UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`WASHINGTON, D.C.
`
`Before Honorable Charles E. Bullock
`
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN NOISE CANCELLING
`HEADPHONES
`
`
`
`Investigation No. 337-TA-626
`
`COMPLAINANT BOSE CORPORATION’S OPPOSITION TO RESPONDENT PHITEK
`SYSTEMS LIMITED’S {NZ} MOTION TO MODIFY PROCEDURAL SCHEDULE
`
`Complainant Bose Corporation (“Bose”) hereby opposes Phitek Systems Limited’s (NZ)
`
`(“Phitek”) Motion to Modify Order No. 4: Setting the Procedural Schedule, issued on May 9,
`
`2008.
`
`It is difficult to comprehend why Phitek needs to know the details regarding Bose’s
`
`expert’s current infringement testing before it can submit its initial expert report on the issues for
`
`which it bears the burden, e. g., invalidity. Phitek certainly does not explain the relationship in its
`
`moving papers, stating only that “Phitek will be unduly burdened to produce its expert report
`
`without the benefit of discovering the testing methodologies and results that are actually in
`
`dispute,” Mot. at 3, and “it is unduly burdensome and impossible for Phitek’s experts to
`
`properly prepare its expert report without such information,” Mem. in Supp. at 6. Under the
`
`existing procedural schedule-—the one negotiated and prepared jointly by all parties at the
`
`beginning of this investigation——each party exchanges its initial expert report, followed by its
`
`rebuttal expert report two weeks later. In contrast, under the modified schedule proposed by
`
`Phitek, Phitek gets an extra two weeks to prepare its initial expert report while Bose must
`
`comply with the original date. See Mem. in Supp. at 6. Moreover, under Phitek’s motion to
`
`modify the procedural schedule, Phitek is allowed three weeks (from May 28 to June 18) to
`
`

`
`prepare its rebuttal report, while Bose gets only one week (from June 11 to June 18) to do the
`
`same. Id. Thus, Phitek essentially proposes three dates for expert reports — June 11 for its initial
`
`report, May 28 for Bose’s initial expert report, and then June 18 for everyone’s rebuttal reports.
`
`There is no basis whatsoever for imposing such a lopsided schedule on Bose.
`
`While Phitek cites “dilatory tactics” by Bose as one reason why it needs more time,
`
`Phitek does not actually point to any discovery that Bose is withholding —- certainly not '
`
`anything that justifies allowing two extra weeks for Phitek to prepare its initial expert report. See
`
`Mem. in Supp. at 5-6. Instead, Phitek spends the majority of its brief rehashing its complaint
`
`that Bose should be compelled to produce information regarding its pre-suit investigation. See
`
`id. at 1-5. That issue has been fully briefed and, rather than pointing out the fallacy of Phitek’s
`
`position here, Bose will simply refer the Court to its original paper. See Complainant Bose
`Corporation’s Opp. to Respondent Phitek Systems Limited’s (NZ) First Motion to Compel
`
`Discovery (filed Apr. 7, 2008). Indeed, even if it were not attorney work product protected from
`
`discovery, Bose fails to see how pre-suit testing would be of any assistance in Phitek’s
`
`preparation of its initial expert report on the issues for which it bears the burden. The subject of
`
`Phitek’s rebuttal report should be the topics addressed in the initial expert report of Bose’s
`
`‘ expert, including testing and infringement, and not what Bose did in its pre-suit investigation.
`
`Therefore, there simply is no legitimate reason why Phitek cannot submit its initial expert report
`
`as required by the current schedule agreed to by the parties and issued by the Judge.
`
`I.
`
`FACTUAL BACKGROUND
`
`Pursuant to Order No. 2, the parties conferred regarding an agreed—upon procedural
`
`schedule for this investigation. Bose prepared the first draft schedule. See E-mail from
`
`Kopsidas to all parties dated Jan. 30, 2008 (Ex. A). The respondents proposed some
`
`amendments to Bose’s draft schedule and Bose accepted respondents’ amendments. See E-mail
`
`BosE’s OPPOSITION TO PHITEK’s MOTION TO MODIFY PROCEDURAL SCHEDULE—PAGE 2
`
`

`
`from Nash to all parties dated Jan. 31, 2008 (Ex. B). Bose submitted the final agreed-upon
`
`schedule to the Court, which the Court approved in Order No. 4. Discovery Statement of Bose
`
`Corporation at 3-4 & Attachment A (filed Feb. 1, 2008) (Ex. C); see also Order No. 4. Phitek
`
`never complained about the expert report dates until just a few weeks ago. See E—mail from
`
`Nash to all parties dated Feb. 1, 2008 (Ex. D) (commenting that the schedule “looks like it
`
`should work” and giving consent to file on behalf of Phitek); Joint Discovery Statement of
`
`Respondents (filed Feb. 1, 2008) (Ex. E) (noting that “This schedule has been agreed upon by all
`
`respondents named in the investigation”).
`
`The agreed—upon schedule sets May 28, 2008, as the due date for all parties’ initial expert
`
`reports and June 1 1, 2008, as the due date for all parties’ rebuttal expert reports. Order No. 4 at
`
`2. The hearing in this matter is scheduled to begin August 4, 2008. Id. at 3.
`
`II.
`
`ARGUMENT
`
`A.
`
`Phitek Presents No Legitimate Reason Why it Cannot Submit its Initial
`Expert Report On the Agreed—Upon Date
`
`Phitek presents four purported reasons why it needs additional time to prepare its initial
`
`expert report, each more feeble than the next. See Mot. at 3; Mem. in Supp. at 1. First, Phitek
`
`argues that “Bose has failed to produce critical discovery.” Id. However, the only “discovery”
`
`Phitek mentions is information regarding Bose’s pre—suit investigation (the subject of Phitek’s
`
`first motion to compel). As explained in Bose’s Opposition to Respondent Phitek Systems
`
`Limited’s (NZ) First Motion to Compel Discovery (filed Apr. 7, 2008), that information is not
`
`discoverable. Moreover, even if it were discoverable, it bears absolutely no relation to Phitek’s
`
`initial expert report on invalidity. It does not even bear any relation to Phitek’s rebuttal expert
`
`report since the subject of that report will be the opinions of Bose’s expert in its initial report, not
`
`Bose’s pre—suit investigation.
`
`BOSE’ s OPPOSITION TO PH1TEK’s MOTION TO MODIFY PROCEDURAL SCHEDULE——PAGE 3
`
`

`
`Phitek’s apparent second reason for wanting to modify the procedural schedule is that
`
`“Phitek will be unduly burdened to produce its expert report without the benefit of discovering
`
`the testing methodologies and results that are actually in dispute.” Mot. at 3; Mem. in Supp. at 1.
`
`Again, this reason cannot support an extension of time for Phitek to produce its initial expert
`
`report on invalidity. The “testing methodologies and results” of Bose’s expert will be the subject
`
`of Phitek’s rebuttal expert report, and under the agreed—upon schedule, each side has two weeks
`
`to prepare its rebuttal report.
`
`It is pure nonsense to suggest that “Phitek’s experts will be
`
`required to guess the manner in which Bose conducted its testing.” Mem. in Supp. at 6.
`
`In fact,
`
`when Phitek originally proposed that initial expert reports be due on May 26, 2008, Phitek did so
`
`with the notation that initial expert reports would include “identify[ing] tests/surveys/data.” Ex.
`
`B at Attachment p. 1. Thus, Phitek was contemplating from the beginning that it would receive
`
`Bose’s “tests/surveys/data” regarding infringement with Bose’s initial expert report.
`
`Next, Phitek contends that its proposed revised schedule is more consistent with
`
`“federal practice.” Mot. at 3; Mem. in Supp. at 1. Yet, Phitek does not explain what it means by
`
`this statement or in what way the current schedule is not consistent with “federal practice.” See
`
`. generally, Mem. in Supp. at 1—7. Moreover, whatever Phitek means regarding consistent
`
`“federal practice,” Phitek gives no explanation as to how it is inconsistent with Commission
`
`practice. Consequently, Bose submits that it should not affect the current schedule which was
`
`agreed-upon by all of the parties,1 approved by the Court, and under which the parties have been
`
`operating for months.
`
`Finally, Phitek contends that it is not seeking to modify or disturb any other deadlines in
`
`the procedural schedule. Mot. at 3; Mem. in Supp. at 1. However, while Phitek is not expressly
`
`1 It should be noted that Phitek seeks only to modify the procedural schedule with respect to
`itself. Mem. in Supp. at 6-7. None of the other respondents have joined Phitek’s motion, so
`they, like Bose, would presumably be bound to the original deadlines.
`
`BOsE’s OPPOSITION TO PHITEK’S MOTION TO MODIFY PROCEDURAL SCHEDULE———PAGE 4
`
`

`
`seeking to alter any other deadlines, its proposed modified schedule will affect numerous
`
`deadlines downstream. For example, as a result of Phitek’s extension, the window to depose
`
`experts is squeezed from sixteen days to nine days.
`
`Phitek has presented no arguments demonstrating good cause why the procedural
`
`schedule should be modified in its favor. Accordingly, Phitek’s motion should be denied.
`
`B.
`
`Phitek’s Proposed Modified Schedule is Entirely One-Sided
`
`Under the existing procedural schedule, each party puts in its initial expert report on the
`
`same day, then has two weeks to prepare a rebuttal report. This is typical practice at the
`
`Commission and fair to all parties. But with no apparent justification, Phitek now proposes a
`
`modified schedule whereby Phitek, and Phitek alone, gets an extra two weeks to prepare its
`
`initial expert report (from May 28 to June 11). Mem. in Supp. at 6. To tilt things even more in
`
`Phitek’s favor, Phitek proposes that it get three weeks to prepare its rebuttal to Bose’s initial
`
`report (from May 28 to June 18), while Bose gets only one week (from June ll to June 18) to
`
`prepare its rebuttal to Phitek’s initial report.
`
`Ia’. There is simply no justification for skewing the
`
`procedural schedule in Phitek’s favOr—particularly when it is undisputed that all of the parties
`
`previously agreed to the existing schedule. Indeed, when such schedule was agreed to, Phitek
`
`had already commenced its ill-conceived effort to obtain Bose’s pre—f1ling testing. To pull the
`
`plug on those agreed-upon deadlines now, on the eve of the exchange of expert reports, has no
`
`support in Commission practice or fundamental fairness, and thus would work a severe prejudice
`
`upon Bose.
`
`III.
`
`CONCLUSION
`
`For the foregoing reasons, Bose respectfully requests that Phitek’s motion be denied. For
`
`the Court’s convenience, a Proposed Order is included herewith.
`
`BOsE’s OPPOSITION TO PH1TEK’s MOTION TO MODIFY PROCEDURAL ScHEDULE——PAGE 5
`
`

`
`Respectfully submitted,
`
`FISH & RICHARDSON P.C.
`
`Dated: May 21, 2008
`
`Jeffrey R. Whieldon
`Autumn J .S. Hwang
`FISH & RICHARDSON P.C.
`
`1425 K Street, N.W.
`11"‘ 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
`
`BOsE’s OPPOSITION TO PH1TEK’S MOTION TO MODIFY PROCEDURAL SCHEDULE—PAGE 6
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on May 21, 2008, a copy of
`
`COMPLAINANT BOSE CORPORATION’S OPPOSITION TO RESPONDENT PHITEK
`
`SYSTEMS LIMITED’S (NZ) MOTION TO MODIFY PROCEDURAL SCHEDULE
`
`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
`
`The Honorable Charles E. Bullock
`Administrative Law Judge
`U.S. International Trade Commission
`500 E Street, S.W., Room 317-I
`Washington, DC 20436
`
`Christopher G. Paulraj, Esq.
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street, S.W., Room 404-I
`Washington, DC 20436
`
`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
`
`Counselfor Respondents Phitek Systems
`Limited, GNNetc0m, Inc., Creative Labs, Inc.,
`and Logitech Inc.
`
`Via Hand Delivery
`Via U.S. Mail
`Via Overnight Delivery
`Via Electronic Mail
`Via Facsimile
`
` Not Served
`
`Via Electronic Docket Filing
`
`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 Ovemight Delivery
`Via Electronic Mail
`
`Via Facsimile
`Via Electronic Docket Filing
`Not Served
`
`BOSE’S OPPOSITION TO PHITEK’S MOTION TO MODIFY PROCEDURAL SCHEDULE—-PAGE 7
`
`

`
`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
`
`Counselfor Respondents Phitek Systems
`Limited, GNNetcom, Inc., Creative Labs, Inc.,
`and Logitech Inc.
`
`James P. White, Esq.
`J. Aron Camahan, Esq.
`Welsh & Katz, Ltd.
`120 South Riverside Plaza, 22nd Floor
`Chicago, IL. 60606
`
`Counselfor 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
`
`Counselfor Respondent Audio-Technica U.S.,
`Inc.
`
`Daniel Ebenstein, Esq.
`Abraham Kasdan, Esq.
`Joseph Casino, Esq.
`David A. Boag, Esq.
`Amster, Rothstein & Ebenstein LLP
`90 Park Avenue
`
`New York, NY 10016
`
`Counselfor Respondent Panasonic
`Corporation ofNorth America
`
`Tom M. Schaumberg, Esq.
`Jamie D. Underwood, Esq.
`Adduci, Mastriani & Schaumberg, LLP
`1200 Seventh Street, N.W., Fifth Floor
`Washington, DC 20036
`
`Counselfor Respondent Panasonic
`Corporation ofNorth America
`
`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 Ovemight 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 PHITEK’S MOTION TO MODIFY PROCEDURAL SCHEDULE——PAGE 8
`
`

`
`For
`
`omp1a' an Bose Corporation
`
`BOsE’s OPPOSITION TO PH1TEK’s MOTION TO MODIFY PROCEDURAL SCHEDULE——PAGE 9
`
`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`WASHINGTON, D.C.
`
`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 RESPONDENT PHITEK SYSTEMS LIMITED’S (NZ)
`MOTION TO MODIFY PROCEDURAL SCHEDULE
`
`Having considered Phitek Systems Limited’s (NZ) (“Phitek”) Motion to Modify Order
`
`No. 4: Setting the Procedural Schedule, filed on May 9, 2008, it is determined that the motion
`
`should be, and hereby is, DENIED.
`
`So ORDERED this
`
`day of May, 2008.
`
`Hon. Charles E. Bullock
`
`Administrative Law Judge
`
`

`
`
`
`EXHIBIT A
`
`EXHIBIT A
`
`

`
`Andrew Kopsidas
`
`From:
`Sent:
`To:
`
`Cc:
`Subject:
`
`Andrew Kopsidas
`Wednesday, January 30, 2008 3:24 PM
`spence.chubb@usitc.gov; Nash, Bill; Fassold, Mark; Chapman, Dan; gbusey@mofo.com;
`acjohnston@mofo.com; cbeverage@mofo.com; White, James; Shekleton, Gerald;
`Carnahan, J. Aron; awineburg@akingump.com; dyonan@akingump.com;
`debenstein@arelaw.com; akasdan@arelaw.com; jcasino@arelaw.com;
`schaumberg@adduci.com; underwood@adduci.com
`Autumn J. Hwang; Jeffrey Whieldon
`Certain Noise Cancelling Headphones, USITC Inv. No. 337-TA-626
`
`Attachments:
`
`Proposed Schedule.doc
`
`Counsel, attached please find a proposed procedural schedule that Bose intends to file with its discovery statement this
`Friday. In an effort to obtain consensus, I am circulating it to the group to see if we can jointly propose one schedule to
`Judge Bullock. Please let me know if this proposed schedule is acceptable to you or if you have an alternative proposal.
`Thanks.
`
`Proposed
`Schedule.doc (76 KB)
`
`Andrew R. Kopsidas
`~ Fish & Richardson P.C.
`Intellectual Property | Litigation | Corporate
`1425 K Street, N.W., 11th Fl.
`Washington, D.C. 20005
`Tel: 202.626.6407
`Fax: 202.783.2331
`E-mail: kopsidas@fr.com
`www.fr.com
`
`1
`
`

`
`
`
`EXHIBIT B
`
`EXHIBIT B
`
`

`
`Certain Noise Cancelling Headphones, USITC Inv. No. 337-TA-626
`
`Page 1 of 2
`
`Andrew Kopsidas
`
`From:
`Sent:
`To:
`Cc:
`
`Nash, Bill [bnash@jw.com]
`Thursday, January 31, 2008 3:34 PM
`Andrew Kopsidas; spence.chubb@usitc.gov
`Autumn J. Hwang; Jeffrey Whieldon; Fassold, Mark; Chapman, Dan; gbusey@mofo.com;
`acjohnston@mofo.com; cbeverage@mofo.com; White, James; Shekleton, Gerald; Carnahan,
`J. Aron; awineburg@akingump.com; dyonan@akingump.com; debenstein@arelaw.com;
`akasdan@arelaw.com; jcasino@arelaw.com; schaumberg@adduci.com;
`underwood@adduci.com
`RE: Certain Noise Cancelling Headphones, USITC Inv. No. 337-TA-626
`Subject:
`Attachments: DOCSOPEN-#5006855-v2-
`Comparison_of_Bose_and_Respondents_Procedural_Schedule.DOC
`
`Andrew and Spence,
`
`Attached is the Respondents proposed procedural schedule. Respondents basically agree with the schedule with
`a few minor changes. The attached gives the date differences. The initials in the last column is the day of the
`week.
`
`In a nutshell, the difference is instead of Friday deadlines we have moved them to the next Monday. Since we
`must hand file documents with CBI and all of Respondents' counsel are in different states, giving the weekend to
`sign and ship the documents to DC counsel for filing is more efficient.
`
`Please let me know if Respondents proposed schedule is acceptable to you.
`
`Thanks
`
`Bill
`
`William B. Nash
`Registered Patent Attorney
`
`JACKSON WALKER L.L.P.
`112 E. Pecan Street, Suite 2400
`San Antonio, Texas USA 78205
`Phone: (210) 978-7700, Fax: (210) 242-4620
`bnash@jw.com; www.jw.com
`
`From: Andrew Kopsidas [mailto:ark@fr.com]
`S e n t : Wednesday, January 30, 2008 2:24 PM
`To: spence.chubb@usitc.gov; Nash, Bill; Fassold, Mark; Chapman, Dan; gbusey@mofo.com;
`acjohnston@mofo.com; cbeverage@mofo.com; White, James; Shekleton, Gerald; Carnahan, J. Aron;
`awineburg@akingump.com; dyonan@akingump.com; debenstein@arelaw.com; akasdan@arelaw.com;
`jcasino@arelaw.com; schaumberg@adduci.com; underwood@adduci.com
`Cc: Autumn J. Hwang; Jeffrey Whieldon
`S u b j e c t : Certain Noise Cancelling Headphones, USITC Inv. No. 337-TA-626
`
`Counsel, attached please find a proposed procedural schedule that Bose intends to file with its discovery
`
`5/12/2008
`
` 
` 
` 
` 
` 
` 
` 
`

`
`Certain Noise Cancelling Headphones, USITC Inv. No. 337-TA-626
`
`Page 2 of 2
`
`statement this Friday. In an effort to obtain consensus, I am circulating it to the group to see if we can jointly
`propose one schedule to Judge Bullock. Please let me know if this proposed schedule is acceptable to you or if
`you have an alternative proposal. Thanks.
`
`<<Proposed Schedule.doc>>
`
`Andrew R. Kopsidas
`~ Fish & Richardson P.C.
`Intellectual Property  |  Litigation  |  Corporate
`1425 K Street, N.W., 11th Fl.
`Washington, D.C.  20005
`Tel:  202.626.6407
`Fax:  202.783.2331
`E-mail:  kopsidas@fr.com
`www.fr.com
`
`****************************************************************************************************************************
`This email message is for the sole use of the intended recipient(s) and may contain
`confidential and privileged information. Any unauthorized use or disclosure is prohibited. If
`you are not the intended recipient, please contact the sender by reply email and destroy all
`copies of the original message.
`IRS CIRCULAR 230 DISCLOSURE: Any U.S. tax advice contained in this communication (including
`any attachments) is not intended or written to be used, and cannot be used, for the purpose
`of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or
`recommending to another party any transaction or matter addressed herein.
`
`****************************************************************************************************************************
`
`5/12/2008
`
`

`
`COMPARISON OF BOSE AND RESPONDENTS (Revised) PROPOSED
`PROCEDURAL SCHEDULES
`
`RESPONDENTS
`
`
`DIFFERENCE
`(F)
`
`
`
`
`EVENT
`First settlement
`conference
`Submission of first
`settlement conference
`joint report
`File identification of
`expert witnesses,
`including their expertise
`and curriculum vitae
`Second settlement
`conference
`Submission of second
`settlement conference
`joint report
`File notice of prior art
`
`Exchange of initial expert
`reports (identify
`tests/surveys/data)
`File tentative list of
`witnesses a party will call
`to testify at the hearing,
`with an identification of
`each witness’ relationship
`to the party
`Exchange of rebuttal
`expert reports
`Fact discovery cutoff and
`completion
`Deadline for motions to
`compel fact discovery
`Third settlement
`conference
`Expert discovery cutoff
`and completion
`
`BOSE
`On or before
`2/22/2008
`2/29/2008
`
`3/31/2008
`
`4 /7/2008
`
`4/11/2008
`
`
`
`
`
`
`
`
`
`4/18/2008
`
`4/21/08
`
`5/23/2008
`
`5/26/2008
`
`5/23/2008
`
`5/26/2008
`
`6/6/2008
`
`6/9/2008
`
`6/10/2008
`
`6/13/2008
`
`On or before
`6/16/2008
`6/20/2008
`
`
`
`
`
`
`
`
`
`(F)
`
`(M)
`
`(M)
`
`(F)
`
`3 days (from F to
`M
`3 days (from F to
`M)
`
`3 days (from F to
`M)
`
`3 days (from F to
`M)
`(T)
`
`(F)
`
`(M)
`
`(F)
`
`Comparison Bose and Phitek Procedural Schedule/dc-516359 v1
`
`01/30/2008 04:37 PM
`
`

`
`
`
`EVENT
`Submission of third
`settlement conference
`joint report
`Deadline for motions to
`compel expert discovery
`Deadline for filing
`summary determination
`motions
`Exchange of exhibit lists
`among the parties
`Submit and serve direct
`exhibits (including witness
`statements), with physical
`and demonstrative exhibits
`available – Complainant
`and Respondents
`Submit and serve direct
`exhibits (including witness
`statements), with physical
`and demonstrative exhibits
`available – Staff
`File pre-trial statements
`and briefs – Complainant
`and Respondents
`File requests for receipt of
`evidence without a witness
`File objections to direct
`exhibits (including witness
`statements)
`Submit and serve rebuttal
`exhibits (including witness
`statements), with rebuttal
`physical and
`demonstrative exhibits
`available – all parties
`File pre-trial statement and
`brief – Staff
`
`BOSE
`6/20/2008
`
`RESPONDENTS
`
`
`DIFFERENCE
`(F)
`
`6/25/2008
`
`
`
`(W)
`
`6/27/2008
`
`6/30/2008
`
`6/27/2008
`
`6/30/2008
`
`7/3/2008
`
`7/7/2008
`
`3 days (from F to
`M)
`
`3 days (from F to
`M)
`4 days (from Th
`to M)
`
`7/9/2008
`
`7/11/2008
`
`2 days (from W
`to F)
`
`7/16/2008
`
`
`
`(W)
`
`7/18/2008
`
`7/21/2008
`
`7/21/2008
`
`7/23/2008
`
`7/21/2008
`
`7/23/2008
`
`3 days (from F to
`M)
`2 days (from M
`to W)
`
`2 days (from M
`to W)
`
`7/21/2008
`
`7/23/2008
`
`2 days (from M
`to W)
`
`Comparison Bose and Phitek Procedural Schedule/dc-516359 v1
`2
`
`01/30/2008 04:37 PM
`
`

`
`
`
`EVENT
`Deadline for motions in
`limine
`File high priority
`objections statement
`File responses to motions
`in limine
`
`File responses to
`objections to direct
`exhibits (including witness
`statements)
`File objections to rebuttal
`exhibits (including witness
`statements)
`File responses to high
`priority objections
`statement
`File responses to
`objections to rebuttal
`exhibits (including witness
`statements)
`Tutorial on technology (if
`necessary)
`Pre-trial conference
`Trial
`File initial post-trial briefs,
`proposed findings of fact
`and conclusions of law,
`and final exhibit list
`File reply post-trial briefs,
`objections and rebuttals to
`proposed findings of fact
`Initial Determination due
`Target date for completion
`of investigation
`
`
`BOSE
`7/23/2008
`
`RESPONDENTS
`7/25/2008
`
`7/25/2008
`
`7/28/2008
`
`7/28/2008
`
`7/30/2008
`
`7/28/2008
`
`7/28/2008
`
`7/29/2008
`
`7/31/2008
`
`7/31/2008
`
`8/1/2008
`8/4-15/2008
`9/15/2008
`
`9/29/2008
`
`1/5/2009
`4/6/2009
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`DIFFERENCE
`2 days (from W
`to F)
`3 days (from F to
`M)
`2 days (from M
`to W)
`(M)
`
`(M)
`
`(T)
`
`(Th)
`
`(Th)
`
`(F)
`
`(M)
`
`(M)
`
`
`
`
`Comparison Bose and Phitek Procedural Schedule/dc-516359 v1
`3
`
`01/30/2008 04:37 PM
`
`

`
`
`
`EXHIBIT C
`
`EXHIBIT C
`
`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`WASHINGTON, D.C.
`
`Before the Honorable Charles E. Bullock
`
`Administrative Law Judge
`
`
`
` In the Matter of
`
`Investigation No. 337-TA—626
`
`CERTAIN NOISE CANCELLING
`
`HEADPHONES
`
`
`
`DISCOVERY STATEMENT OF BOSE CORPORATION
`
`Pursuant to Order No. 2, dated January 4, 2008, Complainant Bose Corporation
`
`(“Bose”) respectfully submits its discovery statement.
`
`1.
`
`DESCRIPTION OF INFORMATION AND EVIDENCE THAT BOSE
`
`INTENDS TO SUBMIT TO PROVE A VIOLATION OF SECTION 337
`
`To demonstrate that Respondents Phitek Systems Limited (New Zealand)
`
`(“Phitek—NZ”), Phitek Systems Limited (San Jose, Califomia) (“Phitek—US”),1 GN
`
`Netcom, Inc. (“GN”), Audio Technica U.S., Inc. (“Audio Technica”), Creative Labs, Inc.
`
`(“Creative”), Logitech Inc. (“Logitech”), and Panasonic Corporation of North America
`
`(“Panasonic”) (collectively, “Respondents”) have violated Section 377 of the Tariff Act
`
`of 1930, as amended, 19 U.S.C. § 1337, Bose intends to submit the following:
`
`1.
`
`Evidence demonstrating that Respondents’ noise cancelling headphones
`
`directly infringe one or more claims of United States Patent Nos. 5,181,252 and
`
`6,597,792 (collectively, the “Asserted Patents”).
`
`Counsel for Phitek—NZ has requested that Bose dismiss Phitek—US as a respondent. Bose is
`1
`currently evaluating that request and Phitek-NZ’s claim that Phitek—US does not exist.
`
`

`
`2.
`
`Evidence that Respondents’ noise cancelling headphones are imported,
`
`sold for importation, or sold in the United States after importation.
`
`3.
`
`Evidence demonstrating that a domestic industry exists with respect to
`
`each of the Asserted Patents within the meaning of Section 337(a).
`
`4.
`
`Evidence rebutting any affirmative defenses, including, but not limited to,
`
`invalidity or unenforceability asserted by Respondents.
`
`5.
`
`Evidence demonstrating the need for:
`
`(a) a permanent general exclusion
`
`order pursuant to Section 337(d) that bars from entry into and sale within the United
`
`States all noise cancelling headphones that infringe on any claim of the Asserted Patents
`
`or, altematively, a permanent limited exclusion order pursuant to Section 337(d) that bars
`
`from entry into and sale within the United States all noise—cancelling headphones that are
`
`manufactured, imported, or sold by or on behalf of Respondents, their affiliates,
`
`subsidiaries, successors, or assigns; (b) a permanent cease and desist order pursuant to
`
`Section 337(f) that prohibits Respondents, their affiliates, subsidiaries, successors, and
`
`assigns from marketing, demonstrating, distributing, offering for sale, selling, or
`
`otherwise transferring, including the movement or shipment of inventory, in the United
`
`States, or transferring outside the United States for sale in the United States any noise
`
`cancelling headphones; and (c) any other and further relief as the Commission deems
`
`appropriate and just under law.
`
`II.
`
`DESCRIPTION OF INFORMATION AND EVIDENCE THAT EACH
`PARTY WILL BE SEEKING FROM OTHER PARTIES OR THIRD
`
`PARTIES
`
`Bose will seek from Respondents and third parties evidence relating to the
`
`categories listed in Part 1.
`
`Discovery Statement of Bose Corporation
`
`2
`
`

`
`A.
`
`Information from Respondents
`
`Bose has served discovery requests on certain Respondents, and expects to serve
`
`additional discovery requests, that are directed toward various relevant categories of
`
`information, including information regarding the categories listed in Part I.
`
`Bose anticipates that it will seek additional discovery in the nature of depositions,
`
`further requests for documents and interrogatories, requests for admissions, and samples
`
`of accused devices, based on information received from Respondents through, inter alia,
`
`Respondents’ pleadings, discovery requests, and responses to discovery requests. Bose
`
`anticipates that it will also seek the depositions of Respondents’ fact and expert
`
`witnesses.
`
`B.
`
`Information from Third Parties
`
`Bose anticipates that it may require documents or depositions of third parties
`
`whose identities have not yet been determined. All third—party requests will be directed
`
`toward relevant categories of information, including the information and evidence
`
`described in Part I.
`
`III.
`
`INFORMATION THAT CAN ONLY BE OBTAINED BY DEPOSITION,
`INTERROGATORY, SUBPOENA, OR REQUEST FOR ADMISSION
`
`Bose anticipates that some information within each category of evidence in Partl
`
`must be obtained by deposition, interrogatory, subpoena, or requests for information.
`
`IV.
`
`PROPOSED PROCEDURAL SCHEDULE
`
`Pursuant to Order No. 2, counsel for Bose has conferred with counsel for
`
`Respondents (except for Phitek—US) and the Staff regarding the procedural schedule for
`
`the completion of this investigation and the due date for each of the events set forth in
`
`Discovery Statement of Bose Corporation
`
`3
`
`

`
`Ground Rule 2. Taking into consideration the anticipated hearing date of August 4, 2008,
`
`all represented parties have agreed upon and jointly propose the procedural schedule that
`
`is attached hereto as Attachment A. Bose believes that this investigation can be
`
`conducted expeditiously and can be completed within the 15 month target date, April 6,
`
`2009.
`
`Dated: February 1, 2008
`
`Respectfully submitted,
`FISH & RICHARDSON P.C.
`
`,
`
`
`
`By. K ~
`
`Andrew R. Kopsidas
`Jeffrey R. Whieldon
`Autumn J .S. Hwang
`1425 K Street, N.W., 11*“ F1.
`Washington, D.C. 20005
`Telephone: (202) 783-5070
`Facsimile: (202) 783-2331
`
`Charles Hieken
`
`Gregory A. Madera
`225 Franklin Street
`
`Boston, MA 02110
`
`Telephone: (617) 542-5070
`Facsimile: (617) 542-8906
`
`Jordan T. Fowles
`
`1717 Main Street
`
`Suite 5000
`
`Dallas, TX 75201
`
`Telephone: 214-747-5070
`Facsimile: 214-747-2091
`
`Attorneys for Complainant Bose Corporation
`
`Discovery Statement of Bose Corporation
`
`4
`
`

`
`Attachment A
`
`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`WASHINGTON, D.C.
`
`Before the Honorable Charles E. Bullock
`
`Administrative Law Judge
`
`
`
`CERTAIN NOISE CANCELLING
`
`HEADPHONES
`
`In the Matter of
`
`Investigation No. 337-TA—626
`
`,|OINT PROPOSED PROCEDURAL SCHEDULE
`
`Pursuant to Order No. 2, counsel for Complainant Bose Corporation (“Bose”) has
`
`conferred with counsel for Respondents Phitek Systems Limited (New Zealand),1 GN Netcom,
`
`Inc., Audio Technica U.S., Inc., Creative Labs, Inc., Logitech Inc., and Panasonic Corporation of
`
`North America and the Staff to agree upon a procedural schedule that includes dates for each of
`
`the events set forth in Ground Rule 2, taking into consideration the anticipated hearing date,
`
`August 4, 2008, and the target date, April 6, 2009, for this investigation. All of the above
`
`represented parties have agreed to the following proposed procedural schedule.
`
`
`
`
`
`
`
`
`Submission of first settlement conference joint report
`
`Pooooeeo Dooe
`0o or before 2/22/2008
`2/29/2008
`
`File identification of expert witnesses, including their
`expertise and curriculum vitae
`
`3/31/2008
`
`Second settlement conference
`
`On or before 4/7/2008
`
`Submission of second settlement conference joint report
`
`4/ 11/2008
`
`File notice of prior art
`
`
`
`4/21/08
`
`
`
`
`
`
`
`
`
`Phitek Systems Limited (San Jose, California) (“Phitek-US”) is also a Respondent. Counsel for Phitek
`1
`Systems Limited (New Zealand) (“Phitek-NZ”) has requested that Bose dismiss Phitek-US as a respondent. Bose is
`currently evaluating that request and Phitek—NZ’s claim that Phitek-US does not exist.
`
`

`
`Event
`
`Exchange of initial expert reports (identify
`tests/surveys/data)
`
`File tentative list of witnesses a party will call to testify at
`the hearing, with an identification of each witness’
`relationship to the party
`
`Proposed Date
`
`5/28/2008
`
`5/28/2008
`
`
`
`
`
`Exchange of rebuttal expert reports
`
`6/11/2008
`
`Fact discovery cutoff and completion
`
`Deadline for motions to compel fact discovery
`
`6/13/2008
`
`6/18/2008
`
`Third settlement conference
`
`On or before 6/16/2008
`
`Submission of third settlement conference joint report
`
`6/20/2008
`
`
`
`Expert discovery cutoff and completion
`
`Deadline for motions to compel expert discovery
`
`6/27/2008
`
`7/2/2008
`
`Deadline for filing summary determination motions
`
`6/30/2008
`
`Exchange of exhibit lists among the parties
`
`Submit and serve direct exhibits (including witness
`statements), with physical and demonstrative exhibits
`available — Complainant and Respondents
`
`
`
` Submit and serve direct exhibits (including witness
`
`
`
`
`statements), with physical and demonstrative exhibits
`available — Staff
`
`File pre—trial statements and briefs — Complainant and
`Respondents
`
`6/30/2008
`
`7/7/2008
`
`7/ 1 1/2008
`
`7/18/2008
`
`File