ready to produce source code promptly after the Judge rules on [its] motion to amend the
Protective Order” (Dec. 2, 2011 Resp. Opp. to Mot. to Compel at 1-2); and (iii) more than two
months after the ALJ amended the protective order per Respondents’ request. (See Order No. 7.)
Nokia’s continued delay in the production of this critical evidence confirms that it must be
compelled to produce it.
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Nokia’s contention that it requires “guidance” from InterDigital’s infringement
contentions regarding the ’970 patent in order to complete its production is meritless and
contradicts Nokia’s prior representations to the ALJ. (Nokia Proposed Supplement at 1.) In its
December 2, 2011 certified representation to the ALJ, Nokia stated:
Respondents recognize that the parties may disagree about which source code
modules or files may contain relevant code. For that reason, Respondents have
taken a broad approach to collection, gathering large segments of code that
include both relevant as well as irrelevant files, and in some cases collecting all
or nearly all of the release level code for a product. By erring on the side of
inclusion, Respondents hope to reduce potential disputes about the scope of
production.
(Dec. 2, 2011 Resp. Opp. to Mot. to Compel at 3 (emphasis added).) There, Nokia made no
mention of any necessary “guidance” from InterDigital to produce source code, but instead
represented that it “stands ready to produce source code promptly after the Judge rules on [its]
motion to amend the Protective Order,” thus indicating that its collection of the relevant and
responsive source code was already complete. (Id. at 1-2.) Contrary to its prior certified
representations to the ALJ, Nokia now demands that InterDigital provide even more detailed
infringement contentions even before Nokia collects or produces all of its relevant source code.
(Nokia Proposed Supplement at 1.)
Nokia previously conceded that InterDigital’s claim charts identify the accused
functionality with reference to certain sections of wireless standards, (Jan. 30, 2012 Nokia’s
Opp. to Renewed Mot. to Compel at 3), and InterDigital has already provided supplemental
infringement claim charts that reference Nokia technical documents. Indeed, Nokia was able to
use this information to produce the source code related to the other seven asserted patents in this
investigation. (Id.) The ’970 patent is no different. Nokia designed the accused devices and
developed its source code based on the same sections of wireless standards cited in InterDigital’s
claim charts. Nokia cannot now claim that it is unable to identify the same source code that
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performs the functionality of the cited standards that it used when developing its products to
comply with those same wireless standards. Nor can Nokia credibly claim that it needs more
detailed infringement contentions from InterDigital pertaining to the ’970 patent when it was
able to locate and produce source code for the seven other patents-in-suit based on the same type
of information provided in those claim charts.
Nokia’s proposed supplement confirms that portions of Nokia’s undisputedly
relevant and responsive source code remains unproduced. Nokia’s pattern and practice of delays
in the production of source code must be rectified by the ALJ, as was also necessary in previous
investigations. Certain Mobile Communications and Computer Devices, Inv. No. 337-TA-704,
Order No. 29 at 1 (Aug. 17, 2010) (compelling Nokia production of source code); Certain
Personal Data and Mobile Communications Devices, Inv. No. 337-TA-710, Order No. 42 at 1
(Nov. 10, 2010) (same); Certain Personal Data and Mobile Communications Devices, Inv. No.
337-TA-710, Order No. 57 at 1-3 (Dec. 2, 2010) (same).
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