UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, DC
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`Before the Honorable Charles E. Bullock
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`Administrative Law Judge
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`In the Matter of
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`CERTAIN NOISE CANCELLING
`HEADPHONES
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`1"“ N°' 337'TA'626
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`RESPONDENT AUDIO—TECHNICA INCORPORATED’S MOTION FOR LEAVE TO
`FILE REPLY IN SUPPORT OF ITS MOTION TO SUPPLEMENT THE EXPERT
`REPORT OF ITS EXPERT MARSHALL BUCK TO ACCOUNT FOR
`NEW PRIOR ART JUST DISCOVERED‘
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`Pursuant to 19 C.F.R. §§ 210.15, 210.26, Respondent Audio-Technica Inc. (“Audio-
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`Technica”) hereby moves for leave to file the attached reply in order to clarify and address
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`misleading statements made in Complainant Bose Corporation’s (“Bose”) Opposition. Contrary
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`to Bose’s argument, good cause exists to supplement both the notice of prior art and Audio-
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`Technica’s initial expert report for at least the following two reasons.
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`First, the record shows that Audio-Technica never “ignored” locating an ANVT Model
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`NQ100 (“NQl00”) prior art headphone until it was too late in this investigation. Bose Opp. at 3.
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`Rather, once he was retained, Dr. Buck has continued to persist in his attempts to discover the
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`whereabouts of all relevant prior art, including the NQ100. See Buck Decl. at 1] 10. Dr. Buck
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`remembered the NQ100 from the time he was employed by Harman International, which he left
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`about 11 years ago. As part of his search, Dr. Buck contacted several former colleagues from
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`Harman. See Buck Decl. at 111] 9-10. However, because Harman had disbanded the division that
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`1 Audio-Technica has moved to supplement its expert’s opening report in view of newly discovered prior
`art. In its opposition, however, Bose has attempted to include objections to Audio-Techmca s supplemental notice
`of prior art — such objections should be separately addressed by motion from Bose.
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`

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`had the NQ100 at the time he left, Dr. Buck had trouble finding any trace of the device. When
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`Dr. Buck finally located his former colleague Chuck Willard, Mr. Willard told him he had an
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`NQ100 from ANVT that was purchased at auction by Harman. See Buck Decl. at ‘M 9-10. Mr.
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`Buck made arrangements to get
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`the specimen, and within five days upon learning of its
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`existence, drove to Mr. Willard’s office in Califomia and was given possession of it. Buck Decl.
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`at 1] 12. The NQ100 was then made available for inspection to counsel for Bose promptly
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`thereafter, when Audio-Technica’s counsel returned to his office from a Bose deposition. Ex. B
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`to Motion. As shown above and in Dr. Buck’s declaration, he did not simply make a haphazard
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`and belatedly “friendly request” to a former colleague. Bose Opp. at 2.
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`Instead, Dr. Buck
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`repeatedly and systematically tried to locate a physical sample; only recently was his
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`investigation successful.2
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`Second, any prejudice that Bose now claims is also without merit. Bose knew of the
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`NQ100 long before Audio-Technica brought it to Bose’s attention. Further, refutation of Dr.
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`Buck’s invalidity analysis is limited, and does not require weeks or months of testing and
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`analyses. What is also troubling is the NQ100 was disclosed to Bose and made available for
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`inspection as early as June 6 (which was 21 days before the close of expert discovery).
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`However, Bose has refused to inspect the unit, so that it could now argue its expert Dr. Begault
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`was already deposed and had “not yet had a meaningful opportunity to analyze [the ANVT
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`Headphone].” Bose Opp. at 3. Bose can only make that argument because it has refused to
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`2 Bose’s claim that Audio-Technica should have disclosed the NQ100 earlier (before Dr. Buck even knew
`whether such a unit still existed and confirm the unit would invalidate the patents in issue) is specious. Until the
`NQ100 could be located and analyzed, the only disclosure Audio-Technica could have possibly made to Bose was
`that Dr. Buck thought there could be a possible noise cancelling prior art headphone from another company. For
`Bose to suggest that such disclosure was required under such circumstances or that Bose would have accepted such
`disclosure as legitimate notice is nothing short of incredible.
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`inspect the unit and because it has insisted that Dr. Begault be deposed at the start of the expert
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`deposition schedule.
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`Accordingly, for at least the reasons set forth above, and in Audio-Technica’s original
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`motion and memorandum, Audio-Technica respectfully requests that the Administrative Law
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`Judge grant its Motion.
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`J11119 20, 2008
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`Respectfully submitted,
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`
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`J. Aron Carnahan
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`Craig M. Kuchii
`Welsh & Katz, Ltd.
`120 s. Riverside Plaza, 22"“ Floor
`Chicago, IL 60606
`Telephone: 312.655.1500
`Facsimile: 312.655.1501
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`Arthur Wineburg
`Daniel E. Yonan
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`AKIN GUMP STRAUSS HAUER & FELD LLP
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`1333 New Hampshire Ave, N.W.
`Washington, D.C. 20036
`Telephone: 202.887.4000
`Facsimile: 202.887.4288
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`Counselfor Respondent Audio-Technica U. S., Inc.
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`CERTIFICATE OF SERVICE
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`I hereby certify that on April 4, 2008 a copy of
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`RESPONDNENT AUDIO-TECHNICA, U.S. INC.’S MOTION TO JOIN RESPONDENT
`PHITEK’S MOTION TO COMPEL DISCOVERY FROM BOSE CORPORATION
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`l___?
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`was served on the following as indicated:
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`IX] Via Hand Delivery
`I:I Via U. S. Mail
`I:I Via Overnight Mail
`I:I Via Electronic Mail
`El Via Facsimile
`I:I Via Electronic Docket Filing
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`Marilyn R. Abbott
`Secretary
`U.S. International Trade Commission
`500 E Street, S.W., Room ll2-F
`Washington, DC 20436
`
`The Honorable Charles E. Bullock
`Administrative Law Judge
`U. S. International Trade Commission
`500 E Street, S.W., Room 317
`Washington, DC 20436
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`Via Hand Delivery (2 copies)
`Via U. S. Mail
`Via Ovemight Mail
`Via Electronic Mail
`Via Facsimile
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`E E C
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`l
`E]
`El
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`IXI Via Hand Delivery
`El Via U. S. Mail
`El Via Overnight Mail
`E Via Electronic Mail
`D Via Facsimile
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`I:I Via Hand Delivery
`IX] Via U. S. Mail
`I:I Via Overnight Mail
`CI Via Electronic Mail
`El Via Facsimile
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`T. Spence Chubb, Esq.
`Office of Unfair Import Investigations
`U. S. International Trade Commission
`500 E Street, S.W., Room 401
`Washington, DC 20436
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`Ruffin B. Cordell, Esq.
`Andrew R. Kopsidas, Esq.
`Jeffrey R. Whieldon, Esq.
`Charles Hieken, Esq.
`Gregory A. Madera, Esq.
`Adam J. Kessel, Esq.
`FISH & RICHARDSON P.C.
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`1425 K Street, N.W.
`Washington, DC 20005
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`Counselfor Complainant Bose Corporation
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`Alan Cope Johnston, Esq.
`G. Brian Busey, Esq.
`Cynthia Lopez Beverage, Esq.
`MORRISON FOERSTER LLP
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`2000 Pennsylvania Ave, NW
`Washington, DC 20006
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`EEEEE
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`Via Hand Delivery
`Via U. S. Mail
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`Via Overnight Mail
`Via Electronic Mail
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`Via Facsimile
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`Counselfor Respondent Phitek Systems Limited,
`GNNetcom, Inc., Logitech Inc. and Creative
`Labs, Inc.
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`Dan Chapman, Esq.
`Mark Fassold, Esq.
`JACKSON WALKER LLP
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`112 E. Pecan Street, Suite 2400
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`San Antonio, TX 78205
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`EEEEE
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`Via Hand Delivery
`Via U. S. Mail
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`Via Overnight Mail
`Via Electronic Mail
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`Via Facsimile
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`Counselfor Respondent Phitek Systems Limited,
`GNNetcom, Inc., Logitech Inc. and Creative
`Labs, Inc.
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`Daniel Ebenstein, Esq.
`Abraham Kasdan, Esq.
`Joseph Casino, Esq.
`AMSTER, ROTHSTEIN & EBENSTEIN LLP
`90 Park Avenue
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`EEEEE
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`Via Hand Delivery
`Via U. S. Mail
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`Via Overnight Mail
`Via Electronic Mail
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`Via Facsimile
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`New York, NY 10016
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`Counselfor Respondent Panasonic Corporation
`ofNorth America
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`Tom M. Schaumberg, Esq
`Jamie D. Underwood, Esq.
`ADDUCI, MASTRANI & SCHAUMBERG LLP
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`Via Facsimile
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`Via Hand Delivery
`Via U. S. Mail
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`Via Overnight Mail
`Via Electronic Mail
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`1200 Seventh Street NW, Fifth Floor
`Washington, DC 20036
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`Counselfor Respondent Panasonic Corporation
`ofNorth America
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`Young J. Cha/if
`Paralegal