Samsung and ZTE Respondents' Motion to Strike Portions of Complainants' Post-Hearing Reply Brief Containing Information from Outside the Record
The following is from the Oral hearing transcript and may relate to the outside information being contested by Sam and ZTE.
MR. SHULMAN: One little housekeeping matter,
4 your Honor.
5 JUDGE ESSEX: That would be my next question, go
6 ahead.
7 MR. SHULMAN: Okay. The 613 decisions that came
3 down yesterday or the day before.
9 JUDGE ESSEX: Yeah, it did, didn't it?
19 MR. SHULMAN: Yeah, it did. I saw it this
11 morning for the first time. We didn't get it until this
12 morning, actually. But in any event, Samsung has requested
13 that we produce it to them, because they're not under the
14 protective order in the 613, and we have no objection to
15 that. And we intend to produce it to them with production
W numbers.
17 MR. FLINN: We have no objection either, your
13 Honor. Samsung and ZTE can have it.
W MR. SHULMAN: ZTE also. I didn't mean to
20 exclude them.
Z1 JUDGEESSEX: I think that was InterDigital and
22 Nokia, was it not?
Z3 MR. FLINN: That's correct, your Honor.
14 MR. SHULMAN: Correct. And then as your Honor
25 knows, that decision touches on various issues that are at
1 issue here. I don't think the decision has to be part of
2 the so—called evidentiary record, but it ought to be made
3 part of the record so your Honor can consider it and give
4 whatever weight -5
JUDGEESSEX: I'm going to consider it because I
5 have the case so -7
(Laughter.)
3 MR. SHULMAN: But I mean, it obviously bears
9 on -10
JUDGEESSEX: I understand what you're saying,
U and I've been reading it this morning myself with interest
12 to see what parts may be applicable and to see also ——you
13 know, the difficulty is now that you read that and ——you
14 know, it's not necessarily evidence in this case.
M well, and I'm thinking along the lines that you are, is how
17 does it dovetail with what we're doing here.
W MR. SHULMAN: Right, and I haven't thought
19 through all the legal implications, but the Commission's
20 rules and decisions have some binding effect upon what you
Z1 do and, you know, we'll have to take it into account. And
21 I'm sure it's going to get briefed after the case is over.
23 JUDGEESSEX: I imagine InterDigital would think
M that way.
25 MR. SHULMAN: Anyway, so I just wanted to alert
U But it's fairly strong, so I'm looking at it as "
1 you to all of that.
Z JUDGE ESSEX: I've been alert to that since when
3 I mentioned it to you guys, because I may have known a
4 little bit of something about it.
5 MR. SHULMAN: We just got a tease for the first
6 day and a half. Because we got the notice on Wednesday but
7 didn't actually see the opinion until this morning.
3 MS. MURRAY: Your Honor, if we could just
9 clarify, you will allow the parties to address the 613
10 opinion, even though it's not in their prehearing briefs?
U JUDGE ESSEX: Well, it wasn't decided during the
12 prehearing briefs. At this point, and it maybe a very
13 interesting issue, is it, in fact, binding. It's out
14 before I've reached any decision here. It does have to do
15 with claim constructions of patents that are at issue here.
16 I will base my decision here on the evidence.
17 But I will bear in mind what the Federal Circuit and what
13 the Commission has done.
19 So I'll look for help from the attorneys in this
Z0 case to tell me what I can and cannot do with it and how
Z1 much that claim construction is binding upon me from the
12 Federal Circuit and Commission.
Z3 Right now, I just don't know. I'm reading it
Z4 and I'm reading the same patents and some I believe —~the
25 same claims. And how exactly we can apply it or cannot
1 apply it, I don't know at this point.
Z You raise normally a very good point, but, you
3 know, if we pretend it doesn't exist, if it goes into
4 remand again, you know the feelings of most of the bench on
5 remand. I don't want to do it a third time or do this one
6 a second time because that one had to be done a second
7 time.
3 You know, I will try to figure out what the law
9 is on something like that, and I will certainly try to
1° follow that. But, you know, I'll look to you all to give
11 me guidance on what I can and cannot do.
12 I don't know at this point, to answer your
13 question, whether I will use it or won't or how I'm going
14 to use it. I just simply am not aware.
U MS. MURRAY: Yes, your Honor.
16 JUDGEESSEX: But I have gotten through most of
17 the opinion.
13 MR. SHULMAN: Okay. Thank you, your Honor.
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