UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C. 20436
`
`Before Honorable Charles E. Bullock
`Administrative Law Judge
`
`
`
`In the Matter of
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`CERTAIN NOISE CANCELLING
`HEADPHONES
`
`Investigation No. 337-TA-626
`
`
`
`
`
`COMPLAINANT BOSE CORPORATION’S
`OPPOSITION TO MOTIONS TO AMEND THE PROTECTIVE ORDER
`BY RESPONDENTS AUDIO-TECHNICA U.S., INC., PANASONIC CORPORATION
`OF NORTH AMERICA, AND PHITEK SYSTEMS LTD.
`
`Complainant Bose Corporation (“Bose”) hereby opposes each of the motions to amend
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`the Protective Order in this investigation (Order No. 1) by Respondents Audio-Technica U.S.,
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`Inc. (“Audio-Technica”), Panasonic Corporation of North America (“Panasonic”), filed on
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`February 27 and 28, respectively, and Phitek Systems Limited (NZ) (“Phitek”), filed the
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`following week (Audio-Technica, Panasonic, and Phitek will be collectively referred to as “the
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`Moving Respondents”).
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`The Moving Respondents have moved to amend the Protective Order to bar Complainant
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`Bose Corporation’s outside counsel, Charles Hieken of Fish & Richardson P.C., from accessing
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`Confidential Business Information (“CBI”) or, in the alternative, from prosecuting patents “in the
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`field of headphone technology” during the pendency of this investigation and for two years
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`thereafter. In addition to Mr. Hieken, the Moving Respondents request that “any others involved
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`in the prosecution of Bose patents” be similarly barred. Audio-Technica Mem. in Supp. at 1.
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`Respondents Creative Labs, GN Netcom, and Logitech, Inc. have not submitted their own
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`motions to amend the Protective Order and have not joined in the pending motions. Respondent
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`Phitek Systems Limited (US) has not yet entered an appearance in this investigation.
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`

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`I.
`
`INTRODUCTION
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`At bottom, the Moving Respondents seek to deprive Bose of informed legal advice from
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`its counsel of choice. Bose has had a decades-long relationship with Mr. Hieken as its most
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`trusted legal advisor. Over the course of that relationship, Mr. Hieken has counseled Bose in
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`hundreds of legal matters including intellectual property matters and patent litigations. Mr.
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`Hieken has become Bose’s most valued legal advisor because of his ability to provide objective,
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`informed, and ethical advice to Bose. Without access to the Moving Respondents’ CBI, Mr.
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`Hieken’s ability to provide informed legal advice to Bose in this matter would be seriously
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`compromised. It is because of Mr. Hieken’s strong relationship with Bose—which the Moving
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`Respondents claim is inconsistent with Mr. Hieken’s ability to ethically advise in this case—that
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`the instant motions must be denied. Simply put, the Moving Respondents cannot establish that,
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`on balance, their concerns about potential misuse of their CBI outweigh the real and immediate
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`harm Bose would suffer being deprived of informed advice from its chosen counsel.
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`The Moving Respondents carry a heavy burden to place limitations on Bose’s selection
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`of counsel. At a minimum, they must establish a real, actual danger that their CBI will be
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`misused. They must explain why the existing protective order, including its provision that CBI
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`shall be used “solely for purposes of this investigation,” is inadequate. Furthermore, they must
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`establish that the danger to them is real enough that it outweighs the substantial hardship that
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`Bose will suffer. But, in support of their motions, the Moving Respondents assert only vague,
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`generalized, and unsupported threats of inadvertent misuse of CBI by Mr. Hieken. Their
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`argument is based more on a per se rule that Mr. Hieken must be barred from accessing CBI
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`because he prosecutes patents. The Commission has never recognized such a per se rule.
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`Moreover, such speculative and unsupported arguments cannot satisfy the Moving Respondents’
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`BOSE’S OPPOSITION TO MOTIONS TO AMEND PROTECTIVE ORDER—PAGE 2
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`considerable burden.
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`

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`II.
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`FACTUAL BACKGROUND
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`Mr. Hieken is a well respected attorney who counsels many clients—not just Bose,
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`despite Respondents’ implication—in patent prosecution, patent litigation, trademark
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`prosecution, trademark litigation, and antitrust matters involving a wide variety of technology
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`areas. Hieken Decl. (Ex. A) at ¶¶ 1, 2. Over the course of his fifty-year career as an attorney in
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`which he has litigated many cases, Mr. Hieken has never been investigated or cited by any court
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`for a disciplinary or ethical violation. Id. at ¶ 3. Mr. Hieken served as president of the Boston
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`Patent Law Association and a member of President Carter’s Advisory Committee on Industrial
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`Innovation. Id. at ¶ 4. He lectures on intellectual property topics and, with his wife, has
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`endowed the Hieken Professorship of Patent Law at Harvard Law School and the Hieken
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`Professorship of Business and Professional Ethics at Bentley College. Id.
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`Mr. Hieken has represented Bose since its inception in 1964. Id. at ¶ 5. He has
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`prosecuted many patent applications for Bose and has represented Bose in litigations before
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`many courts and administrative tribunals, including the U.S. Supreme Court. Id. Although Mr.
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`Hieken served as Bose’s part-time president in the late 1960s, his relationship with Bose has
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`always been that of outside counsel. Id. at ¶ 6. He does not hold any financial interest in Bose,
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`nor does he hold any corporate position with the company. Id. at ¶ 7. Mr. Hieken is not
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`involved in any traditional competitive decisionmaking activity for Bose, such as product design,
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`development, pricing, or marketing. Id. Bose has its own internal legal personnel to consult for
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`advice on competitive decisionmaking matters. Id. Mr. Hieken is not consulted by Bose on
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`what products should be developed or what technology should be researched. Id.
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`With respect to this dispute, Mr. Hieken has been advising Bose for over a year now.
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`Although Bose only filed its ITC complaint in November 2007, a district court action between
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`the parties began in March 2007. Since then, Bose (with Mr. Hieken present) has engaged in
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`BOSE’S OPPOSITION TO MOTIONS TO AMEND PROTECTIVE ORDER—PAGE 3
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`settlement discussions with Respondent Phitek.1 Id. at ¶ 8. Those meetings involved discussions
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`of information that Mr. Hieken believes Phitek regarded as confidential. Id. Phitek participated
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`in those discussions and apparently revealed its CBI with full knowledge of Mr. Hieken’s
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`relationship with Bose and with full knowledge of the very same facts that Respondents now
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`argue mandate a prosecution bar against Mr. Hieken. And Phitek did so without objection. Id.
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`III. ARGUMENT
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`A.
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`Respondents Cannot Establish Either the Requisite Good Cause or Harm
`Required to Amend the Protective Order
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`Section 210.34 of the Code of Federal Regulations, which tracks the language of Federal
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`Rule of Civil Procedure 26(c), authorizes an Administrative Law Judge to protect a party from
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`“undue burden or expense” in discovery by directing that “a trade secret or other confidential
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`research, development, or commercial information not be revealed or be revealed only in a
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`designated way.” 19 C.F.R. § 210.34; see also Fed. R. Civ. P. 26(c). The burden is on the party
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`seeking the protective order (or, in this case, amendment of the existing protective order) to
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`establish that “good cause” exists warranting the additional protection. See id.; see also MPG
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`Ingredients, Inc. v. Mars, Inc., 245 F.R.D. 497, 500 (D. Kan. 2007).
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`Vague and generalized arguments of harm are insufficient to establish the good cause
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`required for modification of the Protective Order. See Avocent Redmond Corp. v. Rose
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`Electronics, Inc., 242 F.R.D. 574, 579 (W.D. Wash. 2007) (stating that “The Court is unwilling
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`to preclude lawyers from litigating here or in front of the patent office on a vague and
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`generalized threat of future inadvertent misuse of discovered materials”); MPG, 245 F.R.D. at
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`501 (stating that movants failed to show cause to amend the protective order because they only
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`1 Phitek manufactures the accused products that are sold by each of the other Respondents
`under their own brand names.
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`BOSE’S OPPOSITION TO MOTIONS TO AMEND PROTECTIVE ORDER—PAGE 4
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`“made categorical arguments that they would be harmed by the disclosure but they really did not
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`discuss in any meaningful detail how they would suffer the nature or degree of harm”). Indeed, a
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`host of Commission precedent has concluded that an attorney should not be barred from viewing
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`CBI based on “the mere allegation that an attorney might in the future violate a protective
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`order….” Certain Magnetic Switches for Coaxial Transmission Lines and Products Containing
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`the Same, Inv. No. 337-TA-346, Order No. 4, 1993 WL 852560 (“Magnetic Switches”) at 2
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`(Mar. 2, 1993); see also Certain Vehicle Security System and Components Thereof, Inv. No. 337-
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`TA-355, Order No. 6, 1993 WL 852881 (“Vehicles Security Sys.”) at 3 (Nov. 18, 1993) (“the
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`Administrative Law Judge cannot base a decision to disqualify an attorney on speculation and
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`the assumption that information that the attorney has see could be used to harm the supplying
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`party.”).
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`To meet its good cause requirement, Audio-Technica provides nothing more than blanket
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`statements that it would suffer harm if its CBI is disclosed to Mr. Hieken. Audio-Technica
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`provides no details of what information it is referring to or how disclosure of such information
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`would “cause Audio-Technica to lose its competitive advantage.” Audio-Technica Mem. in
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`Supp. at 8. In fact, Audio-Technica’s “competitive advantage” in this technology is questionable
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`at best. As Audio-Technica notes in its motion, its accused product is designed and
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`manufactured by Phitek. At best, Audio-Technica can only claim that its technical CBI is
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`“potentially implicate[d].”2 Id. Likewise, Audio-Technica’s assertion that product details
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`disclosed to Mr. Hieken and other prosecution attorneys “could be copied and patent claims
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`could be directed to Audio-Technica’s own products” is illogical. Audio-Technica Mem. in
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`2 Bose is unable to assess the “competitive advantages” disclosed in Audio-Technica’s own
`CBI (as opposed to Phitek’s) because Audio-Technica has yet to produce a single document in
`this investigation, confidential or otherwise.
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`BOSE’S OPPOSITION TO MOTIONS TO AMEND PROTECTIVE ORDER—PAGE 5
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`Supp. at 8. Patents are required to be, by the United States Constitution and patent statutes,
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`directed to new inventions. The patent application examination procedure provides sufficient
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`protection against after-the-fact patenting of existing products and technology.
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`Audio-Technica also provides no support for its argument that Mr. Hieken’s work in
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`patent prosecution “creates an unacceptable risk, indeed a certainty, that Audio-Technica trade
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`secret information will be misused,” or that the current Protective Order is inadequate to protect
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`Audio-Technica against misuse of its CBI. Audio-Technica Mem. in Supp. at 8-9. As stated
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`above, Mr. Hieken is a well-respected attorney who has never been cited or disciplined for any
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`ethical violations in his fifty-year career as an attorney. Hieken Decl. at ¶ 3. His ethics are
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`beyond reproach. There is no evidence that Mr. Hieken is more likely to misuse CBI than any
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`other attorney in this case who advises other clients. The Court’s Protective Order already
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`requires attorneys to confirm that they will “utilize [CBI] solely for purposes of this
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`investigation.” Order No. 1 at ¶ 4. Audio-Technica’s argument is at odds with “the underlying
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`assumption of the use of a protective in section 337 investigations [] that counsel will observe
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`that order.” Certain Digital Satellite System (DSS) Receivers and Components Thereof, Inv. No.
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`337-TA-392, Order No. 8, 1997 WL 972945 at 8 (Feb. 6, 1997); see also Magnetic Switches,
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`Order No. 4 at 2 (“It may be presumed that counsel will respect the integrity of confidential
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`business information, and abide fully by the provisions of the Protective Order (Order No. 1).”).
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`Panasonic, like Audio-Technica, provides no details of the information it claims would
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`result in great detriment if accessed by Mr. Hieken. Panasonic also does not admit that it has
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`confidential technical information relevant to this investigation, but instead points to Panasonic’s
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`documents relating to the commercial exploitation of its accused product, marketing forecasts,
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`business plans, customers, purchasers, and resellers as examples of documents that Mr. Hieken
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`BOSE’S OPPOSITION TO MOTIONS TO AMEND PROTECTIVE ORDER—PAGE 6
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`should be barred from accessing. See Panasonic Mem. in Supp. at 2. Panasonic does not explain
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`why it is necessary to bar an attorney from prosecuting patents to protect Panasonic’s financial
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`and marketing CBI. Nor does Panasonic explain what harm it would suffer if Mr. Hieken, who
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`does not advise or participate in Bose’s product designs, marketing, pricing, or other competitive
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`decisionmaking activities, views these documents.
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`Finally, as the designer and manufacturer of Audio-Technica’s and Panasonic’s accused
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`products, Phitek would appear to be the only Respondent with unique technical CBI worthy of
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`protection. However, Phitek already shared at least some of its CBI with Bose and Mr. Hieken
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`prior to this litigation, without objection to Mr. Hieken’s presence. See Hieken Decl. at ¶ 8. It is
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`simply disingenuous for Phitek to now claim such concern for protection of its CBI after it
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`already disclosed it voluntarily and freely based on mutual representations that Bose and Phitek
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`would not misuse any information disclosed. In short, none of the Moving Respondents can
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`show harm that disclosure of their CBI under the Protective Order in this case would cause. See
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`Vehicles Security Sys., Order No. 6 at 2 (harm that disclosure would cause is factor that should
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`be considered in determining whether to allow in-house counsel access to adversary’s CBI).
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`B.
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`Respondents Have Failed to Show that Mr. Hieken is Involved in
`Competitive Decisionmaking for Bose
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`Contrary to Respondents’ arguments, Mr. Hieken’s involvement in prosecuting patents
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`for Bose is insufficient to bar his access to CBI. Rather, as Audio-Technica correctly notes, the
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`inquiry “centers on whether counsel is engaged in ‘competitive decisionmaking’….” Audio-
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`Technica Mem. in Supp. at 6-7 (citing U.S. Steel Corp. v. United States, 730 F.2d 1465, 1468
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`(Fed. Cir. 1984). In U.S. Steel, the Federal Circuit held that access to CBI could not be denied
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`per se based on counsel’s position as in-house counsel. Id. (“Denial or grant of access, however,
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`cannot rest on a general assumption that one group of lawyers are more likely or less likely
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`BOSE’S OPPOSITION TO MOTIONS TO AMEND PROTECTIVE ORDER—PAGE 7
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`inadvertently to breach their duty under a protective order.”). Similarly, attorneys who prosecute
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`patents (solely or in combination with litigation activities) should not be barred per se from
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`accessing CBI. In re Sibia Neurosciences, Inc., 132 F3d 50, 1997 WL 688174 at *3 (Fed. Cir.
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`1997) (Table) (“denying access to … outside counsel on the ground that they also prosecute
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`patents … is the type of generalization counseled against in U.S. Steel. The facts, not the
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`category, must inform the result.”). The Commission has generally followed the competitive
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`decisionmaking standard enunciated in U.S. Steel and its progeny. E.g., Certain CD-ROM
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`Controllers and Products Containing Same, Inv. No. 337-TA-409, Order No. 6 (Aug. 24, 1998);
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`Certain Data Storage Systems and Components Thereof, Inv. No. 337-TA-471, Order No. 9
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`(Oct. 31, 2002); Certain Ground Fault Circuit Interrupters and Products Containing Same, Inv.
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`No. 337-TA-615, Order No. 8 (Dec. 17, 2007);
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`Mr. Hieken cannot be denied access to CBI simply because he works in patent
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`prosecution. Rather, Respondents must show that Mr. Hieken is involved in competitive
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`decisionmaking for Bose. Of course, Respondents cannot do so because Mr. Hieken is not
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`involved in competitive decisionmaking for Bose. Hieken Decl. at ¶ 7. Respondents have
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`proffered no evidence that Mr. Hieken has a relationship with Bose other than as outside counsel.
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`The only “competitive decisionmaking” that Respondents point to is Mr. Hieken’s prosecution of
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`patents for Bose, and despite Respondents’ suggestion to the contrary, both the ITC and federal
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`courts have found that patent prosecution is not competitive decisionmaking.
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`To be sure, in some investigations, protective orders have been amended to include
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`prosecution bars. However, as noted recently by Administrative Law Judge Charneski:
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`while many hundreds of protective orders have issued in section
`337 investigations, the protective orders amended to contain any
`sort of prosecution bar are few in number. Indeed, it is telling that
`a prosecution bar is not a standard provision of the CBI
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`BOSE’S OPPOSITION TO MOTIONS TO AMEND PROTECTIVE ORDER—PAGE 8
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`protective order issued in section 337 investigations. It is only
`through a relatively small number of recorded amendments that
`such a provision has been added to any protective orders.
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`Certain Ground Fault Circuit Interrupters and Products Containing Same, Inv. No. 337-TA-
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`615, Order No. 8, at 4 (December 17, 2007) (emphasis added); see also Certain Amorphous
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`Metal Alloys and Amorphous Metal Particles, Inv. No. 337-TA-143, Comm’n Op. following the
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`Commission’s Action and Order Issued July 22, 1984 (Aug. 4, 1984) (refusing to deny access to
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`CBI based on the mere possibility of future conflict from certain counsel continuing to prosecute
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`patents in the technology area).
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`Likewise, Respondents’ assertion that an “overwhelming authority in federal courts”
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`supports prosecution bars does not withstand scrutiny. See Audio-Technica Mem. in Supp. at
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`10-14. For every federal court that has implemented a prosecution bar, another has refused to do
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`so finding that patent prosecution is not competitive decisionmaking. See, e.g., In re Sibia, 132
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`F.3d 50 (granting writ of mandamus to permit access to outside patent counsel); Avocent
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`Redmond Corp. v. Rose Electronics, Inc., 242 F.R.D. 574, 578-579 (W. D. Wash. 2007) (denying
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`defendant’s motion for prosecution bar, stating that “Defendants have not offered any evidence
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`that suggests that …[plaintiff’s] patent prosecutors advise [plaintiff] in its ‘competitive
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`decisionmaking.’”); MedImmune, Inc. v. Centocor, Inc., 271 F. Supp. 2d 762, 773-775 (D. Md.
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`2003) (denying motion to bar outside patent counsel from accessing CBI, stating that “he
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`prosecutes patents for MedImmune, but he also works for many other biotech clients in their
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`patent work. The key is ‘competitive decision-making’; as he is not a competitive decision-
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`maker, he does not need to be restricted in the activities he pursues for MedImmune”);
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`Photoprotective Technologies, Inc. v. Insight Equity A.P.X. LP, 2007 WL 2461819, *2 (W. D.
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`Tex. August 27, 2007) (“Basing a ‘patent prosecution bar’ solely on an attorney’s practice of
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`prosecuting patents on behalf of his client fails to consider the factual circumstances surrounding
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`BOSE’S OPPOSITION TO MOTIONS TO AMEND PROTECTIVE ORDER—PAGE 9
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`the attorney’s activities, association and relationship with his client and the attorney’s
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`involvement in his client’s competitive decisionmaking.”).
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`Nor can Mr. Hieken be denied access to Respondents’ CBI simply because he has a long-
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`standing relationship with Bose and was its part-time president 40 years ago. See Audio-
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`Technica Mem. in Supp. at 5. History and relationships are not competitive decisionmaking. As
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`the Federal Circuit explained, “the standard [for determining whether to deny access to CBI] is
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`not ‘regular contact’ with other corporate officials who make ‘policy,’ or even competitive
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`decisions, but ‘advice and participation’ in ‘competitive decisionmaking.’” Matsushita Electric
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`Industrial Co., Ltd. v. United States, 929 F.2d 1577, 1580 (Fed. Cir. 1991).
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`C.
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`Denial of Access to Confidential Business Information to Mr. Hieken
`Would Work Substantial Hardship on Bose
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`
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`In contrast to the tenuous and hypothetical harm that Respondents allege, denying Mr.
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`Hieken access to CBI would result in a certain and immediate detriment to Bose. Mr. Hieken is
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`a seasoned attorney, whose advice and recommendations are highly trusted by Bose. He has
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`been instrumental in advising Bose on the myriad of strategic issues that have already come up in
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`this case, and many more will follow. Mr. Hieken cannot effectively counsel Bose if his
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`recommendations are not based on all of the information available. In weighing the competing
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`interests of the parties, the very real hardship that Bose would suffer outweighs the speculative
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`harm the Moving Respondents have alleged. Thus, Mr. Hieken should be provided access to
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`CBI. To do otherwise, would result in the type of “unnecessary hardship” that the U.S. Steel
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`court warned against, and that many courts have recognized. See U.S. Steel, 730 F.2d at 1468;
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`see also Medimmune, 271 F. Supp. 2d at 774 (“having worked for MedImmune for nearly twelve
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`years, Olstein could provide a significant amount of assistance to the claims”); Avocent, 242
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`F.R.D. at 579 (stating that “exclusion would work a substantial hardship on Avocent because its
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`BOSE’S OPPOSITION TO MOTIONS TO AMEND PROTECTIVE ORDER—PAGE 10
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`litigator in this case is familiar with litigating these patents and has previously prosecuted KVM
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`switch patents for Avocent”); In re Sibia, 132 F.3d 50, 1997 WL 688174 at *3 (“denying access
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`to Cadus’s outside counsel [Mr. DeConti] would pose a serious and unnecessary hardship,
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`especially because Mr. DeConti had been Cadus’s patent counsel for more than one year prior to
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`the commencement of the patent action and because the testimony at the hearing…reflected Mr.
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`DeConti’s crucial role in patent litigation.”).
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`Cases cited by Audio-Technica allegedly to the contrary are distinguishable. See Audio-
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`Technica Mem. in Supp. at 13-14. For example, in Brown Bag Software v. Symantec Corp., 960
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`F.2d 1465 (9th Cir. 1992), the Ninth Circuit found that in-house counsel at issue, unlike Mr.
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`Hieken, participated in competitive decisionmaking, such as marketing. Brown Bag Software,
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`960 F.2d at 1471. The Ninth Circuit further noted that because the in-house counsel had joined
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`the company six months after the party’s outside counsel initiated the case, it was too speculative
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`that denial of access to CBI would hinder the party’s case. Id. In Motorola, Inc. v. Interdigital
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`Technology Corp., 1994 WL 16189689 (D. Del. December 19, 1994), the district court found
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`there was no hardship imposed on the party by the prosecution bar because the party had retained
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`the counsel at issue as prosecution counsel one week after the filing of the law suit. Motorola,
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`1994 WL 16189689 at *5-*6. The court stated that “this was not a situation where a client
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`decided that it would be efficient to retain trial counsel who had prosecuted the particular patent
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`in the past…. This creates the appearance of a situation where a client felt it would be efficient
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`to have trial counsel prosecute the patent application in the future.” Id. Thus, consideration of
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`all of the facts regarding Mr. Hieken’s relationship with Bose and weighing of the competing
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`interests of the parties mandate that Mr. Hieken not be denied access to Respondents’ CBI.
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`BOSE’S OPPOSITION TO MOTIONS TO AMEND PROTECTIVE ORDER—PAGE 11
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`IV. CONCLUSION
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`For the foregoing reasons, the Moving Respondents motions to amend the protective
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`order by adding a prosecution bar should be denied. A Proposed Order is attached herewith.
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`Respectfully submitted,
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`
`
`FISH & RICHARDSON P.C.
`
`/s/ Andrew R. Kopsidas
`
`Ruffin B. Cordell
`Andrew R. Kopsidas
`Jeffrey R. Whieldon
`Autumn J.S. Hwang
`FISH & RICHARDSON P.C.
`1425 K Street, N.W.
`11th Floor
`Washington, D.C. 20005
`Telephone: (202) 783-5070
`Facsimile: (202) 783-2331
`
`Charles Hieken
`Gregory A. Madera
`FISH & RICHARDSON P.C.
`225 Franklin Street
`Boston, MA 02110
`Telephone: (617) 542-5070
`Facsimile: (617) 542-8906
`
`Jordan T. Fowles
`FISH & RICHARDSON P.C.
`1717 Main Street
`Suite 5000
`Dallas, TX 75201
`Telephone: (214) 747-5070
`Facsimile: (214) 747-2091
`
`Attorneys for Complainant
`Bose Corporation
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`BOSE’S OPPOSITION TO MOTIONS TO AMEND PROTECTIVE ORDER—PAGE 12
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`Dated: March 12, 2008
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`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C. 20436
`
`Before Honorable Charles E. Bullock
`Administrative Law Judge
`
`
`
`
`
`In the Matter of
`
`CERTAIN NOISE CANCELLING
`HEADPHONES
`
`Investigation No. 337-TA-626
`
`[PROPOSED] ORDER NO.: _______
`
`DENYING MOTIONS TO AMEND THE PROTECTIVE ORDER
`BY RESPONDENTS AUDIO-TECHNICA U.S., INC., PANASONIC CORPORATION
`OF NORTH AMERICA, AND PHITEK SYSTEMS LTD.
`
`
`Having considered the Motions to Amend the Protective Order by Respondents Audio-
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`
`
`
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`Technica U.S., Inc., Panasonic Corporation of North America, and Phitek Systems Ltd. (NZ), it
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`is determined that the motions should be, and hereby are, DENIED.
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`
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`So ORDERED this ______ day of March, 2008.
`
`
`
`
`__________________________________
`Hon. Charles E. Bullock
`Administrative Law Judge
`
`
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on March 12, 2008, a copy of
`
`COMPLAINANT BOSE CORPORATION’S OPPOSITION TO MOTIONS
`TO AMEND THE PROTECTIVE ORDER BY RESPONDENTS AUDIO-
`TECHNICA U.S., INC., PANASONIC CORPORATION OF NORTH
`AMERICA, AND PHITEK SYSTEMS LTD.
`__________________________________
`
`was served on the following as indicated:
`
`
`
`Marilyn R. Abbott
`Secretary
`U.S. International Trade Commission
`500 E. Street, S.W., Room 112-F
`Washington, DC 20436
`
`
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
`
`The Honorable Charles E. Bullock
`Administrative Law Judge
`U.S. International Trade Commission
`500 E Street, S.W., Room 317-I
`Washington, DC 20436
`
`
`
`T. Spence Chubb, Esq.
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street, S.W., Room 404-I
`Washington, DC 20436
`
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`BOSE’S OPPOSITION TO MOTIONS TO AMEND PROTECTIVE ORDER—PAGE 13
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`William B. Nash, Esq.
`Daniel D. Chapman, Esq.
`Mark Fassold, Esq.
`Jackson Walker L.L.P.
`112 E. Pecan Street., Suite 2400
`San Antonio, TX 78209
`
`Counsel for Respondents Phitek Systems
`Limited, GN Netcom, Inc., Creative Labs, Inc.,
`and Logitech Inc.
`
`
`Alan Cope Johnston, Esq.
`G. Brian Busey, Esq.
`Cynthia Lopez Beverage, Esq.
`Morrison & Foerster LLP
`2000 Pennsylvania Ave., N.W., Suite 5500
`Washington, DC 20006-1888
`
`Counsel for Respondents Phitek Systems
`Limited, GN Netcom, Inc., Creative Labs, Inc.,
`and Logitech Inc.
`
`
`James P. White, Esq.
`J. Aron Carnahan, Esq.
`Welsh & Katz, Ltd.
`120 South Riverside Plaza, 22nd Floor
`Chicago, IL. 60606
`
`Counsel for Respondent Audio Technica U.S.,
`Inc.
`
`
`Arthur Wineburg, Esq.
`Daniel E. Yonan, Esq.
`Akin Gump Strauss Hauer & Feld LLP
`1333 New Hampshire Ave., N.W.
`Washington, DC 20036
`
`Counsel for Respondent Audio Technica U.S.,
`Inc.
`
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`
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`
`
`
`
`
`
`
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
`BOSE’S OPPOSITION TO MOTIONS TO AMEND PROTECTIVE ORDER—PAGE 14
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`

`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
`
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`
`
`/s/ Patrick Edelin, Jr.
`
`
`
`
`
`Daniel Ebenstein, Esq.
`Abraham Kasdan, Esq.
`Joseph Casino, Esq.
`Amster, Rothstein & Ebenstein LLP
`90 Park Avenue
`New York, NY 10016
`
`Counsel for Respondent Panasonic
`Corporation of North America
`
`
`Tom M. Schaumberg, Esq.
`Jamie D. Underwood, Esq.
`Adduci, Mastriani & Schaumberg, LLP
`1200 Seventh Street, N.W., Fifth Floor
`Washington, DC 20036
`
`Counsel for Respondent Panasonic
`Corporation of North America
`
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`BOSE’S OPPOSITION TO MOTIONS TO AMEND PROTECTIVE ORDER—PAGE 15
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`EXHIBIT A
`
`EXHIBIT A
`
`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C. 20436
`
`Before Honorable Charles E. Bullock
`
`Administrative Law Judge
`
`Investigation No. 337-TA-626
`
`
`
`
`In the Matter of
`CERTAIN NOISE CANCELLING
`
`HEADPHONES
`
`DECLARATION OF CHARLES HIEKEN IN SUPPORT OF COMPLAINANT
`
`BOSE CORPORATION’S OPPOSITION TO MOTIONS TO AMEND THE
`
`PROTECTIVE ORDER BY RESPONDENTS AUDIO-TECHNICA U.S., INC.,
`PANASONIC CORPORATION OF NORTH AMERICA, AND PHITEK SYSTEMS LTD.
`
`1, Charles Hieken, declare as follows:
`
`1.
`
`I am a Principal at Fish & Richardson P.C. and have been an attomey of the firm
`
`since 1987.
`
`2.
`
`My legal practice areas include complex litigation, patent prosecution, patent
`
`litigation, trademark prosecution, trademark litigation, and antitrust matters involving different
`
`technology areas, including acoustics and electrical engineering. I was in the cooperative course
`
`in electrical engineering at the Massachusetts Institute of Technology with the Philco
`
`Corporation working in color television research and government and factory engineering. In
`
`1952, I received the S.B.E.E. and S.M.E.E. degrees. I served in the Army from 1952 to 1954,
`
`working in the Signal Corp Engineering Laboratories designing circuitry and in Army Aviation
`
`working with air navigation systems. While attending Harvard Law School, I worked as a patent
`
`assistant at Laboratory for Electronics and at Fish, Richardson & Neave, the predecessor of Fish
`
`& Richardson P.C. I was registered to practice as a patent agent before the U.S. Patent Office in
`
`

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`1956. In 1957, I received the LL.B. degree from Harvard Law School and was, admitted to the
`
`Illinois bar.
`
`3.
`
`I am licensed to practice law in Illinois and Massachusetts, the United States
`
`Patent and Trademark Office, and several federal courts, including the Supreme Court of the
`
`United States,‘ the Federal Circuit Court of Appeals, the First Circuit Court of Appeals, and the
`
`Court of Federal Claims. Over the course of my career, I have litigated many cases. I am in
`
`good standing in all jurisdictions where I have been admitted to practice and have never been
`
`investigated, cited, or disciplined for any ethical violations in any jurisdiction.
`
`4.
`
`‘ I served as president of the Boston Patent Law Association and a member of
`
`President Carter’s Advisory Committee on Industrial Innovation.
`
`I have lectured on intellectual
`
`property topics. My wife and I endowed the Hieken Professorship of Patent Law at Harvard
`
`Law School and the Hieken Professorship of Business and Professional Ethics at Bentley
`
`College.
`
`5.
`
`I have represented Bose since its inception in 1964.
`
`I have prosecuted many
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`patent applications for Bose and have represented Bose in many litigations in courts and
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`administrative tribunals, including the U.S. Supreme Court.
`
`6.
`
`i I served as part-time president of Bose Corporation in the late 1960s. Since 1964,
`
`my relationship with Bose has been that of outside counsel.
`
`7.
`
`I do not hold any financial interest in Bose, nor do I hold any corporate position
`
`with the company. I am not involved in any traditional competitive decisionmaking activity for
`
`Bose, such as product design,