UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.
In the Matter of
CERTAIN WIRELESS DEVICES WITH 3G I11“337-TA-868
AND/OR 40 CAPABILITIES AND
COMPONENTS THEREOF
ORDER NO. 109: REGARDING THE USE IN THIS INVESTIGATION OF THE
COMMISSION’S RECENT OPINION IN INVESTIGATION NO.
337-TA-613
(February 18, 2014)
On February l2, 2014, the Commission issued an opinion (“the 613 Remand Opinion”)
in Certain 3G Mobile Handsets and Components Thereof, Inv. No. 337-TA-613 (“the 613
Investigation”), regarding the issues on the remand of the investigation from the decision of the
Court of Appeals for the Federal Circuit to reverse the Commission’s original Final
Determination. By way of background, the 613 Investigation involves InterDigita1
Communications, Inc., InterDigital Technology Corporation, IPR Licensing, Inc., and
InterDigital Holdings, Inc. as complainants (collectively “InterDigital”) and Nokia Corporation
and Nokia, Inc. (collectively, “Nokia”) as respondents. InterDigita1 asserts U.S. 7,190,966 (“the
’966 Patent”), and 7,286,847 (“the ’847 Patent”) (collectively, “the Power Ramp-Up Patents”)
against Nokia in the 613 Investigation. InterDigital also asserts the Power Ramp~Up Patents in
this investigation, but not against Nokia. Instead, lnterDigital is asserting the Power Ramp-Up
Patents against Samsung and ZTE.
i On February 14, 2013, InterDigital and Nokia sought permission from the ALJ to
produce the opinion to Samsung and ZTE and clarification from the ALI regarding how the 613
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Remand Opinion could be used in this investigation. While the ALJ provided some preliminary
thoughts at the conclusion of the hearing on February 14, 2014, this order supersedes those
thoughts and provides the parties the definitive guidance on how the 613 Remand Opinion may
be used in this investigation.
First, the 613 Remand Opinion may git be used by a party to raise new claim
constructions; new non-infringement, infringement, domestic industry, invalidity, or validity
theories; or new arguments that were otherwise not disclosed in that pa1ty’s pre-hearing brief. In
other words, the 613 Remand Opinion may only be used to support existing arguments or
theories that were disclosed in a party’s pre-hearing brief, and may not be used to justify adding
any theories or arguments to this Investigation at this very late stage. The ALJ considers this
more than fair because the parties were aware of the issues before the Commission on remand in
the 613 Investigation, and should have raised the issues they wanted to preserve for this
investigation in their briefs in this investigation.1
Second, to the extent a private party intends to rely on the 613 Remand Opinion, the
private party must supplement its pre-hearing brief by the close of business on Friday, February
21, 2014?
Third, the ALJ will entertain gig motion from each side to strike new arguments raised in
the supplemental pre-hearing briefs. Such motions are to be filed by Wednesday, February 26,
2014. Oppositions to such motions to strike must be filed by Friday, February 28, 2014. The
opening briefs are limited to no more than 15 pages. The ALJ ML!grant motions to strike any
1Of course, if a party can show that something in the 613 Remand Opinion was entirely unexpected, the ALJ will
consider whether good cause exists for those arguments to betadded. '
2The Cormnission Investigative Staff (“Staff”) does not need supplement its pre-hearing brief. It will be sufficient
if Staff identifies in a letter the sections of its brief where it intends on relying on the Commission’s opinion and any
changes in Staff‘s positions that Staff intends to make as a result of the 613 Remand Opinion. The ALJ trusts
Staffs judgment in refiaining from adding new arguments or theories to this investigation.
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new arguments or theories in the supplemental pre-hearing briefs not previously disclosed in the
original pre-hearing briefs.
Finally, the ALJ warns the parties that he will not consider new arguments regarding the
613 Remand Opinion raised for the first time in the post-hearing briefs.
SO ORDERED.
" Theodore R. Essex
Administrative Law Judge
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