UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C.
`
`In the Matter of
`
`CERTAIN NOISE CANCELLING HEADPHONES
`
`
`u
`r
`’ - j
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`‘ 1
`Inv. No. 337-TA-626 Z:
`c
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`I
`ORDER NO. 9: DENYING MOTION TO MODIFY THE PROCEDURAL S C H E D ~ E
`
`(May 22,2008)
`
`On May 9,2008, Respondent Phitek Systems Limited (“Phitek”) filed a motion (626-01 6)
`
`to modifj Order No. 4: setting the procedural schedule. On May 21, 2008, Complainant Bose
`
`Corporation (“Bose”) filed an opposition to the motion. On May 21, 2008, the Commission
`
`Investigative Staff (“Staff ’) also filed an opposition to the motion. No other responses were received.
`
`Specifically, Phitek moves to extend the deadline to serve its initial expert report from May
`
`28, 2008 to June 11, 2008, and its rebuttal expert report from June 11,2008 to June 18, 2008.
`
`According to Phitek, because Bose is refusing to disclose the testing methodology and test
`
`calculations it uses to support its infringement claims, 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. Phitek specifically moves for only its initial expert report and rebuttal expert
`
`report deadline to be extended, and that all other parties be required to submit their initial and
`
`rebuttal expert reports by the date set forth in the procedural schedule. According to Phitek, “[ilt is
`
`consistent with federal practice for the party with the burden of proof to produce its expert report
`
`prior to the party without the burden of proof.”’
`
`’ See Motion at 3.
`
`
`
`Washington, D.C.
`
`In the Matter of
`
`CERTAIN NOISE CANCELLING HEADPHONES
`
`
`u
`r
`’ - j
`-
`‘ 1
`Inv. No. 337-TA-626 Z:
`c
`
`” i..-
`
`-
`
`I
`ORDER NO. 9: DENYING MOTION TO MODIFY THE PROCEDURAL S C H E D ~ E
`
`(May 22,2008)
`
`On May 9,2008, Respondent Phitek Systems Limited (“Phitek”) filed a motion (626-01 6)
`
`to modifj Order No. 4: setting the procedural schedule. On May 21, 2008, Complainant Bose
`
`Corporation (“Bose”) filed an opposition to the motion. On May 21, 2008, the Commission
`
`Investigative Staff (“Staff ’) also filed an opposition to the motion. No other responses were received.
`
`Specifically, Phitek moves to extend the deadline to serve its initial expert report from May
`
`28, 2008 to June 11, 2008, and its rebuttal expert report from June 11,2008 to June 18, 2008.
`
`According to Phitek, because Bose is refusing to disclose the testing methodology and test
`
`calculations it uses to support its infringement claims, 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. Phitek specifically moves for only its initial expert report and rebuttal expert
`
`report deadline to be extended, and that all other parties be required to submit their initial and
`
`rebuttal expert reports by the date set forth in the procedural schedule. According to Phitek, “[ilt is
`
`consistent with federal practice for the party with the burden of proof to produce its expert report
`
`prior to the party without the burden of proof.”’
`
`’ See Motion at 3.
`
`
`
`Both Bose and Staff oppose the motion. According to Bose, it does not comprehend why
`
`Phitek needs to know the details regarding Bose’s infringement testing before it can submit its expert
`
`report on which it bears the burden, i.e. invalidity. Staff also asserts that there is nothing in the
`
`current procedural schedule that is inconsistent with federal practice, as it is the Staffs
`
`understanding that the private parties will file their initial expert report on issues as to which they
`
`bear the burden of proof.
`
`While the undersigned does not have any objection to parties agreeing to exchanging initial
`
`and rebuttal expert report in the way requested by Phitek, such a request should have been made at
`
`the time the procedural schedule was initially set. To request that the expert report deadlines be
`
`changed at this time, without agreement of all parties, is unreasonable. The undersigned agrees that,
`
`in most instances, the party with the burden of proof does in fact produce its expert report prior to
`
`the party without the burden of proof, and that the procedural schedule set forth in this investigation
`
`is fully consistent with federal practice. For example, Bose’s initial expert report will touch on the
`
`issues of claim construction, infringement, and domestic industry, while Repondents’ initial expert
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`report will touch on the issues of claim construction, validity, and enforceability. Then, Bose’s
`
`rebuttal report will address the Respondents’ arguments in claim construction, validity, and
`
`enforceability, while Respodnents’ rebuttal report will address Bose’s arguments in claim
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`construction, infringement and domestic industry. The parties are encouraged to meet and confer
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`regarding their expectations with each other as to what topics will be covered in each parties initial
`
`and rebuttal expert reports.
`
`-2-
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`
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`Accordingly, good cause not having been shown, the motion (626-016) is hereby denied.
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`SO ORDERED.
`
`Administrative Law Judge
`
`-3-
`
`
`
`IN THE MATTER OF CERTAIN NOISE
`CANCELLING HEADPHONES
`
`337-TA-626
`
`CERTIFICATE OF SERVICE
`
`I, Marilyn R. Abbott, hereby certifl that the attached ORDER was served upon, Christopher
`G. Paulraj, Esq., Commission Investigative Attorney, and the following parties via first class
`,2008..
`mail and air mail where necessary on May 7 7
`
`500 E Street, S.W., Room 112A
`Washington, DC 20436
`
`FOR COMPLAINANT BOSE CORPORATION:
`
`Autumn J. Hwang, Esq.
`Ruffin B. Cordell, Esq.
`Andrew R. Kopsidas, Esq.
`Jeffrey R. Whieldon, Esq.
`FISH & RICHARDSON, P.C.
`1425 K Street, N.W., 1 lth Floor
`Washington, DC 20005
`
`Charles Hieken, Esq.
`Gregory A. Madera, Esq.
`Adam J. Kessel, Esq.
`FISH & RICHARDSON, P.C.
`225 Franklin Street
`Boston, MA 02 1 10
`
`Jordan Fowles, Esq.
`FISH & RICHARDSON P.C.
`1717 Main Street, Suite 5000
`Dallas, TX 75201
`
`
`
`IN THE MATTER OF CERTAIN NOISE
`CANCELLING HEADPHONES
`
`337-TA-626
`
`FOR RESPONDENTS PHITEK SYSTEMS LIMITED
`
`Alan Cope Johnson, Esq.
`G. Brian Busey, Esq.
`Cynthia Lopez, Esq.
`MORRISON & FOERSTER LLP
`2000 Pennsylvania Ave, N.W.
`Washington, DC 20006
`
`Dan Chapman, Esq.
`Mark Fassold, Esq.
`JACKSON WALKER L.L.P.
`112 E. Pecan Street, Suite 2400
`San Antonio, TX 78205
`
`FOR RESPONDENT AUDIO TECHNICA U.S., INC.
`
`Daniel E. Yonan, Esq.
`Arthur Wineburg, Esq.
`AKIN GUMP STRAUSS HAUER & FELD LLP
`1333 New Hampshire Avenue, N. W.
`Washington, DC 20036
`
`James P. White, Esq.
`Gerald T. Shekleton, Esq.
`J. Aron Carnanhan, Esq.
`WELSH & KATZ, LTD.
`120 South Riverside Plaza, 22"d Floor
`Chicago, IL 60606
`
`FOR RESPONDENT CREATIVE LABS INC.
`
`Alan Cope Johnston, Esq.
`G. Brian Busey, Esq.
`MORRISON & FOERSTER LLP
`2000 Pennsylvania Avenue, N.W., Suite 5500
`Washington, DC 20006
`
`
`
`IN THE MATTER OF CERTAIN NOISE
`CANCELLING HEADPHONES
`
`337-TA-626
`
`FOR RESPONDENT PANASONIC CORPORATION OF NORTH AMERICA
`
`Tom M. Schaumberg, Esq.
`Jamie D. Underwood, Esq.
`ADDUCI, MASTRIANI & SCHAUMBERG, L.L.P.
`1200 Seventh Street, N. W., Fifth Floor
`Washington, DC 20036
`
`Daniel S. Ebenstein, Esq.
`AMSTER ROTHSTEIN & EBENSTEIN, L.L.P.
`90 Park Avenue
`New York, NY 100 16
`
`RESPONDENTS:
`
`GN NETCOM, INC.
`77 Northeastern Boulevard
`Nashua, NH 03062
`
`LOGITECH INC.
`6505 Kaiser Drive
`Fremont, CA 94555
`
`Sherry Robinson
`LEXIS - NEXIS
`8891 Gander Creek Drive
`Miamisburg, OH 45342
`
`Ronnita Green
`Thomson West
`1 100 - 13* Street NW
`Suite 200
`Washington, DC 20005
`
`PUBLIC MAILING LIST
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