Motorola's Second Appeal of ITC Dismissal

7/30/2019 Motorola's Second Appeal of ITC Dismissal

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UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

NOTICE OF DOCKETING

13-1417 - Motorola Mobili ty LLC v. ITC

Date of docketing : May 23, 2013Appeal from: U.S. International Trade Commission Investigation no. 337-TA-745

Appel lant(s ): Motorola Mobility, LLC

Critical dates include:

Date of docketing. See Fed. Cir. R. 12 and 15.

Certified list. See Fed. Cir. R. 17. Entry of appearance. (Due within 14 days of the date of docketing.) See Fed. Cir. R. 47.3.

Certificate of interest. (Due within 14 days of the date of docketing.) See Fed. Cir. R. 47.4.

Docketing Statement. (Due within 30 days of the date of docketing .) [Only in cases where all parties arerepresented by counsel. See the en banc order dated September 18, 2006, and guidelines available atwww.cafc.uscourts.gov.]

Requests for extensions of time. See Fed. Cir. R. 26 and 27. N.B. Delayed requests are not favored bythe court.

Briefs. See Fed. Cir. R. 31. N.B. You will not receive a separate briefing schedule from the Clerk'sOffice.

Oral Argument Schedule Confli cts: Counsel can expect oral argument to be set within 2 months of thefiling of final brief or appendix in a case. Counsel should advise the clerk's office of any potential conflict thatwould interfere with counsel's ability to appear for oral argument, and counsel should provide updates toinform the clerk's office of any potential conflict as it arises. The clerk's office will make every effort toaccommodate counsel's conflicts if counsel so advises the clerk's office prior to the time that the clerk's officesets the date for oral argument. After the date for oral argument is set, however, the date for oral argument

will not be postponed except on motion showing compelling circumstances. Counsel should be aware thatthe court's future oral argument schedule is posted on the court's website at www.cafc.uscourts.gov underthe oral argument tab.

Case: 13-1417 Document: 1-1 Page: 1 Filed: 05/23/2013 (1 of 14)


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UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

Official Caption1

2013-1417

MOTOROLA MOBILITY LLC(formerly known as Motorola Mobility, Inc.),

Appellant,

v.

INTERNATIONAL TRADE COMMISSION,

Appellee.

On appeal from the United States International Trade Commission inInvestigation No. 337-TA-745.



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QUinn emanueltrlallawvers Inew vork51 Madison Avenue, zznd Floor, Ne w York, New York woro-r6or j TEL (:2.12) 849-7000 FAX (ztz) 849-7100

May 21,2013VIA HAND DELIVERYJan HorbalyCircuit Executive & Clerk of CourtUnited States Court of Appeals

for the Federal Circuit717 Madison Place, N.W.Washington, D.C. 20439Re: Motorola Mobility LLC v. ITC, No. 13-Dear Mr. Horbaly:

WRITER'S DIRECT DIAL NO .(212) 849-7136WRITER'S INTERNET ADDRESS

[email protected]

Enclosed for filing are the original and three copies of Motorola Mobility LLC's Petition forReview of the United State International Trade Commission's Final Determination inInvestigation No. 337-TA-745 finding no violation of Section 337 as to U.S. Patent No.



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UNITED STATES COURT OF APPEALSFOR THE FEDERAL CIRCUIT

APPEAL NO.__MOTOROLA MOBILITY LLC,

Appellant,v.

INTERNATIONAL TRADE COMMISSION,Appellee.

On Appeal from the United States International Trade Commission,Investigation No. 337-TA-745



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Violation" entered on April 22, 2013 (attached as Exhibit 1) and its underlyingdeterminations, including, but not limited to, the Commission Opinion issued onApril 29, 2013 (attached as Exhibit 2) and the Initial Determination issued onDecember 18, 2012 (attached as Exhibit 3). This case was styled before the United

States International Trade Commission as In the Matter of Certain WirelessCommunication Devices, Portable Music and Data Processing Devices,Computers and Components Thereof, Inv. No. 337-TA-745.

A check for the docketing fee of $450.00 payable to "Clerk of Court, UnitedStates Court of Appeals for the Federal Circuit" as required by Fed. Cir. R. 52 isalso enclosed.Dated: May 21, 2013 Respectfully submitted,



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New York, NY 10010Telephone: (212) 849-7000Facsimile: (212) 849-7100David A. NelsonQUINN EMANUEL URQUHART &SULLIVAN, LLP500 West Madison Street, Suite 2450Chicago, IL 60661Telephone: (312) 463-2965Facsimile: (312) 463-2962Counsel for Motorola Mobility LLC



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EXHIBIT 1



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UNITED STATES INTERNATIONAL TRADE COMMISSIONWashington, D.C.

In the Matter ofCERTAIN WIRELESSCOMMUNICATION DEVICES,PORTABLE MUSIC AND DATAPROCESSING DEVICES, COMPUTERSAND COMPONENTS THEREOF

Investigation No. 337-TA-745

NOTICE OF COMMISSION DECISION FINDING NO VIOLATION OF SECTION 337AS TO U.S. PATENT NO. 6,246,862; TERMINATION OF INVESTIGATION WITH AFINDING OF NO VIOLATION

AGENCY: U.S. International Trade Commission.ACTION: Notice.SUMMARY: Notice is hereby given that the U.S. International Trade Commission has found noviolation of 337 of the Tariff Act of 1930, 19 U.S.C. 1337, in the above-captionedinvestigation with respect to U.S. Patent No. 6,246,862 ("the '862 patent"). The investigation isterminated with a finding of no violation.FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the GeneralCounsel, U.S. International Trade Commission, 500 E Street, S.W., Washington, D.C. 20436,



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.Patent No. 7,751,826 ("the '826 patent"). The complaint further alleges the existence of adomestic industry. The Commission's notice of investigation named Apple Inc. of Cupertino,California ("Apple") as respondent. The Office of Unfair Import Investigation ("OUII") wasnamed as a participating party, however, on July 29,2011, OUII withdrew from furtherparticipation in the investigation. See Commission Investigative Staffs Notice ofNonparticipation (July 29, 2011). The Commission later partially terminated the investigation asto the '317 patent and the '826 patent. Notice (June 28, 2011); Notice (Jan 27, 2012).

On April 24, 2012, the presiding administrative law judge ("ALJ") issued his final initialdetermination ("Final ID"), finding a violation of section 337 as to the '697 patent and noviolation of section 337 as to the '223 patent, the '333 patent, and the '862 patent. On May 9,2012, the ALJ issued a recommended determination on remedy and bonding.On June 25, 20 l 2, the Commission determined to review the Final ID in part. 77 Fed.Reg. 38826-29 (June 29, 20 12). On August 24, 20 l 2, the Commission found no violation withrespect to the '333 patent, the '697 patent, and the '223 patent. 77 Fed Reg 52759-761 (Aug.30, 2012). The Commission remanded the investigation to the ALJ with respect to the '862

patent upon reversing his finding that the patent is invalid as indefinite. Id ; see Order (Aug. 24,20 12). Specifically, the Commission instructed the ALJ to make findings regarding infringement,validity, and domestic industry concerning the '862 patent. The Commission's Order instructedthe ALJ to set a new target as necessary to accommodate the remand proceedings. On October I,2012, the ALJ issued Order No. 36, setting the target date for completion of the remandproceedings as April22, 2013. Order No. 36 (Oct. I, 2012). On October 18,2012, theCommission determined not to review the ID setting the new target date. Notice (Oct. 18, 20 12).

On December 18, 2012, the ALJ issued his final initial determination on remand("Remand ID"), finding no violation of section 337 with respect to the '862 patent. In particular,the ALJ found that the relevant accused products infringe claim 1 of the '862 patent literally andunder the doctrine of equivalents, but that claim 1 is invalid as anticipated by U.S. Patent No.



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patent. The Commission also determined to review the Remand ID's finding that the accusedproducts literally infringe claim I. The Commission further determined to review the Remand!D's finding that claim I of the '862 patent is anticipated and its finding that claim I was notshown to be obvious. The Commission determined not to review the remaining issues in theRemand ID and adopted those findings. In connection with the question ofwhether claim I ofthe '862 patent is obvious, the Commission posed the following question to the parties:

Does the evidence in the record support a finding that claim I of the '862patent is obvious in view ofHarris '464 in combination with theknowledge of one of ordinruy skill in the art or in combination withHoeksma '298 where the evidence demonstrates that the existence ofportable communication devices using "touch sensitive input devices,"including touch screens, were known in the art prior to the filing of theapplication leading to the '862 patent and is disclosed in Hoeksma '298?In discussing this issue, please refer to the teachings of the references, theknowledge of one of ordinary skill in the art at the time of filing ofthe '862 patent application, and the evidence in the record regarding themotivation to combine Harris '464 with the knowledge of one of ordinaryskill in the art or with Hoeksma '298. Also, please address whether thereare any secondary considerations that would prevent a finding ofobviousness.

78 Fed. Reg. at 12786.On March 8, 2013, Motorola and Apple filed initial submissions in response to theCommission's Notice ofReview. On March 15,2013, Motorola filed a response to Apple's

opening brief. Also on March 15,2013, Apple filed a response to Motorola's opening brief.Having examined the record of this investigation, including the ALJ's Remand ID and the



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The investigation is terminated. A Commission Opinion will issue shortly.The authority for the Commission's determination is contained in section 337 of the

Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.45, .49 of theCommission's Rules of Practice and Procedure (19 C.F.R. 210.45, .49).

By qrder of the Commission.

Lisa R. BartonActing Secretary to the CommissionIssued: April22, 2013



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CERTIFICATE OF FILING AND SERVICEI hereby certify that on the 21th day of May, 2013, two copies of

MOTOROLA MOBILITY LLC'S PETITION FOR REVIEW and the ENTRIESOF APPEARANCE FOR EDWARD J. DeFRANCO, ALEXANDER RUDIS,

MARK BAKER and MATTHEW A. TRAUPMAN were served by First ClassMail to:

Mark G. DavisW eil, Gotshal & Manges LLP1300 Eye Street, N.W., Suite 900Matthew D. PowersTensegrity Law Group LLP555 Twin Dolphin DriveSuite 360Redwood Shores, CA 94065Counsel for Apple Inc.



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IIIIRECEIPT FOR PAYMENTUnited States Court ofAppealsFor The Federal circuit

OFFICE OF THE CLERKReceivedFrom QVl1 c q . ~ c , n , . e . }) (NAME) .

- - - - - - - - - - - - ~ - - - ( - A D - D R - E S _ S _ ) _________ ~ i l 3(SHORT TITLE)CASE NO.)

Clerk's Fee for docketing caseCertificate of membershipCertified copy of

Copy of opinionCopy of documentsReimbursement fees

Deputy ~ U--f0

ACCOUNT AMOUNT~ / Q _ ~ , f , + - . , - t t r o PO?J

TOTAL l . . . f ~ ooCredit Card 0 Cash 0 Check . MONEYoORDER

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Motorola's Second Appeal of ITC Dismissal

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