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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
`
`I
`
`ORDER NO. is: DISMISSING IN PART AND DENYING IN PART BOSE’S MOTTON
`
`I
`
`c-3
`<- 7
`
`FOR SUMMARY DETERMINATION ON PROSECUTION HISTORY ESTOPPm,
`PROSECUTION LACHES, AND INEQUITABLE CONDUCT DEFENSES A S S E W D
`?7
`BY RESPONDENTS
`h3 cn
`
`(October 7,2008)
`
`On June 30, 2008, Complainant Bose Corporation (“Bose”) filed a motion (626-030) for
`
`summary determination on prosecution history estoppel, prosecution laches, and inequitable conduct
`
`defenses asserted by Respondents. On July 10,2008, Respondents Phitek Systems Limited (NZ)
`
`(“Phitek”), Creative Labs, Inc. (“Creative”) and Audio Technica, U S . Inc. filed an unopposed
`
`motion (626-034) for a two week extension of time to respond to Bose’s motion for summary
`
`determination, which is hereby granted. On July 24,2008, Phitek and Creative filed an opposition
`
`to the motion. On July 24, 2008, the Commission Investigative Staff (“Staff ’) filed a response in
`
`partial support of the motion. On August 1,2008, Bose filed a motion (626-037) for leave to file a
`
`reply, which is hereby denied. On October 1 , 2008, Bose filed a letter with the undersigned asserting
`
`that Bose is entitled to summary determination because Respondents, having filed their pre-hearing
`
`brief, have now abandoned most of these affirmative defenses. Specifically, Bose notes that, with
`
`the exception of Respondents’ theory of inequitable conduct with respect to the ‘252 patent on
`
`inventorship, Respondents have abandoned their other affirmative defenses by not raising them in
`
`their pre-hearing brief.
`
`

`
`The undersigned finds that a majority of Bose’s motion for summary determination is now
`
`moot. The undersigned’s Ground Rules state that all issues that are not set forth in the pre-hearing
`
`brief are deemed waived. As Respondents are no longer asserting the defenses ofprosecution history
`
`estoppel, prosecution laches, and certain theories as to inequitable conduct, there is no need for the
`
`undersigned to address these issues. Accordingly, Bose’s motion for summary determination on
`
`these issues is hereby dismissed as moot.
`
`As to the one remaining theory on inequitable conduct with respect to the ‘252 patent based
`
`on inventorship, having reviewed and considered Bose’s motion and the responses thereto and
`
`having found every aspect of the request to be opposed by Respondents and/or Staff, and finding that
`
`genuine issues of material fact may remain, the undersigned finds that good cause does not exist to
`
`grant the motion in lieu of a trial of this issues on the merits. Accordingly, Bose’s motion for
`
`summary determination on this issue is hereby denied.
`
`SO ORDERED.
`
`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
`OCT - 7 "r'I: , 2008..
`via first class mail and air mail where necessary on
`
`Marilyn R. Abbo
`U.S.
`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
`First Class Mail
`
`( )Via Hand Delivery
`( )Via Overnight Mail
`()()Via First Class Mail
`( )Other:
`
`( )Via Hand Delivery
`( )Via Overnight Mail
`First Class Mail
`
`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
`(XVia First Class Mail
`( )Other:
`
`

`
`IN THE MATTER OF CERTAIN NOISE
`CANCELLING HEADPHONES
`
`337-TA-626
`
`J. Aron Carnanhan, Esq.
`WELSH & KATZ, LTD.
`120 South Riverside Plaza, 22"d Floor
`Chicago, IL 60606
`
`( )Via Hand Delivery
`( )Via Overnight Mail
`(flVia 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
`()(1)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
`(X)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
`(@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
`889 1 Gander Creek Drive
`Miamisburg, OH 45342
`
`Kenneth Clair
`THOMSON WEST
`1100 - 13'h Street NW
`Suite 200
`Washington, DC 20005
`
`( )Via Hand Delivery
`( )Via Overnight Mail
`($)Via First Class Mail
`( )Other:
`
`( )Via Hand Delivery
`( )Via overnight Mail
`( )()Via First Class Mail
`( )Other:

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