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Apple Opposition to Motion to Strike

Apple Opposition to Motion to Strike

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Published by Mikey Campbell

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Published by: Mikey Campbell on Jan 02, 2013
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12/15/2013

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UNITED STATES INTERNATIONAL TRADE COMMISSIONWASHINGTON, D.C.
In the Matter of CERTAIN ELECTRONIC DEVICES,INCLUDING WIRELESS COMMUNICATIONDEVICES, PORTABLE MUSIC AND DATAPROCESSING DEVICES, AND TABLETCOMPUTERS
 
Investigation No. 337-TA-794
 
RESPONDENT APPLE INC.’S OPPOSITION TOCOMPLAINANTS’ MOTION TO STRIKE NOTICE OF NEW FACTSRELATED TO THE COMMISSION’S QUESTIONS ON THE ISSUES UNDER REVIEW, ANDON REMEDY, BONDING, AND THE PUBLIC INTEREST(77 Fed. Reg. 70464 (Nov. 26, 2012))
 
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 Apple opposes Samsung’s Motion to Strike (filed December 28, 2012) on the following grounds:1. Samsung presents no proper basis for striking Apple’s Notice of New Facts. Samsungrefers to the “alleged new facts” set out in the Notice, but never denies that these are indeed facts, nor thatthey are new. Because these are new facts, Apple could not have raised them during the earlier briefingto the Commission, and the Commission’s procedural order governing that briefing is thus inapposite.Indeed, Commission precedent permits parties to apprise the Commission of new facts relevant to issuesunder review and to the public interest.
See, e.g.
,
Certain Audible Alarm Systems for Divers
, Inv. No.337-TA-365, USITC Pub. 2903 (Aug. 1995), Comm’n Op. on Remedy, the Public Interest, and Bondingat 3 (June 6, 1995) (allowing supplementation of record with newly-discovered evidence on remedy: “TheCommission may make factual findings in the remedy phase of a section 337 investigation, to the extentnecessary, in order to reach its remedy determination, which may be based on the evidence of recordduring the violation phase of the investigation, or on the basis of submissions of the parties on remedy,the public interest, and bonding”);
cf 
. Commission Rule 210.14(d) (“The administrative law judge may,upon reasonable notice and on such terms as are just, permit service of a supplemental submission settingforth transactions, occurrences, or events that have taken place since the date of the submission sought tobe supplemented and that are relevant to any of the issues involved.”). Under that precedent—whichSamsung never addresses—Samsung’s Motion fails.2. Samsung’s Motion is Samsung’s attempt to avoid some highly inconvenient facts. Asnoted above, Samsung does not dispute the accuracy of these facts, namely that Samsung has withdrawnits requests for injunctive relief on allegedly standard-essential patents in its pending cases against Applein courts throughout Europe; that Samsung described its withdrawal decision as being made “in theinterest of protecting consumer choice” (Notice of New Facts, Ex. A); and that the European Commissionnonetheless has charged Samsung with violating European antitrust law, and has stated that it is “theCommission’s preliminary view that under the specific circumstances of this case, where a commitmentto license SEPs [standards-essential patents] on FRAND terms has been given by Samsung, and where a
 
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 - 2 -potential licensee, in this case Apple, has shown itself to be willing to negotiate a FRAND licence for theSEPs, then recourse to injunctions harms competition.” (
 Id.
, Ex. B.)3. Samsung makes a conclusory suggestion that the Administrative Law Judge had a morecomplete evidentiary record than the European Commission, including with respect to whether Apple is a“willing licensee.” But Samsung does not address any of the specific facts that the European Commissionhas examined, nor identify any evidence that was before the ALJ but not the European Commission. Assuch, Samsung provides no basis to question the European Commission’s preliminary findings thatSamsung has engaged in anticompetitive conduct by seeking injunctions on declared-essential patents,and that Apple has been willing to license FRAND patents on FRAND terms.4. Samsung’s attempt to use its motion to re-brief the merits also fails. Contrary toSamsung’s assertion, and as set forth more fully in Apple’s Contingent Petition for Review and itssubmissions in response to the Commission’s written questions, Apple fully met its burden on each of itsFRAND defenses.
First 
, Samsung’s purported FRAND licensing demand was REDACTED.
Second 
, REDACTED.
Third 
, through the testimony of Samsung’s licensing executives, Apple demonstrated that Samsung’slicense demand of Apple—REDACTED—was not fair, reasonable, or non-discriminatory. Specifically,Apple showed that Samsung REDACTEDand impose an unfair tax on the value of other, non-standardized features and functionalities in theaccused devices. Indeed, Samsung’s REDACTED—confirms that it is
Samsung
that has not been

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