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 IN LIMINE TO PRECLUDE
`RESPONDENTS FROM INTRODUCING TESTIMONY, EVIDENCE, AND
`ATTORNEY ARGUMENT REGARDING PRIOR ART WHICH WERE NOT
`PREVIOUSLY DISCLOSED
`
`
`Complainant Bose Corporation (“Bose”) submits this motion in limine, pursuant to 19
`
`C.F.R. § 210.37 and Ground Rule No. 5, to preclude Respondents from introducing at trial prior
`
`art which was not included in the Notice of Prior Art.
`
`Respondents filed a Joint Notice of Prior Art on April 21, 2008, a Supplemental Joint
`
`Notice of Prior Art on May 27, 2008, and a Second Supplemental Notice of Prior Art on June 12,
`
`2008. Ground Rule No. 5 requires that “Parties must file on or before the date set in the
`
`procedural schedule, notices of any prior art. . . . In the absence of such notice, proof of the said
`
`matters may not be introduced into evidence at the trial except upon a timely written motion
`
`showing good cause.” As was explained in HSP Modems, the Notice of Prior Art has the
`
`“important purpose of specifically informing the parties on which of the substantial number of
`
`prior art references that passed among the parties in discovery the other parties will actually
`
`rely,” in particular, so that an opposing party can focus its discovery and time on those noticed
`
`references. See Certain HSP Modems, Software and Hardware Components Thereof, and
`
`
`
`
`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 IN LIMINE TO PRECLUDE
`RESPONDENTS FROM INTRODUCING TESTIMONY, EVIDENCE, AND
`ATTORNEY ARGUMENT REGARDING PRIOR ART WHICH WERE NOT
`PREVIOUSLY DISCLOSED
`
`
`Complainant Bose Corporation (“Bose”) submits this motion in limine, pursuant to 19
`
`C.F.R. § 210.37 and Ground Rule No. 5, to preclude Respondents from introducing at trial prior
`
`art which was not included in the Notice of Prior Art.
`
`Respondents filed a Joint Notice of Prior Art on April 21, 2008, a Supplemental Joint
`
`Notice of Prior Art on May 27, 2008, and a Second Supplemental Notice of Prior Art on June 12,
`
`2008. Ground Rule No. 5 requires that “Parties must file on or before the date set in the
`
`procedural schedule, notices of any prior art. . . . In the absence of such notice, proof of the said
`
`matters may not be introduced into evidence at the trial except upon a timely written motion
`
`showing good cause.” As was explained in HSP Modems, the Notice of Prior Art has the
`
`“important purpose of specifically informing the parties on which of the substantial number of
`
`prior art references that passed among the parties in discovery the other parties will actually
`
`rely,” in particular, so that an opposing party can focus its discovery and time on those noticed
`
`references. See Certain HSP Modems, Software and Hardware Components Thereof, and
`
`
`
`
`
`
`
`Products Containing Same (“HSP Modems”), Inv. No. 337-TA-439, Order No. 53 at 4-5 (May
`
`14, 2001).
`
`Bose requests that Respondents be precluded from introducing at trial, without good
`
`cause, prior art which was not timely included in the Notices of Prior Art as required by Ground
`
`Rule No. 5. Testimony, evidence, and attorney argument regarding any alleged prior art which
`
`was not disclosed in their Notice of Prior Art and which was not subject of any expert report or
`
`expert deposition should be precluded as now irrelevant to the present Investigation. See HSP
`
`Modems, Order No. 78 at 7 (July 10, 2001). The admission of such testimony, evidence, and
`
`attorney argument would also work a severe prejudice on Bose by permitting the Respondents to
`
`have concealed prior art until it was too late for Bose to conduct any discovery related to the
`
`prior art.
`
`Accordingly, Respondents must be precluded from introducing at trial prior art omitted in
`
`Respondents’ Notice of Prior Art under 19 C.F.R. § 210.37 and Ground Rule 5.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`FISH & RICHARDSON P.C.
`
`
`
`
`
`
`
`
`
`
`Dated: October 17, 2008
`
`
`
`
`
`/s/ Autumn J. S. Hwang
`
`Ruffin B. Cordell
`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
`
`2
`
`
`
`
`
`
`
`
`
`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
`
`
`3
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on October 17, 2008, a copy of
`
`COMPLAINANT BOSE CORPORATION’S MOTION IN LIMINE TO PRECLUDE
`RESPONDENTS FROM INTRODUCING TESTIMONY, EVIDENCE, AND
`ATTORNEY ARGUMENT REGARDING PRIOR ART WHICH WERE NOT
`PREVIOUSLY DISCLOSED
`
`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
`
`
`Marilyn R. Abbott
`Secretary
`U.S. International Trade Commission
`500 E. Street, S.W., Room 112-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
`
`
`
`
`
`
` 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
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`William B. Nash, Esq.
`Daniel D. Chapman, Esq.
`Mark Fassold, Esq.
`Jackson Walker L.L.P.
`112 E. Pecan Street., Suite 2400
`San Antonio, TX 78209
`
`Counsel for Respondents Phitek Systems
`Limited, GN Netcom, 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
`
`Counsel for Respondents Phitek Systems
`Limited, GN Netcom, Inc., Creative Labs, Inc.,
`and Logitech Inc.
`
`
`James P. White, Esq.
`J. Aron Carnahan, Esq.
`Welsh & Katz, Ltd.
`120 South Riverside Plaza, 22nd Floor
`Chicago, IL. 60606
`
`Counsel for 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
`
`Counsel for Respondent Audio Technica U.S.,
`Inc.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 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
`
`/s/ Patrick Edelin, Jr.
`
`Patrick Edelin, Jr.
`
`
`
`
`
`
`
`
`Daniel Ebenstein, Esq.
`Abraham Kasdan, Esq.
`Joseph Casino, Esq.
`Amster, Rothstein & Ebenstein LLP
`90 Park Avenue
`New York, NY 10016
`
`Counsel for Respondent Panasonic
`Corporation of North America
`
`
`Tom M. Schaumberg, Esq.
`Jamie D. Underwood, Esq.
`Adduci, Mastriani & Schaumberg, LLP
`1200 Seventh Street, N.W., Fifth Floor
`Washington, DC 20036
`
`Counsel for Respondent Panasonic
`Corporation of North America
`
`
`
`
`
`
`
`
`
`
`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 IN LIMINE TO
`PRECLUDE RESPONDENTS FROM INTRODUCING TESTIMONY, EVIDENCE, AND
`ATTORNEY ARGUMENT REGARDING PRIOR ART WHICH WERE NOT
`PREVIOUSLY DISCLOSED
`
`
`
`Having considered Complainant Bose Corporation’s Motion In Limine to Preclude
`
`Respondents From Introducing Testimony, Evidence, and Attorney Argument Regarding Prior
`
`Art Which Were Not Previously Disclosed and determining that good cause has been show, IT
`
`IS HEREBY ORDERED that the Motion is GRANTED.
`
`Respondents from introducing at trial prior art which was not previously disclosed in
`
`Respondents’ Notices of Prior Art filed on April 21, 2008, May 27, 2008, and June 12, 2008
`
`
`
`So ORDERED this ______ day of ____________, 2008.
`
`
`
`
`
`Hon. Charles E. Bullock
`Administrative Law Judge
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
