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
`
`COMPLAINANT BOSE CORPORATION’S MOTION FOR LEAVE
`
`TO FILE A REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY
`
`DETERMINATION THAT THE QUIETCOMFORT 2 HEADSET PRACTICES
`AT LEAST ONE CLAIM OF EACH PATENT-IN-SUIT
`
`Complainant Bose Corporation (“Bose”) hereby moves for leave to file a Reply in
`
`Support of Its Motion for Summary Determination that the QuietComfort 2 Headset Practices at
`
`Least One Claim of Each Patent—in-Suit (“Bose’s Motion”). Bose seeks leave to file a reply to
`
`correct certain inaccuracies in Respondents Phitek Systems Lirnited’s (“Phitek”) and Creative
`
`Labs Inc.’s opposition to the Bose’s Motion. Respondent Audio-Technica U.S., Inc. (“Audio-
`
`Technica”) had joined Phitek’s and Creative’s opposition (“Respondents’ Opposition”). Filed
`
`herewith is Bose’s proposed Reply.
`
`Counsel for Bose certify that they have attempted in good faith to confer with counsel for
`
`Respondents and for the Office of Unfair Import Investigations. Counsel for Phitek and Creative
`
`indicated that they oppose this motion for leave. Audio-Technica has indicated that it reserves
`
`its right to oppose this motion for leave. The Commission Investigative Staff Attorney has
`
`indicated that he does not oppose this motion for leave.
`
`For these reasons, Bose respectfully requests that it be granted leave to respond to
`
`Respondents’ Opposition, and that the accompanying reply papers be accepted for filing.
`
`

`
`Respectfully submitted,
`
`FISH & RICHARDSON P.C.
`
`Dated: August 1, 2008
`
`Andrew R. Kopsidas
`Jeffrey R. Whieldon
`Autumn J.S. Hwang
`Steven A. Bowers
`
`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
`Stephen A. Marshall
`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
`
`

`
`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
`
`COMPLAINANT BOSE CORPORATION’S REPLY IN SUPPORT OF ITS MOTION
`
`FOR SUMMARY DETERMINATION THAT THE QUIETCOMFORT 2 HEADSET
`PRACTICES AT LEAST ONE CLAIM OF EACH PATENT-IN-SUIT
`
`There are simply no issues of disputed material fact that prevent the entry of summary
`
`determination in Bose’s favor with respect to the technical prong of domestic industry for the
`
`Asserted Patents. In opposition to Bose’s argument that the Bose QuietComfort 2 (“QC2”)
`
`headset practices at least claims 1 and 2 of the ‘792 patent, Respondents Phitek Systems Limited
`
`(“Phitek”), Creative Labs, Inc. (“Creative”) and Audio-Technica U.S., Inc. (“Audio-Technica”)
`
`(collectively, “Respondents”) assert one main argument:
`
`the parties dispute the proper
`
`construction of the claim term “cushion,” (appearing in claims 1 and 2 of the ‘792 patent) and
`
`this dispute is a factual dispute sufficiently material to defeat Bose’s Motion} Yet, as the Court
`
`knows well, claim construction is an issue of law, not fact, which the Court is well-suited-to
`
`1 Respondents appear also to be raising an indefiniteness argument with respect to claim 2 of the ‘792
`patent that is unsupported by any evidence save the say-so of one of Phitek’s experts, Dr. Winker.
`(Respondents’ Opposition at 8-9). Aside from the fact that this is an invalidity argument, and thus,
`cannot preclude summary determination of the technical prong of domestic industry, which is identical to
`infringement analysis, “conclusory expert assertions cannot raise triable issues of material fact on
`summary judgment.” Sitrick v. Dreamworks, LLC, 516 F.3d 993, 1001 (Fed. Cir. 2008). See also
`Dyriacore Holdings Corp. v. US. Philips Corp., 363 F.3d 1263, 1278 (Fed. Cir. 2004). Indeed, Phitek’s
`expert, opining on what one of ordinary skill in the art would have known in the late 1990s (without
`resort to any identifiable evidence), was not himself a person of ordinary skill in the art in the late 1990s
`(he lacked a technical degree, had no headset design experience and was, at the time, writing product
`reviews for a car stereo magazine). (Ex. M, Winker Depo. Tr. at 32:23-34:15, 312:7-15).
`
`

`
`decide in granting summary determination. Thus, a dispute over claim construction is not a
`
`sufficient reason, by itself, to deny summary determination. Indeed, because claim construction
`
`is the only dispute between the parties with respect to domestic industry for the ‘792 patent, this
`
`issue is ripe for summary determination. Furthermore, even using the flawed claim construction
`
`of “cushion” proposed by the Respondents, Bose’s QuietComfort 2 headset still meets all the
`
`claim limitations of claims 1 and 2 of the ‘792 patent — a conclusion affirmed, incredibly enough,
`
`by one of Respondents’ own technical experts.
`
`In opposition to Bose’s argument that the Bose QuietComfort 2 headset practices at least
`
`claim 1 of the ‘252 patent, Respondents assert just one argument:
`
`the parties dispute the proper
`
`methodology for measuring compliance, a parameter recited in claim 1. While that is definitely
`
`true, that dispute pertains only to the accused products. Respondents contend that the rear
`
`cavities of the accused headphones are so open and leaky that they do not have a calculable rear
`
`cavity compliance. Thus, Respondents contend, Dr. Begault’s method by which he measured
`
`and calculated a rear cavity compliance for each accused product is invalid. Setting aside the
`
`explanation as to why Respondents are wrong on that point, that dispute has absolutely no
`
`bearing on the instant motion: no Respondent has ever contended that the domestic industry
`
`product, the Bose QuietComfort 2, has a rear cavity that is so leaky as to prevent it from having
`
`a measurable rear cavity compliance. Respondents do not even know whether their “leakiness”
`
`theory applies to the QuietComfort 2, and thus, do not know whether Dr. Begault’s
`
`measurements of rear cavity compliance for the Bose QuietComfort 2 are incorrect.
`
`Respondents’ Capitulation on domestic industry is glaringly apparent from the fact that
`
`not one of Respondents’ three experts even contested Dr. Begault’s opinion that the
`
`QuietComfort 2 has a rear cavity compliance as measured by him. Only two of Respondents’
`
`

`
`three experts claim to have performed any analysis of the Bose QuietComfort 2: of the two, one
`
`expert testified as to his opinion that the QuietComfort 2 headset does meet the limitations of
`
`claim 1 of the ‘252 patent. The other, while testifying that he had no opinion whether the
`
`QuietComfort 2 headset met the limitations of claim 1 of the ‘252 patent, testified that the driver
`
`compliance of the QuietComfort 2 is higher than the rear cavity compliance (thus meeting the
`
`critical claim limitation of claim 1). The third Respondent expert affirmed that he had no
`
`opinion on the matter whatsoever. Consequently, any disagreement Respondents have with Dr.
`
`Begault’s testing methodology is necessarily limited to the supposedly too-leaky-to-measure
`
`accused products, and Respondents have no basis to refute Bose’s evidence that the
`
`QuietComfort 2 satisfies all of the limitations of claim 1 of the ‘252 patent.
`
`In opposing Bose’s Motion, Respondents propose over 30 statements of “fact” in
`
`opposition to Bose’s Motion. (See Exhibit 1 to Respondents’ Opposition at 23-30). Many of
`
`Respondents’ proposed statements of “fact” (in particular, Respondent statements of fact
`
`numbers 6-9, 16, 20 and 31), upon which Respondents rely heavily in their Opposition, are based
`
`on new arguments derived from recently-submitted trial witness statements that the parties have
`
`not yet had an opportunity to object to (Bose fully intends to object to these new arguments when
`
`objections are due at the end of September). (See id.) Insofar as these particular statements
`
`introduce new expert arguments and theories, after the close of expert discovery, these
`
`statements are objected to and should be rejected. (Tellingly, none of these particular
`
`Respondent statements of fact cite directly to any expert report or testimony generated before the
`
`close of discovery.) Other Respondent proposed statements of “fact,” such as number 28 that
`
`relates to Respondents’ construction for the ‘792 patent claim term “cushion,” (a central
`
`argument in Respondents’ Opposition) cites to no evidence whatsoever (tellingly, not even the
`
`

`
`‘792 patent specification), and is objected to as unsubstantiated and inadmissible attorney
`
`argument.
`
`The Court knows well the standards for granting summary determination. In response to
`
`Bose’s Motion, which included evidence that the QuietComfort 2 meets every limitation of claim
`
`1 of the ‘252 patent, the burden shified to Respondents to provide evidence that at least one
`genuine issue of material fact exists to preclude summary determination. Enzo Biochem, Inc. v.
`
`Gen—Probe, Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005); Vivid Technologies, Inc. v. American
`
`Science & Engineering, Inc., 200 F.3d 795, 806 (Fed. Cir. 1999) (“[T]he movant nonetheless
`
`bears the initial burden of coming forward with sufficient evidence to demonstrate that there is
`
`no material issue of fact that would preclude summary judgment, and that it is entitled to
`
`judgment as a matter of law. If the movant meets its initial burden, the burden of coming
`
`forward shifts to the party opposing the motion.”); Anderson v. Liberty Lobby, Inc., 477 U.S.
`
`242, 250 (1986) (“Rule 56(e) provides that, when a properly supported motion for summary
`
`judgment is made, the adverse party ‘must set forth specific facts showing that there is a genuine
`
`issue for trial.’”). Having failed to provide any such evidence, Respondents’ opposition is
`
`insufficient to deny Bose summary determination.
`
`I.
`
`A CLAIM CONSTRUCTION DISPUTE IS INSUFFICIENT GROUNDS TO
`
`DENY SUMMARY DETERMINATION THAT THE BOSE QUIETCOMFORT 2
`MEETS THE LIMITATIONS OF CLAIMS 1 AND 2 OF THE ‘792 PATENT
`
`Respondents’ basis for opposing Bose’s Motion with respect to ‘792 patent domestic
`
`industry is premised exclusively on a dispute over claim construction, which Respondents
`
`erroneously classify as a “material issue of fact,” and includes a inaccurate recitation of Bose’s
`
`proposed construction for the claim term “cushion”:
`
`

`
`Respondents and Bose disagree on construction the claim term “cushion” in
`independent claim 1 of the ‘792 patent, which creates a material issue of fact on
`Whether Bose’s QC2 practices this patent (since claim 2 is dependent upon claim
`1). Respondents construe “cushion” to mean a “resilient member” whereas Bose
`asserts it should be defined as “a pad stuffed with soft material such as foam.”
`
`(Respondents’ Opposition at 11-12 (emphasis added)).2
`
`Contrary to Respondents’ understanding of patent law, it is axiomatic that claim
`
`construction is a question of law for the Court to determine. Depuy Spine, Inc. v. Medtronic
`
`Danek, Inc., 469 F.3d 1005, 1013 (Fed. Cir. 2006) (citing Phillips v. AWY-I Corp, 415 F.3d 1303,
`
`1328 (Fed. Cir. 2005)); see also Research Plastics, Inc. v. Fed. Packaging Corp., 421 F.3d 1290,
`
`1295 (Fed. Cir. 2005) (citation omitted). Thus, if the only dispute with respect to the ‘792 patent
`
`is the proper construction of the claim term “cushion,” then there are no disputes of material fact
`
`to prevent granting summary determination with respect to the technical prong of domestic
`
`industry.
`
`Furthermore, even using Respondents’ erroneous claim construction for “cushion,”
`
`Bose’s QuietComfort 2 headset still meets the limitations of claim 1 and claim 2 of the ‘792
`
`patent. That is, Respondents’ proposed claim construction for “cushion,” which is “resilient
`
`member,” is plainly broader than, and encompasses, Bose’s proposed construction, “a pad
`
`stuffed with soft material, such as foam, covered by a material or combination of materials.”
`
`Thus, the dispute over which party’s construction of “cushion” is correct is entirely irrelevant
`
`here, since the Bose QuietComfort 2 headset meets the “cushion” limitations under both
`
`proposed claim constructions.
`
`2 Bose’s proposed claim construction for the term “cushion” is “a pad stuffed with soft material, such as
`foam, covered by a material or combination of materials.” For some reason, the bold, italicized portion
`of the foregoing was omitted by Respondents in their Opposition. (See Ex. N, Bose’s Fifth Supplemental
`Responses to Phitek’s First Interrogatories at 8-9; see also Ex. L to Respondents’ Opposition at 8).
`
`

`
`Underscoring Respondents’ inability to identify a single genuine dispute over a material
`
`issue of fact, of the three technical experts retained by Respondents in this matter, two of them
`
`have affirmed that they have no opinion regarding Whether the QuietComfort 2 meets the
`
`limitations of claim 1 or claim 2 of the ‘792 patent, and the other one actually agrees that the
`
`QuietComfort 2 headset meets the limitations of claim 1 and claim 2 of the ‘792 patent. (Exhibit
`
`J to Bose’s Motion at 5:4-6:15). In other words, Respondents cannot point to a single
`
`disagreement between their own experts and Bose’s technical expert (Who provided evidence in
`
`his report that the QuietComfort 2 meets the limitations of claim 1 and claim 2 of the ‘792
`
`patent) over whether the QuietComfort 2 headset meets the limitations of claim 1 or claim 2 of
`
`the ‘792 patent. With Respondents having identified nothing more than an immaterial question
`
`of law, and having absolutely no evidence supporting a disputed fact, Bose must be granted
`
`summary determination.
`
`II.
`
`RESPONDENTS’ DISAGREEMENT WITH BOSE’S EXPERT’S TESTING
`
`METHODOLOGY APPLIES ONLY TO HIS TESTING OF THE ACCUSED
`
`PRODUCTS AND IS IRRELEVANT TO THE ISSUE OF DOMESTIC
`
`INDUSTRY
`
`Respondents’ argument that the Bose QuietComfort 2 headset does not practice at least
`
`claim 1 of the ‘252 patent boils down to its contention that the compliance measurement
`
`methodology used by Bose’s technical expert is not proper because the alleged existence of
`
`leaks, or “holes” in the rear cavity of the QuietComfort 2 headset allegedly affects the
`
`compliance of the rear cavity itself:
`
`Because Dr. Begault’s test did not account for holes that are in the rear cavity of
`the QC2 [QuietComfort 2] earcup, this means that he cannot accurately state
`whether a particular compliance of the rear cavity of the QC2 exists as sold, or
`whether the driver compliance of the QC2 is greater than the compliance of the
`rear cavity.
`
`

`
`(Respondents’ Opposition at 7).
`
`While it is true that this line of faulty reasoning is the basis for Respondents’ non-
`
`infringement defense (a defense that Bose will debunk at trial), Respondents have never
`
`contended, or had an evidentiary basis to contend, that this argument applies to Bose’s
`
`QuietComfort 2 headset as well. While Respondents contend that the rear cavities of the
`
`accused headphones are so open and leaky that they do not have a calculable rear cavity
`
`compliance (and, therefore, according to Respondents, do not infringe the ‘252 patent), they have
`
`never done a similar analysis of ostensible “leakiness” on the QuietComfort 2 headset. Thus, no
`
`Respondent has ever contended (based on any evidence) that the domestic industry product, the
`
`Bose QuietComfort 2, has a rear cavity that is so leaky as to prevent it from having a measurable
`
`rear cavity compliance.
`
`Furthermore, none of Respondents’ experts has contended that the QuietComfort 2 is so
`
`leaky that Dr. Begault’s compliance measurement method is improper. Indeed, only two of
`
`Respondents’ three experts have performed any analysis of the Bose QuietComfort 2. The first
`
`of the two agreed in his deposition that the QuietComfort 2 meets all the claim limitations
`
`(including the rear cavity compliance-related limitation) of claim 1 of the ‘252 patent. The other,
`
`while testifying that he had no opinion whether the QuietComfort 2 headset met the limitations 2
`
`of claim 1 of the ‘252 patent, testified that theldriver compliance of the QuietComfort 2 is higher
`
`than the rear cavity compliance ~ conceding the key issue of dispute between the parties with
`
`respect to claim 1 ofthe ‘252 patent. That the Court should not credit Respondents’
`
`unsubstantiated attomey—argument about the QuietComfort 2’s compliance is underscored
`
`explicitly by testimony of each and every one of Respondents’ technical experts:
`
`0 Testimony of Respondent expert Dr. Buck:
`
`

`
`Okay. Have you evaluated — excuse me — have you evaluated any Bose products
`Q.
`in connection with your work on this case?
`
`A.
`
`Yes.
`
`Q.
`
`A.
`
`Okay. Which ones?
`
`The QC2.
`
`Have you formulated an opinion about Whether the QC2 practices any
`Q.
`claim of the ‘252 patent?
`
`A.
`
`Yes.
`
`Q.
`
`Okay. What is your opinion in that regard?
`
`I believe that it conforms with claim 1 of the ‘252 patent [that] claims a
`A.
`high compliance ratio between the driver and the rear cavity.
`
`Q.
`
`A.
`
`And you believe the QC2 practices that claim?
`
`I do.
`
`0 Testimony of Respondent expert Dr. Walker:
`
`Okay. And while I’m on the topic, do you have any opinion about
`Q.
`whether the QC2 practices Claims 1, 2 and 5 of the ‘252 patent?
`
`MR. FASSOLD: Objection, vague and confusing and calls for a legal conclusion.
`
`Let me just —— I'm familiar with 1, 2 and 5, but I Want to before I say yes or
`A.
`no have a look at them. It’s Exhibit A, correct? Sorry.
`
`Q.
`
`That's the one.
`
`Yeah, that’s it. Finally found it. No, I don’t have an opinion as to whether
`A.
`they meet Claim 1, 2 or 5 — the Bose QC2’s meet Claim 1, 2 or 5 or not.
`
`(By Mr. Kopsidas) Okay. Have you ever seen an ANR headphone with a driver
`compliance greater than the rear cavity compliance?
`
`l\/IR. FASSOLD: Objection; vague, confusing.
`
`A.
`
`Q.
`
`Yes, I believe that I have.
`
`(By Mr. Kopsidas) Okay. When was that?
`
`10
`
`

`
`A.
`
`Q.
`
`A.
`
`In regards to this test — or in regards to this case.
`
`Which one are you talking about?
`
`That would be the Bose QC2.
`
`o Testimony of Respondent expert Dr. Holland:
`
`Q.
`
`A.
`
`Did you test any Bose ANR headset?
`
`No.
`
`Do you have an opinion as to whether any Bose ANR headset products
`Q.
`meet the limitations of any claim of the ‘252 patent?
`
`MR. FASSOLD: Objection, vague, confusing and calls for a legal conclusion.
`
`A.
`
`Could you repeat the question?
`
`Of course. I’m sorry. Could you have an opinion as to whether any Bose
`Q.
`products — that is, ANR headsets — meet, for example, the limitations of claim 1 of
`the ‘252 patent?
`
`A.
`
`I don’t have an opinion.
`
`(Bose’s Motion at 17-21; Exhibit J to Bose’s Motion at 5:4—6:l5; Exhibit K to Bose’s Motion at
`
`24:20-25:20; Exhibit L to Bose’s Motion at 81 :21-82:24; Ex. M, Winker Depo. Tr. at 284:25—
`
`285: 10).
`
`Thus, the following conclusions are incontrovertible: (1) none of Respondents’ experts
`
`even contested Dr. Begault’s opinion that the QuietComfort 2 has a rear cavity compliance as
`
`measured by him; (2) none of Respondents’ experts analyzed the “leakiness” of the
`
`QuietComfort 2 to know whether “leakiness” is present to affect the proper testing methodology;
`
`(3) in deposition testimony, one of Respondents’ experts (Dr. Buck) agreed that the
`
`QuietComfort 2 headset meets the limitations of claim 1 of the ‘252 patent, another of
`
`Respondents’ experts (Dr. Winker) agreed that the driver of the QuietComfort 2 has a higher
`
`ll
`
`

`
`compliance than the rear cavity, while the third Respondent expert (Dr. Holland) affirmed that he
`
`had no opinion on the matter whatsoever; and (4) Respondents have failed to identify any actual
`
`data of their own (from the resonance shift method it champions) to contradict Bose’s measured
`
`results for QuietComfort 2’s rear cavity compliance.
`
`In short, Respondents have no basis to even know whether their “leakiness” theory
`
`applies to the QuietComfort 2, and have no basis to assert that Dr. Begault’s measurements of
`
`rear cavity compliance for the Bose QuietComfort 2 are incorrect. Respondents’ experts
`
`expressed no disagreement with Dr. Begault’s opinion on domestic industry. Any statements
`
`made by Respondents in their Opposition concerning the supposedly leakiness of the
`
`QuietComfort 2, or any alleged effect of leakiness on the compliance of the QuietComfort 2 is
`
`pure speculation and immaterial attorney argument, and in any event is directly refuted by the
`
`evidence (especially the opinions of its own experts) that is on the record. Respondents’
`
`Opposition to Bose’s Motion fails to raise any genuine issues of material fact. Accordingly,
`
`summary determination should be granted.
`
`III.
`
`CONCLUSION
`
`The issues presented here are all issues that can be resolved now by the Court as a matter
`
`of law because no genuine issue as to any material fact has been raised by any Respondent.
`
`Neither Respondents’ responses to Bose’s statements of undisputed fact, nor Respondents’
`
`additional proposed statements of fact, creates any genuine issues of disputed fact that would
`
`prevent summary determination. For the reasons above and those stated in Bose’s Motion, Bose
`
`respectfully requests the Administrative Law Judge to find that the Bose QuietComfort 2 headset
`
`meets the technical prong of domestic industry requirement for the ‘252 patent and ‘792 patent.
`
`l2
`
`

`
`Respectfully submitted,
`
`FISH & RICHARDSON P.C.
`
`Dated: August 1, 2008 i
`
`Jeffrey R. Whieldon
`Autumn J.S. Hwang
`Steven A. Bowers
`
`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
`Stephen A. Marshall
`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
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on August 1, 2008, a copy of
`
`COMPLAINANT BOSE CORPORATION’S MOTION FOR LEAVE TO FILE A REPLY
`
`IN SUPPORT OF ITS MOTION FOR SUMMARY DETERMINATION THAT THE
`
`QUIETCOMFORT 2 HEADSET PRACTICES
`AT LEAST ONE CLAIM OF EACH PATENT-IN-SUIT
`
`was served on the following as indicated:
`
`
`
`
`
`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
`
`EDDEDEEIDIEDCIDDEDEDDCIDCI
`
`
`
`
`
`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-I
`Washington, DC 20436
`
`Christopher Paulraj, Esq.
`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
`
`14
`
`

`
`
`
`
`William B. Nash, Esq.
`Via Hand Delivery
`
`Via U.S. Mail
`Daniel D. Chapman, Esq.
`Mark Fassold, Esq.
`
`Jackson Walker L.L.P.
`
`
`
`112 E. Pecan Street., Suite 2400
`
`San Antonio, TX 78209
`
`Dflflfiflfifl
`
`Via Overnight Delivery
`Via Electronic Mail
`
`Via Facsimile
`
`Via Electronic Docket Filing
`Not Served
`
`
`
`Counselfor Respondents Phitek Systems
`Limited, GNNetcom,' 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
`
`Counselfor Respondents Phitek Systems
`Limited, GNNetcom, Inc., Creative Labs, Inc.,
`
`and Logitech Inc.
`
`DDDEDED
`
`
`
`Via Hand Delivery
`Via U.S. Mail
`
`Via Overnight Delivery
`Via Electronic Mail
`
`Via Facsimile
`
`Via Electronic Docket Filing
`Not Served
`
`DDDEDED
`
`DDD&D®D
`
`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
`
`15
`
`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.
`Amster, Rothstein & Ebenstein LLP
`90 Park Avenue
`
`New York, NY 10016
`
`DDDEDED
`
`Via Hand Delivery
`Via U.S. Mail
`
`Via Overnight Delivery
`Via Electronic Mail
`
`Via Facsimile
`
`Via Electronic Docket Filing
`Not Served
`
`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
`
`
`
`Via Hand Delivery
`Via U.S. Mail
`
`Via Overnight Delivery
`Via Electronic Mail
`
`Via Facsimile
`
`DDDEDED
`
`Via Electronic Docket Filing
`Not Served
`Counselfor Respondent Panasonic
`
`
`Corporation ofNorth America
`
`
`
`'ce Thomas
`
`
`
`aralegal
`
`16
`
`

`
`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.:
`
`GRANTING COMPLAINANT BOSE CORPORATION’S MOTION FOR
`
`LEAVE TO FILE A REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY
`
`DETERMINATION THAT THE QUIETCOMFORT 2 HEADSET PRACTICES
`AT LEAST ONE CLAIM OF EACH PATENT-IN-SUIT
`
`On August 1, 2008, Complainant Bose Corporation filed a Motion for Leave to file a
`
`reply in support of its Motion for Summary Determination that the QuietComfort 2 Headset
`
`Practices at Least One Claim of Each Patent-in-Suit. Good cause having been shown, the
`
`Motion is GRANTED.
`
`SO ORDERED
`
`Date:
`
`Charles E. Bullock
`
`Administrative Law Judge
`
`

`
`COMPLAINANT BOSE CORPORATION’S REPLY IN SUPPORT OF ITS MOTION FOR SUNHVIARY
`
`DETERMINATION THAT THE QUIETCOMFORT 2 HEADSET PRACTICES
`AT LEAST ONE CLAIM OF EACH PATENT-IN-SUIT
`
`EXHIBIT M
`
`

`
`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
`
`ORAL & VIDEOTAPED DEPOSITION OF
`
`DOUGLAS F. WINKER, Ph.D.
`
`JUNE 24, 2008
`
`ORAL & VIDEOTAPED DEPOSITION of DOUGLAS F. WINKER,
`
`Ph.D., produced as a witness at the instance of the
`
`Complainant Bose Corporation and duly sworn, was taken
`
`in the above styled and numbered cause on the 24th day
`
`of June, 2008,
`
`from 9:09 a.m.
`
`to 10:35 p.m. before
`
`Michele W. Kuhlmann, CSR and Notary Public in and for
`
`the State of Texas,
`
`reported by method of machine
`
`shorthand at the offices of Jackson Walker, L.L.P., 112
`
`E. Pecan, Suite 2400, San Antonio, Texas, pursuant to
`
`the United States International Trade Commission's Rules
`
`of Practice and Procedure and the provisions stated on
`
`the record or attached hereto.
`
`Veritext National Deposition & Litigation Services
`866 299—5127
`
`

`
`Q. Now, you stated that -- you stated in your
`report that, quote, one of ordinary skill in the art at
`the time the invention was made would understand the
`word "cushion" to include any of the cushions described
`above.
`09:45:15
`A. Uh-huh.
`09:45:15
`Q. And can --
`09:45:17
`A. Go ahead.
`09:45:17
`
`Page 30
`09:45:02
`09:45:06
`09:45:10
`09:45:13
`
`Q. What you had described above was covered and
`uncovered.
`09:45:19
`A. Right.
`09:45:21
`
`09:45:17
`
`Q. Do you recall that opinion?
`A. Yeah.
`Can I go back to the definition of the
`cushion too --
`Q. Certainly.
`A.
`-- just real quickly?
`
`09:45:21
`09:45:21
`09:45:21
`09:45:23
`09:45:25
`09:45:25
`
`It also says here "used as a comfortable
`support for sitting or leaning on."
`
`09:45:26
`09:45:28
`
`Q. Uh-huh.
`A. And I don't believe we sit or lean on the
`cushions described in the '792 patent.
`
`09:45:32
`09:45:32
`09:45:34
`
`09:45:36
`Q. Okay. But —~
`A.
`$0 the complete definition here would be a pad
`or pillow stuffed with a mass of soft material used as a
`
`09:45:38
`09:45:40
`
`Page 31
`09:45:43
`
`09:45:45
`09:45:47
`09:45:49
`09:45:49
`09:45:56
`09:46:00
`09:46:02
`09:46:08
`
`09:46:11
`
`comfortable support for sitting or leaning on.
`Q. Okay.
`A.
`So it also defines an application for that
`particular definition.
`Q. All right. You'll agree with me, though, that
`the earcups do sit or lean on the head, right?
`A. They're placed against the head.
`Q. Okay. That's why you need a cushion, right, to
`make that softer and more comfortable?
`09:46:11
`A. Correct.
`Q. All right. Now, getting back to my previous
`question ~-
`09:46:15
`A. Sure. Sorry.
`09:46:15
`Q.
`-- you stated that one of ordinary skill in the
`09:46:17
`art at the time of the invention —- well, let me ask you
`09:46:19
`it this way.
`Is it your -- it's your opinion, is it
`09:46:23
`not, that one of ordinary skill in the art at the time
`09:46:26
`the invention was made would understand that the word
`09:46:30
`"cushion" includes both covered and uncovered foam?
`09:46:34
`A. Correct.
`09:46:38
`
`Q. Okay. How do you —- how do you know that?
`What's your basis for that statement?
`A. How would I say that one of ordinary skill in
`the art would assume "cushion" is covered or uncovered
`foam?
`09:46:49
`
`09:46:38
`09:46:41
`09:46:45
`09:46:47
`
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`
`Page 32 ‘A
`
`09:46:55
`Q. That's right.
`A.
`Just in looking at headphones in the past and
`looking at -- years of seeing headphones that they
`have -- they all have cushions and some of them are
`covered foam, some of them are uncovered foam.
`Q. Okay.
`09:47:10
`A.
`So I would assume that would be the definition
`that would be used.
`09:47:17
`
`09:46:56
`09:46:58
`09:47:00
`09:47:02
`
`09:47:13
`
`Q. Did you talk to anybody about this who in fact
`was a headphone designer at the time the invention was
`made?
`09:47:26
`
`5
`09:47:17
`09:47:21 n
`
`09:47:28
`A. No. Ijust recalled headphones I had seen back
`09:47:32
`in the '80s on Waikmans. For instance, I remembered
`09:47:34
`owning a Walkman in the early '80s that had an open cell
`foam cushion over the headset.
`09:47:38
`Q. Okay.
`09:47:40
`A.
`I mean, I remembered a particular thing I owned
`
`09:47:40
`
`years ago that was -— and even prior to that I've seen
`older headphones that had open cell foam on them. But
`
`that was the flrst one that came to my mind when they
`asked me was that. So it's been common practice to use
`both.
`09:48:00
`
`_
`09:47:41
`09:47:43 nn
`P%n
`09:47:47
`09:47:55 n
`2
`
`Q. Okay. Now, the time of the invention that
`you're referring to for the '792 patent is the date —-
`filing date, right, July 15, 1999?
`
`09:48:00
`09:48:04
`09:48:06
`
`Page 33 :
`09:48:10
`09:48:13
`09:48:19
`
`09:48:28
`09:48:34
`
`I know there's a bunch of
`Iwouid assume so.
`A.
`different dates on the legal -- on a p atent so whichever
`one would be the earliest I would assume would be the
`proper --
`09:48:23
`Q. Okay.
`09:48:25
`-- filing date but pun
`A.
`09:48:25
`Q. That's the one you were applying, July 15,
`1999, when you said at the time the invention was made?
`A. Yes.
`09:48:38
`09:48:41
`Q. Now, as of July 15, '99, you had a business
`09:48:47
`degree, correct?
`09:48:49
`A.
`July 15th of 1999? Yes.
`Q. Okay. You did not have any technical degree by
`09:48:56
`that point, right?
`09:48:58
`A. A formal technical degree by July, 1999? No, I
`did not.
`09:49:10
`Q. Okay. And your acoustics-related work
`experience consisted of Mobile Sound Systems, Stillwater
`Designs and Car Stereo Review Magazine, correct?
`A. That's correct.
`
`09:49:04
`
`09:49:11
`09:49:15
`09:49:21
`
`09:49:25
`
`Q. Okay. What was your -~ just tell me generally
`about what you were doing for Mobile Sound Systems.
`A. Mobile Sound Sys tems was prior to '99. That
`was a car audio retailer that I was working for.
`Q. Okay. And what were you doing for Car S tereo
`
`09:49:25
`09:49:28
`09:49:30
`09:49:36
`09:49:38
`
`’