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UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C.
`
`In the Matter of
`
`CERTAIN NOISE CANCELLING HEADPHONES
`
`Inv. No. 337-TA-626:
`7
`3
`-i
`I
`I-
`ORDER NO. 17: GRANTING RESPONDENT AUDIO-TECHNICA’S MOTION FQR
`LEAVE TO SUPPLEMENT THE EXPERT REPORT OF ITS EXPERT MARSHALL
`BUCK TO ACCOUNT FOR NEW PRIOR ART JUST DISCOVERED & SHORTBED
`TIME TO RESPOND TO THIS MOTION
`
`-4
`
`I
`
`r. 2
`0-
`
`(October 3,2008)
`
`On June 12,2008, Respondent Audio-Technica US (“AT”) moved for leave, pursuant to
`Ground Rule 6 and 19 C.F.R. 3 210.27(c), to supplement the expert report of Dr. Marshall Buck
`
`to take into account some newly discovered prior art that AT argued is material to the
`
`investigation. AT also moved for leave for a shortened response time, which was not granted.
`
`According to AT, Dr. Buck did not discover this prior art until he traveled to Valencia, California
`
`to meet with Chuck Willard on June 2,2008. Mr. Willard produced the ANVT NQ100’
`
`headphone and parts, which counsel for AT immediately disclosed to counsel for Complainant
`
`Bose Corporation (“Bose”). AT asserted that the prior art headphones are significant to AT’S
`
`defense because they are commercially available active, not passive, noise cancellation
`
`headphones.
`
`On June 18,2008, Bose filed an opposition to AT’S motion, claiming that AT was not
`
`diligent in discovering the ANVT NQ 100 headphone and therefore lacked good cause to
`
`The motion papers and proposed supplemental expert report refer to the prior art
`headphone as either the ANVT AQ100 or ANVT NQ 100. However, the photograph attached as part
`of Exhibit C shows the headphone is labeled ANVT NQ100.
`
`

`
`supplement. Bose further argued that it would be prejudiced by the addition of new prior art after
`
`the close of fact discovery and six weeks before the hearing.
`
`On June 20,2008, AT moved for leave to file a reply in support of its motion, which is
`
`hereby denied.
`
`The undersigned finds that AT’S motion for leave to supplement the expert report of Dr.
`
`Buck is granted.
`
`Ground Rule 6 sets forth the rules for expert reports, and provides for supplementation
`pursuant to Commission Rule 2 10.27(c). Section 210.27(c) imposes a & to seasonably
`
`supplement discovery that is incomplete or incorrect, and does not require a showing of good
`
`cause or lack of prejudice. 19 C.F.R. 210.27(c). However, the undersigned finds that Dr. Buck
`
`acted with reasonable diligence in searching for the ANVT NQ 100 headphone and parts, and that
`
`AT has good cause to amend the expert report. The undersigned notes that Order No. 12, which
`
`extends the procedural schedule of this Investigation, significantly reduces any possible prejudice
`
`to Bose.
`
`SO ORDERED.
`
`Y
`
`Charles E. Bullock
`Administrative Law Judge
`
`-2-
`
`

`
`IN THE MATTER OF CERTAIN NOISE
`CANCELLING HEADPHONES
`
`337-TA-626
`
`CERTIFICATE OF SERVICE
`
`I, Marilyn R. Abbott, hereby certify that the attached ORDER has been served upon,
`Christopher G. Paulraj, Esq., Commission Investigative Attorney, and the following parties via
`,2008..
`first class mail and air mail where necessary on October 3
`
`c
`
`US. International Trade Commission
`500 E Street, S.W., Room 112A
`Washington, DC 20436
`
`FOR COMPLAINANT BOSE CORPORATION:
`
`Andrew R. Kopsidas, Esq.
`FISH & RICHARDSON, P.C.
`1425 K Street, N.W., 1 lth Floor
`Washington, DC 20005
`
`FOR RESPONDENTS PHITEK SYSTEMS LIMITED
`
`Alan Cope Johnson, Esq.
`MORRISON & FOERSTER LLP
`2000 Pennsylvania Ave, N.W.
`Washington, DC 20006
`
`William B. Nash, Esq.
`JACKSON WALKER L.L.P.
`112 E. Pecan Street, Suite 2400
`San Antonio, TX 78205
`
`( )Via Hand Delivery
`( )Via Overnight Mail
`(&)Via First Class Mail
`( )Other:
`
`( )Via Hand Delivery
`( )Via Overnight Mail
`W V i a First Class Mail
`( )Other:
`
`( )Via Hand Delivery
`( )Via Overnight Mail
`&)Via First Class Mail
`( )Other:
`
`FOR RESPONDENT AUDIO TECHNICA U.S., INC.
`
`Arthur Wineburg, Esq.
`AKIN GUMP STRAUSS HAUER & FELD LLP
`1333 New Hampshire Avenue, N. W.
`Washington, DC 20036
`
`( )Via Hand Delivery
`( )Via Overnight Mail
`(4)Via First Class Mail
`( )Other:
`
`

`
`IN THE MATTER OF CERTAIN NOISE
`CANCELLING HEADPHONES
`
`33 7-TA-62 6
`
`J. Aron Carnanhan, Esq.
`WELSH & KATZ, LTD.
`120 South Riverside Plaza, 22"d Floor
`Chicago, IL 60606
`
`( )Via Hand Delivery
`( )Via Overnight Mail
`()()Via First Class Mail
`( )Other:
`
`FOR RESPONDENT CREATIVE LABS INC.
`
`G. Brian Busey, Esq.
`MORRISON & FOERSTER LLP
`2000 Pennsylvania Avenue, N.W., Suite 5500
`Washington, DC 20006
`
`( )Via Hand Delivery
`( )Via Overnight Mail
`(&)Via First Class Mail
`( )Other:
`
`FOR RESPONDENT PANASONIC CORPORATION OF NORTH AMERICA
`
`Tom M. Schaumberg, Esq.
`ADDUCI, MASTRIANI & SCHAUMBERG, L.L.P.
`1200 Seventh Street, N. W., Fifth Floor
`Washington, DC 20036
`
`( )Via Hand Delivery
`( )Via Overnight Mail
`(,q )Via First Class Mail
`( )Other:
`
`Daniel S. Ebenstein, Esq.
`AMSTER ROTHSTEIN & EBENSTEIN, L.L.P.
`90 Park Avenue
`New York, NY 100 16
`
`( )Via Hand Delivery
`( )Via Overnight Mail
`(y)Via First Class Mail
`( )Other:
`
`RESPONDENTS:
`
`GN NETCOM, INC.
`77 Northeastern Boulevard
`Nashua, NH 03062
`
`( )Via Hand Delivery
`( )Via Overnight Mail
`&)Via First Class Mail
`( )Other:
`
`

`
`IN THE MATTER OF CERTAIN NOISE
`CANCELLING HEADPHONES
`
`337-TA-626
`
`PUBLIC MAILING LIST
`
`Sherry Robinson
`LEXIS - NEXIS
`8891 Gander Creek Drive
`Miamisburg, OH 45342
`
`Kenneth Clair
`THOMSON WEST
`1100 - 13* Street NW
`Suite 200
`Washington, DC 20005
`
`( )Via Hand Delivery
`( )Via Overnight Mail
`(I()Via First Class Mail
`( )Other:
`
`( )Via Hand Delivery
`( )Via Overnight Mail
`O()Via First Class Mail
`( )Other:

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